There’s a reason plaintiffs hate removal before service – “snap removal.” It has the potential to wreak havoc on their mass tort business models, which are largely based on confronting defendants with as many cases as possible in the worst jurisdictions possible. While federal courts are hardly perfect, they are usually better than the state-court fora that attract litigation tourists from all over the country.
Snap removal makes is much harder for litigation tourist plaintiffs to trap diverse defendants in the plaintiffs’ chosen fora, as is exemplified by the recent Castro v. Colgate-Palmolive Co., 2020 WL 2059741 (Mag. W.D.N.Y. April 29, 2020), which defense counsel in the case helpfully forwarded to us a little while ago. Castro is an asbestos/talc case filed in New York state court by Virginia litigation tourists. Id. at *1. Unfortunately, New York is notorious as a plaintiff haven in such cases. As is typical in such cases, plaintiffs sued multiple defendants, including some with principal places of business in New York. Id.
One (at least) of the defendants was technologically equipped to effectuate snap removal, and did so:
[Defendant] removed the case to this District by filing removal papers . . . just one day after the date of electronic filing stamped by the state-court system on the verified complaint. The 24-hour timing of the removal – [defendant] almost certainly was not served within 24 hours of filing and likely had means to monitor court dockets daily for activity against it − plus the language that no other defendant had “been properly joined or served” indicated that this removal was what some call a “snap removal.”
Id. at *2 (citations omitted). Crying “gamesmanship,” plaintiffs moved to remand. Id. at *1.
Unfortunately for plaintiffs’ tourism plans, “their motion to remand came just four days before the Second Circuit issued an opinion that condoned [defendant’s] procedural maneuver.” Id. That decision of course, was Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699 (2d Cir. 2019), which we blogged about here, and then named as our #2 best case of 2019. Thus, these litigation tourists were stranded in federal court. “[D]espite [plaintiffs’] valiant efforts to explore the penumbras of the language in Gibbons, the holding of Gibbons compels denial of their motion [to remand]”:
- The statute plainly provides that an action may not be removed to federal court on the basis of diversity of citizenship once a home-state defendant has been ‘properly joined and served.’
- By its text, then, Section 1441(b)(2) is inapplicable until a home-state defendant has been served in accordance with state law.
- Put simply, the result here − that a home-state defendant may in limited circumstances remove actions filed in state court on the basis of diversity of citizenship − is authorized by the text of Section 1441(b)(2) and is neither absurd nor fundamentally unfair.
- [S]nap removal is, in itself, the limited circumstance that allows a home-state defendant to do what otherwise would be prohibited.
Castro, 2020 WL 2059741, at *3 (citations to Gibbons omitted) (emphasis original).
Plaintiffs’ “policy argument” thus went by the boards. Modern technology is what it is.
In the era of 24-hour electronic filing, the Court is vaguely aware of third-party services that exist to monitor docket activity nationwide on a daily basis for new cases involving specified defendants. Whatever Congress intended with Section 1441(b)(2), modern technology appears to have created a gap between what was intended and what is now technically possible under the literal language of the statute.
Id. at *4. But, “updating statutes and regulations in the face of categorically new technological advances is for Congress and not for the judiciary.” Id. (citation omitted).
Assuming, of course, that diversity of citizenship exists (snap removal cannot create diversity where it does not exist), Castro demonstrates why snap removal is particularly suited to pattern litigation mass torts. A lot of pattern litigation (not all, of course), particularly in asbestos, is commenced by lawyers who don’t expect to do much more than fill in the blanks on some complaint form in their word processor and then seek settlements. Indeed, in Castro, even filling in the blanks proved a serious challenge:
After identifying the parties, the verified complaint became somewhat confusing, possibly due to language borrowed from complaints filed in other cases. Although all of the defendants appear to be cosmetics manufacturers, pharmaceutical companies, or retailers, the verified complaint contained a reference to distributing and selling “raw asbestos fibers of various kinds and grades.” The verified complaint also referred to coming into contact with “asbestos products while working in various shipyards, steel mills, refineries, paper mills, chemical plants, industrial sites and facilities, construction sites and other facilities or was exposed to the defendants’ products through the normal use of these products.”
2020 WL 2059741, at *1 (citations omitted). Lawyers who can’t be bothered even to file coherent complaints aren’t likely to invest in sophisticated technological countermeasures to combat snap removal. So in asbestos/talc cases, and in other mass torts where the other side concentrates more on the “mass” than the “tort,” snap removal is very likely to succeed in reducing litigation tourism. Indeed, in the three circuits (Second, Third, Fifth) where courts of appeals have explicitly blessed snap removal, removing defendants should consider responding to the kind of knee-jerk remand petition that was filed in Castro with motions seeking counsel fees. Turnabout is fair play.
So, our advice is to “make it snappy.” Also, fight any COVID-19 cloaked attempts by the other side to replace personal service with something electronic.
Now, if we can only be as successful with our personal jurisdiction arguments….