United States District Court, W.D. North Carolina, Charlotte Division
C. Mullen United States District Judge.
MATTER is before the Court upon Plaintiff's
Motion to Remand. Defendant has filed a Response and
Plaintiff has elected not to file a Reply. Accordingly, this
matter is ripe for disposition.
civil action was filed in Mecklenburg County Superior Court
on December 13, 2016. Plaintiff is a foreign entity with its
principal place of business in Italy. Defendants are Delaware
corporations, both with principal places of business in North
Carolina. Plaintiff alleges claims for breach of contract and
unjust enrichment/quantum meruit based on an alleged
agreement for Plaintiff to develop and install certain
technology for Defendants' businesses. Defendants filed a
Notice of Removal, invoking diversity jurisdiction, on
January 4, 2017. Defendants were subsequently properly served
with the summons and complaint on January 20, 2017. On
February 4, 2017, Plaintiff filed a Motion to Remand, based
solely on the “forum defendant
to 28 U.S.C. § 1447(c), “a motion to remand the
case on the basis of any defect other than lack of subject
matter jurisdiction must be made within thirty days after the
filing of the notice of removal . . . .” 28 U.S.C.
§ 1447(c) (2012). This limit is not merely a flexible
guideline, but instead a strictly observed deadline. See,
e.g., Almutairi v. John Hopkins Sys. Corp.,
2016 WL 97835, at *4 (D. Md. Jan 8, 2016) (denying a motion
to remand filed 34 days after removal); See also Park v.
McGowan, 2011 WL 4963759, at *6 (E.D.N.Y. Oct. 19, 2011)
(holding plaintiff waived procedural objections “by
filing his motion to remand 31 days after the notice of
removal had been filed”); Delew v. Las Vegas Metro.
Police Dep't, 108 F.Supp.2d 1146, 1147-48 (D. Nev.
2000); Elder v. Wal-Mart Stores, Inc., 751 F.Supp.
639, 640 (E.D. La. 1990) (denying as untimely motion to
remand filed 31 days after removal). Plaintiff waited thirty
one days after the Notice of Removal was filed to file its
Motion to Remand and such delay exceeds the statutory time
limit. Plaintiff's only argument to excuse such tardiness
is that Defendants' Notice of Removal was entered the day
after it was filed. This argument, however, falls flat in
light of the current case law. See, e.g., Pavone
v. Miss. Riverboat Amusement Corp., 52 F.3d 560, 566
(5th Cir. 1995) (ruling that the statutory thirty day timer
to file a motion to remand began when the notice to remove
was filed, even though Plaintiff did not receive a copy of
the notice in the mail until six days after its filing).
untimeliness of the motion waives all non-subject matter
jurisdiction objections to removal. The forum defendant rule is
not a subject matter objection, but rather a procedural
Accordingly, Plaintiff's failure to timely file its
Motion to Remand operates as a waiver of its forum defendant
this Court ignored this procedural error, the motion would
still fail on its merits. The forum defendant rule requires
that a forum defendant be “properly joined and
served.” 28 U.S.C. § 1441(b)(2). Plaintiff's
argument that this Court should interpret that provision to
mean that the Defendants merely have actual knowledge of the
lawsuit would fly in the face of the majority of case law.
See, e.g., Robertson v. Iuliano, 2011 WL
453618, at *2 (D. Md. Feb. 4, 2011) (ruling that the
defendant can remove the case to federal court if no forum
defendant has been properly joined and served); See also
Bloom v. Library Corp., 112 F.Supp.3d 498, 506 (N.D.
W.Va. 2015) (same). Moreover, the general rule is that the
plain meaning of the statute's language must apply when
interpreting a statute. Hillman v. I.R.S., 263 F.3d
338, 342 (4th Cir. 2001). The only exceptions are in the
incredibly rare circumstances “when literal application
of the statutory language at issue produces an outcome that
is demonstrably at odds with clearly expressed congressional
intent to the contrary” or when the result is “so
gross as to shock the general moral or common sense.”
Id. Here, there is no clearly expressed
congressional intent to the contrary and the result is not
deemed to be “so gross as to shock the general moral or
common sense.” Accordingly, the statute means what it
says. Defendants were not “properly joined and
served” when they filed the Notice of Removal and were
therefore not subject to the forum defendant rule.
THEREFORE ORDERED that Plaintiffs Motion to Remand is hereby
 The “forum defendant rule,
” set out in 28 U.S.C. § 1441(b)(2), prohibits
properly joined and served defendants who are located within
the forum state from invoking diversity jurisdiction to
remove the case to federal court.
 There is one exception to the time
constraint listed above: excusable neglect. Fed.R.Civ.P.
6(b). However, such exception requires a motion to have been
filed requesting an extension of time. Because there was no
such motion here, this exception does not apply.
 While neither the Supreme Court nor
the Fourth Circuit have ruled on whether the forum defendant
rule is a subject matter jurisdiction objection, many other
U.S. Circuit Courts of Appeal have concluded that this is a
procedural objection. See, e.g., Lively v. Wild
Oats Markets, Inc., 456 F.3d 933, 939 (9th Cir. 2006)
(ruling that the forum defendant rule is not a subject matter
jurisdiction objection); See also Handelsman v. Bedford
Vill. Assocs., 213 F.3d 48, n. 2 (2d Cir. 2000) (same);
Blackburn v. United Parcel Serv., Inc., 179 F.3d 81,
n. 3 (3d Cir. 1999); Hurley v. Motor Coach Indus.,
Inc.,222 F.3d 377, 380 (7th Cir. 2000) (same). Further,
the U.S. District Court for the Middle District of North
Carolina has concluded “it appears that if faced with
the issue before this Court, the Fourth Circuit would join
the majority of circuit ...