United States: Removed To Federal Court? Not So Fast, Unless You're Faster!

Last Updated: November 6 2019
Article by Steven Boranian

They are often called "snap removals" or "wrinkle removals."  They refer to cases removed to federal court before a forum defendant is served, which is one way to comply with the forum defendant rule in 28 U.S.C. § 1441(b)(2).  That statute says that a civil action otherwise removable on diversity jurisdiction may not be removed if any defendant "properly joined and served" is a citizen of the forum state.

Thus, we have "snap removals."  If you remove a case before the forum defendant is served, complete diversity should carry the day.  Sure, many plaintiffs have complained that this race to the federal courthouse violates the spirit of the removal statute, but the authorities are trending in the direction of following the statute's plain language (you can read our most recent reports here and here).  Pre-service removal therefore is common and accepted in many places, if not most.

Here is today's question:  If the timing of a removal is so important, when is a case considered removed?  We believe a case is removed as soon as the notice of removal hits the federal docket, but two federal courts last week went the other way and ruled that a case is "removed" only after notice of the removal is filed and served in state court.

The earlier of the two cases was a classic race.  A non-Pennsylvania plaintiff filed her complaint against Pennsylvania defendants in Pennsylvania state court at 10:06 a.m., and the defendants removed the case at 1:55 p.m. before they were served.  That, however, is not the end of the story.  Plaintiff served all defendants with a copy of the complaint 20 minutes later—at 2:15 p.m.—and the defendants filed their notice on the state docket at 4:11 p.m.  See Brown v. Teva Pharmaceuticals, Inc., No. 19-3700, 2019 WL 5406218 (E.D. Pa. Oct. 23, 2019).

The second case was even more compressed.  A non-New Jersey plaintiff sued a New Jersey defendant in New Jersey state court at 9:35 a.m., and the defendants removed the case to federal court at 10:14 a.m.—one minute before the plaintiff personally served the complaint.  Although the defendant beat the service clock, it did not file and serve notice in state court until 11:17 a.m.  Dutton v. Ethicon, Inc., No. 18-17199, 2019 U.S. Dist. LEXIS 180567 (Oct. 18, 2019).

All in a day's work, right?  The defendants argued that they removed their cases before any forum defendant was served, thus complying with the forum defendant rule.  Both district courts disagreed, and they remanded the cases for essentially the same reason—the plaintiffs completed service before the defendants could complete all the steps required for removal.  The removal statute provides that a removing party must give notice to adverse parties and file a copy of the notice in state court, "which shall effect the removal and the State court shall proceed no further unless and until the case is remanded."  28 U.S.C. § 1446.

That is the language that both courts seized on:  "which shall effect the removal."  As the District of New Jersey explained:

By language alone, § 1446 requires three steps for effectuating removal to federal court:  defendants 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.  Indeed, the phrase "which shall effect the removal" in § 1446(d) . . . makes it clear that removal is not "effected" until all three steps are completed.

Dutton, at *14; see also Brown, at *2 ("Significantly, § 1446(d) further provides that the written notification of all adverse parties and the filing of a copy of the removal notice with the state court clerk 'shall effect the removal.'").

The defendants, for their part, argued that they complied with the forum defendant rule because they had not been properly joined and served when they initiated removal, but the District of New Jersey rejected that argument as contrary to the plain language of the statute.

Although these orders resulted in remand, they also reaffirmed the vitality of pre-service removal ("snap removal") as a means to comply with the forum defendant rule.  Both cite Encompass Insurance Co. v. Stone Mansion Restaurant, Inc., 902 F.3d 147 (3d Cir. 2018), the recent (and binding) Third Circuit case approving pre-service removal (you can read our breaking news post on Encompass here).  Moreover, the district court in Dutton denied remand over other cases where the defendant had clearly filed the required notice in state court before it was served.  In one case the defendant removed the case eleven minutes after it was filed and provided notice in state court a mere two minutes later—too fast for the plaintiff's process server to beat.

The plaintiff cried foul, but the district court followed Encompass:  "Here as the circuit court signaled in Encompass, [the defendant's] filing of notice of removal within minutes of the timestamping of [the] complaint does not make removal improper under § 1441(b). . . . [T]he Encompass court recognized the possibility of such docket monitoring and accelerated filing and found that such conduct does not violate either the language or the intent of the removal statute."  Dutton, at *20-*21.

The moral of the story is that pre-service removed has gained further support, but move fast.  It could make a difference in some courts.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions