Snap, Crackle, Remove: Gamesmanship or Winning Strategy? The What, When, and Where of Snap Removal

Snap removal is a rare but useful procedural device to remove an action from state to federal court under the diversity jurisdiction rules, even when the plaintiff’s complaint names an in-state defendant as a party.

Snap removal is a potential solution to the “forum defendant” rule, designed by Congress to keep otherwise removable cases in state court if any defendant “properly joined and served” is a citizen of the forum state. 28 U.S.C. § 1441(b)(2). The rationale behind the forum defendant rule is that, presumably, an in-state defendant needs no protection from territorial bias in its home state. The “properly joined and served” language, however, limits the forum defendant restriction.

To date, four circuits (the Second, Third, Fifth, and Sixth) have recognized that naming a forum defendant in an action does not defeat an otherwise proper removal if the action is removed to federal court before the forum defendant is served. This is snap removal.

With the expansion of electronic filing in many state jurisdictions, notice of litigation before service of process is now quite common. Outside lawyers are often alerted to newly filed cases within days, or even hours, of their client’s name appearing as the defendant in a state court lawsuit. Snap removals have become more commonplace as a result, and reaction by lower courts and commentators is mixed — with some referring to the procedure as “gamesmanship” or “forum shopping,” while others note that snap removal is supported by the plain language of 28 U.S.C. § 1441 and that any litigant’s choice of forum is, in effect, forum shopping. Some courts recognize that, although it seems unlikely Congress intended to create the snap removal device through the passage of section 1441, it is up to Congress to change the statutory language.

There are often legitimate reasons why a defendant may seek to remove an action to federal court, even when the plaintiff has named an in-state/forum defendant. The forum defendant, for example, may be a minor player in the dispute, whereas an out-of-state defendant bears the larger litigation risk. The forum defendant may also reasonably believe that parochialism is an issue despite its technical status as an “in-state” litigant.

Importantly, snap removal cannot be used to cure a lack of diversity — all defendants must be “diverse” from all plaintiffs, and the minimum amount in controversy must be met to remove a diversity case to federal court. Also, a removing party should carefully analyze the most recent authorities on snap removal in the relevant federal jurisdiction, as district court opinions in circuits without a bright-line rule on the issue can be inconsistent.

The snap removal strategy should be an arrow in counsel’s quiver, ready for when and where it is available. However, the window for executing a snap removal closes immediately upon proper service of the in-state defendant, so get cracking!