Defendants know that the quickest way to level an uneven playing field is to… well… sprint. And few procedural tools reward nimble defense work quite like snap removal—the perfectly valid act of removing a case to federal court before the forum defendant is served. Plaintiffs call it gamesmanship. We call it reading the statute. Yet even among defense counsel, one deceptively simple question can cause more anxiety than a late Friday notice of deposition: When is removal actually “effected”? Unfortunately, the answer to that question depends on what circuit you are in.
Some circuits hold that removal is effective the instant a defendant files the notice of removal in federal court. No muss. No fuss. No waiting for a plaintiff to check their email. Efficient, predictable, and refreshingly literal. The kind of interpretation that warms a defense lawyer’s heart. Other circuits insist that removal becomes effective only after the defendant (1) files the notice in federal court, (2) provides plaintiff with written notice of the removal, and (3) files a copy of the removal notice with the state court. See 28 U.S.C. §1446(d). This is the procedural equivalent of “measure twice, cut once,” except that by the time you finish measuring, the plaintiff has already handed the forum defendant a summons. The split feels like a Philosophy 101 question: If a defendant files a notice of removal in federal court, but no one in state court hears it, has removal really occurred? Apparently, depending on the circuit, the answer ranges from “Absolutely yes,” to “Absolutely no,” to “Why are you asking us? We didn’t write this statute.”
And here is the reason we are drawing your attention to the divide. Snap removal is already a race, but MDLs turn it into a triathlon. Because once a case is swept into an MDL, the governing procedural law is not the law of the circuit where the case originated—it’s the law of the circuit where the MDL sits. This cannot be overstated. Once the case is transferred, the MDL judge applies the MDL circuit’s law on procedural questions like removal timing. So, as defense counsel we need to be on high alert as to which law applies.
As the defendant in Spillman v. Philips, 2025 WL 3162000 (W.D. Pa. Nov. 12, 2025) found out. The case is part of the In re: Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Products Liability Litigation. Plaintiff was from Alabama. The defendants were all from Massachusetts. Plaintiff filed in state court in Massachusetts. Before any of the forum defendants were served, the case was removed. Then, in chronological order, two defendants were served, plaintiff’s counsel received notice of the removal, and defendants filed the notice of removal with the state court. Id. at *1. And, before plaintiff’s motion to remand was heard the case was transferred to the MDL. So, the applicable law switched from First Circuit to Third Circuit.
The Spillman decision really does not address First Circuit law. So, we took a quick look and it does not appear that the First Circuit has addressed the specific issue of whether removal is effected at the time it is filed or only after notice to the plaintiffs and state court. However, we did find Berberian v. Gibney, 514 F.2d 790, 792 (1st Cir. 1975) that holds that “the jurisdiction of the federal court attaches as soon as the petition for removal is filed with it” (but that the state court retains concurrent jurisdiction until the notice is filed with it). Which we would argue favors removal being effective as of the federal filing. Unfortunately, the most recent decisions by courts in the Third Circuit favor removal requiring all three steps before it is effected. Id. at *5-6. That is the law the court applied in remanding Spillman to state court.
Since our reason for this post is to advise defendants to know your circuits—plural—we also decided to poke around and see if we could give you a head start on that task. The following is not exhaustive, but we can report that there are few decisions on the specific issue as it relates to the snap removals. Adding to the First and Third Circuit law above, we found the following, which also demonstrate the divergent positions: Almonte v. Target Corporation, 462 F.Supp.3d 360, 365 (S.D.N.Y. 2020) (“In [the Second] Circuit, a federal court obtains jurisdiction when the notice of removal is filed with the federal court”); Burroughs v. Palumbo, 871 F.Supp. 870, 872 (E.D. Va. 1994) (finding federal jurisdiction attached when the removal petition was filed in federal court); Hamptom v. Union Pacific R. Co., 81 F.Supp.2d 703, 707 (E.D. Tex. 1999) (you need to complete all three steps before a removal is effected); Anthony v. Runyan, 76 F.3d 210, 214 (8th Cir. 1996) (“removal is effected when the notice of removal is filed with the state court and at no other time”). There are more decisions along these lines from other courts as well.
What does all this mean? Expect plaintiffs to push back. And expect courts to continue grappling with the split. Until the Supreme Court steps in (don’t hold your breath), inconsistency is part of the landscape. Snap removal is a tool that rewards being organized, proactive, and just a little faster than the other side. Knowing which circuit’s rule governs may be the difference between a case staying in federal court or being catapulted back into a plaintiff-friendly state venue. In short, defendants who understand the timing rules don’t just play the game. They control the tempo.