United States District Court, E.D. Arkansas, Jonesboro Division
MARSHALL JR. UNITED STATES DISTRICT JUDGE.
many years, Hampton Pugh has bought and re-sold seed,
fertilizer, and crop-related items from Monsanto. Hampton
Pugh filed this case in the Circuit Court of Desha County,
alleging usury, fraud, and deceptive trade practices in that
relationship. That Circuit Court sits in Hampton Pugh's
south Arkansas hometown, McGehee. D&S collects on
accounts for Monsanto; Hampton Pugh sued that limited
partnership, too. Monsanto and D&S removed the case.
Their timely notice established diversity jurisdiction: the
parties are completely diverse; and the amount in controversy
exceeds $75, 000. They answered. Monsanto also counterclaimed
for breach of contract and unjust enrichment, saying Hampton
Pugh owes it several hundred thousand dollars. Monsanto and
D&S also moved to transfer to the United States District
Court for the Eastern District of Missouri. They invoked a
forum selection clause in an agreement between the parties.
Hampton Pugh responded with a motion to remand; as well as
arguments against transfer to the Eastern District of
Missouri. Monsanto and D&S then acknowledged that they
had made a mistake in removal procedure: they removed the
case to the wrong division- the Jonesboro division, not the
Pine Bluff division, which includes Desha County. They've
asked the Court to correct the divisional mistake with a 28
U.S.C. § 1406(a) transfer, and then enforce the forum
selection clause with a 28 U.S.C. § 1404(a) transfer.
Hampton Pugh presses for a return to the state court it
chose. If the case is removed to the Pine Bluff division,
Hampton Pugh argues, in a fall-back point, it should stay
general removal statute says certain cases "may be
removed by the defendant or the defendants to the district
and division embracing the place where such action is
pending." 28 U.S.C. § 1441(a). The statute
specifying removal procedure echoes and emphasizes this
point. The defendant "shall file in the district court
of the United States for the district and division within
which such action is pending a notice of removal"
covering specific ground. 28 U.S.C. § 1446(a). A
plaintiff such as Hampton Pugh, who does not want to waive a
removal defect that doesn't involve subject matter
jurisdiction, has thirty days after the notice to move for
remand. 28 U.S.C. § 1447(c). Hampton Pugh's motion
was timely. Out of respect for Arkansas and her courts, which
do most of the law work in this state pursuant to their
general jurisdiction, this court must construe all the
removal statutes strictly. Shamrock Oil & Gas Corp.
v. Sheets, 313 U.S. 100, 108-09 (1941); Syngenta
Crop Protection, Inc. v. Henson, 537 U.S. 28, 32 (2002);
Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 968
(8th Cir. 2007). No binding precedent from the United States
Court of Appeals for the Eighth Circuit exists in these
particular circumstances. The parties' citation of many
cases from across the country reflects this gap. The leading
treatise says the circuits are divided, and suggests that
curing this kind of defect by transfer, rather than remanding
the case, is the more sensible outcome. 14C Charles Alan
Wright & Arthur R. Miller, Federal Practice and
Procedure § 3739 at 821-24 (4th ed.). Monsanto and
D&S emphasize a close decision from this Court that took
this route. Scoular Company v. DJCB Farm
Partnership, 2009 WL 2241592 (E.D. Ark. 24 July 2009).
Hampton Pugh emphasizes an older decision from the Western
District of Arkansas that ordered remand. Willingham v.
Creswell-Keith, Inc., 160 F.Supp. 741, 743-44 (W.D. Ark.
1958). Both precedents are entitled to respect, but neither
Court agrees with the parties that their dispute is not about
subject matter jurisdiction. It exists. Otherwise, remand
would be mandated. "If at any time before final judgment
it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded." 28 U.S.C.
§ 1447(c). Instead, the dispute calls on the Court's
judgment in applying the removal statutes. For five reasons,
the Court concludes that this case should be remanded.
the statute's rule about where to remove is clear. The
correct district and division are required. This is not a
situation in which the law's requirement is vague or
the key verb in the statute prescribing the general removal
requirements is shall. When Congress uses that word it
usually means must. Kingdomware Techs., Inc. v. United
States, 136 S.Ct. 1969, 1977 (2016).
28 U.S.C. § 1447(c) authorizes timely motions to remand
based on non-jurisdictional defects. This provision's
premise is that defects of this kind can justify remand.
this area of the law needs clear and certain criteria.
Parties and courts need to know -at the door -where cases
will be handled. The initial thirty-day deadlines help
achieve this clarity. If removed cases come with the
likelihood of tangled motions asking what are essentially
substantial compliance questions, then certainty will be
compromised and cases will bog down, as this one has. The law
about removal should minimize that possibility.
four of these reasons arise from a strict construction of the
removal statutes. Respecting the plenary jurisdiction of the
state courts and the limited jurisdiction of this Court
drives that construction. The Scoular decision is
reasonable, pragmatic, and commendably forgiving of human
error. But it does not wrestle with the principle that
parties must turn square corners when effecting or disputing
removal. Where the statute gives no particulars, there's
some flexibility. How all the defendants express their
consent to removal is a good example. Griffioen v. Cedar
Rapids and Iowa City Railway Co., 785 F.3d 1182, 1187-88
(8th Cir. 2015). If procedural defects are cured (or at least
ventilated) within the thirty-day removal period, then no
harm, no foul. Macri v. M&M Contractors, Inc.,
897 F.Supp. 381, 383-84 (N.D. Ind. 1995). As Hampton Pugh
argues from the record in Scoular, something similar
happened there: the defendant recognized its venue mistake,
and moved for transfer during its removal period. Supplying
an omitted paper would probably fall in the same category.
But see Kisor v. Collins, 338 F.Supp.2d 1279 (N.D.
Ala. 2004) (omitted state court summons led to remand).
Highlighting cases that would come out differently leads to a
fifth and final reason for remand.
Court must consider all the circumstances here and weigh this
procedural defect. There was no complicated legal question
about which court to remove to. Compare Scoular,
2009 WL 2241592 (defendant followed the wrong venue
provision). The statute creating the divisions in the Eastern
District of Arkansas is clear about which counties are in
which divisions. 28 U.S.C. § 83(a). There was no
confusion created by the names of various courts and
divisions. Compare Shamrock Manufacturing Co. v. Ammex
Corp., 2010 WL 3153976, at *1 (E.D. Cal. 9 Aug.
2010)(eastern district versus eastern division of central
district). No elusive prose co-defendant was
involved. Compare Lewis v. West Memphis Meadows 1998
Apartments LP, No. 3:14-cv-92-DPM, N° 14.
Each side is represented by able and experienced counsel.
Each side has a forum preference and is working hard to
secure its choice. Monsanto and D&S have provided no
explanation for the mistake, and the Court concludes it was
simply the kind of fumble that human beings, including
careful lawyers, make every day. Monsanto and D&S did not
seek to cure the mistake during their removal period. If the
removal had been a day late under the statute because of a
calendaring error, remand would almost certainly result.
Schild v. Tymco, Inc., 842 F.Supp. 225, 226 (M.D.
La. 1994). If the attached state court file had been
incomplete, that hole probably could be filled, especially if
the omitted material wasn't a critical document.
Usatorres v. Marina Mercante Nicaraguenses, 768 F.2d
1285, 1286-87 (11th Cir. 1985) (per curiam). Removing a case
to the wrong division of the right court is more akin to
missing the deadline than to omitting a state court paper.
Monsanto and D&S have offered no case-specific
circumstances that would justify the Court in holding that
this removal defect should be cured by transfer.
these reasons, Monsanto's embedded request for a
divisional transfer is denied; and Hampton Pugh's motion,
Nq 12, is granted. The case is remanded to the