Today’s case is not a drug or device case, but a COVID nursing home case.  We are not blogging on the underlying substance of the case but rather on plaintiff’s motion to remand after a snap removal.  The case – Carroll v. Comprehensive Healthcare Management Services – is pending in the Western District of Pennsylvania.  So, the result should not really come as a surprise since the Third Circuit was the first federal appellate court to approve snap approval.  See Encompass Ins. Co. v. Stone Mansion Restaurant Inc., 902 F.3d 147 (3d Cir. 2018).  But the Western District opinion does explore and shoot down the latest arguments plaintiffs have developed to oppose snap removal – or removal before service.

In Carroll, plaintiff was an Ohio resident and defendants were either citizens of Pennsylvania or New York.  2022 U.S. Dist. LEXIS 6092, *6 (W.D. Pa. Jan. 12, 2022).  There was no dispute that the case satisfied the requirements for diversity jurisdiction, only whether defendants being at home in the forum were permitted to remove.  According to Encompass, the answer is yes.  Plaintiffs made three arguments to attempt to get around the Third Circuit precedent.

Argument number 1 – Encompass is an outlier.  Plaintiff wanted the court to “disregard” the Third Circuit decision as “legally unsupportable” and an “outlier.”  Id. at *15.  It is neither.  Ignoring that all three circuit courts to have addressed the issue have all agreed that 28 U.S.C. §1441(b)(2) permits forum defendants to remove a case before service, plaintiff argued that various district courts have disagreed.  But those cases are not controlling, and Encompass is.  Plaintiff attempted to make the same arguments that were already rejected by the Third Circuit. Id. at *16-17.  With a score of three to zero in favor of snap removal in the appellate courts, arguing those decisions are outliers feels a bit like a Hail Mary.

Argument number 2 – the Supreme Court has rejected snap removals.  Certainly, if the Supreme Court had decided this issue, we would have blogged about it.  You won’t find it on the DDL blog because it hasn’t happened.  The case plaintiff cites is Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743 (U.S. 2019).  That was a case about whether a third-party counterclaim defendant was a “defendant” who could remove a case under the general removal statute.  In dicta, the Court mentioned the forum defendant rule prevents diversity removal where “any defendant is a citizen of the State in which the action is brought.”  Home Depot, 139 S.Ct. at 1749.  The Court was only using the forum defendant rule “as an example of a limitation on defendants’ right to remove.”  Carroll, at *17.  Because the Court did not include the language from §1441(b)(2) regarding proper joinder and service, however, plaintiff appears to want the district court to infer that the Supreme Court dropped that requirement from the statute.  Considering the forum defendant rule was not even before the Court, plaintiff’s interpretation is too far-flung.

Argument number 3 – defendants filed their federal and state court notices in the wrong order.  To remove a case, a defendant must file a timely notice of removal, provide written notice to all parties, and file a copy of the notice with the state court.  Id. at *18.  It was undisputed that defendants completed all three steps.  Plaintiff took issue with the order in which they were done.  The removal statute provides that the notice to the parties and the notice to the state court shall be given “[p]romptly after the filing of such notice of removal.”  28 U.S.C. §1446(d).  According to the electronic dockets, defendants’ notice of removal was filed in the federal court at 8:07pm and the notice to the state court was submitted at 7:13pm – 54 minutes earlier.  Id. at *21.  Plaintiff wanted the court to invalidate the removal because the state court notice was not filed “promptly after” the federal notice.  In rejecting this argument, the court held that

the common law refused to concern itself with the fractions of a day, presuming for convenience that all acts done on the same day were done at the same instant.

Id. at *22 (citation omitted).  Moreover, even if the statue is read to require a precise order, “failure to proceed in that precise order [is] a technical, non-prejudicial defect that does not justify remand.”  Id. at *23 (citation omitted).  There was some question as to whether the time on the state court docket was the actual time of filing, but regardless, this technicality could not be used to defeat an otherwise proper removal.