Pre-Service Removal in the Forum Defendant’s Arsenal

18 Pages Posted: 23 Nov 2011 Last revised: 30 Dec 2014

See all articles by Saurabh Vishnubhakat

Saurabh Vishnubhakat

Texas A&M University School of Law; Duke University School of Law

Date Written: November 22, 2011

Abstract

This article is the first academic defense of pre-service removal in diversity cases by forum-state defendants under the “properly joined and served” language of 28 U.S.C. § 1441(b). Pre-service removal has proliferated nationally in recent years. Appellate courts, however, have been silent on the issue for two reasons: First, orders that remand a case to state court are statutorily non-reviewable on appeal. Second, cases retained in federal court and litigated to final judgment are highly unlikely, for reasons of judicial economy, to be voided for de novo readjudication in state court. After tracing the development of the removal statute and the historical concern of local prejudice, the article evaluates competing approaches of pre-service removal from U.S. District Court case law. The article concludes with a discussion of the Federal Courts Jurisdiction and Venue Clarification Act of 2011, currently being considered by Congress, and the changes it offers for removal jurisdiction.

Keywords: Federal Courts, Litigation, Civil Procedure

Suggested Citation

Vishnubhakat, Saurabh, Pre-Service Removal in the Forum Defendant’s Arsenal (November 22, 2011). 47 Gonz. L. Rev. 147 (2011), Available at SSRN: https://ssrn.com/abstract=1963363

Saurabh Vishnubhakat (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

Duke University School of Law

Durham, NC

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
43
Abstract Views
11,647
PlumX Metrics