Lil Jon’s 2006 hit song, “Snap Yo Fingers!,” is not only the perfect exemplar of his beloved production and lyrical style but also a concise illustration of one side of an ongoing debate concerning removal procedure in the United State District Court for the District of Maryland:
Snap ya fingers! Do ya step!
You can do it all by yo’ self!
Let me see you do it! Ay!
Let me see you do it! Ay!
LIL JON, et al., Snap Yo Fingers (TVT Records 2006).
By way of background, a defendant who has been sued in a state court may remove the matter to a United States District Court, provided certain jurisdictional requirements are met. Plaintiffs possess an immense advantage in selecting the forum to bring suit, and removal allows a defendant to mitigate that advantage to a certain extent. Federal removal jurisdiction generally comes in two flavors: subject-matter jurisdiction over federal question claims, “arising under the Constitution, law, or treaties of the United States;” and diversity jurisdiction where there is jurisdictional diversity amongst the parties, the amount in controversy is in excess of $75,000.00, and all served defendants consent to removal. See 28 U.S. Code § 1331 and 28 U.S. Code § 1332. Diversity will be destroyed where there is a member of an LLC who shares a jurisdiction with an opposing party, a party who shares a state in common with another party on the opposite side of the “v”, or a suit being brought in the state in which a defendant is a resident and has been properly “joined and served” (the “forum defendant” rule). If a party can meet either basis for removal, they have thirty (30) days from the date a complaint is served to remove to federal court. See 28 U.S. Code § 1446. In the transportation context, removal opportunities are most often presented based on diversity jurisdiction. For example a lawsuit brought in Jurisdiction A, with a plaintiff domiciled in Jurisdiction B, a corporate defendant/motor carrier domiciled in Jurisdiction C, a corporate defendant domiciled in Jurisdiction D, and an individual defendant/driver domiciled in Jurisdiction E.
What happens when there is a diverse defendant who has been served and seeks removal, but an unserved forum defendant (i.e., a lawsuit brought in Jurisdiction A, with a plaintiff domiciled in Jurisdiction B, a corporate defendant/motor carrier domiciled in Jurisdiction C who has been “joined and served,” an individual defendant domiciled in Jurisdiction D who has been properly “joined and served,” but a defendant driver in Jurisdiction A who has not been properly “joined and served”)?
A procedure known as “snap removal” allows a diverse defendant to remove a matter to a United States District Court based on diversity before a forum defendant has been properly “joined and served” – effectively snapping their fingers and removing to federal court without the necessity of consent from the other named, unserved defendant(s). The federal appellate courts in the 2nd, 3rd, and 5th Circuits have embraced snap removal based on a literal reading of the forum defendant rule, while the 11th Circuit has rejected it based on snap removal conflicting with the express purpose of the forum defendant rule. See Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 707 (2d Cir. 2019); Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 154 (3d Cir. 2018); but see Goodwin v. Reynolds, 757 F.3d 1216 (11th Cir. 2014). The United States Court of Appeals for the 4th Circuit (encompassing Maryland, Virginia, West Virginia, and North Carolina) has not yet addressed the propriety of snap removal.
The United States District Court for the District of Maryland has reached different outcomes in evaluating requests for remand to state court following snap removal. In Robertson v. Iuliano, the court took a literal reading of the forum defendant rule and denied a request for remand on the basis that the forum defendants had not been properly “joined and served.” Case No. CIV.A. RDB 10-1319, 2011 WL 453618, at *3 (D. Md. Feb. 4, 2011). The same conclusion was also reached in Al-Ameri v. The Johns Hopkins Hosp. See Case No. CV GLR-15-1163, 2015 WL 13738588, at *2 (D. Md. June 24, 2015), “The Court is not persuaded that such an absurd result would occur in this matter by permitting removal.” These decisions emphasize the literal meaning of the forum defendant rule and note that the Congressional intent behind the plain reading of the rule was “to protect non-forum defendants in diversity cases from being deprived of their right of removal by plaintiffs fraudulently joining a forum defendant whom plaintiffs had no intention of serving.” Robertson, Case No.: CIV.A. RDB 10-1319, 2011 WL 453618, at *3 (D. Md. Feb. 4, 2011).
Other Maryland Federal District Court decisions have disagreed with snap removal, noting that “a literal reading of the statute, which effectively rewards docket monitoring and the ability to take swift legal action, privileges sophisticated litigants over those perhaps unfamiliar with the peculiarities of federal jurisdiction.” Teamsters Loc. 677 Health Servs. & Ins. Plan v. Friedman, No. CV CCB-18-3868, 2019 WL 5423727, at *4 (D. Md. Oct. 23, 2019). Recent decisions have taken this analysis a step further, noting that while the 4th Circuit has not expressly addressed the issue, but ultimately concludes that “[a] functional interpretation of § 1441(b)(2) better promotes its purpose of preventing gamesmanship.” Sommer v. BMW of N. Am. LLC, No. CV RDB-20-3027, 2021 WL 1890651, at *3 (D. Md. May 11, 2021). These decisions emphasize the position that the literal reading of the forum defendant rule yields absurd results given its express purpose. See Teamsters Loc. 677, No. CV CCB-18-3868, 2019 WL 5423727, at *3 (D. Md. Oct. 23, 2019).
As a result, snap removal is still available to non-forum defendants in Maryland. Still, recent decisions in the United States District Court for the District of Maryland show a trend toward opposing snap removal. Ultimately, it will fall upon the United States Court of Appeals for the 4th Circuit to resolve the split and let both litigants and the Federal District Courts within the 4th Circuit know whether non-forum defendants can snap their fingers and remove to Federal Court all by themselves before forum defendants are “joined and served.” See LIL JON, et al., Snap Yo Fingers (TVT Records 2006). Defendants seeking to mitigate plaintiffs’ inherent forum selection advantage should still consider snap removal in Maryland. Still, there is a distinct possibility of remand to state court given recent District trends.
Written by associate Frank Falatko.