In general, a defendant may not remove a case to federal court if the action includes a non-diverse defendant or a defendant who is a resident of the state in which the action was filed. This general rule does not apply, however, if the action is removed prior to the non-diverse or forum defendant being served. This procedure, known as “snap removal” has been endorsed by the Second and Third circuits. [See other blog posts on this topic at https://www.drinkeronproducts.com/2018/09/oh-snap-snap-removal-now-permitted-in-third-circuit/ and https://www.drinkeronproducts.com/2019/03/double-snap-second-circuit-follows-third-circuit-to-endorse-snap-removal/].

Four recent district court opinions address the procedural steps necessary to complete snap removal. In particular, they hold that removal is not complete until the Notice of Removal is filed in both federal and state courts.

These opinions turn on 28 U.S.C. § 1446, which sets forth the procedural requirements for removal. In particular, § 1446(d) “Notice to Adverse Parties and State Court” provides:

Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded. Section 1446 (d) (emphasis added).

Hardman v. Bristol-Myers Squibb Co.

In Hardman v. Bristol-Myers Squibb Co., 2019 WL 1714600 (S.D.N.Y. Apr. 17, 2019), the plaintiffs filed in New York state court against a number of defendants, some of which were citizens of New York. Hardman, at 3. An out-of-state defendant timely filed a Notice of Removal in the United States District Court for the Southern District of New York at 2:24 p.m. on December 3, 2018, prior to service of any forum defendant. Plaintiffs served the forum defendants the same day at 3:51 p.m. At 7:05 p.m. the same day, the removing defendant filed their Notice of Removal in New York state court. The S.D.N.Y held that, “regardless of the temporal proximity and ‘prompt’ nature of the Notice of Removal, the service of the Forum Defendants … and filing of notice with the state court, Forum Defendants were served prior to the [Removing] Defendants completion of all three statutory requirements under Section 1446(d). The analysis ends there.”

Doe v. Valley Forge Military Academy and College

In Doe v. Valley Forge Military Academy and College 2019 WL 3208178 (E.D. Penn. July 15, 2019), an Ohio resident filed a complaint in Philadelphia County Court of Common Pleas against Valley Force Military Academy and College (VFMAC), a citizen of Pennsylvania, on April 17, 2019. On April 19, VFMAC filed a Notice of Removal in the Eastern District of Pennsylvania and faxed a copy of the Notice to the Philadelphia state court on April 22. On May 1, the plaintiff served VFMAC. On May 10, VFMAC formally filed its Notice of Removal in Philadelphia state court. Plaintiff filed a motion to remand, arguing among other things that removal was not completed before service. The Court cited the Hardman ruling and held that VFMAC had not completed Removal because it did not timely file a Notice of Removal to Federal Court before service, as required by 28 U.S.C. § 1446(d).

Dutton v. Ethicon

In Dutton v. Ethicon, Inc. 2019 WL 5304169 (D.N.J. Oct. 18, 2019), the forum defendants removed actions filed by dozens of out-of-state plaintiffs from New Jersey state court to the United States District Court for the District of New Jersey. The cases were grouped for purposes of resolving the motions for remand. The court held, “[b]y language alone, § 1446 requires three steps for effectuating removal to federal court: defendant must file the notice of removal in federal court, provide written notice to all adverse parties, and file a copy of the notice with the clerk of the state court.” The court found that remand was proper for those cases in which defendants did not complete all three steps prior to service.

Brown v. Teva Pharmaceuticals

Most recently, in Brown v. Teva Pharmaceuticals 2019 WL 5406218 (E.D. Penn. October 23, 2019), the parties engaged in a race against the clock: plaintiff filed the complaint on August 16, 2019, at 10:06 a.m.; defendants filed a notice of removal in the United States District Court for the Eastern District of Pennsylvania at 1:55 p.m.; plaintiffs served defendants at 2:15 p.m., and defendants filed the notice of removal in the state court at 4:11 p.m..

The court granted remand and noted that “Timing was everything, and plaintiff has won the race.”