Any good litigator can tell you that removal is proper where there is diversity of citizenship and the amount in controversy exceeds $75,000.  Diversity generally requires that no defendant be a citizen of the same state as the plaintiff.  By way of example, consider a lawsuit filed by Paul, a Pennsylvania citizen, in Pennsylvania state court against Daniel from California and David, also a Pennsylvania citizen.  At first glance, it would seem there is no diversity because David is from Pennsylvania and he is a “forum defendant”.  However, not all litigators may realize that in certain jurisdictions a defendant can still remove a matter to federal court before the forum defendant is served.

28 U.S.C. section 1441(b)(2) provides that an action “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.”  Some courts and jurisdictions adopt the literal interpretation of “properly joined and served” and find that removal is proper if the non-diverse defendant has not yet been served. See e.g. Boyer v Wyeth Pharmaceuticals, Inc., 2012 WL 1449246, at *2 (E.D. Pa. Apr. 26, 2012) (“Courts within this district have recognized the propriety of removal by a non-forum defendant where a forum defendant has not yet been served.”) citing Banks v. Kmart Corp., 2012 WL 707025. *2 (E.D. Pa. Mar. 6, 2012) (“Kmart, a non-forum defendant, properly removed this action in accordance with § 1441(b) because Red Maple Landscaping [a forum defendant] was not properly served prior to removal…. Under the unambiguous language of § 1441(b), the presence of an un-served forum defendant does not prohibit removal by a non-forum defendant in cases where complete diversity exists.”).  Indeed, this past summer, the Third Circuit recognized the validity of this approach, blessing one forum defendant’s “snap removal” before it had been served. Encompass Insurance Co. v. Stone Mansion Restaurant, Inc., 2018 WL 3999885 (3d Cir. Aug. 22, 2018).  Notably, the Court stated: “The specific purpose of the ‘properly joined and served’ language in the forum defendant rule is less obvious.  The legislative history provides no guidance; however, courts and commentators have determined that Congress enacted the rule to prevent a plaintiff from blocking removal by joining as a defendant a resident party against whom it does not intend to proceed, and whom it does not even serve.”

Beware that some courts may decline to read such a literal interpretation of Section 1441(b).  See e.g. Vivas v. Boeing Co., 486 F. Supp. 2d 726, 734 (N.D. Ill. 2007).  Some circuits have conflicting intra-district interpretations of the statute.  D.C. by & through Cheatham v. Abbott Labs. Inc., 323 F. Supp. 3d 991, 994 (N.D. Ill. 2018) (reaching opposite result of Vivas and noting “District courts within the Seventh Circuit and around the country faced with this question have disagreed on the correct interpretation of the statute”).  For example, a recent Western District of Tennessee opinion noted the split within the Sixth Circuit and the Western District of Tennessee.  Harrison v. Wright Med. Technology, Inc., 2015 WL 2213373, at *3 (W.D. Tenn. May 11, 2015) (“Similar to the national landscape, a split exists among the district courts in the Sixth Circuit and the Western District of Tennessee.”) (collecting cases).  Likewise, the Northern District of West Virginia adopts the statute’s “plain meaning” approach, while the Southern District of West Virginia has stated that such an approach “creates absurd results”.  Compare Bloom v. Library Corp., 112 F. Supp. 3d 498, 504 (N.D. W. Va. 2015) with Phillips Constr. LLC v. Daniels Law Firm, PLLC, 93 F. Supp. 3d 544 (S.D. W. Va. 2015).

In short, a “snap” removal could be the perfect vehicle to get to federal court if it is important to your client.

Ali Baiardo and Aaron Marienthal are litigators in the McGuireWoods San Francisco office and focus on financial services litigation.