Plain Meaning Governs Snap Removals In Seventh Circuit

• Published date: 26 June 2020
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Law Firm: Reed Smith
• Author: Mr Steven Boranian

We have always puzzled over why pre-service removals are the least bit controversial. We are referring to what are known as "snap removals," or removals to federal court before any forum defendant has been served. They are one way to comply with the removal statute's forum defendant rule. It's pretty simple: Even when you have complete diversity of citizenship and the amount in controversy exceeds the jurisdictional minimum, you still cannot remove a case to federal court "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." 28 U.S.C. ' 1441(b)(2).

"Properly joined and served." That is the key language, and as far as we are concerned, it is pretty clear that the presence of a forum defendant will not preclude removal jurisdiction so long as the case is removed before any forum defendants has been "properly served."

A district court in Indiana recently agreed with us. In Whipkey v. Eli Lilly &Co., No. 1:20-cv-00450, 2020 WL 3248472 (S.D. Ind. June 16, 2020), the plaintiff sued a citizen of Indiana in Indiana state court, but the defendant removed the case to federal court before the plaintiff served the complaint. The district court denied the plaintiff's motion to remand and ruled that "the language of ' 1441(b)(2) is unambiguous and must control." Id. at *2.

This district court joins multiple others who have similarly applied the forum defendant rule exactly as it was written (another recent example is this case), and there are a couple of noteworthy thing about Whipkey.

First, the district court rejected a so-called "purpose-driven" interpretation of section 1441(b)(2). As the "interpretation" goes, the purpose of the forum defendant rule is to preserve the plaintiff's choice of forum where the defendant is local, and allowing removal before service would undermine that objective. Id. Whether you like the forum defendant rule or not-and we are on record as not being fans-we have extreme difficulty...