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Make Your Removal “Snappy”:
The Federal Court Landscape
of Preservice Removals Where
There Is a Forum Defendant
By Rachel L. Hampton and Michael D. Meuti
Defendants often prefer federal court to state court.
The reasons vary but include perceptions that federal
courts are more consistent and predictable on proce-
dural matters, manage their dockets more eciently, and are
generally staed by more sophisticated judicial ocers and
support sta.1 To access these real or perceived benets of
federal court, defendants will often remove cases led against
them in state court to federal court whenever possible.
But removal is not always possible. Even when diversity
jurisdiction would otherwise attach, forum defendants usu-
ally cannot take advantage of removal because of 28 U.S.C.
§ 1441(b)(2)—known as the “forum-defendant rule.” The
forum-defendant rule prohibits removal based on diversity
jurisdiction “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.”2 As an example, if a Michigan citizen sues
an Ohio citizen in Ohio state court for $75,001, and the
Ohio citizen is properly joined and served, the Ohio citizen
cannot remove the case to federal court.
Still, the forum-defendant rule is not an absolute barrier
to in-state defendants. In several courts, in-state defendants
have identied and successfully invoked a loophole to the
forum-defendant rule based on the rule’s plain language. That is,
at least in some jurisdictions, in-state defendants have success-
fully avoided the forum-defendant rule by removing the case
before being served with the complaint. In other jurisdictions,
courts have allowed removal so long as a nonforum defendant
has been rst served. Other jurisdictions have applied variations
of these rules.
This article discusses the federal courts’ current jurisprudence
analyzing such “snap” or “preservice” removals.
Circuit Courts Permitting Preservice Removals
To date, three circuit courts have held that preservice removals
are valid. The common thread among these decisions is their
reading of 28 U.S.C. § 1441(b)(2)’s plain text, which they have
held species that only a forum defendant “properly joined
and served” cannot remove to federal court. Thus, if a forum
defendant has not been served, removal is still on the table in
these jurisdictions.
Third Circuit. The rst circuit to weigh in favorably
regarding preservice removal was the Third Circuit in Encompass
Insurance Co. v. Stone Mansion Restaurant, Inc.3 There, after claims
related to an automobile crash had been settled, an Illinois
automobile insurer sued in Pennsylvania state court seeking
contribution from the Pennsylvania restaurant that had served
the intoxicated driver. Before accepting electronic service of
process, the restaurant timely removed the matter to the U.S.
District Court for the Western District of Pennsylvania, and
the insurer moved for a remand while the restaurant moved to
dismiss.4 The district court denied the motion to remand and
granted dismissal.
On appeal, the plainti insurer argued that the district court
had misinterpreted the forum-defendant rule, “ignoring its
intent and construing it ‘in a manner that necessarily would
create a nonsensical result that Congress could not have
intended.’”5 Starting with the text of 28 U.S.C. § 1441(b)(2),
the Third Circuit concluded that “the language of the forum
PUBLISHED IN THE BRIEF, VOLUME 54, NUMBER 1, FALL 2024. © 2024 BY THE AMERICAN BAR ASSOCIATION. REPRODUCED WITH PERMISSION. ALL RIGHTS RESERVED. THIS INFORMATION OR ANY PORTION THEREOF MAY
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