Before COVID-19 Discouraged Litigation Tourism, There Were Snap Removals

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Let’s start with a simple civil procedure hypothetical: A Texas plaintiff sues a New Jersey corporation and a California corporation in a California state court claiming $80,000 in damages. The New Jersey defendant, knowing that it is the intended target of the lawsuit and that the California defendant is only tangentially relevant to the plaintiff’s claims, confirms that no defendant has been served and removes the action to federal court. Is the removal proper? What if the California defendant removes three days after the complaint is filed? Or one day? Or 10 minutes?

In the relentless battle over forum selection, plaintiffs have long employed a variety of tactics to remain in a forum that provides the most favorable procedural rules and substantive law, often a state court. One frequent tactic is the inclusion of a “forum defendant,” a citizen of the state in which the action was filed. Sometimes this defendant is never served, but more often the plaintiff serves the forum defendant and fails to pursue—or only nominally pursues—the action against that defendant. Following advances in technology, telling congressional silence on the forum defendant rule, and a recent surge in appellate authority, the practice of pre-service removal (also known as “snap removal” or “wrinkle removal”) has emerged as an increasingly viable counter-tactic.