![]() Most recently, in Texas Brine, the Fifth Circuit held that the forum defendant rule does not prohibit snap removal by a non‑forum defendant. Texas Brine and What it Means for Forum Defendants The Court added that "while it might seem anomalous to permit a defendant sued in its home state to remove a diversity action," that practice "'does not contravene' Congress's intent to combat fraudulent joinder." Id. "By its text, then, Section 1441(b)(2) is inapplicable until a home‑state defendant has been served in accordance with state law" Id. ![]() That court concluded that "he statute plainly provides that an action may not be removed to federal court on the basis of diversity of citizenship once a home‑state defendant has been ' properly joined and served.'" Gibbons, 919 F.3d at 705 (quoting 28 U.S.C. In Gibbons, the following year, the Second Circuit also reviewed the permissibility of snap removal by a forum defendant. The court acknowledged that "easonable minds might" question the policy of that result, but did not consider that question relevant to its statutory interpretation. Its plain meaning precludes removal on the basis of in‑state citizenship only when the defendant has been properly joined and served." Id. "Starting with the text," it "conclude that the language of the forum defendant rule in section 1441(b)(2) is unambiguous. There, the court reviewed whether § 1441(b)(2) permits snap removal by a forum defendant. Stone Mansion Restaurant Inc., 902 F.3d 147 (3d Cir. The Third Circuit became the first federal appellate court to address the practice, in Encompass Insurance Co. That technique allows a defendant-including a forum defendant-to remove a case to federal court on diversity grounds after the suit is filed in state court, but before the forum defendant is served. 2019).ĭefendants have been overcoming the forum defendant rule by employing snap removal. "In the usual case, application of the forum defendant rule is straightforward: a defendant is sued in a diversity action in the state courts of its home state, is served in accordance with state law, attempts to remove the case, and is rebuffed by a district court applying Section 1441(b)(2)." Gibbons v. Under the forum defendant rule, a suit that is "otherwise removable solely on the basis of 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." Id. The Forum Defendant Rule and Snap RemovalĪ defendant's ability to remove an action from state to federal court is limited in cases involving diversity of citizenship. That decision approved removal by a non‑forum defendant, and it is unclear whether the court's reasoning will extend as far as the Second and Third Circuits. American Arbitration Ass'n, 955 F.3d 482 (5th Cir. Looking Ahead: Most recently, the Fifth Circuit addressed snap removal for the first time in Texas Brine Co. In both cases, the courts rejected the plaintiffs' arguments that a forum defendant's quick action to remove a case before being served was procedural gamesmanship, violated Congressional intent, or produced an absurd result. The Result: The Second and Third Circuits have concluded that snap removal by a forum defendant is permissible based on the plain language of the removal statute. Some plaintiffs have cried foul that forum defendants are pursuing snap removal. Snap removal takes advantage of the plain language of the "forum defendant rule" in the removal statute and allows a fast‑acting defendant to remove an action to federal court on diversity grounds, so long as no forum defendant has been served. The Situation: Defendants sued in state court are making use of a procedural technique known as "snap removal" to get otherwise non‑removable cases into federal court.
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