Snap Removal: How, What, When, and Why for Employers

As first-year law students learn in Civil Procedure, cases in federal court must generally either raise a federal question or be between parties with complete diversity, meaning that the parties on one side of the case hail from different states than the opposing parties. However, even when there’s complete diversity, removal may be prohibited if any defendant is a citizen of the state where the action is pending (the forum state). The forum-defendant rule, codified at 28 U.S.C. § 1441(b)(2), provides that a case “otherwise removable solely on the basis of diversity of 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.”

A common tactic plaintiffs’ attorneys use to destroy complete diversity is to name a relevant manager as “aiding and abettor” discrimination under statutes like the New Jersey Law Against Discrimination or the Pennsylvania Human Relations Act.¹ Typically, that manager is a resident of the same state as the plaintiff, destroying complete diversity. Plaintiffs often do this on the belief that the state judiciary is more plaintiff-friendly.

When there are multiple defendants, these defendants must be individually served; consequently, there are times when an in-state defendant in a diversity case is not “properly joined and served.” This is where the doctrine of snap removal comes in. Snap removal is a tactic employers can use to quickly remove the cases to federal court, where they are served prior to their in-state co-defendants being served.

Snap removal is only available before an in-state defendant is “properly joined and served.” Timing is imperative, as snap removal is no longer applicable upon proper service. Employers need to determine whether an in-state defendant has been served and whether snap removal is appropriate in the case. In a multi-defendant lawsuit where one of the defendants is a forum defendant, an out-of-state employer should consider whether it’s in a position to remove prior to service upon the in-state defendant.

The United States Supreme Court has not ruled on the issue, leaving the propriety of snap removal to the federal circuits. The Second, Third, Fifth, and Sixth Circuits have all issued decisions approving snap removals.  In 2020, the Fifth Circuit 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.”²

However, the Eighth and Eleventh Circuits have rejected snap removal. Recently, the Eighth Circuit rejected snap removal and held that service doesn’t matter when evaluating the diversity of the parties.³ The Eighth Circuit stated what matters is the citizenship of all named plaintiffs and defendants. In states where the federal circuits have not ruled on snap removal, employers should look to the relevant district court decisions.

To have snap removal as an option, employers should monitor online state court dockets to learn when they have been sued, such as by subscribing to various docket monitoring services. As always, employers need to comply with removal deadlines, such as the 30-day removal clock of 28 U.S.C. § 1446(b)(1), which requires, in part, removal within 30 days of the receipt “through service” of a copy of the initial pleading.

Takeaways

• Snap removal can counter a plaintiffs’ attempt to destroy complete diversity.
• Snap removal is only available before an in-state defendant is “properly joined and served.” Timing is crucial, as snap removal is no longer applicable immediately upon proper service.
• Employers should assess whether an in-state defendant has been served and whether snap removal is appropriate. In a multi-defendant lawsuit where one of the defendants is in-state, an out-of-state employer should consider whether it’s in a position to remove prior to service upon the in-state defendant.
• Once an in-state defendant is properly joined and served, snap removal is no longer an option. To have snap removal as an option, employers should monitor online state court dockets to learn when they’ve been sued.