eaning of § 1441(b)(2) and conclude that "removal before service of an in-forum defendant is permissible based on the 'properly joined and served' language." Cheatham v. Abbott Labs. Inc., 323 F. Supp. 3d 991, 995 (N.D. Ill. 2018); see also, e.g., Grandinetti v. Uber Techs., Inc., No. 19 C 05731, 2020 WL 4437806, at *7 (N.D. Ill. Aug. 1, 2020); Graff, 299 F. Supp. 3d at 937; Selective Ins. Co. of S.C. v. Target Corp., No. 13 C 5910, 2013 WL 12205696, at *1 (N.D. Ill. Dec. 13, 2013); Maple Leaf Bakery v. Raychem Corp., No. 99 C 6948, 1999 WL 1101326, at *2 (N.D. Ill. Nov. 29, 1999); In re Yasmin & Yaz (Drospirenone) Mktg., Sales Practices & Relevant Prods. Liab. Litig., No. 3:09-md-02100-DRH-PMF, 2010 WL 3937414, at *11 (S.D. Ill. Oct. 4, 2010); Test Drilling Serv. Co. v. Hanor Co., 322 F. Supp. 2d 953, 957 (C.D. Ill. 2003); In re Bridgestone/Firestone, Inc., 184 F. Supp. 2d 826, 828 (S.D. Ind. 2002); Rogers v. Boeing Aerospace Operations, Inc., 13 F. Supp. 3d 972, 978 (E.D. Mo. 2014); Holmes v. Lafayette, No. 4:11CV021-B-S, 2013 WL 654449, at *1 (N.D. Miss. Feb. 21, 2013); Harvey v. Shelter Ins. Co., No. 13-392, 2013 WL 1768658, at *2 (E.D. La. Apr. 24, 2013); Goodwin v. Reynolds, No. 2:12-cv-0033-SLB, 2012 WL 4732215, at *3 (N.D. Ala. Sept. 28, 2012); Gibson v. Wal-Mart Stores E., LP, No. 5:09-CV-228 (HL), 2010 WL 419393, at *4 n. 2 (M.D. Ga. Jan. 28, 2010); Chace v. Bryant, No. 4:10-CV-85-H, 2010 WL 4496800, at *2 (E.D.N.C. Nov. 1, 2010); Ott v. Consol. Freightways Corp. of Delaware, 213 F. Supp. 2d 662, 666 (S.D. Miss. 2002). The statutory text must control.
Id. at 937 ; see also Selective Ins. Co. of S. Carolina v. Target Corp. , 2013 WL 12205696, at *1 (N.D. Ill. Dec. 13, 2013) ; Harvey v. Shelter Ins. Co. , 2013 WL 1768658, at *2 (E.D. La. Apr. 24, 2013) ("[T]he plain language of the statute must prevail over the plaintiff's policy arguments to the contrary."); Holmes v. Lafayette , 2013 WL 654449, at *1 (N.D. Miss. Feb. 21, 2013) ("The plain language of the statute provides that the forum defendant be ‘properly joined and served’ to prevent removal."); Goodwin , 2012 WL 4732215, at *6 ; Robertson v. Iuliano , 2011 WL 453618, at *3 (D. Md. Feb. 4, 2011) ; Chace v. Bryant , 2010 WL 4496800, at *2 (E.D.N.C. Nov. 1, 2010) ; In re Yasmin & Yaz (Drospirenone) Mktg., Sales Practices & Relevant Prods. Liab. Litig. , 2010 WL 3937414, at *11 (S.D. Ill. Oct. 4, 2010) (where action removed before forum defendant served, motion to remand was denied); Maple Leaf Bakery v. Raychem Corp. , 1999 WL 1101326, at *2 (N.D. Ill. Nov. 29, 1999) (where nonresident defendants were not served at time of removal, their status cannot defeat removal under the plain language of § 1441(b) ).Judge St. Eve acknowledged that the situation in Graff was not a "snap removal" situation, as the non-forum defendant had filed the notice of removal in a case involving both forum and non-forum defendants and, therefore, there were no associated gam
... ‘As many courts have recognized, therefore, an unserved forum defendant will generally not defeat removal.’ ") (citations omitted); Harvey v. Shelter Ins. Co. , 2013 WL 1768658, *2 (E.D. La. Apr. 24, 2013) (explaining that § 1441(b)(2)"plainly provides that a civil action may not be removed if any defendant that has been joined and served is a forum defendant," and that "the plain language of the statute must prevail over the plaintiff's policy arguments to the contrary"); Holmes v. Lafayette , 2013 WL 654449, *1 (N.D. Miss. Feb. 21, 2013) ("The plain language of the statute provides that the forum defendant be ‘properly joined and served’ to prevent removal."); Goodwin v. Reynolds , 2012 WL 4732215, *3 (N.D.Ala. Sept. 28, 2012) (holding that "the ‘majority’ of courts follow the plain language of 1441(b) and allow non-forum defendants to remove where a forum defendant remains unserved"); Chace v. Bryant , 2010 WL 4496800, *2 (E.D. N.C. Nov. 1, 2010) ("There is no dispute that...the resident defendant, had not been served at the time of removal.... Therefore, 28 U.S.C. § 1441(b) does not apply to bar removal of this action."); In re Yasmin & Yaz (Drospirenone) Mktg., Sales Practices & Relevant Prods. Liab. Litig. , 2010 WL 3937414, *11 (S.D. Ill. Oct. 4, 2010) ("The Bayer Defendants removed this action on May 1, 2009 at 11:18 am.... Plaintiffs served McKesson on May 1, 2009 at 1:50 pm.... This fact, standing alone, is a sufficient ground for denying Plaintiff's motion to remand."); Gibson v. Wal–Mart Stores E., LP , 2010
Many woodenly apply the "properly joined and served" language and permit pre-service removal, being of the view that this is in keeping with the literal language of the statute.See, e.g., Rogers v. Boeing Aerospace Operations, Inc., 13 F.Supp.3d 972, 978 (E.D. Mo. 2014) ("Under the plain, unambiguous language of Section 1441(b)(2), an out-of-state defendant may remove a diversity case if at least one defendant—and no forum defendant—has been served."); Harvey, 2013 WL 1768658, at *2 (stating that " § 1441(b)(2) plainly provides that a civil action may not be removed if any defendant that has been joined and served is a forum defendant," and that "the plain language of the statute must prevail over the plaintiff's policy arguments to the contrary"); Holmes v. Lafayette, 2013 WL 654449, at *1 (N.D. Miss. Feb. 21, 2013) ("The plain language of the statute provides that the forum defendant be ‘properly joined and served’ to prevent removal."); Ott, 213 F.Supp.2d at 666 (stating that, "in accordance with the plain language of § 1441(b), courts have held, virtually uniformly, that where, as here, diversity does exist between the parties, an unserved resident defendant may be ignored in determining removability under 28 U.S.C. § 1441(b)"). Defendants argue that this is the majority rule, relying on In re Darvocet, 2012 WL 2919219 at *2, Brake v. Reser's Fine Foods, Inc., 2009 WL 213013, at *3 (E.D. Mo. Jan. 28, 2009) ; Massey v. Cassens & Sons, Inc., 2006 WL 381943, at *2 (S.D. Ill. 2006) ; and Ott v. Consol . Freightways Corp., 213 F.Supp.2d 662, 665 (S.D. Miss. 2002).
See generally, Carrs, 2012 WL 1945629, at *2-3; Davis, 2001 WL 1149355, at *2-3; Recognition Commc'ns, Inc., 1998 WL 119528, at * 3 n.3. See generally Harvey v. Shelter Ins. Co., No. 13-392, 2013 WL 1768658, at *2 (E.D. La. Apr. 24, 2013); Holmes v. Lafayette, No. 4:11CV021-B-S, 2013 WL 654449, at *1 (N.D. Miss. Feb. 21, 2013); Carrs, 2012 WL 1945629, at *2-3; Evans v. Rare Coin Wholesalers, Inc., No. 4:09CV259, 2010 WL 595653, at *2 (E.D. Tex. Jan. 28, 2010); Ott v. Consolidated Freightways Corp. of Delaware, 213 F. Supp. 2d 662, 666 (S.D. Miss. 2002); Maitra v. Mitsubishi Heavy Indus., Ltd., No. CIV.A.SA01CA0209FBNN, 2002 WL 1491855, at *2 (W.D. Tex. Mar. 29, 2002); but see Grizzly Mountain Aviation, Inc. v. McTurbine, Inc., 619 F. Supp. 2d 282, 286 n.5 (S.D. Tex. 2008). --------
The majority of courts that have considered the question have ruled that the plain language of § 1441(b)(2) bars removal only where the forum defendant was "properly joined and served" at the time of removal, and that the presence of a forum defendant in the action does not render removal improper where the forum defendant was not served at the time of removal. See, e.g., Harvey v. Shelter Ins. Co., No. 13–392, 2013 WL 1768658, at *2 (E.D.La. Apr. 24, 2013) ; Holmes v. Lafayette, No. 4:11CV021–B–S, 2013 WL 654449, at *1 (N.D.Miss. Feb. 21, 2013) ; Ott v. Consol. Freightways Corp. of Del., 213 F.Supp.2d 662, 666 (S.D.Miss.2002) ; In re Norplant Contraceptive Prods. Liability Litig., 889 F.Supp. 271, 275 (E.D.Tex.1995) (finding "numerous cases which support the proposition that ... the citizenship of unserved defendants should not be considered under 28 U.S.C. § 1441(b)"); see also 14B Wright & Miller, Federal Practice and Procedure, § 3723 (4th ed.2009) (noting that the 1948 amendment to § 1441(b) inserted the language "and served," "which implies that a diverse, but resident defendant who has not been served may be ignored in determining removability."); McCall v. Scott, 239 F.3d 808, 813 n. 2 (6th Cir.2001) ("Where there is complete diversity of citizenship ... the inclusion of an unserved resident defendant in the action does not defeat removal under 28 U.S.C. § 1441(b).").
Because Rule 41(a)(2) motions for voluntary dismissal should be freely granted in the absence of plain legal prejudice, the court finds that the plaintiff's motion is well taken and should be granted.Holmes v. Lafayette, Civil Action No. 4:11CV021-B-S, 2013 WL 654449, *2 (N.D. Miss. Feb. 21, 2013); see also Jones v. CSX Transp., Inc., No. CV 407-58, 2007 WL 2700006, *2 (S.D. Ga. Sept. 10, 2007)("Dismissals without prejudice under Rule 41(a)(2) are not improper in cases where, as here, the court's order would permit a plaintiff to refile in state court after the case had already been removed to federal court."). The court finds that allowing this proceeding to go forward in the Alabama state court, given that one of the named defendants is a resident of Alabama, is not the type of legal prejudice to preclude voluntary dismissal without prejudice under Fed. R. Civ. P. 41(a)(2).