From One Court to Another, in a Snap
Snap removal. No, this is not a kind of garment alteration involving buttons or snaps. It is a controversial procedural maneuver sometimes used by defendants in civil litigation to remove to federal district court a case originally filed in state court, and to do so even though the case otherwise would have had to remain in state court (and not be removable) due to the “forum defendant rule.”
Let’s recap the background principles. The laws governing federal court jurisdiction provide that federal district courts have jurisdiction to hear civil actions seeking damages in excess of $75,000 when the action is between citizens of different states. 28 U.S.C. § 1332(a)(1)-(2). This type of federal jurisdiction is called “diversity jurisdiction.” Generally, there must be complete diversity between the plaintiffs and defendants (i.e., every defendant must be a citizen of a state different from every plaintiff). See Higgins v. E.I. Dupont de Nemours & Co., 863 F.2d 1162, 1166 (4th Cir. 1998).
When a plaintiff files a lawsuit in a state court in the state where the plaintiff lives against a defendant or defendants who all live in some other state, the defendant or defendants have the right to rely upon diversity jurisdiction to remove the lawsuit to federal court. There exists some debate over the reason for the original inclusion of diversity jurisdiction in Article III, Section 2 of the United States Constitution. A leading treatise on federal law states: “It has often been suggested that the provision’s purpose was to avoid potential prejudice against citizens of one state in another state’s courts.” 15A Moore’s Federal Practice – Civil § 102.02 (3d ed. 2023).
There is, however, an additional limitation upon removal based upon diversity jurisdiction. Defendants who are citizens of the state where the state court action was brought (the “forum state”) are referred to as “forum defendants.” Under what is known as the “forum defendant rule,” a case that would otherwise be removable from state court to federal court based on diversity jurisdiction may not be removed to federal court “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which the action is brought.” 28 U.S.C. § 1441(b)(2) (emphasis added). In short, even though there may be complete diversity of citizenship among the parties, the “forum defendant rule” prevents the removal of a state lawsuit to federal court if any of the defendants who have been served with the lawsuit are residents of the forum state.
What if there is complete diversity between the plaintiffs and the defendants but one or more of the defendants is a forum defendant? The defendants want to remove the case to federal court despite the “forum defendant rule.” Assume that the lawsuit has been filed but the lawsuit has not yet been served upon any of the forum defendants. In that situation, a defendant desiring to remove the case to federal court may use a technique known as a “snap removal.” If the defendant moves quickly (in a “snap,” so to speak), and takes steps to remove the case to federal court before any of the forum defendants are served, he might have the case removed to federal district court. The removing efendant notes that the forum defendant rule applies only when a forum defendant has been “properly joined and served.” The removing defendant argues that the forum defendant rule does not prevent removal since none of the forum defendants have yet been served with the lawsuit.
This defense tactic essentially allows an in-state defendant to remove a case to federal court even though the removal would be mproper if any of the forum defendants had been served. So far, neither the United States Supreme Court nor the Fourth Circuit Court of Appeals has weighed in on the propriety of such removal. “[O]ne commentator has referred to the “raging conflict” in the district courts over the permissibility of “snap removal[.]” 15A Moore’s Federal Practice – Civil § 102.21. E.g., compare Spigner v. Apple Hospitality REIT, Inc., 2022 U.S. Dist. LEXIS 86059 at *13 (E.D. Va. 2022) (Judge David J. Novak) (the court finding snap removal proper under the plain language of § 1441(b)(2)), with Active Res., Inc. v. Hagewood, 2022 U.S. Dist. LEXIS 115061 at *10-11 (S.D. W.Va. 2022) (holding that in cases involving only resident defendants, the forum defendant rule precludes “resident defendants from removing an action pursuant to diversity jurisdiction before effectuation of service”) (citing and applying Phillips Construction, LLC v. Daniels Law Firm, PLLC, 93 F. Supp.3d 544, 556 (S.D. W.Va. 2015)).
Whether this race between (1) plaintiffs obtaining service of process on in-state defendants, and (2) defendants obtaining “snap” removal to federal court before process is served makes any sense under the statutes and the rationale for diversity jurisdiction ultimately will likely have to be addressed by the U.S. Supreme Court or Congress. In the meantime, some federal courts might continue to conclude that snap removal is permitted, thus allowing a swiftly-acting defendant to use the snap removal tactic to choose to have the case removed to federal court even though he could not have done so if any of the forum defendants had already been served with the state court lawsuit.
The entire Marks & Harrison Winter 2023 Points of Law newsletter is available for download
