Legal Sidebari

UPDATE: Make it Snappy? Congress Debates
“Snap” Removals of Lawsuits to Federal Court
Updated February 25, 2020
Whether a lawsuit proceeds in state or federal court can have significant practical consequences. For
various reasons, some litigants and commentators perceive state courts as more favorable to plaintiffs and
federal courts as more favorable to defendants. For instance, the procedural requirements that a plaintiff
must satisfy to survive dismissal of a federal lawsuit can be more stringent than the requirements that
apply in many state courts. Certain observers also claim that state courts may be inclined to disfavor out-
of-state defendants. These perceived differences between state court and federal court often encourage
litigants to engage in forum shopping; that is, plaintiffs sometimes expend significant effort and resources
seeking to keep cases in state court, while some defendants do the same to try to move cases to federal
court. Apart from the direct consequences to the litigants themselves, the forum in which a particular
lawsuit proceeds may also implicate principles of federalism, as well as issues regarding the allocation of
federal and state judicial resources.
Subject to certain constitutional limitations, Congress may enact—and has enacted—legislation
influencing where cases are litigated. Some have debated, however, whether existing federal laws on this
subject are adequate. On November 14, 2019, the U.S. House Committee on the Judiciary’s
Subcommittee on Courts, Intellectual Property, and the Internet (Subcommittee) held a hearing to
consider a technique called snap removal, which allows defendants to avoid certain otherwise applicable
restrictions on removing cases filed in state court to federal court. Shortly thereafter, the House introduced
a bill called the Removal Jurisdiction Clarification Act of 2020 (H.R. 5801) that proposes to regulate snap
removals in various respects. This Sidebar describes existing federal laws governing whether particular
cases proceed in state or federal court before describing snap removals and their potential significance to
Congress.
Federal Jurisdiction
Federal courts are courts of limited subject matter jurisdiction, which means that federal courts generally
cannot adjudicate a case unless (1) the case involves one of the subjects listed in Article III, § 2 of the
Constitution, and (2) Congress passes a law affirmatively authorizing federal courts to hear that type of
case. To that end, Congress has enacted several statutes authorizing federal courts to hear specific classes
of cases, such as cases arising under federal law, bankruptcy cases, certain class actions, certain lawsuits
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against the United States, and so forth. As relevant here, 28 U.S.C. § 1332(a)(1) grants the federal courts
what is known as diversity jurisdiction, which permits federal courts to adjudicate lawsuits between
“citizens of different States” in which “the matter in controversy exceeds the sum or value of $75,000.”
Diversity jurisdiction thereby addresses certain litigants’ concerns that state courts may be biased against
defendants from other states by providing out-of-state defendants a supposedly neutral federal forum.
Significantly, courts have interpreted 28 U.S.C. § 1332(a)(1)’s “citizens of different States” language to
require complete diversity, which means that diversity jurisdiction will not exist if any of the plaintiffs is a
citizen of the same state as any of the defendants.
There are some types of cases, such as certain intellectual property cases, that only the federal courts have
jurisdiction to hear. In many types of cases, however—including diversity cases—the state and federal
courts have concurrent jurisdiction, which means that either the federal courts or the state courts may
adjudicate the case. To illustrate, suppose a South Dakotan negligently injures a North Dakotan, and the
North Dakotan wants to sue the South Dakotan for $80,000. While a North Dakota state court could have
jurisdiction to hear the North Dakotan’s claim, the U.S. District Court for the District of North Dakota
could also have jurisdiction because the parties are citizens of different states and the amount in
controversy exceeds $75,000. Accordingly, the North Dakotan plaintiff could file his lawsuit in either the
state court or the federal court.
Removal
When either a state court or a federal court would have jurisdiction to hear a case, the plaintiff, as the
party beginning the lawsuit, makes the initial decision whether to proceed in state or federal court.
Sometimes, however, a defendant may override the plaintiff’s choice of a state forum. Specifically, 28
U.S.C. § 1441(a) allows defendants to remove a state court case to a nearby federal court if they comply
with certain procedures and restrictions. As with diversity jurisdiction more broadly, courts have opined
that authorizing defendants to remove cases from state court to federal court “protect[s] out-of-state
defendants from possible prejudices in state court.”
To illustrate how removal works, suppose the injured North Dakotan files his $80,000 lawsuit against the
South Dakotan defendant in a North Dakota state court instead of federal court. Ordinarily, the South
Dakotan defendant would be able to remove the case to the U.S. District Court for the District of North
Dakota, which could exercise diversity jurisdiction over the case under 28 U.S.C. § 1332(a)(1).
The Forum Defendant Rule
Even though diversity jurisdiction is primarily intended to protect out-of-state defendants, diversity
jurisdiction is not limited to lawsuits against defendants from other states. As noted above, 28 U.S.C.
§ 1332(a)(1) grants the federal courts diversity jurisdiction over cases between “citizens of different
States” that satisfy that $75,000 amount-in-controversy requirement. Thus, a lawsuit between an out-of-
state plaintiff and an in-state defendant can fall within the federal courts’ diversity jurisdiction as well.
The fact that a federal court possesses jurisdiction over a particular diversity case against an in-state
defendant, however, does not necessarily mean that an in-state defendant may remove that case to federal
court. 28 U.S.C. § 1441(b)(2)—known as the forum defendant rule—prohibits a defendant from removing
a diversity case “if any of the parties in interest properly joined and served as defendants” in the case “is a
citizen of the State in which such action is brought.” Jurists have justified the forum defendant rule on the
ground that when at least one defendant is a citizen of the forum state, there is less reason to think that the
state court may treat the defendants unfavorably.
To illustrate how the forum defendant rule works, imagine that an Oklahoman sues a Texan in a Texas
state court for $80,000. A federal district court in Texas would likely have diversity jurisdiction over the

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case because the parties are citizens of different states and the amount in controversy exceeds $75,000.
Nevertheless, unless the federal court had some jurisdictional basis to hear the case other than diversity
jurisdiction, 28 U.S.C. § 1441(b)(2) would ordinarily bar the Texan from removing the case to federal
court because he is “a citizen of the State in which” the Oklahoman filed his state court lawsuit—namely,
Texas. Under such circumstances, the case would proceed in the Texas state court instead of federal court,
even though the Oklahoman could have filed his lawsuit in federal court in the first instance if he so
chose.
Snap Removals
Notably, however, 28 U.S.C. § 1441(b)(2) only purports to bar removal when any of the parties “properly
joined and served as defendants is a citizen of the State in which such action is brought.” The “and
served” language refers to service of process—the method by which a plaintiff gives a defendant notice of
a lawsuit by handing or delivering certain documents related to the case to the defendant or its agent.
Courts have generally viewed 28 U.S.C. § 1441(b)(2)’s “properly joined and served” language as a
congressional attempt to prevent plaintiffs from defeating removal by suing an additional, nominal in-
state defendant that the plaintiff does not intend to pursue in litigation or serve with process. In recent
years, however, an increasing number of defendants—including many pharmaceutical and medical device
manufacturers named as defendants in product liability actions—have invoked 28 U.S.C. § 1441(b)(2)’s
“properly joined and served” language for a different purpose: avoiding the application of the forum
defendant rule by removing diversity cases before the plaintiff has served the in-state defendants. Courts
call this technique snap removal, pre-service removal, or, less commonly, jack rabbit removal. Several
observers attribute this recent rise in snap removals to the increasing prevalence of electronic court filing
and internet access to court dockets, which has allowed defendants to learn they have been sued and
remove the case to federal court before the plaintiff physically serves them with process.
A recent New Jersey case illustrates how snap removal works. In that case, a citizen of North Carolina
sued two New Jersey companies in a New Jersey state court on January 17, 2018, at 3:10 PM. Because
the two defendants were citizens of New Jersey, the forum defendant rule ordinarily would have barred
them from removing the case. However, the defendants removed the case at 3:23 PM that same day.
Because the plaintiff did not serve the defendants until 5:00 PM the following evening, the federal court
deemed the removal proper.
Not all courts have agreed that 28 U.S.C. § 1441(b)(2) allows defendants to remove diversity cases before
the plaintiff serves the in-state defendants. Courts considering this issue have generally taken one of two
competing interpretive approaches. Courts allowing snap removal generally reason that 28 U.S.C.
§ 1441(b)(2)’s “properly joined and served” language unambiguously permits defendants to remove
diversity cases where the plaintiff has not yet “properly . . . served” any of the in-state defendants. Courts
disallowing snap removal, by contrast, have typically focused on the policy purposes of the forum
defendant rule. According to these courts, snap removal improperly allows defendants to reliably “avoid
the imposition of the forum defendant rule so long as they monitor the state docket and remove the action
before they are served by the plaintiff.” Because, at least in some jurisdictions, validly serving a lawsuit
takes longer than satisfying the procedural prerequisites for removing a case, these courts reason that
permitting snap removal empowers in-state defendants to virtually guarantee that diversity cases brought
by out-of-state plaintiffs end up in federal court. This result, in the view of these courts, encourages forum
shopping and does not advance the primary policy underlying diversity jurisdiction: to provide a
purportedly neutral forum for suits against out-of-state defendants. Although the Supreme Court has not
resolved this split of authority, the weight of judicial precedent currently favors the interpretation of 28
U.S.C. § 1441(b)(2) allowing snap removals.

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Legal Considerations for Congress
Commentators have debated whether Congress should amend existing law to clarify whether snap
removals are procedurally proper—and, if so, what form that amendment should take. Those who oppose
legislative modifications to the existing forum defendant rule maintain that snap removals have not
resulted in systematic unfairness or injustice to plaintiffs—and, if anything, have prevented litigants from
reaping unfair advantages from filing lawsuits in supposedly plaintiff-friendly state courts. Others, by
contrast, believe that congressional intervention is necessary because continued litigation over the
propriety of snap removal undesirably “consum[es] client funds and court resources without advancing
resolution of the underlying claims.” In particular, those who support amending existing law to prohibit
snap removals argue that snap removals unjustifiably deprive plaintiffs of the state court forum to which
they would otherwise be statutorily entitled under the forum defendant rule, to the detriment of persons
injured by allegedly unlawful conduct.
Those who advocate amending the existing removal rules have advanced a variety of legislative
proposals, each of which raises distinct legal issues. For instance, some have explored eliminating snap
removals by removing or altering 28 U.S.C. § 1441(b)(2)’s “properly joined and served” language to
provide that a defendant may not remove a diversity case if any of the defendants is a citizen of the state
in which the action is brought, irrespective of whether the plaintiff has served those defendants. Others
have argued, however, that such an amendment could encourage plaintiffs to thwart removal by suing
nominal in-state defendants that they do not intend to serve with process. For that reason, some instead
advocate enacting a “snapback” provision that would not categorically prohibit defendants from removing
a case before the plaintiff has served the in-state defendants, but would instead allow the plaintiff “to
counter snap removal by serving one or more in-state defendants after removal.” Under this proposal, if
the plaintiff served the in-state defendant within a statutorily-specified period of time following a snap
removal, federal law would require the federal court to send the case back to the state court. The Removal
Jurisdiction Clarification Act of 2020 (H.R. 5801), which several Members of the House introduced on
February 7, 2020, would amend federal law to codify that snapback procedure. As of the date of this
Sidebar, that bill remains pending in the House.


Author Information

Kevin M. Lewis

Legislative Attorney




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