“The possibility of particular mischiefs can never be viewed, by a well-informed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages.”

Federalist Paper No. 80.

Snap removals (removals prior to service upon a forum defendant) are a powerful but controversial tool in a defendant’s toolbox. As recent cases have demonstrated, the difference between a successful snap removal to federal court and a remand to state court could be mere minutes. Having a plan in place to quickly effect removal prior to service is crucial.

Typically, a case based upon diversity jurisdiction is not removable if one of the defendants is a resident of the forum state. But if the forum defendant has not yet been “properly joined and served,” some courts allow removal of an otherwise non-removable case. Viewed as a loophole by some, snap removals are arguably based upon the unambiguous language of the removal statute and may serve a long-forgotten purpose behind federal diversity jurisdiction—unifying the judiciary nationwide and promoting consistent rulings.

I. Philosophical Underpinnings of Diversity Jurisdiction

Federal courts are courts of limited jurisdiction. Article III of the U.S. Constitution delineates the federal judicial power:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

U.S. Const. Article III, § 2. “Diversity jurisdiction” is shorthand for those cases between citizens of different states. 28 U.S.C. § 1332(a) (requiring also that the amount in controversy exceed $75,000, exclusive of interest and costs).

A. Purposes of Federal Diversity Jurisdiction

In the Federalist Papers, Alexander Hamilton wrote that the power of hearing cases “between the citizens of different States, is perhaps not less essential to the peace of the Union than” those other types of cases enumerated in Article III.¹ The Federalist No. 80 (Alexander Hamilton). According to Hamilton, “Whatever practices may have a tendency to disturb the harmony between the States, are proper objects of federal superintendence and control,” and the authority of federal courts “to decide finally all differences among the members” of the States would help ensure domestic tranquility. Id.

During the Constitutional Convention and the early days of the first Congress, the anti-federalists opposed federal diversity jurisdiction. As Honorable Diane Wood, Circuit Judge for the U.S. Court of Appeals for the Seventh Circuit, has noted, this fact “sheds light on the hopes (or fears) that our eighteenth-century forebears had for diversity jurisdiction and on the way that they expected the federal courts to exercise this judicial authority: as a tool of national unification . . . .” Hon. Diane P. Wood, The Changing Face of Diversity Jurisdiction, 82 Temp. L. Rev. 593, 594 (2009).

But the unification and tranquility rationale for diversity jurisdiction has drifted from common reference. Instead, courts and commentators today focus on the other purpose for federal diversity jurisdiction: providing a neutral forum for all parties. See, e.g., Aerojet-General Corp. v. Askew, 511 F.2d 710, 716 (5th Cir. 1975) (stating that the “very purpose of federal diversity jurisdiction is to avoid bias against parties from outside the forum state”); Szantay v. Beech Aircraft Corp., 349 F.2d 60, 65 (4th Cir. 1965) (stating that the purpose of diversity jurisdiction is “to avoid discrimination against non-residents”). As Hamilton argued, federal courts “having no local attachments, will be likely to be impartial between the different States and their citizens,” and “will never be likely to feel any bias inauspicious to the principles on which it is founded.” The Federalist No. 80. “The reasonableness of the agency of the national courts in cases in which the State tribunals cannot be supposed to be impartial, speaks for itself.” Id.; see also Henry J. Friendly, The Historic Basis of Diversity Jurisdiction, 41 Harv. L. Rev. 483 n.4 (1928) (noting that the explanation for diversity jurisdiction based on “local prejudice has been written into the Constitution by judicial decision”).

Although recent jurisprudence focuses on the latter rationale, the Constitution does seem to have served at least two purposes by allowing for federal diversity jurisdiction—consistency of decisions throughout the land and avoidance of local bias.

B. Requirement of Minimal vs. Complete Diversity

Article III provides a general enumeration of federal judicial powers, including diversity jurisdiction. Beyond that, Congress has enacted a number of jurisdictional statutes delineating what constitutes diversity of citizenship for the purposes of diversity jurisdiction.

Congress certainly has the power to enact jurisdictional statutes based upon so-called “minimal” diversity, meaning that the citizenship of the plaintiffs is diverse from that of some, but not necessarily all, defendants. It did so most recently in the Class Action Fairness Act of 2005, which provides that “[t]he district courts shall have original jurisdiction of any . . . class action in which . . . any member of a class of plaintiffs is a citizen of a State different from any defendant . . . .” 28 U.S.C. § 1332(d)(2) (emphasis added) (requiring also an amount in controversy exceeding the sum or value of $5 million).

However, in the ordinary case, Congress has instead required “complete” diversity of citizenship, i.e., the citizenship of each plaintiff must be different from the citizenship of each defendant.

The notion of complete diversity originated in Strawbridge v. Curtiss, 7 U.S. 267 (1806), where the Supreme Court considered an early statute granting jurisdiction over suits “between a citizen of a state where the suit is brought, and a citizen of another state.” Strawbridge, 7 U.S. at 267 (internal quotation marks omitted). The Court interpreted that statute “to mean that each distinct interest should be represented by persons, all of whom are entitled to sue, or may be sued, in the federal courts.” Id. Remarkably, the Supreme Court later noted that Chief Justice Marshall, who authored Strawbridge, “repeatedly expressed regret that [that] decision[] had been made, adding, whenever the subject was mentioned, that if the point of jurisdiction was an original one, the conclusion would be different.” Louisville, Cincinnati & Charleston R.R. v. Letson, 43 U.S. 497, 555 (1844).

Current legislation on diversity jurisdiction is found in Title 28, which provides: “The district courts shall have original jurisdiction of all civil actions where the matter . . . is between . . . citizens of different States . . . .” 28 U.S.C. § 1332(a) (requiring also an amount in controversy exceeding $75,000). Though “[t]his statute and its predecessors have consistently been held to require complete diversity of citizenship,” the Supreme Court has noted that “[i]t is settled that complete diversity is not a constitutional requirement.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 & n.13 (1978).

II. Parties’ Rights to Choose Forum

It is axiomatic that a plaintiff is the “master” of his or her complaint. See, e.g., 14B Charles Alan Wright et al., Federal Practice & Procedure § 3702, at 46 (3d ed. 1998) (“[P]laintiff is the master of his or her claim; if the plaintiff chooses to ask for less than the jurisdictional amount, only the sum actually demanded is in controversy.”); The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913) (“Of course the party who brings a suit is master to decide what law he will rely upon.”). Ordinarily, there is a “strong presumption in favor of the plaintiff’s choice of forum,” especially “[w]hen the [plaintiff’s] home forum has been chosen.” Piper Aircraft Co. v. Reyno, 454 U.S. 235,265-66 (1981).

Even so, the federal judicial power, like the Constitution as a whole, was designed for the common benefit of all. “It was not to be exercised exclusively for the benefit of parties who might be plaintiffs, and would elect the national forum, but also for the protection of defendants who might be entitled to try their rights, or assert their priviliges [sic], before the same forum.” Martin v. Hunter’s Lessee, 14 U.S. 304, 348 (1816). “The right of choosing an impartial tribunal is a privilege of no small practical importance . . . . It is of importance also to corporations themselves that they should enjoy the same privileges, in other States, where local prejudices or jealousy might injuriously affect them.” Marshall v. Baltimore & Ohio R.R., 57 U.S. 314, 329 (1854).

Thus, defendants are allowed to remove state-court cases to federal court if the federal court has jurisdiction over the matter. 28 U.S.C. § 1441. As the Supreme Court has explained, non-resident defendants have a “federal constitutional right . . . to resort to the federal courts” through the exercise of their right to removal. Terral v. Burke Constr. Co., 257 U.S. 529, 532-33 (1922).

A. Plaintiff’s Devices to Destroy Removal Right

Plaintiffs may attempt to avoid removal and remain in state court by employing a number of devices, including:

• Failing to aver or misstating the citizenship of the parties or the amount in controversy
• Naming a diversity-destroying party
• Realigning a party for the purpose of defeating diversity
• Filing non-binding stipulations as to the amount in controversy
• Entering into improper or collusive assignments
• Failing to prosecute the claims against the non-diverse defendant

Looking for such behavior is important when evaluating whether a case may be removed. “Ordinarily, a court will not interfere with the consequences of a plaintiff’s selection in naming parties, unless the plaintiff has impermissibly manufactured diversity or used an unacceptable device to defeat diversity.” Lincoln Prop. Co. v. Roche, 546 U.S. 81, 93 (2005). “Federal courts should not sanction devices intended to prevent a removal to a Federal court where one has that right.” Wecker v. Nat’l Enameling & Stamping Co., 204 U.S. 176, 185-86 (1907). Thus, as Justice Sotomayor has explained, the federal courts are “require[d] . . . in certain contexts to look behind the pleadings to ensure that parties are not improperly creating or destroying diversity jurisdiction.” Mississippi ex rel. Hood v. AU Optronics Corp., 571 U.S. 161, 176 (2014).

B. Exception to Removal Right: Forum Defendant Rule

In removals based solely on diversity jurisdiction, one notable exception exists: “A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title 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.” 28 U.S.C. § 1441(b)(2). In other words, not even complete diversity of the parties (which ordinarily would fall within the original jurisdiction of the federal courts) will suffice if one of the defendants is a resident citizen of the forum state. This exception is commonly called the “forum defendant” rule.²

The forum defendant rule springs from the enduring reliance upon the rationale that diversity jurisdiction is meant to alleviate partiality. See, e.g., Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 940 (9th Cir. 2006) (noting that if “[r]emoval based on diversity is intended to protect out-of-state defendants from possible prejudices in state court[,] . . . [t]he need for such protection is absent . . . in cases where the defendant is a citizen of the state in which the case is brought”). However, it does not serve the equally important need for uniformity amongst tribunals, a justification for diversity jurisdiction that has been virtually forgotten.

III. Snap Removals: Pre-Service Removals by Forum Defendants

Snap removals, i.e., removals prior to service upon a forum defendant, provide a possible avenue for home-state defendants (or foreign defendants with in-state co-defendants who have not yet been served) to remove diversity cases to federal court. But caveat litigator: not all courts allow snap removals. See Amir Shachmurove, Making Sense of the Resident Defendant Rule, 52 U.C. Davis. L. Rev.203, 214-24 (2019) (collecting cases); Matthew Curry, Note, Plaintiff’s Motion to Remand Denied: Arguing for Pre-Service Removal Under the Plain Language of the Forum-Defendant Rule, 58 Clev. St. L. Rev. 907, 917-20 (2010) (collecting cases).

By its plain language, § 1441 only prohibits removal of diversity jurisdiction cases by forum defendants that have been “properly joined and served as defendants.”³ 28 U.S.C. § 1441(b)(2). Generally speaking, a court’s duty when interpreting statutory language is to “give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive.” Thomson v. Novartis Pharms. Corp.,No. 06-6280, 2007 WL 1521138, at *4 (D.N.J. May 22, 2007). Reading the unambiguous language of § 1441, the Thomson court concluded that an in-state defendant must be served before removal is prohibited. Id.

Many courts have taken this same strict constructionist view of the statutory language and have allowed removal based upon diversity jurisdiction prior to service on a forum defendant. See, e.g., In re Diet Drugs Prods. Liab. Litig., 875 F. Supp. 2d 474, 477-78 (E.D. Pa. 2012); Munchel v. Wyeth LLC, No. 12-906-LPS, 2012 WL 4050072, at *4 (D. Del. Sept. 11, 2012); Carrs v. AVCO Corp., No. 3:11-CV-3423-L, 2012 WL 1945629, at *3 (N.D. Tex. May 30, 2012); Regal Stone Ltd. v. Longs Drug Stores California, L.L.C., 881 F. Supp. 2d 1123, 1126 (N.D. Cal. 2012); Watanabe v. Lankford, 684 F. Supp. 2d 1210, 1219 (D. Haw. 2010); Ripley v. Eon Labs, Inc., 622 F. Supp. 2d 137, 141-42 (D.N.J. 2007).

Other courts have assumed that the plain statutory language permits snap removals but nevertheless have disallowed them because of policy considerations or an effort to prevent “absurd” results. See Gentile, 934 F. Supp. 2d at 321 (“[Defendant’s] reading of the ‘properly joined and served’ language rewards a variation on the kind of gamesmanship the Supreme Court suggested . . . should be discouraged.”); see also, e.g., Mass. Mut. Life Ins. Co. v. Mozilo, 2012 U.S. Dist. LEXIS 91478 (C.D. Cal. June 28, 2012); Ethington v. Gen. Elec. Co., 575 F. Supp. 2d 855, 862 (N.D. Ohio 2008); Sullivan v. Novartis Pharms. Corp., 575 F. Supp. 2d 640, 647 (D.N.J. 2008); Holmstrom v. Harad, No. 05 C 2714, 2005 WL 1950672, at *1-2 (N.D. Ill. Aug. 11, 2005).

Still other courts have simply looked beyond the perceived plain meaning to prevent snap removal attempts. See, e.g., Snider v. Sterling Airways, Inc., No. 12-CV-3054, 2013 WL 159813, at *1 (E.D. Pa. Jan. 15, 2013); Perez v. Forest Labs., Inc., 902 F. Supp. 2d 1238, 1246 (E.D. Mo. 2012).

Because remand decisions are not reviewable on appeal, not many courts of appeal have weighed in on the debate. The two that have considered snap removals thus far have agreed with the plain language approach and allowed such removals. See Gibbons v. Bristol-Myers Squibb Co., No. 17-2638, 2019 WL 1339013 (2d Cir. Mar. 26, 2019); Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147 (3d Cir. 2018); but see Goodwin v. Reynolds, 757 F.3d 1216 (11th Cir. 2014) (stating, in dicta only, that the purpose of the forum defendant rule and the “properly joined and served” language was “to prevent gamesmanship by plaintiffs” and expressing their belief that district courts have discretion “to undo Defendants’ gamesmanship” in removing prior to service).

Recently, the District of New Jersey considered a number of cases that Ethicon, which is headquartered in New Jersey, snap removed to federal court in the pelvic mesh litigation.⁴ Dutton v. Ethicon, Inc., No. 3:18-cv-17553-FLW-DEA, 2019 WL 5304169 (D.N.J. Oct. 18, 2019). Three factually representative cases were selected to streamline the court’s consideration of the various issues:

1. In Gilbert, the plaintiff filed suit on November 30, 2018, at 9:35 a.m., and a process server personally served Ethicon by 10:15 a.m. Ethicon filed its notice of removal with the District of New Jersey at 10:14 a.m., just one minute prior to being served! However, Ethicon did not provide copies of the removal notice to the plaintiff and the state court until 11:17 a.m. Id. at *2.
2. In Snader, the plaintiff filed suit on December 21, 2018, but the process server was not able to perfect service upon Ethicon until January 2, 2019, because its offices were closed for the holidays. In the meantime, Ethicon filed a notice of removal on December 24, 2018. Id.
3. In Williams, the plaintiff filed suit on January 7, 2019, at 3:10 p.m. By 3:21 p.m. that day, Ethicon had filed its notice of removal; the state court was notified at 3:23 p.m. The process server perfected service upon Ethicon the following day. Id.

In Gilbert, the court determined that remand was proper because Ethicon had been “properly joined and served” prior to removal. Id. at *4-5. The removal statute requires a removing party to give written notice to all adverse parties to “file a copy of the notice with the clerk of such State court, which shall effect the removal . . . .” 28 U.S.C. § 1446(d). Ethicon filed its notice of removal prior to service, but it did not “effect the removal” by providing copies to the adverse parties and the state court prior to service. Dutton, 2019 WL 5304169, at *4-5 (citing La Maina v. Brannon, 804 F. Supp. 607, 613 (D.N.J. 1984) (noting that all three requirements must be complete to effect removal and that “the plain meaning of the statute would seem to dictate that the state court would retain jurisdiction over the matter until all three requirements have been satisfied”)). Thus, remand was warranted.

In Snader, the court determined the removal was proper, despite the fact that the plaintiff could not serve Ethicon because Ethicon’s offices were closed. Dutton, 2019 WL 5304169, at *6. The court noted that even if the office closing could be construed as an intentional attempt to avoid service—a conclusion that the court did not make—such “gamesmanship” or “pre-service machinations” are not forbidden. Id. (citing McLaughlin v. Bayer Essure, Inc., No. 14-7315, 2019 WL 2248690, at *4 (E.D. Pa. May 24, 2019) (“[T]he rule we apply today encourages some level of gamesmanship . . . .”)).

Likewise, in Williams, the court determined removal was proper. Dutton, 2019 WL 5304169, at *7. The plaintiff argued Ethicon’s removal was inconsistent with the spirit of the forum defendant rule; however, the court was bound to follow Encompass, which “rule[d] that § 1441 does not bar an in-state defendant from removing an action by ‘monitoring dockets electronically, gaining an advantage in a race-to-removal scenario.’” Id. (quoting Encompass,902 F.3d at 153 & n.4). To the extent the parties raised concerns as to the perceived conflict between the plain wording of the removal statute and the so-called “spirit” of that rule, the court concluded that “the legislature is well-suited to address the issue.” Id.

A snap removal can be seen as a loophole in the removal statute. The logic of pro-remand courts is based on the most cited purpose behind diversity jurisdiction: to protect out-of-state defendants from local prejudice. See Shachmurove, supra at 223-24 (noting that “today’s historically dubious, yet essentially unquestioned, consensus” that removal based on diversity jurisdiction is intended to protect foreign defendants from in-state bias “plays a valuable supporting role in these pro-remand opinions”).

However, as noted above, another intended purpose for diversity jurisdiction (unification and tranquility across the nation) undergirds Article III’s inclusion of this grant of judicial power; this purpose is not served by the forum defendant rule (or the notion of complete diversity). Reading the removal statute as plainly allowing snap removals is perhaps a step in the right direction to reclaiming this long-forgotten second purpose of diversity jurisdiction. At the very least, as the Supreme Court has noted, “if Congress intends a different result, it is up to Congress rather than the courts to fix it.” Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 565 (2005).

IV. Snap Removal Checklist

If a federal forum is preferable, being on the lookout for opportunities to file a snap removal may make all the difference (especially in the Second and Third Circuits, and other jurisdictions, where the practice has been explicitly endorsed). Here is a checklist of considerations and best practices for handling snap removals:

1. Sign up for automated case filing notifications (e.g., Westlaw Court Wire, Pacer alerts, Docket Alarm, etc.) to monitor new case filings.
2. Note that service upon a statutory or designated agent may not necessarily constitute service upon the defendant in some jurisdictions.⁵
3. Be wary of plaintiffs’ attempts to avoid snap removals by “snap service,” i.e., waiting to file a complaint until the authorized agent is available to accept service, then printing the docketed complaint from a mobile printer and serving the agent.⁶
4. Have templates for the notice of removal, notice to adverse parties, and notice to the state court drafted and at the ready.
5. Evaluate each new case for the following:
   • The parties are completely diverse
   • No forum defendant has been served
   • All other elements for federal jurisdiction are met (amount in controversy, etc.)
6. If the above elements are met, file the notice of removal in the applicable federal court and provide notice to the adverse parties and the state court ASAP.
7. File the answer promptly. This forecloses the plaintiff’s opportunity to file a notice of dismissal without prejudice pursuant to Rule 41(a)(1)(A), cure the deficiencies, and file again in state court.

In jurisdictions without clear precedent allowing snap removals, be prepared to argue against a remand motion from the plaintiff. The above arguments and citations will hopefully prove helpful in keeping the case in the federal forum.

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^[1] The need for uniformity and tranquility among the various states also underpins the grant of Supreme Court appellate jurisdiction over state-court decisions. Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat) 304, 348 (1816) (noting as a motive “the importance, and even necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution”).

^[2] The forum defendant rule is procedural, not jurisdictional; if the plaintiff does not object within 30 days of removal, the defect is waived. Farm Constr. Serv. v. Fudge, 831 F.2d 18, 21-22 (1st Cir. 1987); Woodward v. D.H. Overmyer Co., 428 F.2d 880, 882 (2d Cir. 1970); Korea Exch. Bank v. Trackwise Sales Corp., 66 F.3d 46, 50 (3d Cir. 1995); In re Shell Oil Co., 932 F.2d 1518, 1522 (5th Cir. 1991); Handley-Mack Co. v. Godchaux Sugar Co., 2 F.2d 435, 437 (6th Cir. 1924); Hurley v. Motor Coach Indus., 222 F.3d 377,380 (7th Cir. 2000); Hurt v. Dow Chem. Co., 963 F.2d 1142, 1145-46 (8th Cir. 1992); Snapper, Inc. v. Redan, 171 F.3d 1249, 1258 (11th Cir. 1999).

[3] This language—“properly joined and served”—was added to the removal statute in 1948, but the legislative history provides no explanation for its inclusion. See Sullivan v. Novartis Pharm. Corp., 575 F. Supp. 2d 640, 644 (D.N.J. 2008). Based upon the judicial opinions at that time, it appears the language was added “to prevent plaintiffs from defeating removal through improper joinder of a forum defendant; incomplete service appears to have been included as a means of identifying and policing such abuse by proxy.” Gentile v. BioGen IDEC, Inc., 934 F. Supp. 2d 313,320 (D. Mass. 2013) (citing Pullman Co. v. Jenkins, 305 U.S. 534, 540-41 (1939) (discouraging plaintiffs from naming forum defendants, without any intention of pursuing those defendants, to avoid federal jurisdiction)).

[4] The authors’ law firm, Butler Snow, represents Ethicon, but the information in this article derives solely from the reported decisions.

[5] See, e.g., Tucci v. Hartford Fin. Servs. Group, Inc., 600 F. Supp. 2d 630, 631 (D.N.J. 2009) (concluding that “the thirty-day period for removal does not commence with service on a statutory agent, but instead when the defendant receives the summons and complaint,” after noting that statutory agents “are not true agents but are merely a medium for transmitting the relevant papers” and have “no power to remove this case on behalf of defendants”).

[6] Plaintiffs attempted this kind of “snap service” in a case recently removed to the District of New Jersey, where a motion to remand is currently pending. See D’Alessandro et al. v. Howmedica, No. 2:19-cv-15147-JMV-JBC, ECF No. 13, at 3 (D.N.J. Oct. 31, 2019) (discussing service attempts on behalf of Plaintiff Colleen Kennedy); cf. Danielle Gold & Rayna E. Kessler, How to Avoid ‘Snap Removals,’ Trial, 54 (July 2019) (available at https://bit.ly/2CEpxZg).

Finis