Neutralizing the Stratagem of 'Snap Removal': A Proposed Amendment to the Judicial Code

9 Pages Posted: 12 Aug 2016 Last revised: 20 Oct 2016

Arthur D. Hellman

University of Pittsburgh - School of Law

Lonny Hoffman

University of Houston Law Center

Thomas D. Rowe, Jr.

Duke University School of Law

Joan E. Steinman

Chicago-Kent College of Law - Illinois Institute of Technology

Georgene M. Vairo

Loyola Law School Los Angeles

Date Written: August 10, 2016

Abstract

The “Removal Jurisdiction Clarification Act” is a narrowly tailored legislative proposal designed to resolve a widespread conflict in the federal district courts over the proper interpretation of the statutory “forum-defendant” rule.

The forum-defendant rule prohibits removal of a diversity case “if any of the parties in interest properly joined and served as defendants is a citizen of the [forum state].” 28 U.S.C. § 1441(b)(2) (emphasis added). Some courts, following the “plain language” of the statute, hold that defendants can avoid the constraints of the rule by removing diversity cases to federal court when a citizen of the forum state has been joined as a defendant but has not yet been served. This stratagem has been referred to as “snap removal.” Other courts reject the stratagem. They take a “purposive” approach, typically reasoning that following the plain language “produces a result that is at clear odds with congressional intent.”

Resolution of the conflict can come only from Congress. The preferable resolution is to neutralize the stratagem of snap removal by requiring district courts to remand cases to the appropriate state court if, after removal, the plaintiff timely serves one or more forum defendants and a timely motion to remand follows. That is the approach taken by the proposed legislation. The legislation also would confirm that the forum-defendant rule is not jurisdictional, endorsing the position taken by all but one of the circuits that have considered the question.

Keywords: civil procedure, Removal Jurisdiction Clarification Act, forum-defendant rule, purposive approach, Snap removal, judicial code, legislative reform, diversity cases, plain language, congressional intent, statutory interpretation, jurisdiction, federal district courts, forum selection, forum shopping

Suggested Citation

Hellman, Arthur D. and Hoffman, Lonny and Rowe, Jr., Thomas D. and Steinman, Joan E. and Vairo, Georgene M., Neutralizing the Stratagem of 'Snap Removal': A Proposed Amendment to the Judicial Code (August 10, 2016). Federal Courts Law Review, Vol. 9, Issue 3, p. 103, Summer 2016; U. of Pittsburgh Legal Studies Research Paper No. 2016-23; Duke Law School Public Law & Legal Theory Series No. 2016-47; Loyola Law School, Los Angeles Legal Studies Research Paper No. 2016-19; U of Houston Law Center No. 2016-A-18. Available at SSRN: https://ssrn.com/abstract=2821913

Arthur D. Hellman

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

Lonny Hoffman

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States
713-743-5206 (Phone)

Thomas D. Rowe, Jr. (Contact Author)

Duke University School of Law ( email )

813 Howard St.
Marina del Rey, CA 90292-5516
United States
310-822-5892 (Phone)

Joan E. Steinman

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

Georgene M. Vairo

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-8170 (Phone)
213-380-3769 (Fax)

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