Lively

I. Background

On September 26, 2003, Lively filed a personal injury action against Wild Oats in state court seeking damages for a 3 Although we have not directly addressed the nature of the forum defen- dant rule, this issue was raised in Spencer v. United States Dist. Court for the N. Dist. of Cal., 393 F.3d 867 (9th Cir. 2004). Spencer involved a post- removal joinder of a local, diverse defendant. In determining that the join- der did not necessitate a remand to state court, “[t]he district court deter- mined that the ‘forum defendant’ rule is procedural rather than jurisdictional.” Id. at 869. We affirmed, holding that the district court did not err in determining that diversity jurisdiction was not destroyed by the post-removal joinder. Id. at 868. The basis for our decision was the fact that the local defendant was joined after the case had been removed to fed- eral court, and, therefore, the defendants did not violate the forum defen- dant rule at the time of removal. Id. at 871. Notably, we affirmed the district court’s ruling without expressing disagreement with its character- ization of § 1441(b) as a procedural rule. 4 Part of the difficulty with this issue may be…