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....
