We have always puzzled over why pre-service removals are the least bit controversial. We are referring to what are known as “snap removals,” or removals to federal court before any forum defendant has been served. They are one way to comply with the removal statute’s forum defendant rule. It’s pretty simple: Even when you have complete diversity of citizenship and the amount in controversy exceeds the jurisdictional minimum, you still cannot remove a case to federal court “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.” 28 U.S.C. § 1441(b)(2).
“Properly joined and served.” That is the key language, and as far as we are concerned, it is pretty clear that the presence of a forum defendant will not preclude removal jurisdiction so long as the case is removed before any forum defendants has been “properly served.”
A district court in Indiana recently agreed with us. In Whipkey v. Eli Lilly &Co., No. 1:20-cv-00450, 2020 WL 3248472 (S.D. Ind. June 16, 2020), the plaintiff sued a citizen of Indiana in Indiana state court, but the defendant removed the case to federal court before the plaintiff served the complaint. The district court denied the plaintiff’s motion to remand and ruled that “the language of § 1441(b)(2) is unambiguous and must control.” Id. at *2.
This district court joins multiple others who have similarly applied the forum defendant rule exactly as it was written (another recent example is this case), and there are a couple of noteworthy thing about Whipkey.
First, the district court rejected a so-called “purpose-driven” interpretation of section 1441(b)(2). As the “interpretation” goes, the purpose of the forum defendant rule is to preserve the plaintiff’s choice of forum where the defendant is local, and allowing removal before service would undermine that objective. Id. Whether you like the forum defendant rule or not—and we are on record as not being fans—we have extreme difficulty with allowing a statute’s purported “purpose” to override its unambiguous statutory language. The district court in Whipkey experienced that same difficulty and held that the “statutory text must control.” Id. at *3.
Second, the district court declined to create an exception for cases in which the sole defendant is a forum defendant. To be honest, we had never heard this argument before. But regardless, the district court ruled that prohibiting snap removals where the sole defendant is a forum defendant “is not a natural reading of the text [of section 1441(b)(2)].” Id. at 4. Again, the plain text controlled: “[W]e are not in a position to ignore the plain meaning of the statute. [¶] Accordingly, we now join our sister district courts in the Seventh Circuit as well as the Second, Third, and Fifth Circuit Courts of Appeals that have concluded that § 1441(b)(2) permits a forum defendant to remove before service of process.” Id. at *4 (citing Texas Brine Co. v. American Arbitration Ass’n, Inc., 955 F.3d 482, 485-87 (5th Cir. 2020); Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 706-07 (2d Cir. 2019); Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 153-54 (3d Cir. 2018)).
Many thanks to Barry Boise at Pepper Hamilton for sending this order our way. It’s a good one to file away.