Second Circuit Holds That Pre-Service "Snap Removal" Is Consistent With The Forum Defendant Rule

The Second Circuit today joined the Third Circuit in endorsing the practice of “snap removal” -- pre-service removal as a way to avoid the “forum defendant rule” set out at 28 U.S.C. § 1441(b)(2). Gibbons v. Bristol-Myers Squibb Co., 17‐2638, et al. (March 26, 2019).

• The Forum Defendant Rule, 28 U.S.C. § 1441(b), states that a civil action otherwise removable to federal court on the basis of diversity jurisdiction 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.”  
• The Gibbons holding now permits any defendant in the Second Circuit to remove a state court case to federal court even when the case involves a defendant sued in the defendant’s home state -- as long as the defendant removes the case before any defendant is served. The Third Circuit reached the same result last year. Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147 (3d Cir. 2018).  
• Understanding state commencement of action rules is critical if defendants want to take advantage of pre-service removal.  The Second Circuit recognized that allowing home-state defendants to remove on the basis of diversity before they are served might mean that defendants sued in some states -- such as those that require a delay between filing and service -- will be able to remove diversity actions to federal court while defendants sued in other states -- those that permit a plaintiff to serve an action as soon as it is filed -- will not.  
• In Connecticut, an action commences with service of a writ of summons or attachment along with the plaintiff’s complaint.  Practice Book § 8-1.  There is therefore no practical opportunity to take advantage of snap removal.