They are often called “snap removals” or “wrinkle removals.” They refer to cases removed to federal court before a forum defendant is served, which is one way to comply with the forum defendant rule in 28 U.S.C. § 1441(b)(2). That statute says that a civil action otherwise removable on diversity jurisdiction may not be removed if any defendant “properly joined and served” is a citizen of the forum state.
Thus, we have “snap removals.” If you remove a case before the forum defendant is served, complete diversity should carry the day. Sure, many plaintiffs have complained that this race to the federal courthouse violates the spirit of the removal statute, but the authorities are trending in the direction of following the statute’s plain language (you can read our most recent reports here and here). Pre-service removal therefore is common and accepted in many places, if not most.
Here is today’s question: If the timing of a removal is so important, when is a case considered removed? We believe a case is removed as soon as the notice of removal hits the federal docket, but two federal courts last week went the other way and ruled that a case is “removed” only after notice of the removal is filed and served in state court.
The earlier of the two cases was a classic race. A non-Pennsylvania plaintiff filed her complaint against Pennsylvania defendants in Pennsylvania state court at 10:06 a.m., and the defendants removed the case at 1:55 p.m. before they were served. That, however, is not the end of the story. Plaintiff served all defendants with a copy of the complaint 20 minutes later—at 2:15 p.m.—and the defendants filed their notice on the state docket at 4:11 p.m. See Brown v. Teva Pharmaceuticals, Inc., No. 19-3700, 2019 WL 5406218 (E.D. Pa. Oct. 23, 2019).
The second case was even more compressed. A non-New Jersey plaintiff sued a New Jersey defendant in New Jersey state court at 9:35 a.m., and the defendants removed the case to federal court at 10:14 a.m.—one minute before the plaintiff personally served the complaint. Although the defendant beat the service clock, it did not file and serve notice in state court until 11:17 a.m. Dutton v. Ethicon, Inc., No. 18-17199, 2019 U.S. Dist. LEXIS 180567 (Oct. 18, 2019).
All in a day’s work, right? The defendants argued that they removed their cases before any forum defendant was served, thus complying with the forum defendant rule. Both district courts disagreed, and they remanded the cases for essentially the same reason—the plaintiffs completed service before the defendants could complete all the steps required for removal. The removal statute provides that a removing party must give notice to adverse parties and file a copy of the notice in state court, “which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.” 28 U.S.C. § 1446.
That is the language that both courts seized on: “which shall effect the removal.” As the District of New Jersey explained:
By language alone, § 1446 requires three steps for effectuating removal to federal court: defendants must file the notice of removal in federal court, provide written notice to all adverse parties, and file a copy of the notice with the clerk of the state court. Indeed, the phrase “which shall effect the removal” in § 1446(d) . . . makes it clear that removal is not “effected” until all three steps are completed.
Dutton, at *14; see also Brown, at *2 (“Significantly, § 1446(d) further provides that the written notification of all adverse parties and the filing of a copy of the removal notice with the state court clerk ‘shall effect the removal.’”).
The defendants, for their part, argued that they complied with the forum defendant rule because they had not been properly joined and served when they initiated removal, but the District of New Jersey rejected that argument as contrary to the plain language of the statute.
Although these orders resulted in remand, they also reaffirmed the vitality of pre-service removal (“snap removal”) as a means to comply with the forum defendant rule. Both cite Encompass Insurance Co. v. Stone Mansion Restaurant, Inc., 902 F.3d 147 (3d Cir. 2018), the recent (and binding) Third Circuit case approving pre-service removal (you can read our breaking news post on Encompass here). Moreover, the district court in Dutton denied remand over other cases where the defendant had clearly filed the required notice in state court before it was served. In one case the defendant removed the case eleven minutes after it was filed and provided notice in state court a mere two minutes later—too fast for the plaintiff’s process server to beat.
The plaintiff cried foul, but the district court followed Encompass: “Here as the circuit court signaled in Encompass, [the defendant’s] filing of notice of removal within minutes of the timestamping of [the] complaint does not make removal improper under § 1441(b). . . . [T]he Encompass court recognized the possibility of such docket monitoring and accelerated filing and found that such conduct does not violate either the language or the intent of the removal statute.” Dutton, at *20-*21.
The moral of the story is that pre-service removed has gained further support, but move fast. It could make a difference in some courts.