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.The Forum Defendant Rule and Snap RemovalA defendant's ability to remove an action from state to federal court is limited in cases involving diversity of citizenship. 28 U.S.C. § 1441(b). Under the forum defendant rule, a suit that is "otherwise removable solely on the basis of [diversity of citizenship] 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."

Realizing that total diversity of citizenship exists, the defendants examine whether they can remove the case to federal court. But the plaintiff has planned for this: She sued the defendants on their home turf, knowing that the “forum defendant rule” in 28 U.S.C. § 1441(b)(2) would doom their removal efforts—or so she thought.The defendants learn about the lawsuit from an electronic docket alert.

If you think there is no avenue to remove a case when one of the parties is a forum defendant, think again. A process known as “snap removal” has gained the approval of all of the federal appellate courts that have considered it thus far, while the lower courts seem more hesitant to adopt it as proper.So long as diversity jurisdiction exists, 28 U.S.C.§ 1441(b) allows a defendant to remove a case to federal court except where “any of the parties in interest properly joined and servedas defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(a); § 1441(b)(2) (emphasis added). Courts refer to this limitation as the “forum defendant rule.” Based on a plain reading of the statute, a party attempting a snap removal would argue that a defendant that is not “properly joined and served” in the state action is not subject to the limitation of the “forum defendant rule” by the very terms of Section 1441(b)(2).Three federal appellate courts (the Second, Third and Fifth Circuits) that have squarely addressed whether Section 1441(b) allows for removal prior to service on a forum defendant have each concluded – based on the plain language of the statute – that snap removal is in fact permissible. Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699 (2d Cir. 2019) (permitting snap removal by a forum defendant based on the plain

Many defendants prefer federal court to state court. Accordingly, when sued in state court, they will remove whenever possible.This bulletin addresses a wrinkle in the law about when removal is possible. The removal statute codifies the “forum-defendant rule.” That rule, contained in 28 U.S.C. §1441(b)(2), prohibits removal based on diversity jurisdiction “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.” 28 U.S.C. § 1441(b)(2) (emphasis added). The question is whether an in-state defendant can avoid the forum-defendant rule by removing before it is served with the complaint. Courts refer to that procedure as a “snap removal,” or a “pre-service removal.”On April 10, 2024, the Ninth Circuit weighed in for the first time on what it deemed a “super” snap removal, holding that it was closing the book on such “snappier” removals. Casola v. Dexcom, Inc., 2024 WL 1547021, at *15 (9th Cir. Apr. 10, 2024). This bulletin discusses that opinion, as well as the current landscape of snap removals in U.S. federal courts.The Ninth Circuit’s Decision on “Super” Snap Removals:Last week, in Casola v. Dexcom, Inc., the Ninth Circuit addressed what it called an “even snappier version of the typical snap removal.” 2024 WL

2The practice of snap jurisdiction, also referred to as “snap removal” or preservice removal, has created turmoil in federal district courts over the meaning of the forum-defendant rule.3 The forum-defendant rule in 28 U.S.C. § 1441(b)(2) provides that a civil action may not be removed from state court to federal court on the basis of diversity jurisdiction if “any of the parties in interest properly joined and served as defendants is a citizen of the state in which the action is brought.”4 In recent years, the federal district courts have been faced with a dilemma of how to interpret the language “properly joined and served” in an era of electronic dockets, which has enabled defendants to remove litigation sometimes before they have been served.

All defendants then filed answers and a Rule 12(c) Motion to Dismiss.Texas Brine moved to remand, arguing AAA’s removal was improper based on 28 U.S.C. § 1441(b)(2), the “forum defendant rule”:A civil action otherwise removable solely on the basis of [diversity jurisdiction under 28 U.S.C. § 1332(a)] 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.Removal based on diversity jurisdiction “protect[s] out-of-state defendants from possible prejudices in state court.”

Wells Fargo, as an additional counterclaim defendant, removed the case to the federal court under 28 U.S.C. §1453 of CAFA. Adams moved to remand, which the District Court granted.The Court noted that the general removal statute, 28 U.S.C. §1441(a), provides that an action may be removed by “the defendant or the defendants,” whereas, CAFA’s removal provision, 28 U.S.C. § 1453(b), provides that an action may be removed by “any defendant without the consent of all defendants.”The Court noted that the Sixth Circuit has not addressed the issue whether the use of the word “any” in §1453(b) includes additional counterclaim defendants, and such a counterclaim class action defendant may properly remove under §1453(b), and other courts are split on this issue.

y courts are often able to move cases along quicker than other courts, which is important in the context of bankruptcy cases where the ability of a debtor to exist as a going concern often requires expedited action.28 U.S.C. §1452(a) provides as follows:A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit’s police or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.As the title to 28 U.S.C. §1452 itself indicates (“Removal of Claims related to bankruptcy cases”), matters that can be removed include claims “related to” a bankruptcy case within the meaning of 28 U.S.C. §1334(b).In addition to 28 U.S.C. §1452(a), any civil action brought in a state court may also be subject to removal pursuant to 28 U.S.C. §1441(a), if applicable. 28 U.S.C. §1441(a) provides as follows:Generally. – Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.Generally, where the basis for removal includes claims related to bankruptcy cases, or federal questions concerning title 11 of the United States Code (the “Bankruptcy Code”), if the underlying court case sought to be removed (the “Bankruptcy Related Removed Case”) is pending in one state, the removal pleadings should be filed in the United States Bankruptcy Court for the U.S. district of that state (or, if such state has more than one federal district, in the Bankruptcy Court for the appropriate federal district), whether the bankruptcy case is pending in the United State

28 U.S.C. § 1332(a) grants the federal district courts original jurisdiction of all civil actions where (1) the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs and (2) the dispute is between citizen of different states. 28 U.S.C. § 1441(a), in turn, permits a defendant to remove a civil case brought in state court to the federal district court in which the case could have been brought. There is, however, an additional restriction on removal, known as the local-defendant or forum-defendant rule found at 28 USC § 1441(b)(2):(2) a civil action otherwise removable solely on the basis of the jurisdiction under [28 U.S.C. § 1332(a)] 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. Home Deposit successfully petitioned the Supreme Court for certiorari to determine whether a new party, impleaded by the original defendant as a counterclaim defendant, qualifies as a “defendant” with removal rights under either 28 U.S.C. § 1441(a), the general removal statute, or CAFA.Majority OpinionThe five-Justice majority first looked to whether the general removal statute, 28 U.S.C. § 1441(a), permitted removal by a third-party counterclaim defendant. Id. at 5.