Document Type

Response or Comment

Publication Date

11-14-2019

Publication Title

Supplementary Statement to the Hearing Before the House Committee on the Judiciary -- Subcommittee on Courts, Intellectual Property, and the Internet

Abstract

The forum defendant rule, embodied in 28 U.S.C. § 1441(b)(2), prohibits removal of civil actions based on diversity of citizenship jurisdiction “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.” Pointing to the phrase “properly joined and served,” defendants have argued that § 1441(b)(2) does not bar removal of a diversity action if a citizen of the forum state has been joined as a defendant but has not yet been served. The stratagem of removing before service to avoid the prohibition of § 1441(b)(2) is known as “snap removal.” Two courts of appeals and many district judges have held that snap removal is permissible; other district judges have held that it is not.

On November 14, 2019, the Subcommittee on Courts, Intellectual Property, and the Internet of the House Judiciary Committee held a hearing to examine the practice of snap removal. Three of the four witnesses agreed that snap removals are contrary to the intent of Congress as manifested in the forum defendant rule and that action by Congress is needed to close the loophole. Two different kinds of action were suggested. Professor James Pfander offered three proposals, each of which would require amending the text of an existing subsection of the Judicial Code. I offered one proposal, a standalone addition to the Code that would create what has been called a “snapback” mechanism.

The snapback mechanism is designed to operate as a kind of time machine. It sends the parties back to where they were at the moment before the defendant snap-removed, and it gives the plaintiff a chance to complete the service of process that would have prevented the removal under § 1441(b)(2). The case stays in federal court only long enough for the plaintiff to take the steps that will allow the case to return to state court, where all further proceedings will take place.

I believe that the snapback mechanism will address the problem described at the hearing without opening new loopholes or generating uncertainty about other aspects of removal practice. In contrast, each of the alternative proposals would create serious risks of reopening settled law and disrupting removal practice in ways that cannot be anticipated.

On February 7, 2020, Rep. Henry C. “Hank” Johnson, Jr., Chairman of the Subcommittee, introduced H.R. 5801, the “Removal Jurisdiction Clarification Act of 2020. H.R. 5801 embodies a revised version of the snapback proposal outlined at the hearing.

This supplementary statement addresses the major issues raised at the hearing. Part I analyzes the proposals offered by Professor Pfander. Part II offers a revised version of the snapback proposal, with commentary on the policy and drafting choices that it reflects. Part III responds briefly to the arguments made by the hearing witness who disputed the need for legislative action. In particular, the statement discusses the counterpart stratagem used by plaintiffs to defeat removal – artful or “fraudulent” joinder of non-diverse or forum defendants. I suggest that Congress should address both problems in a way that respects the purpose of the constitutionally authorized diversity jurisdiction. Part IV addresses Professor Pfander’s tentative suggestion that Congress “assign some authority over the details of removal and remand procedure to a rule-making body within the Judicial Conference of the United States.”

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