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Tips and Tricks to Evaluate and Prepare Your Case for Snap Removal

Molly Elizabeth Flynn, Kip McDonald, and Hannah Anderson

Tips and Tricks to Evaluate and Prepare Your Case for Snap Removal
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Preservice removal—or “snap removal”—continues to be recognized in more jurisdictions across the United States. Snap removing a case, by definition, involves a series of snap judgments: by the client in immediately identifying new filings, and by outside counsel in analyzing removability and executing the removal process quickly and efficiently. While deciding whether to snap remove a case should be a quick decision, it doesn’t need to be a stressful process. Use the four steps below to evaluate and effectuate your next snap removal with ease.

Step No. 1: Analyze the Removability of a State Court Case

You cannot snap remove a case unless it is independently removable under 28 U.S.C. § 1441(b). Using the removal and diversity of citizenship statutes as your guide (28 U.S.C. §§ 1332 and 1441), analyze removability using the following three questions:

  • Does complete diversity of citizenship exist between the parties? Assuming no fraudulent joinder, if any plaintiffs are citizens of the same state(s) as any defendant, the parties are not completely diverse, and removal is not possible. Overlooking complete diversity is one of the most common mistakes made when snap removing a case. Be sure to take a close look at the parties’ citizenship before proceeding.
  • Is there a defendant that is a citizen of the forum state (forum defendant)? If there’s no forum defendant, the rush to remove is eliminated because there’s no need to remove before a forum defendant is served.
  • If there is a forum defendant, has that forum defendant been served with process? Your ability to snap remove hinges on whether a forum defendant has been served with process―the case may not be removed if any defendant “properly joined and served” is a citizen of the forum. 28 U.S.C. § 1441(b)(2).

Step No. 2: Research Circuit Removal Precedent and Relevant Local Rules

Many, but not all, federal district courts have endorsed snap removal. If your case was filed in a state court falling within the U.S. Court of Appeals for the Second, Third, or Fifth Circuits, rest assured that snap removal is an accepted procedural mechanism. For the remaining jurisdictions, check the precedent in the particular court to which you are seeking removal to determine what, if any, opinions relate to snap removal.

Having established that snap removal is possible, you should next determine whether the federal district court to which you are removing has any local rules affecting removal. For example, some courts require including in the notice of removal a copy of the entire state court record and any unresolved motions, and some courts require filing by paper copy. Pay close attention to these rules―in some states, a failure to comply with these local nuances may result in automatic remand.

Step No. 3: Assemble the Removal Papers

The removal papers for snap removal and “regular” removal are the same. With 28 U.S.C. § 1446 as your guide, your removal papers should include, at a minimum, the following:

  • Notice of removal. This document, to be filed in the federal district court, should contain a “short and plain statement” of the basis for removal. 28 U.S.C. § 1446(a). Under best practices, include a breakdown of the parties’ citizenship, statements indicating that the amount in controversy is satisfied, confirmation that no forum defendant has been “properly joined and served,” and a short acknowledgement that the procedural requirements for removal (relating to timing and codefendants’ consent, when necessary) have been satisfied.
  • Notice of filing of notice of removal. This document, to be filed in the state court with a copy of the filed notice of removal, effects the removal under U.S.C. § 1441(d). It is therefore crucial that it is filed as soon as possible after the notice of removal is on file in the federal district court.

Step No. 4: File Your Snap Removal

With your removal papers and supporting attachments in hand, you’re ready to file. A removal filing is twofold: first, the notice of removal is filed in the federal district court to which you are removing; and second, the notice of filing of notice of removal should then be filed in the state court to effectuate the removal.

Conclusion

Snap removal success will depend both on familiarity with the removal rules/process and the ability to plan ahead. Being familiar with the local rules in jurisdictions where suits are often brought is a great first step; preparing templates and checklists for removals in those jurisdictions will make snap removals even smoother. With the checklist and practical tips above—and Faegre Drinker’s interactive snap removal map on hand—corporate counsel considering a potential snap removal will be well prepared and well positioned to implement this procedure.

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