Russell et al v. O'Brien et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Angel Russell, et al.,
Plaintiffs,
v.
Darian Patrick O’Brien, et al.,
Defendants.
No. CV-26-01549-PHX-KML
ORDER
According to the complaint, defendant Darian O’Brien was driving a vehicle in the
course and scope of his employment with defendant Domino’s Pizza, LLC, when he hit
and killed Dwayne Omar Harvey. Harvey’s statutory beneficiaries filed suit in state court
against O’Brien and Domino’s, alleging various forms of negligence. Domino’s was served
on February 3, 2026, but O’Brien has not yet been served. On March 4, 2026, Domino’s
filed a notice of removal.
The notice of removal claims removal is proper because there is diversity
jurisdiction. Domino’s claims it is a “Michigan limited liability company with its principal
place of business in the State of Michigan.” (Doc. 1 at 2.) Domino’s also seems to concede
plaintiffs and O’Brien are all citizens of Arizona, but claims that because O’Brien has not
yet been served, “snap removal is permissible under 28 U.S.C. § 1441(b)(2).” (Doc. 1 at
2.) The notice of removal contains multiple errors and does not establish the existence of
federal jurisdiction. Domino’s must file a supplement identifying the citizenship of all
parties and explaining how “snap removal” is relevant in this context.
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The notice of removal identifies plaintiffs and O’Brien as “residents” of Arizona.
“But the diversity jurisdiction statute, 28 U.S.C. § 1332, speaks of citizenship, not of
residency.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). Merely
identifying residency is not sufficient: Domino’s must identify the citizenships of plaintiffs
and O’Brien.
In addition, Domino’s is a limited liability company. For purposes of diversity
jurisdiction, a limited liability company is “a citizen of every state of which its
owners/members are citizens.” Johnson v. Columbia Properties Anchorage, LP, 437 F.3d
894, 899 (9th Cir. 2006). Domino’s statement that it is a “Michigan limited liability
company with its principal place of business in the State of Michigan” does not answer the
relevant question. Domino’s must identify the citizenship of its members. In doing so,
Domino’s must trace its citizenship “through as many levels as necessary until reaching a
natural person or a corporation.” City of E. St. Louis, Illinois v. Netflix, Inc., 83 F.4th 1066,
1070 (7th Cir. 2023).
Domino’s next error requires more explanation. While apparently admitting
plaintiffs and O’Brien are both citizens of Arizona, Domino’s claims removal based on
diversity jurisdiction is permissible because it completed a “snap removal.” Domino’s
seems to misunderstand the problem a “snap removal” is attempting to avoid. A “snap
removal” occurs when a defendant “fil[es] its notice[] of removal before service of the
summons and complaint” on certain defendants. Casola v. Dexcom, Inc., 98 F.4th 947, 950
(9th Cir. 2024). Filing an early notice of removal is meant to avoid the “forum defendant
rule,” which “prohibits removal of a case when at least one defendant is a citizen of the
state in which the action is filed.” Atl. Nat. Tr. LLC v. Mt. Hawley Ins. Co., 621 F.3d 931,
939 (9th Cir. 2010). Some courts of appeal have recognized a defendant can avoid
application of the forum defendant rule by conducting a “snap removal.” That is, the forum
defendant rule does not apply when a case is properly removed before the forum defendant
is served. See, e.g., Texas Brine Co., L.L.C. v. Am. Arb. Ass’n, Inc., 955 F.3d 482, 485 (5th
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Cir. 2020) (citing opinions from Second and Third Circuits).1 A violation of the forum
defendant rule does not deprive the district court of jurisdiction and is therefore waived if
not challenged within 30 days of the removal. Casola, 98 F.4th at 954, 963.
It does not appear a snap removal would help Domino’s here, because there is a
more fundamental problem: O’Brien’s presumed Arizona citizenship would deprive this
court of diversity jurisdiction. Cf. id. at 951 n.3 (noting it was undisputed the requirements
for diversity jurisdiction were satisfied before addressing snap removal). A case is
removable only if it is one “which the district courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a). Put differently, “[o]nly state-court actions that originally
could have been filed in federal court may be removed to federal court by the defendant.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
Here, plaintiffs (who may be citizens of Arizona) sued O’Brien (who may be a
citizen of Arizona) and Domino’s (who may not be a citizen of Arizona). If plaintiffs and
O’Brien are both citizens of Arizona, the most basic requirement for removal was not met
because this case could not have been filed in federal court in the first instance. The forum
defendant rule and snap removals are irrelevant in this situation. See 28 U.S.C. § 1447 (“If
at any time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”). Multiple courts of appeal have explicitly held
as much. In re Levy, 52 F.4th 244, 247 (5th Cir. 2022); M & B Oil, Inc. v. Federated Mut.
Ins. Co., 66 F.4th 1106, 1109 (8th Cir. 2023); Rao v. J.P. Morgan Chase Bank, N.A., 153
F.4th 541, 549 (7th Cir. 2025). So too have district courts in the Ninth Circuit. See, e.g.,
Stone v. Omnicell, Inc., No. 25-CV-05229-SVK, 2026 WL 266243, at *8 (N.D. Cal. Feb.
2, 2026) (“[T]he forum-defendant rule, and hence the snap removal limitation, are
irrelevant where there is both an in-state plaintiff and in-state defendant.”).
The supplement must identify the citizenship of each defendant. If Domino’s
determines there is not complete diversity between plaintiffs and defendants, the
supplement must explain how a “snap removal” cures that jurisdictional flaw.
1 The Ninth Circuit has not yet resolved whether snap removals are permissible. Casola,
98 F.4th at 964.
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IT IS ORDERED no later than March 12, 2026, Domino’s shall file a supplement
as outlined above.
IT IS FURTHER ORDERED as follows:
Governing Rules
Both counsel and pro se litigants must abide by the Rules of Practice of the U.S.
District Court for the District of Arizona (“Local Rules”) and the Federal Rules of Civil
Procedure.
Disclosure Statements
Full compliance with Federal Rule of Civil Procedure 7.1 is required by plaintiff(s)
and defendant(s). Rule 7.1(a)(1) requires any nongovernmental corporation to file a
disclosure statement identifying “any parent corporation and any publicly held corporation
owning 10% or more of its stock.” Rule 7.1(a)(2) requires a party in an action where
jurisdiction is based on diversity under 28 U.S.C. § 1332(a) to file a disclosure statement
identifying the citizenship of “every individual or entity whose citizenship is attributed to
that party.” A Corporate Disclosure Statement form is available at
https://www.azd.uscourts.gov/forms/disclosure-statement.
Service Deadline
Service of the summons and complaint on each defendant located in the United
States must occur within 90 days of filing the complaint. See Fed. R. Civ. P. 4(m). If service
cannot occur within 90 days, a request for an extension may be filed before expiration of
the 90-day period. Any such request must set forth the reason why service has not been
accomplished and request a specific short additional period of time. If the court believes
your reason constitutes “good cause,” it will authorize a brief additional period to
accomplish service.
Proof of service must be filed with the Clerk of Court, in the form of an affidavit,
promptly after service has been made. See Fed. R. Civ. P. 4(l). It is important to comply
with this requirement because absent proof of service, the court will have no way of
knowing that the complaint has been served.
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This order serves as an express warning that the court will dismiss this action,
without further notice to plaintiff(s), with respect to any defendant that is not timely served.
See Fed. R. Civ. P. 4(m).
Forms of Papers
The parties shall adhere to all of the requirements of Local Rule 7.1, including the
requirement that text and footnotes shall be no smaller than 13 point. Citations supporting
any textual proposition shall be included in the text, not in a footnote.
Notices of supplemental authority and responses to those notices are limited to 350
words excluding case captions and signature blocks.
Paper Courtesy Copies
Do not send paper courtesy copies of Federal Rule of Civil Procedure 7(a)
pleadings, short procedural motions (e.g., motions for extension of time), 26(f) reports, or
stipulations. A paper courtesy copy of dispositive motions (or other lengthy motions that
will be opposed) and any responses or replies thereto shall be either postmarked and mailed
to the judge or hand-delivered to the judge’s mailbox in the courthouse by the next business
day after the electronic filing. Do not attempt to deliver documents to the judge’s chambers.
Courtesy copies should be double-sided and include the ECF-generated header at the top
of each page. Courtesy copies of documents too large for stapling must be submitted in
three-ring binders.
Amending Pleadings
Before filing a motion for leave to amend a pleading, the party that wishes to amend
must seek the consent of the other parties in an attempt to file the amended pleading
pursuant to Local Rule 15.1(b). If any party is unwilling to consent, the motion for leave
to amend must indicate which party (or parties) will oppose the request. If a motion for
leave to amend a pleading fails to so indicate, the motion will be denied without prejudice
for failure to adhere to this order.
Motions and Stipulations
Every motion or stipulation, however mundane, must cite the rule(s) and/or law(s)
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that permit the court to grant the requested relief. Requests for extensions of time must
include a brief explanation of why the extension is needed to help the court determine
whether there is good cause. See Fed. R. Civ. P. 6(b)(1)(A).
To ensure timely case processing, a party moving for an extension of time,
enlargement of page limitations, or leave to file a document under seal shall indicate in the
motion whether the non-movant opposes the request and intends to file a written response.
If such a motion does not so indicate, it may be denied for failure to comply with this order.
Motions and stipulations should be accompanied by proposed orders. A proposed
order is not necessary for motions that will require a reasoned analysis from the court, or
for stipulations requesting issuance of the court’s standard protective order with no
amendments. These proposed orders must not be on letterhead or contain any information
identifying the party submitting the order, and they must set forth the relief requested rather
than incorporating the motion or stipulation by reference. See also Local Rule 7.1(b)(3).
Proposed orders must be emailed—in Microsoft Word format (not PDF)—to
Lanham_Chambers@azd.uscourts.gov. The subject line of the email must include the case
name, case number, the words “proposed order for [name of motion],” and an indication
of whether the motion is opposed or unopposed if this is not otherwise apparent from the
name of the motion.
Rule 12 Motions Are Discouraged
Any motion under Federal Rule of Civil Procedure 12 is discouraged if the
challenged defect in the pleading can be cured by filing an amended pleading. The court
therefore requires that: (1) before filing a Rule 12(b)(6) motion to dismiss or a Rule 12(c)
motion for judgment on the pleadings, the movant confer with the opposing party to
determine whether such motion can be avoided; and (2) the movant attach a certificate of
conferral, certifying that it notified the opposing party of the issues asserted in its motion
and that the parties conferred but were unable to agree that the pleading was curable in any
part by a permissible amendment offered by the pleading party. See also Local Rule
12.1(c). The requirement to meet and confer and attach a certificate of conferral applies in
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equal force to motions to dismiss amended complaints, notwithstanding earlier conferrals
and certificates filed before the complaint was amended. Any motion lacking the required
certification may be summarily stricken.
Multiple defendants represented by the same counsel may not file separate Rule 12
motions. Defendants represented by the same counsel who wish to file a Rule 12 motion
must file a single joint motion that includes all arguments applicable to any defendant.
Protective Orders
The court’s standard protective order is available is available at
www.azd.uscourts.gov under: Judges’ Information → Orders, Forms and Procedures →
Lanham, Krissa M. If the parties agree that discoverable materials should be kept
confidential, they may file a stipulation requesting that the court issue its standard
protective order. If the parties wish to propose additional provisions, they may request and
stipulate to the additional proposed language, subject to the court’s review. In that case, all
language added to the standard order by the parties should be redlined into a Word
document using “tracked changes,” and the parties’ Word document with the tracked
changes must be emailed to chambers. The parties are reminded that the mere fact the
parties have designated certain materials or information as confidential pursuant to an
agreement or stipulation does not mean the court will automatically order that filings
containing such information be placed under seal. See Ctr. for Auto Safety v. Chrysler Grp.,
LLC, 809 F.3d 1092, 1101 (9th Cir. 2016).
Motions to Seal
Local Rule 5.6 governs sealing of court records in unsealed civil actions. Every
motion to seal, including stipulations pursuant to Local Rule 5.6(d), must identify the legal
standard applicable to the document at issue and explain why the material sought to be
sealed meets that standard. The stringent “compelling reasons supported by specific factual
findings” standard articulated in Kamakana v. City & County of Honolulu, 447 F.3d 1172,
1178 (9th Cir. 2006), applies to motions and their attachments where the motion is “more
than tangentially related to the merits of a case.” Ctr. for Auto Safety, 809 F.3d at 1101.
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Merely noting that a document was designated confidential by a party will not satisfy any
applicable legal standard for sealing.
Where a party seeks to seal only certain portions of a given document, the
unredacted version of the document, which should be lodged under seal pursuant to Local
Rule 5.6(c), must include highlighting to indicate which portions of the document the party
seeks to redact.
Emergencies and Expedited Consideration
Any party desiring expedited consideration of a motion or other matter pending
before the court may make such a request by filing a separate Notice for Expedited
Consideration accompanied by a certificate from counsel for the moving party or, if
unrepresented, the moving party. The certificate must set forth the following: 1) the facts
establishing the need for expedited resolution; 2) the dates of the imminent events pertinent
to the request; 3) whether the motion or request for expedited consideration could have
been filed earlier; and 4) when or how the moving party will provide notice to all other
parties and the other parties’ positions on the motion. A request for expedited consideration
that is simply mentioned in the caption/title of the related filing will not be considered—a
separate notice and certificate must be filed.
Requests to Reschedule Court Dates
The court interprets Local Rule 7.3(b) as applying to requests to reschedule court
dates due to attorney conflicts. As such, and to enable the court to efficiently manage cases,
such requests must be made by motion or stipulation, must indicate the position of each
other party, and (unless another party plans to file a written opposition, which would be
appropriate only in rare circumstances) must propose to the court at least three dates/times
when all counsel are available for rescheduling purposes.
Noncompliance
The parties are specifically advised that failure to prosecute, to comply with court
orders, or to comply with the Local and Federal Rules may result in dismissal of all or part
of this case, default, imposition of sanctions, or summary disposition of matters pending
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before the court. See also Local Rule 7.2(i) (“If a motion does not conform in all substantial
respects with the requirements of [the Local Rules], or if the [opposing party] does not
serve and file the required answering memoranda, . . . such noncompliance may be deemed
a consent to the denial or granting of the motion and the court may dispose of the motion
summarily.”).
IT IS FURTHER ORDERED:
1. That plaintiff(s) must promptly serve a copy of this order on defendant(s) and
file a notice of service with the Clerk of Court;
2. That, unless the court orders otherwise, on June 5, 2026 the Clerk of Court
shall terminate without further notice any defendant in the United States that has not been
served pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
Dated this 6th day of March, 2026.
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