The What, When, How, and Why of Removing to Federal Court Before a Defendant Is “Properly Joined and Served”

Defendants, including individuals and corporate entities, often want to remove their cases to federal court after being sued in state court. There are frequently manifold reasons for doing so. Federal courts can provide consistency in procedure, more efficient docket management, increased opportunities for final resolution of asserted claims through motion practice, and reduced liability in the case of adverse judgments. But the strict metes and bounds of a federal court’s subject matter jurisdiction and the statutory requirements of removal under 28 U.S.C. §§ 1441 and 1446 limit a defendant’s ability to proceed in federal court once an action has been filed in state court. Courts normally defer to a plaintiff’s choice of forum and endeavor to prevent forum shopping between state and federal systems. Moreover, federal courts are courts of limited jurisdiction—unlike state courts, which have general jurisdiction—and they have an affirmative and ongoing obligation to ensure that the cases before them are based on federal question or diversity jurisdiction. See 28 U.S.C. §§ 1331, 1332; Fed. R. Civ. P. 12(h)(3). How then can defendants desiring to have a federal court assess their defenses and potential counterclaims navigate these barriers to entry? An answer lies in the oft-debated but readily available procedural play of “snap removal.” 

Federal Courts’ Limited Jurisdiction

Congress has broadly authorized federal courts to exercise subject matter jurisdiction over all civil actions “arising under the Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331, or “where the matter in controversy exceeds the sum or value of $75,000” and the dispute is between citizens of different states, U.S. citizens and foreign citizens, or U.S. citizens and foreign states. 28 U.S.C. § 1332(a). The existence of federal question jurisdiction is often conflated with a plaintiff’s need to prove a defendant’s obligations under federal law or a defendant’s reliance on federal law as a defense, as in the case of preemption. See, e.g., Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003). Diversity jurisdiction is often more clear-cut, but a plaintiff may attempt to preemptively defeat such jurisdiction by naming a defendant that is a citizen of the same state—i.e., a forum defendant. See, e.g., Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921); accord Johnson v. Am. Towers, LLC, 781 F.3d 693, 704 (4th Cir. 2015).

Removal Generally

Under the federal removal statute, a case that implicates federal question or diversity jurisdiction is removable within 30 days after formal service of process of the initial pleading. 28 U.S.C. § 1446(b)(1). Whether an initial pleading has been properly served varies by state, but the U.S. Supreme Court has clarified that the 30-day period does not begin until the plaintiff has effectuated formal service of process. Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999). This is crucial, as the filing of a summons or complaint alone does not trigger the removal clock. Id. at 347–48. There must also be proper service. See id. Where a state court complaint names multiple defendants, all “properly joined and served” defendants must consent to removal unless they are fraudulently joined. 28 U.S.C. § 1446(b)(2)(A); see also Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019).

There is a readily apparent logic to these limitations. Plaintiffs are afforded deference in their choice of forum as masters of their complaint. Foreign or out-of-state defendants are not forced to litigate a case in a state court with which they are unfamiliar without some avenue of reprieve. And in multi-defendant cases, one defendant cannot unilaterally change the forum without appropriate notice to codefendants.

Snap Removals

The question then is this: Where a defendant would prefer to pursue claims and defenses in federal court—for reasons real or perceived, anecdotal or empirical—how can that be effectuated once a complaint is filed in state court? If the alleged claims arise under federal law or are completely preempted, defendants can remove as usual and assert federal question jurisdiction. In addition, if complete diversity among the parties on both sides of the v does not exist, diversity removal is not possible. In the intermediate case, however, where there is not federal question jurisdiction, complete diversity does exist, and a forum defendant is the only bar to removal under section 1441(b)(2), the way to navigate a case from state to federal court has been more difficult. But the path forward is now more favorable. A close read of the removal statute provides the solution: A forum defendant does not actually exist until that defendant has been “properly joined and served.”

Recognizing this window of opportunity, fast-acting and savvy defendants have charted a path in the past two decades, which has been validated by four federal circuit courts of appeals: snap removal. With this procedural mechanism, both forum and out-of-state defendants can remove a case to federal court with arguable or no federal question jurisdiction and complete diversity among the named defendants as long as they do so before any in-state, forum defendant is formally served.

Once removed, the defendant or defendants can assert federal question jurisdiction if it exists, and can rely on diversity jurisdiction if it does not, to stay in federal court. Further, and importantly, the federal court’s decision on the propriety of removal will generally be final as a practical matter, because the denial of a motion to remand is an interlocutory order that is not usually subject to immediate appeal. See, e.g., 28 U.S.C. § 1447(d); 15A Charles Wright, Arthur Miller & Edward Cooper, Federal Practice and Procedure § 3914.11 (3d ed. 1992) (“One aspect of appealing orders as to removal and remand remains blessedly simple. An order denying remand is not final. . . .”); see also Estate of Bishop By & Through Bishop v. Bechtel Power Corp., 905 F.2d 1272, 1274–75 (9th Cir. 1990); Neal v. Brown, 980 F.2d 747, 748 (D.C. Cir. 1992) (collecting cases from the First, Second, Third, Fourth, Fifth, Seventh, and Ninth Circuits).

Although a path has been laid, the issue of how to leverage the window of time between the filing of a summons and complaint and service poses another barrier to entering a federal courthouse’s doors. Thankfully, the ability to monitor court dockets electronically has made it easier to traverse this final hurdle. However, it does require a keen and vigilant eye on the potential litigation landscape and an ability to file removal papers quickly in what amounts to a service race to the courthouse with plaintiffs.

Snap Decisions

Unsurprisingly, snap removals have been controversial among courts and commentators alike. Opponents criticize the practice as contrary to the spirit of diversity jurisdiction—especially when the in-state defendant is the party removing the case—and an unfair exploitation of a procedural technicality. See, e.g., Goodwin v. Reynolds, 757 F.3d 1216, 1221 (11th Cir. 2014) (affirming Rule 41(a)(2) dismissal where plaintiff filed a state court action and provided courtesy copies to defendants—one of whom was a forum defendant—and defendants removed the action before formal service after interpreting the purpose of “properly joined and served” as an effort to prevent “gamesmanship” by plaintiffs and defendants). Critics also argue that snap removal may lead to improper conduct such as a defendant misleading a plaintiff into not formally serving a complaint or evading formal service to buy time to remove.

Proponents of the practice point to the statutory text, which explicitly conditions the forum defendant rule on “served” defendants, as well as traditional tools of statutory construction. They argue that the plain meaning of the removal statute permits snap removal. Further, there is a practical and policy argument supporting the practice: Snap removals disincentivize plaintiffs from attempting to make lawsuits removal-proof by fraudulently joining in-state defendants that they have no intention of actually serving.

To date, there is a split of authority among district courts addressing whether the practice is permissible, but four circuit courts of appeals addressing the issue have upheld the practice. The Sixth Circuit led the way in 2001, noting in a footnote that “the inclusion of an unserved resident defendant in [an] action does not defeat removal” based on diversity jurisdiction. McCall v. Scott, 239 F.3d 808, 813 n.2 (6th Cir.), amended on denial of reh’g, 250 F.3d 997 (6th Cir. 2001). Several years later, in 2018, the Third Circuit upheld snap removal after a substantive analysis in Encompass Insurance Co. v. Stone Mansion Restaurant Inc., 902 F.3d 147 (3d. Cir. 2018). To be sure, the court described the procedure as “pre-service machinations to remove a case that [] otherwise could not [be removed.]” Id. at 154. But after addressing the issue as one of statutory interpretation, the Third Circuit held that snap removal is proper based on “the plain meaning of the statute” and the absence of “an extraordinary showing of contrary legislative intent.” Id. The Second Circuit soon after followed suit and affirmed the propriety of this procedure without hesitation, finding it “is neither absurd nor fundamentally unfair.” Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 707 (2d Cir. 2019) (“Put simply, the result here—that a home-state defendant may in limited circumstances remove actions filed in state court on the basis of diversity of citizenship—is authorized by the text of Section 1441(b)(2)[.]”). And, most recently, the Fifth Circuit has given its blessing, explaining it does not have “any doubt about the propriety of removal because . . . the text [section 1441(b)(2)] is unambiguous.” Texas Brine Co., L.L.C. v. Am. Arbitration Ass’n, Inc., 955 F.3d 482, 487 (5th Cir. 2020).

Since these decisions, district courts in several circuits have allowed allow snap removals. E.g., Kornfeind v. Kia Am., Inc., No. 23-cv-01796, 2023 WL 8456111, at *2 (C.D. Cal. Dec. 6, 2023); DMO Methuen, LLC v. FCA U.S., LLC, No. 23-cv-10724, 2023 WL 7548084, at *3 (D. Mass. Sept. 29, 2023); WFG Nat’l Title Ins. Co. v. Bay, No. 22-cv-01010, 2023 WL 6595846, at *3 n.3 (D. Or. Aug. 30, 2023), adopted, 2023 WL 6930918 (D. Or. Oct. 19, 2023).

The U.S. Supreme Court and other circuits courts of appeals have yet to weigh in on the practice.

Snapbacks?

Of note, the removal statute was amended by Congress in 2011, after snap removals had become more common, but the relevant language allowing snap removals was not altered. Congress has since contemplated taking action to change the removal statute. House Resolution 5801, styled as the Removal Jurisdiction Clarification Act of 2020, would have essentially eliminated snap removals by requiring district courts to remand (i.e., “snap back”) snap removal cases upon a plaintiff’s motion. But as its title suggests, the bill has languished for several years in the House Committee on the Judiciary (specifically the Subcommittee on Courts, Intellectual Property, and the Internet). There is no immediate indication that this legislation will ever become law.

Key Takeaways

Given all this, there are a few key takeaways. First, for defendants and their counsel who have reason to anticipate litigation and prefer to litigate in federal court, it is important to monitor state court docket activity. Second, defendants and counsel should be fluent in the service of process rules in the states where litigation is expected. Third, it is a good practice, when litigation is anticipated, to prepare snap removal templates that can be tailored and filed shortly after notice of a filed state court complaint is received. Finally, the grass is not always greener in federal court for every litigation. The pace is often faster, and state court may offer greater flexibility with procedural and evidentiary rules. In addition, the potential judge assignment in either state or federal court is a key consideration that can have a material effect on the course of a litigation. Although time is of the essence with snap removal, be sure to consider these factors as well before filing.