Last year was a banner year for removal before service, with both the Second and Third Circuits weighing in to support application of the removal statute according its terms, thereby giving their blessing to the so-called “snap” or “wrinkle” removal practice that this Blog has advocated for a decade.  See Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 705-07 (2d Cir. March 26, 2019); Encompass Insurance Co. v. Stone Mansion Restaurant, Inc., 902 F.3d 147, 151-54 (3d Cir. 2018).  Particularly given coincidental personal jurisdiction developments that tend to restrict mass tort plaintiffs seeking aggregation to suing defendants in their “home” courts, removal before service is now another accepted means for combating the other side’s incessant forum-shopping.  E.g., Anderson v. Merck & Co., 2019 WL 161512, at *1-2 (D.N.J. Jan. 10, 2019) (denying remand in 104 Zostavax cases).

Plaintiffs keep trying, however – frankly, we would expect no less.  Thus, the Pennsylvania lawyers among us are particularly pleased with the recent decision in McLaughlin v. Bayer Essure, Inc., 2019 WL 2248690 (E.D. Pa. May 24, 2019), which shot down an attempt to interpose a Pennsylvania procedural peculiarity against defendants’ ability to remove before service.  In Pennsylvania, unlike practically any other state, a plaintiff may serve a bare summons without an accompanying complaint.  Pa. R. Civ. P. 1007.  It’s a rather common practice because, for very little work, a plaintiff so doing can toll the Pennsylvania statute of limitations.  E.g., Sheets v. Liberty Homes, Inc., 823 A.2d 1016, 1018 (Pa. Super. 2003).

Does the service of a bare summons also preclude removal before service?  In McLaughlin the court held it did not.  As we’ve discussed many times before, removal before service works because, according to the express terms of the federal removal statute, the so-called “forum defendant rule” (barring removal when an otherwise diverse defendant is sued in the state court of its domicile), only applies to defendants “properly joined and served.”  28 U.S.C. §1441(b)(2).  Personal-jurisdiction-driven suits against a defendant in its “home” forum bring the forum defendant rule into play, and thus place a premium on removal before service.

Twenty-four snap-removed plaintiffs contended in McLaughlin that service of a Pennsylvania summons without a complaint satisfied the key statutory language.  The court had no trouble batting away this “Hail Mary pass” of an argument.  First, in analogous removal situations, the service of a bare summons doesn’t count.  Only service of a complaint starts the clock ticking on the 30-day removal period.  Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999); Sikirica v. Nationwide Insurance Co., 416 F.3d 214, 221-23 (3d Cir. 2005); Maneri v. Starbucks Corp., 2017 WL 5885732, at *2 (E.D. Pa. Nov. 29, 2017); Car Sense, Inc. v. Signet Financial Group, Inc., 2012 WL 13014938, at *2 (E.D. Pa. July 9, 2012); Polanco v. Coneqtec Universal, 474 F. Supp.2d 735, 737 (E.D. Pa. 2007); Gladkikh v. Lyle Industries, Inc., 2006 WL 266100, at *2 (Mag. M.D. Pa. Feb. 1, 2006).

Since only service of a complaint effects removal, plaintiffs’ contention that mere filing of a summons meant that all defendants were “properly joined and served” did not hold water.  McLaughlin, 2019 WL 2248690, at *3.

[W]e cannot allow service of the writ of summons to play such a central role in application of the Forum Defendant Rule when the United States Supreme Court and the Third Circuit have made it clear that the Complaint is the operative pleading for purposes of starting the removal process and the writ is largely inconsequential.

Id. (citing Murphy Brothers and Sikirica).  Congress’ “uniformity” purpose in the removal statute would also be frustrated:

because some forum defendants would be considered “properly joined and served” (and thus prohibited from removing) prior to even knowing the nature of the suit against them while others would not be considered joined and served (and thus prohibited from removing) until they received a Complaint setting forth the precise claims against them.

Id. (citations omitted).

Not only that, but to interpret “properly filed and served” to include a bare summons, would require this language to be construed differently from another place in the removal statute where identical language appears.  The same phrase is in 28 U.S.C. §1446(b)(2)(A), requiring the consent to removal of all “properly joined and served” defendants in federal question cases.  But that language has never been construed to require consent of defendants, served only with a bare summons.  Id.; see Car Sense, 2012 WL 13014938, at *2; DiLoreto v. Costigan, 2008 WL 4072813, at *3-4 & n.4 (E.D. Pa. Aug. 29, 2008), aff’d, 351 F. Appx. 747 (3d Cir. 2009).  A uniform construction of “properly joined and served” precluded a bare summons from qualifying:

[W]e can only conclude that forum defendants who have been served with the writ of summons and have not yet received the Complaint should not be considered “properly joined and served” for purposes of the Forum Defendant Rule.  Thus, consistency demands that the presence in litigation of a forum defendant who has been served with a writ of summons but not the Complaint does not defeat removal that is grounded on diversity jurisdiction.

McLaughlin, 2019 WL 2248690, at *4 (citation omitted).

Having lost everything else, plaintiffs in McLaughlin fell back on a variant of the same “absurd result” argument that the Third Circuit had rejected, as to removal before service in any context, in Encompass Insurance.  2019 WL 2248690, at *4.  This didn’t work either.

[I]n assessing whether the result we reach is “absurd or bizarre,” we are guided by the Third Circuit, which has . . . permit[ted] a forum defendant to strategically evade service in order to avoid application of the Forum Defendant Rule and has concluded that the practical outcome of that interpretation of the Rule is not “so outlandish as to constitute an absurd or bizarre result.”  Encompass, 902 F.3d at 153-54.  In light of this precedent, we conclude that an interpretation of the Forum Defendant Rule that permits removal before the forum defendant is properly served with the Complaint is not “so outlandish as to constitute an absurd or bizarre result.”

Id.  Plaintiffs’ threadbare “gamesmanship” argument fell on deaf ears because, essentially, plaintiffs’ own gamesmanship created the situation.  “Plaintiffs could have avoided the result they now face by merely mailing the Complaint to all of the named Defendants simultaneously with their filing of the Complaint.”  Id.

Thus, McLaughlin effectively hoisted plaintiffs on their own procedural petard.  The other side of the “v.” resorts to summons-only service as a quick and easy way to stop the statute of limitations from running.  But for removal purposes, that same neat trick now also means that nobody has been “properly joined and served.”  Service of a bare summons, where as in McLaughlin the forum defendant rule is in play, becomes the procedural equivalent of an engraved invite to defendants to remove the case to federal court.