Snap Removal: Concept; Cause; Cacophony; and Cure

Abstract

So-called “snap removal” – removal of a case from state to federal court prior to service on a forum state defendant – has divided federal trial courts for 20 years. Recently, panels of the Second, Third and Fifth Circuits have sided with those supporting the tactic even though it conflicts with the general prohibition on removal when the case includes a forum state defendant, a situation historically viewed as eliminating the need to protect the outsider defendant from possible state court hostility.

Consistent with the public policy underlying diversity jurisdiction – availability of a federal forum to protect against defending claims in an inconvenient or hostile forum – such removals are barred so long as resident defendants are properly joined “and served.” Defendants preferring the federal forum have invested significant resources monitoring state trial dockets in order to race to remove before service on forum defendants can be effectuated.

Where such snap removal is permitted, defendants, both in-state and outsider are allowed to select their preferred forum – an outcome in derogation of the history, purpose, and logic of permitting removal. This clever strategy of defense counsel is facilitated and accelerated by electronic docket monitoring and sometimes (as in the Third Circuit case) attorney trickery amounting to deceit.

The recent federal appellate decisions are regrettable both in taking the wrong fork of the metaphorical road regarding snap removal and in shifting the trial court landscape from one of resistance to snap removal to one of toleration.

Disturbingly, the appellate decisions (without recorded dissent) analyzed the issue through the simplistic lens of textual literalism with narry a nod to the history, purpose, and public policy of federal removal law. In doing so, the Circuit panels not only reached a problematic result but also displayed an impoverished interpretative methodology.

Corrective action by Congress can put a stop to these mistaken results in a manner that vindicates the intent and purpose of the 1948 Congress that added the service requirement and that adequately protects the interests of both plaintiffs and defendants. We outline and assess the most prominent suggestions for fixing the snap removal problem, including our own preferred solution.

Keywords: snap removal, forum defendant rule, diversity jurisdiction, textualism, purposivism, statutory interpretation, legislative history