Written by Lee Hoyle, Esq.
Edited by Brian Cafritz, Esq.
The first and often most important fight in most civil cases is where the case will be litigated. Plaintiffs generally prefer state court, while defendants often prefer federal court. A defendant’s ability to remove a state court action to federal court can greatly impact the litigation as a whole.
For most cases involving retailers and restaurants, the most common way for a defendant to assert federal jurisdiction is Diversity of Citizenship. If the plaintiff and defendant are citizens of different states (and the claim is over $75,000), the defendant can remove a case filed in state court to federal court. However, when plaintiffs seek to prevent their case from being removed to Federal Court, they will often name an employee who is a citizen of the forum state as a second defendant. This is known as the forum defendant rule. 28 USC 1441(b)(2) provides that, “[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.” 1332(a) includes diversity jurisdiction based on citizenship of different states and citizenship of foreign states. Under this rule, a Maryland Plaintiff may sue a Georgia company and a Virginia employee in a Virginia Court. In this instance, even though the plaintiff and both defendants are all from different states, the case is not removable to federal court because the individual employee is a citizen of the state where the lawsuit is pending.
The forum defendant rule is not categorical, however. It applies only if the defendant is “properly joined and served”. The use of the word “and” is critical, and it raises important practice questions due to the necessary delay between filing a case and completing service of process. Even where a plaintiff requests service immediately, there will be a delay of days or weeks between filing and when the process server accomplishes service. If the plaintiff does not request service immediately, that delay can be far longer. In Virginia state courts, a Plaintiff has up to a year to serve a defendant. Section 1441 requires joinder and service, so can a defendant remove the case to federal court after filing but before the forum defendant has been served? For example, could a corporate employer who is named in a lawsuit along with an employee file a notice of removal before the employee is served? This practice, known as “snap” removal, is the source of deep division among federal courts within the Fourth Circuit and across the country.
The United States District Court for the Southern District of West Virginia had a lengthy discussion of the issue in a 2015 case. Phillips Constr., LLC v. Daniels Law Firm, PLLC, 93 F. Supp. 3d 544 (S.D. W. Va. 2015). In that case, the forum defendant had not been served when it filed a notice of removal in federal court. It claimed that the case was removable despite § 1441(b)(2), because it had not been named and served. The S.D.W.Va. decided that a forum defendant could not remove where it had not yet been served, because that would encourage such defendants to monitor dockets in state courts and remove as soon as a case has been filed. The court reasoned that allowing removal before the plaintiff has an opportunity to serve the defendant would lead to absurd results and render the forum defendant rule meaningless. The Eastern District of Virginia reached the same ultimate result in at least one case out of Norfolk. Campbell v. Hampton Rds. Bankshares, Inc., 925 F. Supp. 2d 800 (E.D. Va. 2013).
Other courts have come to different results. The District of Maryland has held that the plain meaning of § 1441 requires both joinder and service, so the case could be removed before a forum defendant was served. Robertson v. Iuliano, Civil Action No. RDB 10-1319, 2011 U.S. Dist. LEXIS 11123, at *5-6 (D. Md. Feb. 4, 2011). A third approach is that the statute requires both joinder and service, but hold that cases are not removable until at least one defendant has been served. FTS Int’l Servs., LLC v. Caldwell-Baker Co., No. 13-2039-JWL, 2013 U.S. Dist. LEXIS 43236, 2013 WL 1305330, at *2 (D. Kan. Mar. 27, 2013). Under this approach, a single defendant case with a forum defendant would never be removable, because the case would not be removable until service, and once service occurs, the case is not removable.
The district courts to address this question are deeply divided. Furthermore, since decisions to remand a case are generally not subject to appeal, there is little guidance from appellate courts on the issue. The basic rule appears to be that a non-forum defendant is more likely to be able to remove than a forum defendant who is named but not served, but some courts may even allow a forum defendant to remove before service.
Practically speaking, parties to a lawsuit should be aware of the possibility of “snap” removal. If a claim is such that federal jurisdiction could be an important factor, both parties should plan accordingly. The defendant can monitor state court dockets to check for filing and then attempt to remove before service on the forum defendant. Alternatively, the plaintiff may not want to file a courtesy copy of the complaint immediately with filing. Instead, it may be more prudent to request service on the forum defendant to ensure that the case is not removed before service can be completed. Either way, as long as the language of § 1441 requires both joinder and service, the question of snap removal will continue, and both sides must be aware of the possibility of snap removal and litigate accordingly.