This is a defense blog.  Are we biased? Yes, we are. We come by that bias honestly, via temperament, principle, and client loyalty. We are happy to report on defense wins. If we report at all on plaintiff wins, it will be grudgingly and typically accompanied by heaping helpings of regrets and criticisms. 

Have we occasionally said unkind things about plaintiff lawyers? Sure. As private eye Philip Marlowe said in The Big Sleep, “I don’t mind if you don’t like my manners.  They’re pretty bad.  I grieve over them during the long Winter evenings.” Look, we hate asymmetrical discovery, we hate phony moral posturing, and we hate blatant forum shopping. But we do not hate plaintiff lawyers.  In fact, we count many plaintiff lawyers as respected colleagues and even good friends.  Of course, we fight hard against each other. We do not mind the occasional knife fight versus our foes on the other side of the v, just as long as a knife does not land in our back. Professionalism and civility should prevail. The plaintiff lawyers we battle are usually the best of the best. They are smart, creative, and relentless. When we prosecuted cases for the U.S. Attorney’s office in C.D. Cal., we had to admit that the criminal defense attorneys were better at cross-examination than we were. One reason for that was that in some cases cross-examination was all the defense had. Still, skill is skill, and must get its due. On the civil side, plaintiff lawyers are superb at conjuring up moral dramas or even romance sagas (the defendant seduced my client, lied to my client, hurt my client, and now is abandoning my client). A couple of the leading lights of the plaintiff MDL bar are infuriatingly good at making their endless discovery demands sound almost reasonable.

In any event, maintaining cordial relations with the other side can redound to our clients’ benefit in terms of courtesies and compromises. Occasionally, plaintiff lawyers have given us a heads’ up on upcoming litigation. We’ve attended a couple of plaintiff bar events, and they are just as substantive and far more fun than defense bar events. We know at least one drug company GC who wonders whether he should have gone the plaintiff route, if only to mix in more excitement into his life.

Last week, a plaintiff lawyer sent us a law review article he had written.  The plaintiff lawyer was Michael Gallagher. He is with Morgan & Morgan (“For the People”). His article is entitled “Snap Removal and the Absurdity Doctrine.” It appears in 55 U. Mem. L. Rev. 915 (Summer 2025). The article is well-written. It is short and clear. It certainly has a point of view.  As we have mentioned before more than once, law review articles are usually helpful to the extent they set forth the governing law, and much less helpful when they start telling you how things ought to be. That is true with Gallagher’s article, too, though it is helpful to get a preview of the plaintiff-side argument.

Let’s go back to first principles for a moment.  28 U.S.C. section 1441(b) establishes removal based on federal diversity jurisdiction, and subsection (2) provides that a civil action otherwise removable based on diversity “may not be removed 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.” That is the forum defendant rule. The underlying theory is that the defense does not need to be in federal court to protect against local bias if one of the defendants is local. That theory makes us think of the last line in Hemingway’s The Sun Also Rises: “Isn’t it pretty to think so?”  The theory simply does not work in reality.  A Philly jury will still clobber an out of state defendant company even if a codefendant retailer is local. Heck, a Philly jury will clobber a company defendant that is located down the street from the courthouse.  Local-schmocal. 

From the perspective of corporate tort defendants, the real problem with state courts is that they too often lack either the appetite or resources to get rid of junk claims and junk science. Whether that is because of different procedures (e.g., FRE 702 vs Frye or whatever it is that California, Illinois, or Pennsylvania are doing), or elected judges or something else, being in federal as opposed to state court considerably changes the value of a case. Both sides know this. It is no wonder that a corporate tort defendant will seize upon any colorable basis to remove a case to federal court. It is no wonder that a plaintiff lawyer will seek to remand the case to state court.

Where does snap removal enter the picture?  Surely you noticed that section 1441(b)(2) precludes removal “if any of the parties in interest properly joined and served as defendants” is local. Snap removal happens when a defendant removes a case to federal court before the local defendant has been served. It is a race. When the plaintiff loses the race, the plaintiff cries foul and argues that snap removal is a dirty trick, or at least pure sophistry.

Or, as in Gallagher’s article, the plaintiff argues that the result is “absurd.” The article does a good job of collecting cases (all district courts) treating the “properly joined and served” language as a source of “mischief by defendants.” The article also discusses the absurdity doctrine as a “longstanding canon of statutory interpretation,” and cleverly lists Justices Brennan, Rehnquist, Stevens, O’Connor, Scalia, Kennedy, Sotomayor, Gorsuch, and Kavanaugh among those jurists who have recognized and applied the absurdity doctrine. That is a distinguished and varied group. But none of those jurists said that snap removal is absurd. More to the point, and as Gallagher’s article acknowledges, “Three circuits blessed this practice, while two circuits worried about it.”  No circuit court has read the practice out of the law. By our count, three circuits (Second, Third, and Fifth) have explicitly blessed snap removals, and another (Sixth) seems to have smiled upon it, albeit in a footnote.   

Why has the defense had the better of the argument on snap removal?  As Justice Kagan famously said, “we are all textualists now.”  The plain language of section 1441(b)(2) supports snap removal. To forbid snap removals would require an amendment of the law, which the Court cannot do, and which Congress has not seen fit to do.  Nor is there anything inherently “absurd” about snap removal.  As Gallagher’s article says, section 1441 was amended in 1948 to add the “properly joined and served” language to combat gamesmanship by plaintiffs. Plaintiffs were steering clear of federal court by naming local plaintiffs without serving them – because, all along, the plaintiffs had no real interest in going after the hapless local.

While we do not agree with Gallagher’s conclusion, we are grateful for his article. It is an honest and intelligent article. It cites the appropriate cases. It rehearses the expected counterarguments (snap removal is not absurd at all, or is not all that absurd, or it is up to Congress to fix the statute).  Gallagher certainly knows this topic well. Indeed, he has written a couple of other articles against snap removal. If you want to get ready to do battle on snap removal, reading Gallagher’s articles should be part of your preparation.

Not surprisingly, the scriveners on this highly-biased defense blog have also written some other articles on snap removal.  For example, Bexis back in 2019 discussed testimony before the Advisory Committee on the Civil Rules on whether anything needed to be done about snap removal. More recently, last month, the same ink-stained wretch penning this blogpost summarized a N.D. Fla. case that upheld snap removal.  In that case, the court held that the use of the snap removal did not bump against the “absurdity bar.” We do not think there is a level of absurdity or gamesmanship that would permit a court to ignore or rewrite 1441(b)(2), but it is clear that mere frustration of a plaintiff litigation tourist visit to state court is not it.