Oh, snap! What’s that sound? It may be the “snap removal” of your state court complaint to the federal courthouse. Here are the basics of “snap removal” with tips to avoid it—or invoke it.
Generally speaking, where complete diversity of citizenship exists between plaintiffs on the one hand and defendants on the other hand, defendants can remove a case filed in state court to federal court. 28 U.S.C. § 1441. An exception is the so-called forum defendant rule, which states that a defendant sued in state court typically cannot remove to federal court based on diversity jurisdiction where at least one defendant is a citizen of the forum state. But there’s an exception to this exception: removal may be allowed so long as a defendant files the notice of removal before a forum defendant is “properly joined and served.” 28 U.S.C. § 1441(b)(2) (emphasis added). This means that the swift defendant who learns of the state court complaint–and then files a notice of removal—before formal service of any local defendant may escape to federal court.
Not all courts agree that “snap removal” is legitimate. Even in the Northern District of California, judges are split. Some view “snap removal” as an absurd outcome: it rewards gamesmanship while undermining the plaintiff’s choice of forum, the limited nature of diversity jurisdiction, and presumptions against removal. Yet others endorse “snap removal” as compelled by the statutory language that conditions removal on a local defendant having been “served.” 28 § U.S.C. § 1441(b)(2).
With this backdrop, both plaintiffs and defendants should be prepared to deal with “snap removal.”
For plaintiffs and their counsel hoping to lessen the risk of “snap removal”: craft a plan for a quick service of at least one forum defendant before filing the complaint. This could mean scouting the agent of service for a corporate defendant, and/or the home addresses for an individual. And then, once the complaint is filed and the summons is issued, complete service as fast as possible. If a defendant receives informal notice of the lawsuit—whether through a courtesy copy, word of mouth, or otherwise—then the greater the length of time between such informal notice and actual service, the greater the risk of “snap removal.”
For defendants and their counsel hoping to take advantage of “snap removal”: be on your toes. You will need to react quickly to remove any state court complaint before it is served. You can get instant notice of any complaint cheaply by subscribing to an automated tracker of public court dockets. It may take a few days for the state court to issue the summons needed for the plaintiff to formalize service, and a notice of removal is a simple pleading. You may snap yourself into a more favorable forum with stricter pleading standards and less onerous discovery rules.
For more information regarding Alto Litigation’s litigation practice, please contact one of Alto Litigation’s partners: Bahram Seyedin-Noor, Bryan Ketroser, or Joshua Korr.
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