Last year was a banner year for removal before service, with both the Second and Third Circuits weighing in to support application of the removal statute according its terms, thereby giving their blessing to the so-called “snap” or “wrinkle” removal practice that this Blog has advocated for a decade.  See Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 705-07 (2d Cir. March 26, 2019); Encompass Insurance Co. v. Stone Mansion Restaurant, Inc., 902 F.3d 147, 151-54 (3d Cir. 2018).  Particularly given coincidental personal jurisdiction developments that tend to restrict mass tort plaintiffs seeking aggregation to suing defendants in their “home” courts, removal before service is now another accepted means for combating the other side’s incessant forum-shopping.  E.g., Anderson v. Merck & Co., 2019 WL 161512, at *1-2 (D.N.J. Jan. 10, 2019) (denying remand in 104 Zostavax cases).

Plaintiffs keep trying, however – frankly, we would expect no less.  Thus, the Pennsylvania lawyers among us are particularly pleased with the recent decision in McLaughlin v. Bayer Essure, Inc., 2019 WL 2248690 (E.D. Pa. May 24, 2019), which shot down an attempt to interpose a Pennsylvania procedural peculiarity against defendants’ ability to remove before service.  In Pennsylvania, unlike practically any other state, a plaintiff may serve a bare summons without an accompanying complaint.  Pa. R. Civ. P. 1007.  It’s a rather common practice because, for very little work, a plaintiff so doing can toll the Pennsylvania statute of limitations.  E.g., Sheets v. Liberty Homes, Inc., 823 A.2d 1016, 1018 (Pa. Super. 2003).

Does the service of a bare summons also preclude removal before service?  In McLaughlin the court held it did not.  As we’ve discussed many times before, removal before service works because, according to the express terms of the federal removal statute, the so-called “forum defendant rule” (barring removal when an otherwise diverse defendant is sued in the state court of its domicile), only applies to defendants “properly joined and served.”  28 U.S.C. §1441(b)(2).  Personal-jurisdiction-driven suits against a defendant in its “home” forum bring the forum defendant rule into play, and thus place a premium on removal before service.

Twenty-four snap-removed plaintiffs contended in McLaughlin that service of a Pennsylvania summons without a complaint satisfied the key statutory language.  The court had no trouble batting away this “Hail Mary pass” of an argument.  First, in analogous removal situations, the service of a bare summons doesn’t count.  Only service of a complaint starts the clock ticking on the 30-day removal period.  Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999); Sikirica v. Nationwide Insurance Co., 416 F.3d 214, 221-23 (3d Cir. 2005); Maneri v. Starbucks Corp., 2017 WL 5885732, at *2 (E.D. Pa. Nov. 29, 2017); Car Sense, Inc. v. Signet Financial Group, Inc., 2012 WL 13014938, at *2 (E.D. Pa. July 9, 2012); Polanco v. Coneqtec Universal, 474 F. Supp.2d 735, 737 (E.D. Pa. 2007); Gladkikh v. Lyle Industries, Inc., 2006 WL 266100, at *2 (Mag. M.D. Pa. Feb. 1, 2006).

Since only service of a complaint effects removal, plaintiffs’ contention that mere filing of a summons meant that all defendants were “properly joined and served” did not hold water.  McLaughlin, 2019 WL 2248690, at *3.

[W]e cannot allow service of the writ of summons to play such a central role in application of the Forum Defendant Rule when the United States Supreme Court and the Third Circuit have made it clear that the Complaint is the operative pleading for purposes of starting the removal process and the writ is largely inconsequential.

Id. (citing Murphy Brothers and Sikirica).  Congress’ “uniformity” purpose in the removal statute would also be frustrated:

because some forum defendants would be considered “properly joined and served” (and thus prohibited from removing) prior to even knowing the nature of the suit against them while others would not be considered joined and served (and thus prohibited from removing) until they received a Complaint setting forth the precise claims against them.

Id. (citations omitted).

Not only that, but to interpret “properly filed and served” to include a bare summons, would require this language to be construed differently from another place in the removal statute where identical language appears.  The same phrase is in 28 U.S.C. §1446(b)(2)(A), requiring the consent to removal of all “properly joined and served” defendants in federal question cases.  But that language has never been construed to require consent of defendants, served only with a bare summons.  Id.; see Car Sense, 2012 WL 13014938, at *2; DiLoreto v. Costigan, 2008 WL 4072813, at *3-4 & n.4 (E.D. Pa. Aug. 29, 2008), aff’d, 351 F. Appx. 747 (3d Cir. 2009).  A uniform construction of “properly joined and served” precluded a bare summons from qualifying:

[W]e can only conclude that forum defendants who have been served with the writ of summons and have not yet received the Complaint should not be considered “properly joined and served” for purposes of the Forum Defendant Rule.  Thus, consistency demands that the presence in litigation of a forum defendant who has been served with a writ of summons but not the Complaint does not defeat removal that is grounded on diversity jurisdiction.

McLaughlin, 2019 WL 2248690, at *4 (citation omitted).

Having lost everything else, plaintiffs in McLaughlin fell back on a variant of the same “absurd result” argument that the Third Circuit had rejected, as to removal before service in any context, in Encompass Insurance.  2019 WL 2248690, at *4.  This didn’t work either.

[I]n assessing whether the result we reach is “absurd or bizarre,” we are guided by the Third Circuit, which has . . . permit[ted] a forum defendant to strategically evade service in order to avoid application of the Forum Defendant Rule and has concluded that the practical outcome of that interpretation of the Rule is not “so outlandish as to constitute an absurd or bizarre result.”  Encompass, 902 F.3d at 153-54.  In light of this precedent, we conclude that an interpretation of the Forum Defendant Rule that permits removal before the forum defendant is properly served with the Complaint is not “so outlandish as to constitute an absurd or bizarre result.”

Id.  Plaintiffs’ threadbare “gamesmanship” argument fell on deaf ears because, essentially, plaintiffs’ own gamesmanship created the situation.  “Plaintiffs could have avoided the result they now face by merely mailing the Complaint to all of the named Defendants simultaneously with their filing of the Complaint.”  Id.

Thus, McLaughlin effectively hoisted plaintiffs on their own procedural petard.  The other side of the “v.” resorts to summons-only service as a quick and easy way to stop the statute of limitations from running.  But for removal purposes, that same neat trick now also means that nobody has been “properly joined and served.”  Service of a bare summons, where as in McLaughlin the forum defendant rule is in play, becomes the procedural equivalent of an engraved invite to defendants to remove the case to federal court.

Our recent post on “wrinkle removal” – that is, removal before service – case got us thinking.  The opinion discussed in that post, Dechow v. Gilead Sciences, Inc., ___ F. Supp.3d ___, 2019 WL 5176243 (C.D. Cal. Feb. 8, 2019), was out of California, in the Ninth Circuit.  That didn’t keep Dechow from citing the Third Circuit case we blogged about last August, Encompass Insurance Co. v. Stone Mansion Restaurant, Inc., 902 F.3d 147 (3d Cir. 2018).  As we discussed last year, Encompass Insurance was the first appellate decision to address removal before service, and it was a resounding victory for the defense position that such removal is expressly allowed by statute and is a perfectly rational (and hardly absurd) response to the repeated gamesmanship that forum-shopping plaintiffs have resorted to, literally for decades.

So, how has removal before service fared since Encompass Insurance has been in the books?  Previously, we thought the defense “plain language” approach was the majority position, but the split was anything but overwhelming.  We’re pleased to report that the Third Circuit’s reasoning appears to have tipped the balance towards “overwhelming.”  First of all, we can run through new decisions by district courts (in Pennsylvania, New Jersey, Delaware, and the Virgin Islands) that are precedentially bound to follow Encompass Insurance.  These are: Anderson v. Merck & Co., 2019 WL 161512, at *1-2 (D.N.J. Jan. 10, 2019) (denying remand in 104 cases) (mentioned in this post), and Mendoza v. Ferro, 2019 WL 316727, at *2 (E.D. Pa. Jan. 24, 2019) (second removal, within 30 days of Encompass Insurance decision).  We can also, of course, subtract any adverse decisions (there were more than a handful) previously issued from district courts in the Third Circuit.

Outside the Third Circuit, courts have mostly found Encompass Insurance persuasive.  A second case from the Central District of California held:

[W]hen a natural reading of the statute leads to a rational, common-sense result, an alteration of meaning is not only unnecessary, but also extrajudicial.  As the Third Circuit explained, a plain meaning interpretation of the language “properly joined and served” in the Forum Defendant Rule “envisions a broader right of removal only in the narrow circumstances where a defendant is aware of an action prior to service of process with sufficient time to initiate removal.”  Stone Mansion, 902 F.3d at 153. . . .  While it is clear that courts in this district have found that permitting pre-service removal absurd, others have not, concluding that the plain language of Section 1441(b)(2) states that it only applies when the local defendants have been “properly joined and served.” Finally, and arguably most importantly − a Plaintiff in this very district, in a similar removal action unsuccessfully invoked [the absurd results argument] to support remand. [Citing Dechow]

Zirkin v. Shandy Media, Inc., 2019 WL 626138, at *3 (C.D. Cal. Feb. 14, 2019) (other citations and quotation marks omitted).  We are particularly gratified to see these two cases out of the Central District of California.  Our last research post on removal before service tallied up all the favorable decisions between 2011 and mid-2018 (it was written about a week before Encompass Insurance was decided).  It found twelve cases out of California, but only two from the Central District.  Encompass Insurance seems to have convinced the judges in that previously rather refractory district to be less refractory.

Another California decision, Monfort v. Adomani, Inc., 2019 WL 131842 (N.D. Cal. Jan. 8, 2019), expressly “agree[d] with the Third Circuit” and permitted removal before service.  Id. at *4.

[T]he more precise question is whether pre-service removal frustrates the purpose behind §1441(b)(2)’s “joined and served” language.  As the Third Circuit explained, the “joined and served” language reflects Congress’s intent to prevent a plaintiff from fraudulently joining a resident party in order to avoid removal to federal court.  Encompass, 902 F.3d at 153.  Interpreting “joined and served” to permit pre-service removal by an in-state defendant does not impair the provision’s anti-fraudulent joinder purpose, which focuses on what a plaintiff may or may not do to defeat diversity jurisdiction.  Id. (noting that a plain language interpretation of joined and served “protects the statute’s goal without rendering any of the language unnecessary”).  Moreover, . . . Congress amended the removal statute after decisions permitting pre-service removal, but did not alter the “joined and served” language.

Id. (non-Encompass Insurance citations omitted).  Encompass Insurance also proved persuasive in Texas Brine Co., LLC v. American Arbitration Ass’n, 2018 WL 4927640 (E.D. La. Oct. 11, 2018), which cited it for the propositions that “defendants may remove despite unserved resident defendants,” and that “[n]o exception for gamesmanship exists.”  Id. at *2.

Still, while there’s been a shift since Encompass Insurance, there remain courts that find gamesmanship by plaintiffs somehow less bothersome than gamesmanship by defendants, and still refuse to recognize removal before service as permitted by the express terms of the removal statute.  Such a case is Delaughder v. Colonial Pipeline Co., ___ F. Supp.3d ___, 2018 WL 6716047 (N.D. Ga. Dec. 21, 2018), which refused to follow Encompass Insurance on a record that revealed both sides engaging in procedural machinations – with plaintiffs determined to keep a personal injury suit in a plaintiff-friendly court, and a diverse defendant just as determined to be in federal court instead.

Here’s what happened in Delaughder.  Two out-of-state litigation tourists sued the target defendant (a Delaware corporation) in Atlanta over an Alabama accident, also joining a Georgia “forum defendant” that would have prevented removal.  Id. at *1-2 & nn 1-2.  The Delaware defendant successfully snap removed.  In response, plaintiffs moved for voluntary dismissed, fully intending to win the race to the courthouse on their second try.  Id.  The defendant was just ready.  On the same day the voluntary dismissal was effective, the defendant changed its Georgia registered agent.  Id.  Plaintiff refiled the next day and – loaded for bear – served the defendant’s former agent less than half an hour after refiling.  Id.  But service was ineffective because of the change in agents, and the defendant snap removed again.  Id.

Although non-residents suing in Georgia over an accident in Alabama seems, to us, a most blatant example of forum-shopping gamesmanship, the court in Delaughder focused solely on the defendant’s actions.  Although recognizing that “the Third Circuit has definitively come down on one side of the issue,” 2018 WL 6716047, at *3, that court nonetheless went with the “absurd result” argument and remanded.  “While [defendant] found a possible avenue to take away Plaintiffs’ power to decide the forum for this litigation, the Court cannot overlook the clear gamesmanship present in this case.”  Id. at *6.

In the words of another Georgia court, “[o]ne person’s ‘gamesmanship’ is strategy to another.”  Francis v. Great West Casualty Co., 2018 WL 999679, at *2 (M.D. Ga. Feb. 21, 2018).  As for Delaughder itself, there are other words Bexis picked up while living in the Peach State:

Forget, hell.

Here’s something we know about Georgia precedent:

Georgia’s registration statute, Ga. Code §14-2-1501, provides no indication that registration affects jurisdiction one way or another; nor are there relevant state cases. However, in Orafol Americas, Inc. v. DBi Services, LLC, 2017 WL 3473217 (N.D. Ga. July 20, 2017), the court held:

Plaintiff notes that [defendant] is registered to do business in Georgia, and has a registered agent in the State.  Additionally, [defendant] has actually engaged in business in Georgia. . . .  But these contacts are woefully insufficient to render [defendant] “at home” in Georgia.  Every company that does any business in Georgia must register with the State and maintain a registered agent.  Just because a company does some small amount of business in Georgia does not mean that due process will allow that company to be sued in Georgia for acts that occurred outside the State.

Id. at *3.

Out of the frying pan, into the fire.  Nothing in the Delaughder opinion gives us any reason to believe that there is any basis for personal jurisdiction in Georgia over the non-forum defendant.  And not only that, once those plaintiffs lose on jurisdiction, they’ll get no tolling of the statute of limitations in Alabama for their frolic and detour in the Georgia courts, since Alabama is one of “[s]ix states [with] no mechanism for preserving claims following a dismissal without prejudice.”

Game on.

This post comes from the Cozen O’Connor side of the blog.

We’ve been blogging about “removal before service” since we announced it to the world in 2007.  It’s a procedural tactic that enables defendants to remove cases to federal court despite the “forum defendant rule,” which ordinarily prohibits a defendant from removing to federal court a case that, while it meets the requirements of diversity jurisdiction under 21 U.S.C. § 1332(a), is also pending in the home state of the defendant. Here’s the rule as codified in 21 U.S.C. § 1441(b) (2):

A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title 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.

(Emphasis added).

We emphasized the phrase “properly joined and served” because that’s the basis for “removal before service.” Defendants have had success, in certain courts before certain judges, arguing that this phrase should be interpreted according to its plain terms and that, therefore, a defendant who has not yet been served can remove a case on diversity jurisdiction grounds even if the case is in its home state court.

The court in Young v. Bristol-Myers Squibb Co., 2017 U.S. Dist. LEXIS 98736 (D. Del. June 27, 2017), is one of the courts that accepts this argument. Young was one of 33 cases in the Eliquis drug litigation that plaintiffs’ lawyers had filed in the Superior Court of Delaware. Each plaintiff and the two defendants, Bristol-Myers Squibb and Pfizer, were citizens of different states, suggesting that the cases were ripe for removal to federal court on the basis of diversity jurisdiction. But BMS and Pfizer are citizens of Delaware (as are so many corporations), implicating the forum defendant rule’s bar to removal of diversity cases.

But, as the Young court put it, all of this occurred “before Plaintiffs served (or, due to Superior Court procedures, could have served) their complaints on Defendants.” Id. at *2. The defendants had an opportunity. And they took it. They immediately removed the cases to the United States District Court for the District of Delaware where they had the good fortune of drawing a judge who had previously blessed “removal before service”—and did so again:

The undersigned judge has had several occasions to consider this issue. Having done so again, the Court sees no reason here to depart from its previously-adopted reasoning. See Munchel, 2012 U.S. Dist. LEXIS 128971, 2012 WL 4050072; Hutchins, 2009 U.S. Dist. LEXIS 4719, 2009 WL 192468. As in Munchel and Hutchins, the Court views the plain and unambiguous language of § 1441(b) as controlling. Section 1441(b)(2) provides that a case in which there is diversity jurisdiction “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.” Here, there is diversity jurisdiction, but because there was no service on any defendant before removal, none “of the parties in interest properly joined and served as defendants is a citizen” of “the State in which [this] action” was brought, i.e., Delaware. 28 U.S.C. § 1441(b)(2) (emphasis added).

Id. at *5 (emphasis in original). And so we have yet another decision approving “removal of service” under the plain terms of the statute.

In this instance, the Court suggested that it had an additional reason to rule the way it did. The plaintiffs had already engaged in forum-selection tactics of their own. The cases were originally filed in California state court, not Delaware. The defendants, who were not California citizens, promptly removed the cases to a federal court in California and started the process to transfer the cases to the Eliquis MDL, a place that plaintiffs most certainly did not want to be. So—and here it comes—the plaintiffs voluntarily dismissed all 33 cases. They then re-filed the cases, the very same day, in Delaware state court, a court from which they hoped the forum defendant rule would hamstring defendants from once again removing the cases to federal court. Id. at *1-2.

This history of forum shopping clearly influenced the Court’s decision on plaintiffs’ motion to remand:

Additionally, given the history of these cases — including that Plaintiffs voluntarily dismissed cases originally filed in California state court, seemingly (at least in part) to avoid transfer to the MDL — removal is not a nonsensical result. To the contrary, the totality of circumstances strongly supports exercising discretion to deny Plaintiffs’ motions to remand.

Id. at *4-5.

So the “removal before service” option lives on, at least in some courts. And Young offers precedent for an argument that “removal before service” may be even more appropriate when the history of the case suggests that the plaintiff had already engaged in some sort of procedural maneuvering before the case was even removed.

We’ve learned of another win for removal before service in our local federal court, the Eastern District of Pennsylvania. In Boyer v. Wyeth Pharmaceuticals, Inc., C.A. No. 12-739, slip op. (E.D. Pa. April 25, 2011), the case was removed “before any defendant had been served.”  Id. at 1. The plaintiff sued Pfizer, a non-Pennsylvania defendant, and Wyeth, a Pennsylvania “forum defendant.”  The non-forum defendant (Pfizer) was the removing party.  Id.

As usual, the argument in Boyer came down to a choice between the “plain meaning” of the removal statute (21 U.S.C. §1441(b)), and the plaintiff’s claim that removal before service was some sort of gimmick that courts simply should not allow, no matter what Congress provided.  The court (Judge Ludwig) came down on the side of plain meaning.  Slip op. at 2-6 (collecting cases – including some we haven’t cited before in the blog).

A couple of notes about Boyer:

First, the court drew a distinction between removal before service by the forum as opposed to the non-forum defendant, and suggested that remand is more appropriate “where the unserved removing party was the forum defendant.”  Boyer, slip op. at 4 n.2.  We don’t think that should matter, but to the extent that it does – a word to the wise is sufficient.  If the defendant has a choice (and in Boyer we think there was), then always have the non-forum defendant do the removing.  No use handing the other side an issue that can be avoided.

Second, the plaintiff in Boyer did something a little unusual – serving the forum defendant anyway after the case was removed, and claiming that made a difference.  One reason that argument’s unusual is probably that it’s quite meritless.  As the court observed, “[t]he propriety of removal is determined as of the date of removal.”  Slip op. at 4 (citing Wright & Miller).

So if you’re keeping track, Boyer is one more win for the good guys.  We’ll close the way the court did:

[T]he propriety of pre-service removal has been recognized. . . .  [T]he removal statutes expressly permit defendants to remove state court actions to federal court prior to service.  The pre-service removal of this action by a non-forum defendant where the forum defendant had not been served prior to removal was proper under the unambiguous language of §1441(b).

Boyer, slip op. at 4-5 (citations omitted).

God only knows how many times we’ve posted on the topic of removal before service, because we can’t count that high.  We did take a look through our “removal” topic tag and figured out that our last post about this subject was back in May.  Well, a reader recently sent us a new decision, so we’ve found an occasion to bring up this old saw again.

Briefly, for you newbies, what’s the big deal with removal before service?  First, “removal” in this context refers to the process for getting cases out of state court (generally thought of – by both sides – as more plaintiff-friendly), and getting them into federal court (conversely considered more defense friendly).

Plaintiffs do all sorts of things to get cases into their preferred state-court forums (fora? fori? foræ?).  One of them is to take advantage of the so-called “forum defendant” exception to federal diversity (that is, the plaintiff and defendant are citizens of different states) jurisdiction.  That exception allows a diverse plaintiff (say, from North Carolina) to sue a defendant (say, a large drug company) in the defendant’s home state.  This trick is employed when the defendant has the misfortune of being located in a state (say, Pennsylvania, New Jersey, or California) that also contains a judicial hellhole favored by the plaintiff’s bar.

Well, the “forum defendant” exception is purely statutory, and the statute, 28 U.S.C. §1441(b), provides that only defendants “properly joined and served” at the time of removal count as forum defendants.  Defendants recently figured out (all right, we admit, we helped a little bit) that if the case could be removed ASAP, before the plaintiff had time to serve the forum defendant – the forum defendant no longer defeated the removal of an otherwise diverse case under the best reading of the statute, because it hadn’t been “served” as the statute requires.

In removal before service cases, the opposing arguments are:  On the defense side – even if Congress probably didn’t intend (or even think about) this twist, the plain language of the statute provides that removal before service trumps the forum defendant rule.  On the plaintiff’s side – even though we took advantage of the forum defendant loophole to have a plaintiff from Upper Dogpatch bring suit in the defendant’s home hellhole, it’s too much “gamesmanship” to allow defendants to take advantage of their removal before service loophole to our loophole.

Anyway, we’ve painted the scene.  So here’s what’s just happened.  In Christison v. Biogen Idec, Inc., No. C 11-4382 RS, slip op. (N.D. Cal. Nov. 14, 2011), a plaintiff from Utah (not usually thought of as a judicial hellhole) chose to sue several non-Utah defendants, including Elan, a California corporation in California state court (a full-fledged judicial hellhole).  The defendants (or at least Biogen) got wise to the suit and got it out of Dodge within a week of its being filed – before plaintiff could serve process on Elan.  Id. at 2.

Plaintiff argued gamesmanship.  Defendants argued plain meaning.  The court came down solidly on the side of Congress meaning what it says – and that Congress can change it if they didn’t:

There is no dispute, however, that Elan had not been served with summons and complaint at the time that defendant Biogen Idec, Inc. filed the operative notice of removal.  The plain language of the removal statute permits removal where no defendant who has been “properly joined and served” is a resident of the forum. 28 U.S.C. §1441(b) (emphasis added). . . .  [T]he mere absence of . . . delay here does not warrant adopting a judge-made rule departing from statutory text.  Not only does it remain true that Congress can amend the statute if there in fact is a significant problem with “gamesmanship” . . . plaintiff could have avoided the issue, of which his counsel undoubtedly was aware, by ensuring that he served Elan prior to giving Biogen notice of the filing.

Christison, slip op. at 1-2 (following Carreon v. Alza Corp., 2010 WL 539392 (N.D. Cal. Feb. 9, 2010), which we cited in our last removal before service post) (emphasis original).

Thanks to reader Joe Blute of Mintz Levin for sending along this case.  By the way, as part of this post, we also searched for other good removal before service decisions since our last post in May and found nothing useful.  If you’re out there sitting on something good, please – like Joe Blute – send it along to us.

It was one of our biggest issues in the blog’s first couple of years – whether a defendant’s removal of a case before service on: ( 1) the forum defendant where an out-of-state defendant is sued in its own state’s court, or (2) anybody (including the removing defendant), would result in the unserved forum defendant not counting for removal/remand purposes.  Application of plain statutory language meant that, in products cases where defendants had the bad fortune of residing in a jurisdiction considered pro-plaintiff, out-of-state plaintiffs could not keep sharp-eyed defendants from defeating the forum defendant rule by removing as soon as they learned of an action.

We played a role in popularizing the tactic, blogging about it here, here, here, here, here, here, here, here, here, here, and here. Trying to organize our multiple posts, we put up a comprehensive post that tried to round up every removal-before-service decision we could find (at least the ones taking the position we liked) back in October, 2009.

But since then – over a year and a half – we’ve said nothing about removal before service.  It’s not like we haven’t covered other removal issues….  Heck we discussed two removal issues just this past week, but we hadn’t gone back to the well of pre-service removal.

Well, a reader recently emailed us and asked why.

We didn’t have a good reason, except maybe indolence (or Herrmann retiring).  So we thought we’d take a stroll down Memory Lane and see what, if anything, has happened on that front since our last big post back in late 2009.

What we’ve found is that the dispute still simmers.  Our side says, follow the “plain language” of 28 U.S.C. §1441(b), which states that only defendants “properly joined and served” at the time of removal count as forum defendants.  The other side urges that the statutory language should be ignored in favor or either some version of “intent” or the assertion that removal before service is some sort of high-tech game that the courts don’t have to put up with because it produces an “absurd” result.

There’s law going both ways – the dispute itself certainly hasn’t gone away.  In fact, the most recent case we’ve seen, Hawkins v. Cottrell, Inc., ___ F. Supp.2d ___, 2011 WL 1898867 (N.D. Ga. May 19, 2011), observed that “the federal district courts have been inundated with a flood of cases addressing this issue.”  Id. at *3.  We’d like to think we contributed to that in some small way.

Hawkins, however, came up with a weird (or at least novel) reading of §1441(b) – that somebody had to be properly served before removal, or else the “none of the defendants properly joined and served” language” (the court thought) made sense.  Id. at *6.  It didn’t seem to matter that scores, if not hundreds, of other cases had found before service to be proper (or if improper, not on this ground). Rather, the court held that its “reading of the statute necessarily restricts removal to cases where at least one defendant has been served.”  Id. at *5.

The Hawkins court reached its admittedly novel result by splitting hairs.  It relied on a state law (in Georgia) that an action can be “commenced” but not yet “pending” for purposes of removal.  Id. at *7.  How that would apply to states like Pennsylvania (where plaintiffs can start litigation with a bare summons without filing a complaint), or New York (where there’s a 10-day grace period after service before an action is considered filed) is unclear.  Actually, though, Hawkins was just the absurd results rationale masquerading as straight statutory interpretation, since it relies upon the same old “Congress couldn’t have foreseen the technology” argument to reach its result, just moved to another part in the argument:

[T]he Court implicitly assumed that service of process would always occur prior to removal. The only reason removal is even possible prior to service is due to the advent of electronic case filing and waiver of service rules that could not have been foreseen when the current removal statute was enacted.

Id. at *6 (discussing and attempting to analogize to Murphy Brothers, Inc., v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999)).  Basically the Hawkins court was dead set against reading §1441(b) as written and determined to remand no matter what.

But yes, Hawkins definitely demonstrates that the controversy remains.  Our Westlaw search – “1441(b)” within the same paragraph as “properly joined” limited to cases after our last comprehensive post – found a bunch of other cases.

We don’t do plaintiffs’ research for them, so they’ll have to find the relatively few “purpose”/”absurdity” cases for themselves, but we’re happy to provide a list of the recent cases (since our last compilation) holding that removal before the forum defendant is served is proper and creates diversity jurisdiction.  Here they are:

CaliforniaAllen v. Eli Lilly & Co., 2010 WL 3489366, at *2 (S.D. Cal. Sept. 2, 2010) (“clear language” of statute allows removal before service of forum defendants); Carreon v. Alza Corp., 2010 WL 539392, at *2 (N.D. Cal. Feb. 9, 2010) (following plain meaning, finding nothing absurd about the result); Timmons v. Linvatec Corp., 2010 WL 2402918, at *1 (C.D. Cal. Jan. 24, 2010) (removal before service allowed forum defendant to be ignored), reconsideration denied, 2010 WL 2402924, at *1 (C.D. Cal. March 9, 2010) (“the plain language of the statute states that it only applies when the local defendants have been ‘properly joined and served’”); Haseko Homes, Inc. v. Underwriters Insurance Co., 2010 WL 358531, at *2 (S.D. Cal. Jan. 22, 2010) (removal proper where forum defendant not served; defendant may remove before being served).

GeorgiaGibson v. Wal-Mart Stores East, LP, 2010 WL 419393, at *2-4 (M.D. Jan. 28, 2010) (removal before service allowed forum defendant to be ignored; distinguishing cases where diversity is lacking).

Hawai’iWatanabe v. Lankford, 684 F. Supp.2d 1210, 1218-19 (D. Haw. 2010) (following plain meaning, finding nothing absurd about the result).

Illinois: In re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices & Relevant Products Liability Litigation, 2010 WL 3937414, at *11 (S.D. Ill. Oct. 4, 2010) (“[T]his action was removed before the forum defendant was served. This fact, standing alone, is a sufficient ground for denying Plaintiff’s motion to remand.”).

LouisianaBilliot v. Canal Indemnity Co., 2010 WL 4975622, at *2 (W.D. La. Nov. 8, 2010) (removal before service allowed forum defendant to be ignored); Stewart v. Auguillard Construction Co., 2009 WL 5175217, at *3-4 (E.D. La. Dec. 18, 2009) (following plain meaning, finding nothing absurd about the result; forum defendant rule not resurrected by post-removal service).

Maryland:  Robertson v. Iuliano, 2011 WL 476520, at *3 (D. Md. Feb. 4, 2011) (following plain meaning, finding nothing absurd about the result).

MissouriTerry v. J.D. Streett & Co., 2010 WL 3829201, at *2 (E.D. Mo. Sept. 23, 2010) (following plain meaning, finding nothing absurd about the result); Wallace v. Tindall, 2009 WL 4432030, at *3-4 (W.D. Mo. Nov. 30, 2009) (improper service allowed forum defendant to be ignored).

NevadaLamy v. United Parcel Service, Inc., 2010 WL 1257931, at *2 (D. Nev. March 27, 2010) (removal before service allowed forum defendant to be ignored).

New Jersey:  Bivins v. Novartis Pharmaceuticals Corp., 2010 WL 1463035, at *1 (D.N.J. April 12, 2010) (forum defendant rule not resurrected by post-removal service).

North CarolinaChace v. Bryant, 2010 WL 4496800, at *2 (E.D.N.C. Nov. 1, 2010) (removal before service allowed forum defendant to be ignored).

TexasEvans v. Rare Coin Wholesalers, Inc., 2010 WL 595653, at *2 (E.D. Tex. Jan. 28, 2010) (removal before service allowed forum defendant to be ignored).

West VirginiaLeonard v. Mylan, Inc., 718 F. Supp.2d 741, 743 n.2 (S.D. W.Va. 2010) (recognizing removal before service as proper; plaintiffs did not seek remand)

A few observations.  First, in some of these cases the removing defendant was actually served first, and took advantage of the plaintiff’s delay in serving the would-be forum defendant.  In others the removing defendants learned about the litigation, in one way or another, before anyone had been served.  We don’t think the distinction matters because the statute doesn’t distinguish between the two situations.  Obviously, the Hawkins court (but not much else) does.

Second, we note with some satisfaction that more than half of the cases we’re seeing on removal before service don’t involve drugs and devices.  We’re glad to see other defendants jumping on the bandwagon.  When everybody relies upon removal before service, it gets harder for the other side to characterize it as some sort of procedural gimmick that shouldn’t be allowed.

Third, we also came across a useful law review article on the subject, M. Curry, “Plaintiff’s Motion To Remand Denied: Arguing For Pre-Service Removal Under The Plain Language Of The Forum-Defendant Rule,” 58 Clev. St. L. Rev. 907 (2010), which marshals the arguments in favor of pre-service removal, and critiques the arguments against.

We also found a decision that demonstrates how removal before service can have collateral benefits, although a screw-up by the other side is necessary.  In In re Trasylol Products Liability Litigation, 2011 WL 830287 (S.D. Fla. March 8, 2011), the defendant successfully removed some cases before service, and (we assume) won the removal before service argument as remand was denied.  After that, the plaintiffs apparently fell asleep at the switch.  After losing the remand motion, they never bothered to complete service against anybody.  After time passed (enough for the statute of limitations to run), the defendant pounced on this error, and moved to dismiss – again successfully.  Removal before service didn’t in any way prevent these plaintiffs from doing what any competent plaintiff should do, and complete service after removal:

[I]t is undisputed that Plaintiffs have never perfected service. . . .  The issue thus boils down to whether [defendant] has waived the defense of lack of personal jurisdiction by its conduct of this litigation.  I find that [it] has not.  While [the] strategy of removing this case to federal court before service could be perfected certainly rises to the level of “legal gamesmanship,” it does not constitute “overt wrongdoing,” an attempt to “avoid service,” or a general appearance in the case sufficient to forfeit the defense.

2011 WL 830287, at *6.  Dismissal for failure to perfect service is not something one wishes to discuss with ones client.

Thus, in courts that follow the plain meaning of §1441(b) in removal before service cases, smart defendants should be making sure that the plaintiffs in fact do complete service.  Plaintiffs have 120 days to do this under Rule 4(m).  After that, it’s open season for dismissal.  However, even smarter defendants, as in Trasylol, make sure to wait until after the statute of limitations has run.

But we have to say that plaintiffs aren’t the only ones who do dumb things.  Removal before service can only be used to obtain jurisdiction in a truly diverse case – one that could have been brought in federal court in the first instance.  Hair-trigger removal only provides a way around the forum defendant rule (that even diverse cases aren’t removable where the defendant is sued in its home court), but not around a fundamental lack of diversity.  Removal before service of a non-diverse case (where the plaintiff and at least one of the defendants are citizens of the same state) can’t create federal jurisdiction.  E.g., Jennings-Frye v. NYK Logistics Americas Inc., 2011 WL 642653, at *3-4 (C.D. Cal. Feb. 11, 2011) (“case law is clear that a defendant who is a citizen of plaintiff’s state destroys complete diversity, regardless of whether that defendant was properly served prior to removal”); Smith v. Federal Express Corp., 2010 WL 3634347, at *3 (E.D. Mich. Sept. 14, 2010) (“including the unserved defendant, destroys diversity and eliminates this Court’s jurisdiction”); O’Brien v. Cessna Aircraft Co., 2010 WL 4721189, at *15 (D. Neb. July 21, 2010) (“Diversity of citizenship among the parties is determined . . . regardless of whether each party has been served at the time of removal”).

This is pretty basic 1-L civil procedure, so we don’t recommend removing a non-diverse case just because the plaintiff hasn’t gotten around to serving the non-diverse defendant.  For one thing, it could lead to fee-shifting sanctions, and telling a client it has to pay the other side’s lawyers is also something unpleasant.  But more fundamentally, even if the plaintiff is asleep at the switch, it’s not a good idea to remove a non-diverse case.  There’s no subject matter jurisdiction, and subject matter jurisdiction can be challenged at any time.  That means that a defendant removing a non-diverse case for lack of service on a non-diverse defendant could end up spending a lot of time and effort litigating a case to a favorable result, and have everything taken away when the plaintiff finally wakes up (or a court sua sponte raises subject matter jurisdiction).

Overall, we’d have to say based on our review, that removal before service is alive and well, and that the good guys – the “plain meaning” argument – seem to have the upper hand at the moment.  The dispute is likely to continue for some time, because remand orders are not appealable, and removal by definition takes place at the outset of the case.  Even if somebody were inclined to challenge a successful removal on appeal long after the fact, that’s still in the future.

By now, everyone but the newest of our readers knows this drill.  The client gets sued in state court.  The action would be removable, because there’s diversity of citizenship between plaintiff and defendants (that is, they live in different states) except there’s an “in-state” defendant that prevents removal because the plaintiff sued that defendant in that defendant’s own state’s courts.  The in-state defendant (which may or may not be the client) hasn’t been served yet.

Remove to federal court before the in-state defendant is served, and what happens?

You may or may not get remanded, depending primarily on who the assigned federal judge is.  We’ve posted about this a lot, most comprehensively here.

The latest entry is Wallace v. Tindall, 2009 WL 4432030 (W.D. Mo. Nov. 30, 2009), which denied remand.  So what are the quirks in Wallace?  For one thing, it was an amended complaint – and the in-state defendant was actually served, but only the first time around.

What happened is this.  There was an auto accident; out of state plaintiff sues in-state defendant, the other driver in that driver’s home (Missouri) court.  And served him right – literally.  Proper service on the in-state defendant under Missouri law.  Wallace, 2009 WL 4432030, at *1.

But, oops….  What if the other driver doesn’t have deep enough pockets?

Thus, a couple of weeks after completing service, the plaintiff files an amended complaint naming two additional out-of-state defendants:  the other driver’s employer and an insurance company.  There’s still diversity between the plaintiff (not sure where he’s from, but not Missouri). Id.

But while plaintiff serves the new defendants with the amended complaint, he doesn’t serve the original, in-state defendant.  Id.

Double oops.

The additional defendants remove the case to federal court.  Not only that, but the original defendant (the one not served with the amended complaint) didn’t consent to the removal.

Thus the question presented:  Is removal before service proper under the “properly joined and served” language of 28 U.S.C. §1441(b) where the in-state defendant was properly served with the original complaint that didn’t name the removing defendants, but not with the amended complaint that did name those defendants.  (There’s also a secondary question about consent to removal, but that turns on the same issue.)

Answer, according to Wallace:  Yes!

Here’s why.  Missouri state practice requires that, “Each affected party shall be served with. . .[e]very pleading subsequent to the original petition.”  Missouri Rule 43.01(1)(1).  But that rule doesn’t apply to defendants “in default.”  Id. 43.01(a)(3) (inapplicable exception omitted).

Plaintiff might have gotten away with the amendment, but didn’t wait long enough.  For a defendant to be “in default” under Missouri law, 30 days had to pass without the defendant answering (or otherwise pleading to) the complaint.  Because the amended complaint came only a couple of weeks after sefvice of the first complaint, the defendant wasn’t in default when the second one was served.  Thus, under Missouri rules, plaintiff was obligated to serve him.  Wallace, 2009 WL 4432030, at *3.

A couple of things might be going on here.  It could just be a sloppy plaintiff’s counsel.  That would follow Occam’s Razor, which in this context means “don’t ascribe to malevolence, what can be explained by incompetence.”  Or it could be that the original defendant was just a sham to keep the case in state court (and the first service was to prevent resort to §1441(b)).  Or it could be that the plaintiff, regardless of intent, couldn’t wait any longer – maybe plaintiff simply couldn’t wait any longer to sue the additional defendants.  The opinion doesn’t give the accident date, so there could be a statute of limitations looming out there.

In any event, the original, in-state defendant wasn’t properly served with the amended complaint when the new defendants removed it.  That also did away with the plaintiff’s “consent to removal” argument, since the need to obtain consent likewise applied only to “properly served” defendants.  Wallace, 2009 WL 4432030, at *4.

So on the main question, whether removal before service of an in-state defendant is proper, the court came down squarely on the side of those courts interpreting §1441(b) as meaning what it says:

The issue of service however is the pivotal issue in this case. Courts have held that even though a Missouri defendant is named in a Complaint, if that defendant is not served at the time of removal, the forum defendant rule does not apply. . . .  As held by the ‘majority’ of federal courts, this Court must apply the statute as written and determine that Defendants properly removed this action.

Wallace, 2009 WL 4432030, at *3.  The court followed two previous Missouri district court cases, Brake and Taylor – both of which we’re glad to see were includded in our prior attempt at comprehensively addressing (our side of) this issue.

So chalk up another one for the side of truth, justice, and an infinite number of peculiar fact patterns.

Thanks to reader Roshan D. Shah at Baker, Sterchi for the tip….

On the one hand, there’s the plain language of the statute.

On the other hand, some courts think that a literal reading of the statute would yield “a bizarre result” that “cannot possibly have been the intent of the legislature.”

So some courts follow the language, and others ignore it. The law becomes a muddle.

That happened when Congress accidentally wrote in the Class Action Fairness Act that “a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand . . . if application is made to the court of appeals not less than 7 days after entry of the order.” 28 U.S.C. §1453(c)(1) (emphasis added). Does CAFA really impose a seven-day waiting period for appeals of remand decisions or, more likely, did Congress mean to impose a seven-day deadline, requiring that appeals be taken not more than 7 days after entry of the remand order?

In the CAFA setting, many courts simply ignored the statutory language, reading “less” to mean “more” — which is an awfully dangerous approach to statutory construction. Our guest blogger, Sean Costello of Jones Day, opined that Judge Easterbrook of the Seventh Circuit solved this riddle in Spivey v. Vertrue, Inc., 528 F.3d 982 (7th Cir. June 11, 2008), holding that “less” means “less” and finding another route to avoid the absurdity seemingly imposed by that reading.

That’s one out of the way.

Shift gears.

The conventional thinking is that a defendant sued in its home state court cannot remove the action to federal court. The removal statute, 28 U.S.C. Sec. 1441(b), contains the “resident defendant” exception to removal based on diversity jurisdiction. An action can be removed on the basis of diversity only if “none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”

Suppose, however, that the plaintiff names a resident defendant in the complaint, but the defendant removes the case before the plaintiff has served it? The plain language of the statute seems to permit removal of such a case, but plaintiffs argue that such a literal construction leads to absurd results, because defendants could evade the resident defendant exception simply by removing actions before service.

We’ve followed this issue with interest — here, here, here, and here. And Judge Baylson’s approach, which allows courts to split the baby, here. (We just can’t get enough of this puppy. Are we weird, or what?)

A recent pair of cases brings this issue back into our sights, because they so squarely show the clash between the “literal language” line of reasoning and the opposing “ignore the language to prevent absurdity” rationale.

Thus, in Brown v. Organon International, Inc., No. 07-3092(HAA), 2008 WL 2833294 (D.N.J. July 21, 2008), plaintiffs sued Organon (a New Jersey citizen) in New Jersey state court. Organon removed the action on the basis of diversity before the plaintiff effected service. Judge Ackerman, following the recommendation of Magistrate Judge Salas, would have none of it: “Reading the statute literally would give rise to the absurd, ‘untenable result that forum defendants can remove actions from state court as long as they do so before they are served.’ . . . ‘Such a bizarre result cannot possibly have been the intent of the legislature.'” Id. at *4 (citations omitted). Motion to remand granted.

And then there’s the other side of the coin. Just one week later, in In re Fosamax Prods. Liab. Litig., No. 1:07-cv-2442 (JFK), 2008 U.S. Dist. Lexis 57473 (S.D.N.Y. July 28, 2008) a court reached precisely the opposite result. There, plaintiff sued Merck (a New Jersey citizen) in New Jersey state court. (The MDL Panel transferred all of the Fosamax cases to New York, so Judge Keenan of the S.D.N.Y. ultimately ruled on plaintiff’s motion to remand.) Merck removed before plaintiff had served it. Judge Keenan read the same Section 1441(b) that Judge Ackerman had read, but Judge Keenan didn’t see any issue at all: “Plaintiff does not claim that she served Merck or any other in-state defendant before removal. . . . [T]he plain language of section 1441(b) allows removal unless an in-state defendant has been ‘properly joined and served.’ . . . Therefore, the case was removable and Flores’ motion to remand is DENIED.'” Id. at *47.

You couldn’t ask for a more stark contrast of results — or of judicial philosophies.

Although our crystal ball is cloudy, we predict that the view reading statutory language literally will ultimately prevail. Just as Judge Easterbrook finally cracked the riddle in the context of CAFA, some judge will find a way to read the removal statute literally and yet avoid any absurd result, or else state courts or Congress will revamp the existing legal framework to avoid any supposed gamemanship.

Any other solution can’t last in the long run. If courts have the power to ignore unambiguous statutory language, then laws will have lost their meaning, and the judiciary will no longer be The Least Dangerous Branch.

Earlier this month we explained that a “wrinkle removal,” was one that capitalized on a “wrinkle” in the language of 28 U.S.C. § 1441(b)(2), which provides that a case cannot be removed on the basis of diversity if any “properly joined and served” defendant is a citizen of the forum state.  But if the forum defendant has not yet been served, that “wrinkle” doesn’t apply.  Defendants, in our never-ending quest to get cases into federal court, argue that such pre-service removal is consistent with the plain language of the statute.  Plaintiffs counter that this interpretation leads to an “absurd result” that refutes the plain language rule.  Just last year, the Third Circuit held that in this battle of “plain meaning” versus “absurd result” – plain meaning wins.  Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147 (3d Cir. 2018).

That was in important decision because since remand is unappealable (28 U.S.C. §1447(d)), appellate review is rare in remand situations.  It also meant that it was a foregone conclusion that Encompass Ins. would be applied in the District of New Jersey cases we discussed a few weeks ago.  When we see it cited and relied upon in the Central District of California, we think that’s important enough to warrant another pre-service removal post this month.

The case is Dechow v. Gilead Sciences, Inc., 2019 WL 517624 (C.D. Cal. Feb. 8, 2019).  Plaintiffs from four different states sued defendant, a resident of California and Delaware, in state court.  Two weeks after the complaint was filed, but before it was served, defendant removed the case to federal court.  Id. at *1.  As the court noted, the issue is “primarily an exercise in statutory interpretation.”  Id. at *2.  And in this instance, the statutory text is “unambiguous. Its plain meaning precludes removal on the basis of in-state citizenship only when the defendant has been properly joined and served.”  Id. at *3.  With no Ninth Circuit decision on point, the court looked to Encompass Ins.

Plaintiffs did try to argue that this literal interpretation of the statute should be rejected because it would lead to absurd results.  For this, they relied on a single case – Vallejo v. Amgen, Inc., 2013 WL 12147584 (C.D. Cal. Aug. 30, 2013).  But Vallejo involved a situation where defendants removed the case before the state court issued the summons to plaintiff.  In other words, removal occurred before it was possible for plaintiff to effectuate service.  Allowing removal in that situation, “would effectively circumvent Congress’s entire statutory scheme and render § 1441(b)(2) superfluous. Such an application could not have been intended by Congress.”  Id. That was not the situation in Dechow where service could have been made but was not.

The district court found additional support in the Ninth Circuit’s interpretation of 28 U.S.C. § 1446(b)(2)(A) which provides that “all defendants who have been properly joined and served must join in or consent to the removal of the action.”  Another removal provision with the same “properly served and joined” language.  To this provision the Ninth Circuit has applied the plain meaning interpretation.  Id. at *4.  What’s good for one, is good for the other.  And plain meaning interpretation is good for the defendants.

In the early days of the Blog, in 2009, when Bexis and Mark Herrmann were operating in relative obscurity, we posed the question whether it was ethical to remove to federal court a case that may well be non-removable and hope that opposing counsel is “asleep at the switch”:

“Heck, I’ll remove it anyway.  Opposing counsel may be asleep at the switch and not file a motion to remand within 30 days.  If plaintiff doesn’t timely move to remand, the objection to removal is waived, and my case can be tried to judgment in federal court.”

Is that ethical?

We received one response, which we discussed, that an:

attorneys’ first obligation should be to the integrity of the legal system, and not to their clients’ interests.  Even so, I’m not sure I’d say ‘no’ to either question, given that a yes answer means that incompetent attorneys who don’t realize they are violating the rules would have an advantage over competent attorneys.

With that the issue dropped off the radar.

That question returned to our minds when we researched our recent post on removal before service.  We came up with case after case holding that the so-called “forum defendant” rule was waivable, not jurisdictional, and thus that failure to move for remand in a case that featured complete diversity of the parties – but a defendant located in the forum state – was waiver so that the case stayed in federal court.  That means if a defendant is savvy enough to remove before service in accordance with the express terms of 28 U.S.C. §1441(b)(2), and opposing counsel is, as we said before, “asleep at the switch,” the removal succeeds regardless of a court’s substantive views on removal before service.

For example, in one of our removal before service cases, Selective Insurance Co. v. Target Corp., 2013 WL 12205696 (N.D. Ill. Dec. 13, 2013), the court held:

Plaintiff asserts §1441(b) (2) − the “forum defendant rule” − as a basis for remand, arguing that because defendant . . . is an Illinois citizen, removal was improper.  This rule is statutory, not jurisdictional, and thus may be waived or forfeited.

Id. at 1 (citing Hurley v. Motor Coach Industries, Inc., 222 F.3d 377, 379 (7th Cir. 2000)).  The cited Hurley decision held just that:

We must decide, therefore, whether the forum defendant rule is jurisdictional, in the sense we have been using the term, or if it is of a lesser status.  That question has been bouncing around the federal courts of appeals for more than 75 years, yet oddly enough it remains unresolved in this circuit.  The overwhelming weight of authority, however, is on the “nonjurisdictional” side of the debate.

Id. at 379. Hurley cited the following “overwhelming” precedent supporting the waivability of the forum defendant rule.  Snapper, Inc. v. Redan, 171 F.3d 1249, 1258 (11th Cir. 1999); Korea Exchange Bank v. Trackwise Sales Corp., 66 F.3d 46, 50 (3d Cir. 1995); In re Shell Oil Co., 932 F.2d 1518, 1522 (5th Cir. 1991); Farm Construction Services, Inc. v. Fudge, 831 F.2d 18, 21-22 (1st Cir. 1987); Woodward v. D. H. Overmyer Co., 428 F.2d 880, 882 (2d Cir. 1970); Handley-Mack Co. v. Godchaux Sugar Co., 2 F.2d 435, 437 (6th Cir. 1924), with only Hurt v. Dow Chemical Co., 963 F.2d 1142, 1145-46 (8th Cir. 1992), going the other way.

Another pre-service removal case reached the same conclusion.  The court in Almutairi v. Johns Hopkins Health System Corp., 2016 WL 97835 (D. Md. Jan. 8, 2016), stated:

I am unaware of any specific guidance from the Supreme Court or the Fourth Circuit concerning whether a motion to remand based on the “forum defendant rule” constitutes a procedural or a jurisdictional challenge to removal.  See Councell v. Homer Laughlin China Co., 823 F. Supp. 2d 370, 378 (N.D.W. Va. 2011) (recognizing that the Fourth Circuit “has yet to rule on this question…”).  However, “[o]f the ten circuits that have spoken on the issue, nine have found that removal by a forum defendant is a procedural defect, and thus waivable.”  Id.

Almutairi, 2016 WL 97835, at *5.  In addition to the cases previously cited by Hurley, Almutiari added:  Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 939-40 (9th Cir. 2006), Handelsman v. Bedford Village Assocs. Ltd. Partnership, 213 F.3d 48, 50 n.2 (2d Cir. 2000), Blackburn v. United Parcel Service, Inc., 179 F.3d 81, 90 n.3 (3d Cir. 1999), and Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1372 n.4 (11th Cir. 1998).

So at least in the context of removal before service, we now unhesitatingly answer our question from 2009 in the affirmative.  By all means remove before service, even in the face of adverse precedent in some district courts.  At best, the plaintiff will miss the issue entirely and will waive any reliance on the forum defendant rule (which is waivable everywhere but in the Eighth Circuit).  At worst, (1) the case is randomly assigned to a federal who has already ruled adversely, and (2) the plaintiff seeks remand in a timely fashion.  In that situation, as our recent removal-before-service posts demonstrate, the defense side has both the upper hand in the argument, and significant appellate support.  See, e.g., Encompass Insurance Co. v. Stone Mansion Restaurant, Inc., ___ F.3d ___, 2018 WL 3999885, at *4-5 (3d Cir. Aug. 22, 2018); Novak v. Bank of N.Y. Mellon Trust Co., 783 F.3d 910, 912, 914 (1st Cir. 2015); La Russo v. St. George’s University School, 747 F.3d 90, 97 (2d Cir. 2014).  A combination of persuasive argument and recent arguments might get a fair-minded judge to change his/her mind.  Even the worst possible result – remand accompanied by an order to pay counsel fees – isn’t all bad, since the sanctions order would be immediately appealable.

But we want to make one thing perfectly clear.  Pre-service removal involves only statutory language relating to diverse “forum defendants.”  There is nothing in the statute, or in the case law, that allows the presence of a non-diverse defendant to be avoided by pre-service removal.  Pre-service removal does not make non-diverse cases diverse.  Any counsel who screws up this fundamental distinction deserves whatever sanctions a court hands out.