As mass tort litigators, we are no strangers to seeing our clients get sued by opportunistic plaintiffs who attempt to keep their cases in state courts by suing these clients on their home turf. But time and time again, we are surprised that litigators outside of the mass tort context are unaware of a defense tactical strategy that can land their clients in federal court more often. That a defendant can remove a state court action to federal court, would probably not be viewed as anything the out of the ordinary or unusual to most litigators. However, that a defendant—under certain circumstances—can remove a case to federal court prior to being served, might be a strategic practice that is less known and by extension, less utilized. Generally, under the applicable removal statutory rules articulated in 28 U.S.C. §§1441-55, removal is permitted where a district court would otherwise have original jurisdiction over the proceeding. See 28 U.S.C. §1441(a). But there is an exception, or limit, to this general rule on removal: In a case where federal jurisdiction is premised upon diversity of the parties, 28 U.S.C. §1441(b)(2) prohibits removal to federal court if a defendant is a citizen of the state where the plaintiff filed action. See 28 U.S.C. §1441(b)(2). Known as the "forum-defendant" rule, the statute provides: "A civil action otherwise removable solely on the basis of [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." It is this highlighted language that has served as a basis for pre-service or "snap" (or "wrinkle") removal—the process by which a forum defendant in a diversity action, removes a state case to federal court before it has been served in the state court action. Snap removal relies on a plain reading of the statute: The forum defendant rule requires a defendant to be properly joined and served, and when a defendant is not served, arguably pre-service removal is permissible.

Preservice removal has been endorsed by two federal circuit courts relatively recently. The first circuit to uphold the practice was the Third Circuit in Encompass Insurance Company v. Stone Mansion Restaurant, 902 F.3d 147 (3d Cir. 2018). In Encompass, the plaintiff, a citizen of Illinois, sued the defendant in its home jurisdiction of Pennsylvania. Though completely diverse from each other, ordinarily the forum-defendant rule would have applied and prevented the defendant from removing the case to federal court. However, the defendant in Encompass removed the action to federal district court in Pennsylvania prior to accepting service of the complaint. The plaintiff moved to remand the case to state court, but the motion was denied. On appeal, the Third Circuit rejected the plaintiff's argument that interpreting the statute to permit preservice removal would leave to absurd results. See Encompass, 902 F.3d 147, 152 (3d Cir. 2018). Instead, the Encompass court found the language of 28 U.S.C. §1441(b)(2) to be "unambiguous" reasoning that the "plain meaning" of the statute "precludes removal on the basis of in-state citizenship only when the defendant has been properly joined and served."

The following year, the Second Circuit upheld snap removal in our case Gibbons v. Bristol-Myers Squibb Co. and Pfizer, slip op. No. 17-2638 (2d Cir. March 26, 2019). In Gibbons, defendants Bristol-Myers Squibb and Pfizer were sued by several plaintiffs alleging an oral anti-coagulant (blood thinning medication) they manufactured that was intended to reduce the risk of stroke in patients with atrial fibrillation caused them to have significant injuries from excessive bleeding. Id. at 3. By the time the plaintiffs in the BMS case brought suit, there was already a multidistrict litigation formed and pending in the Southern District of New York. In an effort to avoid the MDL, certain plaintiffs in this case filed their cases in Delaware state court, where both BMS and Pfizer were incorporated. Before the plaintiffs served their complaints, the defendants removed the cases to federal court in the District of Delaware and then tagged the actions for transfer to the MDL in the Southern District of New York. In turn, the BMS plaintiffs requested that their complaints be remanded back to state court, citing the forum defendant rule. However, the district court presiding over the MDL, denied their motions and ultimately dismissed their cases for failure to state a claim. The plaintiffs appealed, contending like the plaintiff in Encompass, that such an interpretation of 28 U.S.C. §1441(b)(2) would produce an absurd result and lead to inconsistent application of the forum-defendant rule across the various states depending on the varied state service of process requirements. Id. at 11. The BMS court rejected both arguments and applied similar reasoning to the Third Circuit's decision in Encompass. The Court ruled "that a home-state defendant may in limited circumstances remove actions filed in state court on the basis of diversity of citizenship—is authorized by the test of Section 1441(b)(2) and is neither absurd nor fundamentally unfair." Id. at 15.

Since preservice or snap removal is currently endorsed by only two circuits, it remains to be seen if this practice will be adopted by others or further litigated, warranting Supreme Court attention. Since the decisions in Encompass and Gibbons, no other circuit court has formally approved (or disapproved) of preservice removal. However, two district court decisions within the Third Circuit have signaled a limitation on preservice removal: snap removal is barred when a forum defendant does not completely effectuate all steps for removal under 28 U.S.C. §1446 (i.e., filing the notice of removal with the state court) prior to service. See Brown v. Teva Pharmaceuticals, No. 19-3700, 2019 WL 5406218 (E.D. Pa. Oct. 23, 2019); Dutton v. Ethicon, No. 18-17199, 2019 U.S. Dist. LEXIS 180567 (D.N.J. Oct. 18, 2019). In these cases, defendants removed their cases to federal court before being served with complaints, but before they were able to file their notices of removal with the state court, they were served. In both cases, because the courts interpreted removal to require full compliance with all steps under 28 U.S.C. §1446, the courts disallowed snap removal since the forum failed to get the notices of removal on file with the state courts before they were served.

Most recently in the Second Circuit, in Hardman v. Bristol Myers Squibb, slip op. No. 17-14600 (2d Cir. April 17, 2019), the court further refined the requirements that a forum defendant must meet in order to remove a case in which diversity exists. In Hardman, the court actually granted plaintiff's motion to remand back to state court because between the time the defendant had filed the removal petition with the state court, they were served. And between the two events, the filing of a copy of the notice of removal with the appropriate state court did not occur. There the court held the case be remanded because all three strict requirements of the statute had not been satisfied. These cases demonstrate an important potential limitation defendants need to be aware of when considering snap removal.

Another limitation may come legislatively, not merely judicially. In Encompass, the Third Circuit portended that the practice may come under legislative review, stating: "Reasonable minds might conclude that the procedural result demonstrates a need for a change in the law; however, if such a change is required, it is Congress—not the Judiciary—that must act." 902 F.3d 147, 153-54 (3d Cir. 2018). It seems that some members of Congress may have been listening. On Nov. 14, 2019, the House Committee on the Judiciary's Subcommittee on Courts, Intellectual Property, and the Internet considered various perspectives on the pertinence and suitability of snap removal at a hearing titled, "Examining the Use of 'Snap' Removals to Circumvent the Forum Defendant Rule." Four speakers offered their insights about the legislative intent behind the removal statutes, the practical effect of snap removals on litigation and whether and how Congress should amend the snap removal process in a fair way that retains the policy considerations of federal diversity jurisdiction. Three of the four speakers advocated for some sort of change in the removal statute to prevent abuses of pre-service removal. These speakers included two law professors, Arthur D. Hellman (Professor Emeritus, University of Pittsburgh School of Law) and James E. Pfander (Professor, Northwestern University Pritzker School of Law), and an attorney from the Plaintiffs' Bar, Ellen Relkin (Of Counsel, Weitz & Luxenberg, P.C.). The sole advocate for keeping the statute unchanged was a defense attorney, Kaspar J. Stoffelmayr (Partner, Bartlit Beck). Congress has not yet publicly stated when they will make or propose changes to the removal statute.

While the federal rule remains in its current form, forum defendants may want to consider using snap removal as a litigation tactic, to prevent, among other consideration, litigation tourism.

Breanna Fields is an associate and Cara D. Edwards is a partner at DLA Piper.