The Forum Defendant Rule
Matters may be brought in or removed to federal court only if they involve questions of federal law or, more commonly in most cases involving state-law claims, involve diverse parties. Not all cases with diverse parties may be removed to federal court. Rather, diversity jurisdiction generally only exists where the plaintiff and defendants are completely diverse. Additionally, removal to federal court on the basis of diversity jurisdiction is precluded where any defendant is a citizen of the forum state—a bar known as the forum defendant rule.
Snap Removal
The forum defendant rule only bars removal where a local defendant (i.e. defendant with citizenship in the home forum) has been “properly joined and served.” See 28 U.S.C. § 1441(b)(2) (“A civil action . . . may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”) (emphasis added). Although the legislative history is silent as to the intent behind the “properly joined and served” language, courts have largely interpreted it as seeking to prevent gamesmanship by plaintiffs who may otherwise block removal by joining a forum defendant against whom they do not intend to proceed. Defendants, on the other hand, have viewed it as an opportunity to get cases involving unserved forum defendants into federal court via the doctrine of snap removal—i.e. removing the case before the forum defendant has been served.
Courts analyzing snap removal have grappled with how a rule designed to preclude gamesmanship by plaintiffs could seemingly enable gamesmanship by defendants through permitting quick-moving defendants to remove before plaintiffs have a chance to serve—with some coming out on opposite ends. Compare U.S. Bank N.A. v. Martin, 2015 WL 2227792, at *5 (D. Haw. Apr. 23, 2015) (rejecting snap removal, reasoning “a literal reading of the forum defendant rule would result in an absurd result that encourages gamesmanship on the part of defendants”) with Jackson v. Howmedica Osteonics Corp., 2020 WL 6049400, at *4 (D.N.J. June 15, 2020) (noting defendant’s efforts to delay service by having its security guard keep process server waiting in lobby for one and a half hours while it filed notice of removal did not make removal improper).
Only four federal circuit courts have directly addressed snap removal, mostly within the past few years, with the majority finding it to be a viable procedural maneuver based on the plain language of Section 1441(b)(2). See Texas Brine Co. v. Am. Arbitration Assoc., 955 F.3d 482 (5th Cir. 2020) (upholding snap removal); Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699 (2d Circ. 2019) (same); Encompass Insurance Co. v. Stone Mansion Restaurant Inc., 902 F.3d 147 (3rd Cir. 2018) (same); Goodwin v. Reynolds, 757 F3d 1216 (11th Cir. 2014) (rejecting snap removal). But even within these federal circuits, district courts analyzing snap removal have not always decided the issue in a uniform or predictable way. Defense counsel seeking to take advantage of the snap removal doctrine should consider the following before snap removing to federal court.
Avoid evidence of gamesmanship. Although far from universal, courts across the country have struggled to uphold snap removal where there is perceived evidence of gamesmanship by the removing defendant, with some courts going so far as to require the plaintiff be provided a “reasonable opportunity to serve” before removal can be affected. See, e.g., Woods v. Dr Pepper Snapple Group, Inc., 2020 WL 917284, at *3 (W.D. Okla. Feb. 26, 2020). Defense counsel should avoid actions that could be perceived as gamesmanship, such as intentionally delaying service, particularly where removal is sought very quickly after the complaint is filed. Setting up docket alerts is a strategic, cost-effective way to be notified of case filings against existing clients as soon as a complaint is filed and increase your window of opportunity to snap remove.
Consider who removes. One factor courts consider when assessing the viability of snap removal is the citizenship of the removing defendant, with some courts showing a greater hesitance to permit removal when the forum defendant is seeking to remove. Given the general defense-friendly benefits of federal court, defense counsel in matters involving multiple defendants should consider whether their goals are aligned in removing the matter to federal court and, if so, who is best positioned to file the notice of removal to avoid remand.
Know your jurisdiction. Some courts have rejected the snap removal doctrine where no defendant has yet been served, reasoning at least one defendant must be served for removal to be affected. Defense counsel should determine whether this reasoning has been adopted within the relevant jurisdiction and include this risk in its assessment of whether or not to attempt snap removal.
Know your opposing counsel. Even where snap removal is accepted by the court, a savvy plaintiff’s counsel may nonetheless force the matter back into state court by voluntarily dismissing the case and initiating the state court proceedings again—this time with a quickly-served forum defendant. Under Federal Rule of Civil Procedure 41, a plaintiff may voluntarily dismiss its case, without prejudice and without obtaining an order from the court, any time before the opposing party serves either an answer or a motion for summary judgment, meaning defendants who do not simultaneously answer the complaint at the time of the removal (including those who seek to move to dismiss) are at risk of having the matter voluntarily dismissed. Further, even if a defendant files an answer simultaneously with its removal papers, federal courts across the country have granted plaintiffs’ requests to dismiss without prejudice to permit those plaintiffs to proceed in state court.
Conclusion
Snap removal is a great tool for gaining favorable federal jurisdiction, but requires savvy, quick strategic decisions, and is not without risks. Although time will tell whether the doctrine gains greater nationwide acceptance, for now, defense counsel can maximize the doctrine’s effectiveness by carefully positioning removals following the above guidance.
