Document Type

Response or Comment

Publication Date

11-14-2019

Publication Title

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

Abstract

“Snap removal” is a stratagem used by defendants in civil litigation as an end run around the forum defendant rule. That 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.” Focusing on the phrase “properly joined and served,” defendants have argued that § 1441(b)(2) allows removal of a diversity action when a citizen of the forum state has been joined as a defendant but has not yet been served. Two courts of appeals and many district judges have accepted this argument; other district judges have rejected it. The conflict in the lower courts has few parallels in its extent and its intensity.

In 2018, when the Third Circuit upheld removal by a forum defendant who had not been served, the court commented: “Reasonable minds might conclude that the procedural result demonstrates a need for a change in the law; however, if such change is required, it is Congress — not the Judiciary — that must act.” In November 2019, the House Judiciary Committee took up the court’s invitation; it held a hearing to examine the practice of snap removal and to consider possible legislative solutions. This statement was submitted as part of my testimony at that hearing.

The issue may seem narrow and technical, but it continues to generate extensive litigation in the lower courts, consuming client funds and court resources without advancing resolution of the underlying claims. Only Congress can set the matter right.

What action should Congress take? One obvious possibility would be to delete the words “and served” from § 1441(b)(2). However, altering the language of a statutory provision that has been in effect for more than 70 years runs a serious risk of disrupting other aspects of the complex law of removal. The better approach, by far, is to enact a standalone provision that carefully defines the situation to which it applies and then tells the parties and the court what to do when that situation arises.

A statutory amendment along those lines has been proposed in an article written by five Federal Courts scholars, of whom I am one. The proposed amendment would allow the plaintiff to counter snap removal by serving one or more in-state defendants after removal. Under the proposal, if the plaintiff takes that step within the time for service of process allowed by the Federal Rules of Civil Procedure (or state law), and a motion to remand is made within 30 days thereafter, the district court must send the case back to state court.

This approach — creating what has been called a “snapback” mechanism — provides the best starting-point for the statutory fix that the Third Circuit invited. If the snapback provision is enacted, the incidence of snap removal can be expected to diminish sharply, as defendants come to recognize that the stratagem will no longer enable them to circumvent the forum defendant rule. To the extent that defendants do remove before any in-state defendants have been served, the plaintiff can secure remand by promptly serving at least one such defendant. The snapback is thus a preventive measure as well as a cure.

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