In 1948, Congress created the “forum-defendant rule” by enacting a statute that hasn’t changed since. For most lawyers' careers, the forum-defendant rule meant a case cannot be removed to federal court when one of the defendants is a citizen of the state where the case is pending. Usually if Congress doesn’t amend a statute, the statute’s meaning can't change. But as Stephen Higdon explains, that has not been the case with the forum-defendant rule.
The statutory language that created the forum-defendant rule reads:
A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title 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.
The conjunction of “joined and served” has increasingly profound implications since the advent of electronic court records, Higdon details in a recent article for the Dallas Association of Young Lawyers.
“Technology (namely electronic docketing) allows enterprising defendants to game the conjunctive requirement of ‘joined and served’ to ‘snap remove’ a case before a plaintiff can serve a forum defendant. The removing defendant argues that because the forum defendant has not been both joined and served the case can still be removed.” That’s something the legislators that wrote the forum-defendant rule could never have conceived of, Higdon points out. Because of that, “the practice has been controversial—with multiple federal courts noting that the practice ‘bears the telltale signs of gamesmanship and forum manipulation,’” he wrote.
Until recently, Texas courts had treated snap removals fairly uniformly, and permitted only a non-forum defendant to snap remove a case, with many other federal courts across the country reaching the same conclusion. Higdon’s article alerts Texas lawyers that the outcome of a snap removal could now depend on the judge the snap-removed case lands in front of as some Texas judges have begun allowing in-state defendants to snap remove cases when they catch wind they’ve been sued before they get served.
“Ultimately, it may be up to Congress to tell us whether decades-old language written before anyone could conceive of electronic filing is being accurately applied,” he noted.
“Until then, the best practice for plaintiffs may be filing after hours so that their case doesn’t end up in the daily case reports and having a process server on standby to rush a citation to a registered agent the next day once the filing is accepted and citation is issued. If the stakes are sufficiently high, plaintiffs may also need to scale back pre-suit notice to defendants. For defendants, the best practice will continue to be monitoring electronic dockets and having snap-removal forms ready.”
The full article, “Was the Forum-Defendant Rule Made to be Broken?” is available here.