"Snap removal" is a legal strategy employed by defendants to transfer a case from state court to federal court before a forum defendant—that is, a defendant who is a citizen of the state where the lawsuit was filed—is served with the complaint. This tactic leverages the "properly joined and served" language in 28 U.S.C. § 1441(b)(2), which traditionally prevents removal when a forum defendant has been served. A forum defendant is a defendant who is a citizen of the state in which suit is filed. While typically inclusion of a forum defendant destroys “diversity of citizenship” (see 28 U.S.C. § 1332, § 1441(b)), by acting swiftly, defendants can bypass this restriction and secure a federal forum.

Why remove a case filed in state court to federal court? Federal court can be a more favorable forum because federal courts are perceived as less biased against out-of-state defendants. The federal courts also employ more favorable procedural rules, such as heightened pleading standards (Twombly/Iqbal). Federal judges are also perceived as more experienced, as they have lifetime appointments. And the federal court typically draws jurors from a wider geographic area, which can be advantageous to avoid hometown advantage.

The legality of snap removal has been a contentious issue across various jurisdictions, leading to a split among federal circuit courts. The Second, Third, Fifth, and Sixth Circuits have upheld the practice, interpreting the statutory language to permit removal before any defendant is served, including forum defendants.

In the Third Circuit case of Encompass Insurance Co. v. Stone Mansion Restaurant Inc., 902 F.3d 147 (3d Cir. 2018), the court concluded that the plain language of § 1441(b)(2) allows a forum defendant to remove a case to federal court if they have not been "properly joined and served." Similarly, the Second Circuit in Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699 (2d Cir. 2019), held that the statute permits removal by an unserved forum defendant, emphasizing adherence to the text of the law.

The Fifth Circuit has also addressed this issue in multiple cases. In Texas Brine Co. v. American Arbitration Association, 955 F.3d 482 (5th Cir. 2020), the court upheld snap removal by a non-forum defendant, stating that removal is permissible even when a forum defendant has been named but not yet served. More recently, in In re Levy, 52 F.4th 244 (5th Cir. 2022), the court reaffirmed this position, extending the logic to cases where a lone forum defendant removes the matter prior to service.

However, not all circuits align with this interpretation. The Eleventh Circuit, in Goodwin v. Reynolds, 757 F.3d 1216 (11th Cir. 2014), rejected snap removal, particularly in instances where a forum defendant removed the case before any defendant was served. This divergence highlights the ongoing debate and lack of uniformity in the application of snap removal across jurisdictions.

The Ninth Circuit has recently contributed to this discourse. In Casola v. Dexcom, Inc., No. 21-55459, 2024 WL 1547021 (9th Cir. Apr. 10, 2024), the court addressed what it termed "super" snap removals—situations where a defendant removes a case before the state court has even had the opportunity to effectuate service. The Ninth Circuit disallowed such premature removals, emphasizing that a civil action must be properly commenced before it can be removed. However, the court left open the question of whether traditional pre-service snap removals are permissible, indicating that this issue remains unresolved within the circuit.

The practice of snap removal continues to evoke varied responses from courts and commentators. Some view it as a strategic use of procedural rules, while others criticize it as a form of gamesmanship that undermines the plaintiff's choice of forum. As the legal landscape evolves, defendants considering snap removal must stay informed about the prevailing interpretations within their jurisdiction and act swiftly to utilize this tactic effectively.

Given the circuit split and the nuanced positions courts have taken, the future of snap removal may ultimately require clarification from the Supreme Court or legislative action to amend the statutory language, thereby resolving the inconsistencies in its application.