ABSURD OVERLAP: SNAP REMOVAL AND THE RULE OF UNANIMITY.

• Author: Temple, Travis

Table of Contents INTRODUCTION 322 I. SNAP REMOVAL: FUNCTION, ORIGIN, AND TREATMENT 323 A. Removal Generally 324 B. Snap Removal Functionally 325 C. The Snap Removal Movement 326 D. Scholarly Critique 328 II. THE RULE OF UNANIMITY 330 A. Unanimity in Practice 330 B. Purpose and Origin 333 III. UNANIMITY AND SNAP REMOVAL 333 A. Logical Consistency 334 B. Textualist Applications of Unanimity to Snap Removal Cases 336 C. Evaluation of Textualist Outcomes 337 IV. A NONLEGISLATIVE SOLUTION 340 A. Proposed Judicial Approach 340 B. Comparison to Other Approaches 342 CONCLUSION 343 INTRODUCTION

American media and pop culture are filled with depictions of crafty lawyers using strained loopholes to escape the consequences of a rule. (1) Despite this cultural fixation on narrowly avoiding liability, real courts all across the judicial system rule against parties who attempt to manufacture favorable results in this way. (2) These rulings stand for the principle that, during the administration of justice, the purpose and end result of a law are often equally as important as its bare terms in writing. (3) However, recent decisions at the federal appellate level concerning "snap removal" (4) have elevated form over function. (5)

Snap removal employs "a literalist approach" to the statute governing the procedural mechanism for removing cases from state court to federal court. (6) In a typical removal scenario, defendants sued in state court would have the option to be heard in federal court instead, given that certain conditions are satisfied.' As discussed below, snap removal essentially allows the defendants to forego a condition that would bar removal if they can file before the plaintiff formally notifies them of the lawsuit. (8) This practice of removing a case before being served with formal process--essentially an act of gamesmanship of the civil procedure system--has gained appellate support over the past two years, making its application valid and uniform across three circuits. (9) Now that the practice has garnered traction, federal courts moving forward will not only have to adopt it as a valid rule, but also grapple with its application when it inevitably collides with other laws and procedures. (10) In particular, the rule of unanimity, requiring that all codefendants consent to a removal, (11) could present a unique challenge in snap removal cases. (12)

This Note argues that, when applied in conjunction with the rule of unanimity, the reasoning underlying snap removal's approval will present a contradictory and ultimately absurd result in certain factual scenarios. Therefore, the potential future applications of snap removal lend credence to its disapproval in the present. Part I discusses the function and rationale of snap removal, and Part II does the same for the unanimity rule. Part III analyzes the effects of these two concepts colliding in the same case using hypothetical examples and analogous case law. It further argues that simultaneous application of both snap removal and the rule of unanimity can give sole discretion over removal to the forum defendant, standing in stark contrast to the relevant statutory scheme. Finally, Part IV argues that courts should rely on this contradiction to dismiss snap removal as an absurd interpretation of the removal statutes. Lastly, it compares the merits of this approach to proposed legislative solutions.

1. SNAP REMOVAL: FUNCTION, ORIGIN, AND TREATMENT

   Analyzing snap removal and the rule of unanimity together would not be possible without a robust discussion of each individually. This Part sets the foundation for analyzing snap removal by first looking at regular removal and then moving on to snap removal's function, history, and relevant scholarship.

   1. Removal Generally

      Understanding the rights and limitations of removal itself is necessary to understand snap removal. The defendant's ability to remove to federal court a case that originated in state court comes from statutory authority. (13) Section 1441 of Title 28 of the United States Code provides that the defendant in a civil action may remove the case if the federal court would have "original jurisdiction," meaning the plaintiff could have brought the suit in federal court initially. (14) Therefore, removal overrides the plaintiffs choice of forum. (15)

      Section 1441 places limitations on this ability to override, categorized by the type of subject matter jurisdiction the case would have in federal court. (16) Most notably, [section] 1441(b)(2) sets a key limitation on removing cases brought under diversity of citizenship: the forum-defendant rule. (17) District courts have the authority to hear cases involving parties that are citizens of two different states under 28 U.S.C. [section] 1332(a), otherwise known as diversity cases. (18) The rationale for providing diversity jurisdiction is that the out-of-state party may be subject to prejudice from the decision makers native to the state simply for being a foreign person or entity. (19) The forum-defendant rule restricts removal of diversity cases by barring defendants from going to federal court when any of the defendants are citizens of the state in which the action is brought. (20) This rule emphasizes diversity citizenship's purpose of avoiding bias; if the defendants are from the state where the action is brought, they need not fear bias against them based on citizenship. (21)

   2. Snap Removal Functionally

      Defendants using snap removal hone in on a particular phrase in [section] 1441(b)(2) to avoid the effects of the forum-defendant rule. (22) The rule states that actions "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." (23) Crafty forum defendants have taken this to mean that the forum-defendant rule does not apply to them when they have not been formally served with notice of the suit by the plaintiff, as required by the Federal Rules of Civil Procedure. (24) Now referred to as snap removal, removing a case before being served is the subject of considerable litigation and scholarly review. (25)

      While not immediately intuitive, in practice, snap removal falls into a few factually distinct categories. The first scenario, referred to as a "race-to-the-courthouse" by leading scholars, requires the defendant to have ample resources. (26) Defendants with the ability to do so, especially larger corporations, can monitor public court dockets for suits filed against them and attempt to file for removal before the plaintiff has a chance to serve them. (27) The second scenario arises when the plaintiff reaches out to the defendant with a prenotice request, such as a request for waiver of the notice requirement. (28) This gives the defendant an opportunity to remove before the formal notice can be effectuated. (29) The last scenario occurs when the plaintiff serves codefendants at different times. (30) If the plaintiff serves a nonforum defendant, that nonforum defendant can alert a forum codefendant of the lawsuit, allowing the forum codefendant to remove the case before being served. (31) In all of these circumstances, the essential factor is that the forum defendant receives some kind of informal notice before being served. (32)

   3. The Snap Removal Movement

      The relevant language in [section] 1441(b)(2) has been in place since 1948, but the practice of snap removal did not proliferate until the mid-2000s. (33) The ability to monitor dockets efficiently and communicate instantly, two key ingredients in the snap removal recipe, were not feasible until the age of the internet. (34) Snap removal received a push toward widespread acceptance in 2001, when the Sixth Circuit Court of Appeals gave it passing approval in a footnote, though this was dicta. (30) It gained popularity around 2007, creating a split between district courts about whether to accept or reject the practice as a statutory interpretation question. (36)

      Coming down on the rejection side of the split, Vivas v. Boeing Co. led the charge against snap removal when it began to gain steam around 2007. (37) Following the defendant's attempt at snap removal, the plaintiffs moved to remand back to Illinois state court. (38) Holding in favor of the plaintiffs' motion to remand, the district court reasoned that snap removal runs counter to the legislative intent of the forum-defendant rule. (39) As the court specified, the language intends to curb fraudulent joinder of codefendants, "prevent[ing] a plaintiff from blocking removal by joining as a defendant a resident party against whom it does not intend to proceed, and whom it does not even serve." (40) Therefore, the defendant's snap removal, and the practice more generally, frustrated Congress's intent and defeated a plain meaning interpretation. (41) Other district courts rejecting the practice have taken up similar lines of reasoning. (42)

      Standing in opposition to the Vivas approach, North v. Precision Airmotive Corp. is indicative of the rulings in favor of snap removal. (43) North presents the typical "race-to-the-courthouse" case, in which the defendant receives notice by monitoring state dockets. (44) While ruling in favor of the snap-removing defendants, the court reasoned that the contrary result created by snap removal does not lead to an "absurd" outcome and thus should not defeat the statute's plain meaning. (45) Further, the court recognized that Congress likely did not anticipate this result, but nonetheless put the onus on the legislature to fix it. (46)

      This district-level split remained unsettled until well over a decade later, when the Third Circuit Court of Appeals took up the plain meaning approach in 2018. (47) As the first appellate court to formally uphold snap removal, (48) the Third Circuit reiterated lower court authority in Encompass Insurance Co. v. Stone Mansion Restaurant, Inc. (49) On review of the district court's...