Neutralizing the Stratagem of 'Snap Removal': A Proposed Amendment to the Judicial Code
Arthur D. Hellman
University of Pittsburgh - School of Law
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
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
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.
Number of Pages in PDF File: 9
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
Date posted: August 12, 2016 ; Last revised: October 20, 2016