In a win for plaintiffs attorneys fighting so-called snap removals to federal courts, a federal magistrate judge in New Jersey recommended remand of more than a dozen lawsuits brought over allegedly defective hip implants.

Monday's decision, by U.S. Magistrate Judge James Clark, comes as a U.S. House of Representatives Judiciary Committee subcommittee heard testimony last year on the practice of snap removals, in which defendants immediately remove cases to federal court before receiving notice of service of a complaint.

Plaintiffs attorneys have insisted that snap removals, increasingly prevalent as more states adopt electronic filing, are an improper tactic, but two appeals courts, including the U.S. Court of Appeals for the Third Circuit, which includes New Jersey, have upheld the practice.

Clark, whose report in a representative case applies to more than a dozen other lawsuits involving medical technology firm Stryker Orthopaedics before U.S. District Judge John Vazquez, disagreed with Stryker's "novel combination" of court precedent. In particular, Stryker relied on the Third Circuit's 2018 decision in Encompass Insurance v. Stone Mansion Restaurant, which was the first appeals court decision on snap removals, and a 2009 district court ruling called Tucci v. Hartford Fin. Servs. Grp. that found service completed only after the defendant actually received notice of it.

"While defendant is indeed correct that under Encompass removal is not improper under the forum defendant rule unless a defendant has been 'properly joined and served,' regardless of whether that defendant acted to delay service," he wrote, "defendant's contention that service was not complete for the purposes of the forum defendant rule until defendant actually received notice of such service from its registered agent finds no support in Tucci or in any other case cited by defendant."

"Plaintiffs are delighted that the court has resoundingly rejected defendant's baseless removal after service that sought to expand the already problematic snap removal loophole into a game of catch me if you can," wrote plaintiffs attorney Ellen Relkin, a partner at Weitz & Luxenberg, in an emailed statement. "This decision should serve as a warning to other defense counsel seeking to pervert and expand the parameters of the snap removal loophole with the argument that service on the registered agent does not constitute good service will not be tolerated."

Objections, which are due on June 29, "will be met with swift opposition and a Rule 11 motion," she said, referring to a sanctions motion.

McCarter & English partner David Kott, who represents Stryker parent corporation Howmedica Osteonics Corp., did not respond to a request for comment.

Defendants remove cases to federal court, considered more defense friendly than state courts, under the federal removal statute, which prohibits removal based on diversity jurisdiction once they have been "properly joined and served as defendants."

Last year, the U.S. Court of Appeals for the Second Circuit cited the Third Circuit's Encompass decision in upholding snap removals. The Third Circuit found snap removals proper, despite changes in technology that increased the practice, because they fell within the meaning of the law. "Reasonable minds might conclude that the procedural result demonstrates a need for a change in the law; however, if such change is required, it is Congress—not the judiciary—that must act," the ruling said.

On Nov. 14, Relkin was one of four witnesses to testify before the House Judiciary Committee's Subcommittee on Courts, Intellectual Property and the Internet, about snap removals.

Her cases in New Jersey all involve alleged injuries caused by Stryker's Trident Tritanium Acetabular System joint replacement. Plaintiffs attorneys have asked Vazquez to remand their lawsuits to Bergen County Superior Court, where Howmedica has its headquarters in Mahwah, New Jersey.

In half the cases, plaintiffs attempted to serve the defendant through its registered agent, Corporation Trust Co., and the other half through both CT Corp. and Howmedica's headquarters. But, according to plaintiffs attorneys, the defendant "deliberately delayed accepting service" until after it had removed the case, the ruling says.

The plaintiff in the representative case, Roberta Jackson, filed her complaint at 9:15 a.m. on Oct. 3, 2019, but alleges defendant's representatives made her process server wait at its headquarters until after it had removed the case at 10:29 a.m.

In Monday's ruling, Clark found that Tucci did not apply to the type of registered agents at issue in the hip implant cases, and that the defendant in this case received service before removal.

In a footnote, Clark added that whether Stryker evaded service on purpose does not matter, and Encompass could even allow it. But, he wrote, "the court cautions that plaintiff's allegations regarding defendant's conduct, if true, demonstrate behavior unbecoming of litigants."