Here is another post from our junior blogger-in-training, Dean Balaes. He tackles one of the blog’s favorite subjects, removal before service to bring our readers the skinny on the first case where a plaintiff attempted to interpose a COVID-19 objection to snap removal, unsuccessfully. Since other plaintiffs might try the same thing, that makes for an interesting post.
The precedent of unprecedented COVID-19 times reveals the other side’s willingness to ignore the law and rely on unprecedented imaginations. In Ellis v. Miss. Farm Bureau Cas. Ins. Co., 2020 WL 2466247 (E. D. La. May 13, 2020), the plaintiff creatively tried (and failed) to take advantage of the COVID-19 world crisis to harpoon Due Process and Defendant’s valid snap removal. This Blog has explained many times over many years that removal before service under 28 U.S.C. Section 1441(a) is a necessary and strategic move to avoid “state-court fora that attract litigation tourists from all over the country.”
Quick recap. Assuming that federal subject matter jurisdiction exists, removal provides the defendant an opportunity to override the plaintiff’s choice of forum. When evaluating the merits of removal, courts will look only to defendants named in the complaint and properly served with process. Therefore, §1446(b)(2)(A) requires that removal be joined by all defendants “who have been properly joined and served.” Section 1446(b)(1) requires that the notice of removal be filed in federal court within 30 days after “receipt by the defendant, through service or otherwise.”
But what happens when a defendant is not formally served with process? In Ellis, the defendant was not formally served and filed a notice of removal “following receipt of the petition for Damages.” Ellis, 2020 WL 2466247, at *6. As snap removals go, this one was not particularly snappy. Eight days passed between the filing of suit and the defendant’s removal. Id. at *1. On motion to remand the proceeding to state court, the issue became whether “a defendant may properly file a notice of removal prior to being formally served.” Id. at *2. The answer is emphatically, yes. Ellis cited to Delgado v. Shell Oil Co., 231 F.3d 165, 177 (5th Cir. 2000): “[G]enerally, service of process is not an absolute prerequisite to removal.” Id. at *3. Fifth Circuit jurisprudence interprets 28 U.S.C. §1446(b), “through service or otherwise,” to “require that an action be commenced against a defendant before removal, but not that the defendant have been served.” Id.
Not liking how things were playing out, the plaintiff contended that it was “unfair” that one defendant filed a notice of removal before another defendant could be served. They alleged that the defendant removed the case “knowing that Governor Edwards’s stay-at-home-order would significantly delay” the plaintiff’s ability to serve another defendant. Id. at *4. This COVID-19 order occurred during the eight days between the plaintiff’s initial filing and removal to federal court. Id. at *1. Therefore, the plaintiff claimed that defendant’s (valid) removal was contrary to the intent of the forum defendant rule. Id. at *4.
This argument was a Hail Mary pass that ignored Fifth Circuit jurisprudence. “[T]he Fifth circuit recently considered and squarely rejected [the plaintiff’s] argument” in Texas Brine Co., LLC v. Am. Arbitration Ass’n, Inc., 955 F.3d 482, 485 (5th Cir. 2020), which we blogged about here. Texas Brine had found valid removal where the defendant acted four days after a plaintiff filed a complaint and before either of the two other defendants could be served. 955 F.3d at 485.
While COVID-19 has caused a lot of changes, one thing the virus did not change was the plain language of the federal removal statute. Texas Brine controlled, so Ellis held that defendant’s removal avoided the forum defendant rule. “[T]he only defendant properly joined and served at the time of removal was not a citizen of Louisiana, the forum state.” Ellis, 2020 WL 2466247, at *10. Ellis is significant because, as a practical matter, the plaintiff was probably right – COVID-19 has made most methods of service, particularly in-person service, more difficult. But that practical difficulty is of no more consequence than the plaintiff’s prior “gamesmanship” complaints, given the plain language of the statute. In Ellis, the plaintiff did not follow the letter of the law, but the defense did. COVID-19 or no, the matter was validly removed.