If there is no Federal question involved, such as the alleged violation of a Federal statute, one cannot remove a case to Federal court unless there is diversity of citizenship. The applicable statute, 28 U.S.C. § 1332, requires the removing defendant to establish that: (1) the amount in controversy exceeds $75,000; and that (2) the parties' State citizenship is completely diverse (i.e., no plaintiff is a citizen of any State where any defendant is a citizen, and vice versa).

While the Forum Defendant rule raises a hurdle to removal, even if there is diversity of citizenship, a literal reading of the text of the rule has led courts to approve "snap removals" that are quickly filed, before the forum defendant has been served.

In 1948, the U.S. Congress enacted what has become known as the Forum Defendant Rule, which states:

A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title 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.¹

In other words, if a matter is removable solely on the basis of diversity jurisdiction, it cannot be removed if a defendant of the forum state has been "properly joined and served." The converse should thus logically follow: if the forum defendant has not yet been served, the matter is removable.

For example, let's say there is a motor vehicle accident in Los Angeles, and the Arizona plaintiff-driver sues the California defendant in California State Court. Although there would be diversity of citizenship, the case would not ordinarily be removable because the defendant is a citizen of California.

But let's say the California defendant learns of the filing of the State court complaint against him and then quickly hires a savvy attorney who removes the case before service. Hasn't the California defendant followed the forum defendant rule to a tee?

Some courts have indeed adopted this interpretation of the rule. Since the first attempted snap removal in 1997, multiple Federal Courts have found that even if one or more defendants is a citizen of the forum State, the case is still removable if the removal occurs before the plaintiff serves this forum defendant. The language of the forum defendant rule supports this interpretation, but not all Federal courts have adapted this understanding.

The Second, Third, Fifth, and Sixth Circuits have all issued decisions approving of snap removals. For instance, in Gibbons v. Bristol-Myers Squibb Co.² the Second Circuit noted that, "By its text, then, [the rule barring removal if there is a forum defendant] is inapplicable until a home-state defendant has been served in accordance with state law; until then, a state court lawsuit is removable under Section 1441(a) so long as a federal district court can assume jurisdiction over the action."

Similarly, the Fifth Circuit has held that, "[a] non-forum defendant may remove an otherwise removable case even when a named defendant who has yet to be 'properly joined and served' is a citizen of the forum state."³ However, in circuits like the Ninth that have not yet ruled on snap removals, district court judges are free to make their own determinations on the validity of the procedure.

Several judges in the California Central District have approved snap removals. In early 2023, the Hon. John A. Kronstadt noted that other judges in the District have concluded that the plain text of the Forum Defendant Rule permits such pre-service removal.⁴

In Hong, the Court recognized that, "Congress may well have adopted the 'properly joined and served' requirement in an attempt to both limit gamesmanship and provide a bright-line rule keyed on service, which is clearly more easily administered than a fact-specific inquiry into a plaintiff's intent or opportunity to actually serve a home-state defendant."⁵

In other words, the language of the statute provides a bright-line rule to require that plaintiffs effectuate service and avoid the inclusion of sham defendants.

In 2021, the Hon. George H. Wu denied plaintiffs' motion to remand and stated "[u]nless and until [Congress amends the Forum Defendant Rule], this Court's role is to apply the plain language of a statute, and the plain language of Section 1441(b)(2) demonstrates that a "local defendant" has to be "properly joined and served" before the prohibition present in Section 1441(b)(2) goes into effect."⁶

In other words, the plain language of the Forum Defendant Rule indicates that the rule does not apply unless and until a forum defendant is served.

In 2019 the Hon. Otis D. Wright, II of the Central District of California held that:

For the Forum Defendant Rule to bar removal, two distinct obligations are imposed upon a plaintiff — to properly join, and to properly serve any in-state defendant.⁷ These obligations are combined by the conjunctive term "and" in the language "properly joined and served." This statutory construction indicates that the Forum Defendant Rule only attaches if a plaintiff properly joins and properly serves at least one in-state defendant. This clear language is not open to multiple interpretations.⁸

Thus, in the last several years, judges of the Central District have permitted pre-service removals when plaintiffs fail to serve a forum defendant prior to the filing of a removal.

Not all judges within the Ninth Circuit approve of snap removals. In August 2023, Judge Jinsook Ohta granted remand in a products liability case that the defendant removed before it was served. Judge Ohta observed that snap removals contradict the "clear purpose" of the Forum Defendant Rule.⁹ The Court stated that it simply did not credit "Dexcom's interpretation" of the removal statutes.

Moreover, some judges in California's Central District have rejected snap removals where defendants engaged in gamesmanship prior to removal.¹⁰

In Burns, defendant's counsel represented to plaintiff that he would sign the Acknowledgment of Receipt for service, and it was only because of defendant's delay that service had not been completed by the time of removal.¹¹ Additionally in Llanos, defense made the same representations prior to removal (i.e. acceptance of service) that constituted the gamesmanship the court disapproved.¹²

In both of these cases in which remand was granted, it is important to note that the reason service had not been effected prior to removal was the defendants' own representations or delay. Those rulings make sense. It would not be fair for a defendant to delay service of the complaint by subterfuge or false promises for the purpose of giving himself enough time to snap remove. However, such defense gamesmanship appears to be the exception, and not the rule.

The purpose of the statute's "properly joined and served" language is generally understood to prevent gamesmanship by plaintiffs, who might otherwise be incentivized to join but not serve forum-based defendants in order to destroy diversity. Plaintiffs argue, accordingly, that the Forum Defendant Rule was thus never intended to allow for snap removals.

So are snap removals a quirk, or happy drafting accident for defendants? Even if snap removals were not intended or foreseen when the forum defendant rule was passed, Congress has essentially endorsed that interpretation of the statute since then.

There have been Congressional hearings on snap removals, and in 2019, members of Congress introduced a bill to amend the Forum Defendant Rule. The new language would have mandated remand of any case in which a properly joined defendant was a resident of the forum state. By deleting the "and served" language, the bill would have eliminated snap removals, but it died in committee and never became law.

Congress seems to have no desire to change the forum defendant rule to eliminate snap removals, which also was evidenced by Congress's' failure to take such action in 2011 when it passed a court reform law. As Judge Samuel Conti in the Northern District of California observed, Congress had an opportunity to rewrite the forum defendant rule when Congress passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011 ("FCJVCA"), but didn't. The FCJVCA purports to clarify the language of §§ 1441 and 1446, among other code sections, but it did not change the forum defendant rule.

Judge Conti noted that, "As much as the Court may wish that Congress had taken the FCJVCA as an opportunity to speak clearly and affirmatively on [pre-service removal], Congress did not do so, and it is well-settled that where Congress amends part of a statute and leaves another part unchanged, a court must interpret Congress's inaction as satisfaction with the unamended portion, or at least tolerance of its inadequacies. [citation omitted]."¹³

Congress is apparently satisfied with snap removals, and so is the defense bar. Is this fair though? Defendants cannot be blamed of relying on the plain language of the statute, and snap removals level the playing field to allow defendants to remove after plaintiffs have selected their chosen state court venues.

Finally, Federal court diversity jurisdiction exists to protect defendants from possible bias in the state courts. The underlying premise is that it would be unfair for out of state defendants to be hailed into State Court to face a potentially biased local judge or jury. Local bias is a real concern, and it is far from clear that the citizenship of just one defendant in the home state eliminates any potential bias.

In other words, by precluding removal where just one defendant is a citizen of the local State, the forum defendant rule is likely too strict. To that extent, snap removals level the playing field, and, as they say in football, savvy defendants will use them and play to the whistle, meaning until they are told that they can't.

1 28 U.S.C. § 1441(b)(2) (emphasis added).

2 919 F.3d 699, 705 (2d Cir. 2019).

3 Texas Brine Co., L.L.C. v. Am. Arb. Ass'n, Inc., 955 F.3d 482, 487 (5th Cir. 2020).

4 Hong Kong Cont'l Trade Co. Ltd. v. Nat. Balance Pet Foods, Inc., No. LACV2200571JAKAFMX, , at *4 (C.D. Cal. Mar. 28, 2023).

5 Id. at *5 (quoting Texas Brine, 955 F.3d 482, 486 (5th Cir. 2020) (Emphasis added.).

6 Choi v. Gen. Motors LLC, No. CV 21-5925-GW-MRWX, , at *4 (C.D. Cal. Sept. 9, 2021).

7 Id.

8 Zirkin v. Shandy Media, Inc., No. 218CV09207ODWSSX, , at *2 (C.D. Cal. Feb. 14, 2019) (Emphasis added.); see also Dechow v. Gilead Scis., Inc., 358 F. Supp. 3d 1051, 1054 (C.D. Cal. 2019).

9 See Wood v. Dexcom, (S.D. Cal. August 16, 2023).

10 See Burns v. Azusa Pac. Univ., No. 220CV09401CASMAAX, , at *4 (C.D. Cal. Dec. 8, 2020 and Llanos v. Delta Air Lines, Inc., No. 219CV10757VAPASX, , at *1 (C.D. Cal. Feb. 11, 2020).

11 Burns v. Azusa Pac. Univ., No. 220CV09401CASMAAX, , at *3 (C.D. Cal. Dec. 8, 2020) ("it was by virtue of defendant's delay that service was not yet complete by the time the case was removed").

12 Llanos v. Delta Air Lines, Inc., No. 219CV10757VAPASX, , at *1 (C.D. Cal. Feb. 11, 2020) ("[A]pplying the forum defendant rule requires a fact intensive inquiry that accounts for the characteristics of the parties and the timing of events.").

13 Regal Stone Ltd. v. Longs Drug Stores California, L.L.C., 881 F. Supp. 2d 1123, 1129 (N.D. Cal. 2012).