The passage of time can change our collective perception of what is normal and accepted. By way of a somewhat contrived example, back in 1989, there was a popular cross-over rap song called “Just a Friend” by Biz Markie. It was catchy, entertaining, and a contrast to so-called “gangsta rap” that scared the Parents Music Resource Center and others. In one lyric, the protagonist declares “Oh, snap” when he sees his paramour osculating another male the protagonist had been led to believe was “just a friend.” Yes, gentle reader, this was an expression used back in the day. And, yes, this was a popular song, not just a karaoke staple of the emergent arthritis set. Today, a similar scene in a popular song might describe the protagonist’s reaction as being violent or at least profane.
A decade after “Just a Friend” was released, the Supreme Court issued its decision in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999). The issue in Murphy Bros. was whether a notice of removal was filed too late. In answering that the time for removal starts with formal service, not with earlier informal receipt of the complaint, the stage was set for the rise of snap removals. Also referred to as wrinkle removals, the epithet “snap” refers to how quickly the notice of removal is filed before service can be accomplished. Before Murphy Bros., courts had generally held that the application of the forum defendant rule’s bar on removal should not depend on the timing of service. See, e.g., Hunter Douglas Inc. v. Sheet Metal Workers Intern Ass’n Local 159, 714 F.2d 342, 345 (4th Cir. 1983); Pecherski v. General Motors Corp., 636 F.2d 1156, 1160–61 (8th Cir. 1981). Within a few years of Murphy Bros., we started seeing district courts reject motions to remand brought in cases removed before any in-state defendant had been served. Other district courts rejected snap removal, at least in some situations, often based on the reasoning that it was not fair for defendants to watch dockets and remove cases that would not have been removable had they learned of the case by being served. For us, focused as we are on litigation against drug and device manufacturers, concerns about gamesmanship and the use of technology by defendants are ironic. Plaintiffs engage in all manner of gamesmanship to try to keep cases out of federal court. The timing of filing and serving cases is often strategic. Once litigation starts, technology is generally a vehicle for increasing the burden on defendants. Setting aside the scales for weighing the gamesmanship by both sides of the v., however, the language of 18 U.S.C. § 1441(b)(2) is not subject to serious debate.
By now, more than twenty-five years after Murphy Bros., every circuit court to directly address the propriety of snap removal has held that the forum defendant rule—barring removal “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”—does not apply when no forum defendant has yet been served. Among those circuits is the Third Circuit, which covers Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands, states that collectively serve as the home—principal place of business or state of incorporation—for many drug, device, and other companies targeted in serial product liability litigation. Grossly overgeneralizing, the plaintiff lawyers who sue these companies prefer to do so in their home state courts rather than federal courts and the companies prefer federal courts. So, the decision Encompass Ins. Co. v. Stone Mansion Rest., Inc., 902 F.3d 147, 152 (3d Cir. 2018), which endorsed snap removal as the unambiguous reading of § 1441(b)(2), comes up fairly often.
In Higgins v. Novartis Pharms. Corp., C.A. No. 25-247 (MN), 2025 WL 1397045 (D. Del. May 14, 2025), we have such a straightforward application of snap removal that we took notice of how things have changed. Plaintiffs chose Delaware state court for their product liability case against a drug company that has its principal place of business in New Jersey and its state of incorporation in Delaware. This is also a change: Delaware used to not be a preferred destination for product liability plaintiffs; historically, its state courts were hailed as savvy and business-friendly. In Higgins, plaintiff named a bunch of John Doe defendants along with the drug company, which removed the case before it or any fictitious defendants were served. Not that fictitious defendants count for removal under § 1441(b)(1) anyway. Citing Encompass and Avenatti v. Fox News Network LLC, 411 F.4th 125, 128 n.1 (3d Cir. 2022), Higgins concluded that the manufacturer had “properly removed this action in accordance with the plain language of § 1441(b)(2).” 2025 WL 1397045, *2. By contrast.
Plaintiffs’ policy appeals regarding the technological advantages of electronic dockets and resulting overuse of snap removal by defendants are unavailing in the face of clear statutory text. It is for Congress, not this Court, to revise the statute.
Id.
And that was it. No big analysis or survey of caselaw was required. In the circuit where so many drug and device companies are at home for purposes of general personal jurisdiction, snap removal is undoubtedly permissible. In other words, Higgins has got what we need when it comes to snap removal.