Snap Removal: A New Tool for Out-of-State Defendants

AuthorErik A. Christiansen
Pages22-22
Published in Litigation News Volume 47, Number 1, Fall 2021. © 2021 by the Ameri can Bar Association. Re produced with per mission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in any f orm or
by any means or stored in an el ectronic database or r etrieval system w ithout the expre ss written cons ent of the American Bar A ssociation.
U.S. cour t of appeals armed the use of “s nap
removal” by an out-of-state d efendant to remove
a case to federal co urt before service on two
in-state defen dants. Normally, under th e local
defendant rul e, removal to federal court is n ot
permitted whe re a defendant is a citizen of the forum st ate.
Relying on the pla in language of 28 U.S.C . §1441(b)(2), which
limits the forum d efendant rule to parties “prop erly joined
and served,” th e U.S. Court of Appeal s for the Fifth Circuit
in Texas Brine Company, L. L.C. v. American Arbitration
Association, I nc. held that an out-of-state defenda nt served
with process can im mediately remove to federal court
before in-state d efendants are served.
In Texas Brine, one of the parties to an arb itration
claimed that two a rbitrators hid conf‌licts of interes t, and
a Louisiana state co urt vacated the arbitration award . The
losing part y then f‌iled suit in Louisiana state co urt seeking
damages agai nst one out-of-state defendant and t wo in-
state defendant s. The out-of-state defendant was ser ved
f‌irst and removed to fe deral court before service o n an in-
state defendant . The district court denie d remand, and the
court of appea ls armed.
The appellate co urt noted that “[w]hen the plain lan-
guage of a statute is u nambiguous and does not le ad to an
absurd result, ou r inquiry begins and end s with the plain
meaning of that la nguage.” The court held th at “[b]y its
text, then, sec tion 1441(b)(2) is inapplicable un til a home-
state defendant h as been served in accordanc e with state
law; until then, a s tate court lawsuit is removable unde r sec-
tion 1441(a) so long as a fede ral district court can assu me
jurisdiction over th e action.”
“The court g ot it right,” agrees Bradford S. B abbitt,
Hartford, C T, cochair of the ABA Liti gation Section’s
Commercial & B usiness Litigation Committee . “The statute
clearly states , ‘properly joined and serve d.’ Once a case
is removed, secti on 1441(b)(2) is not in play anymore,” he
asserts. “ Snap removal” may cause cou nsel to pay more
attention to state cour t dockets and instigate more race s
to the courthous e, Babbitt adds. “An out-of-state defen -
dant who learns o f a state court lawsuit potentially might
try to quickly rem ove the case to federa l court even before
service, sim ply waiving service by appearan ce and remov-
ing the case to fede ral court to get a jump on service o n in-
state defen dants.”
At least one fede ral district court has rejec ted this
tactic, Bab bitt observes. The U.S . District Court for the
Northern Di strict of Alabama in Bowman v. PHH M ortgage
Co. refused to permit sn ap removal where none of the
defendants wa s properly served. In reman ding to state
court, the dis trict court noted that “[i]n its o riginal form,
the rule created pote ntial for abuse by plaintis. A cra fty
plainti could na me an in-state defendant to the su it,
without ever intendin g to prosecute the case against that
defendant, purely to frustrate removal.” The district court
also recognized , however, that “[i]f the plai nti serves an
out-of-state defendant before an in-state defendant, the
out-of-state defendan t is free to remove the case.” To bal-
ance these comp eting interests, the Bowman cour t held
that for snap remova l to exist, at least on e defendant must
be properly ser ved and joined.
Tracy A. DiFillipp o, Las Vegas, NV, cochair of the
Section of Litigati on’s Pretrial Practice & Discovery
Committee, agrees that snap removal creates opportu-
nities for games manship. “Prior to snap remova l,” she
observes, “p laintis could name forum de fendants and not
serve them, si mply to prevent removal. Now, defendants
can use snap rem oval if an out-of-state defendant is f‌irst
served,” contin ues DiFillippo. “Snap re moval thus might
prevent naming loc al defendants who are never ser ved to
prevent removal to feder al court,” predicts DiFill ippo. “The
obvious takeaway is don ’t add local defendants to de feat
removal who you are not g oing to actually serve, and dili -
gently serve loc al defendants before ser ving out-of-state
defendants.”
“I recognize that thi s court of appeals expressed co n-
cerns that the dec ision might have some tactical con -
sequences,” opines Ethan T. Tidmore, Birmingham, AL,
cochair of the Sec tion’s Pretrial Practice & Discovery
Committee. “ Nevertheless, the cour t properly found snap
removal permiss ible under the plain langua ge of the stat-
ute. While removal ju risdiction grows out of the need to
prevent a hometown advan tage, the specif‌ic statutor y lan-
guage about service seems clear and specif‌ic about when
the local forum d efendant rule applies,” h e adds.
Ultimately, Babbitt wonders if removal jurisprudence
should be revisited . “We live in a dierent time than when
the concept of remova l was developed, and removal
jurisdiction h as its roots in concerns about be ing ‘home-
towned,’” muse s Babbitt. “Removal is an an achronism of a
dierent time. T he concept raises interesting qu estions in
the digital age, a nd we might want to think about its app li-
cation in today’s ele ctronic world,” he concludes .
Digital versio ns of all Civil Procedur e stories, including lin ks to
resources an d authorities, are availab le at http://bit.ly/LN-civp ro.
Snap Removal: A New Tool for
Out-of-State Defendants
By Erik A. Christia nsen, Litigation News Team Editor
22 | SECTION OF LITIGATIO N
CIVIL PROCEDURE UPDATE

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