DRI opposes changes to federal law that would prevent pre-service removal of cases to federal courts

In letter to the leadership of the House Judiciary Committee, DRI President Philip Willman expressed opposition of the defense bar to changes considered in a House Judiciary Committee hearing titled “Examining the Use of Snap Removals to Circumvent the Forum Defendant Rule.” In it, he stated DRI’s opposition to altering 28 U.S.C 1441(b)(2) for the purpose of preventing so-called “snap removal,” more appropriately called “pre-service removal.”

Pre-service removal is a process for the removal of a case from a state court to a local federal court under the federal court’s diversity jurisdiction, assuming two requirements are met. One, the plaintiff is not a citizen of the state where they filed the lawsuit. Two, no local defendant has yet been served before removal is sought.

Article III of the Constitution and 28 U.S.C. § 1332(a)(1) provides that the federal courts have subject-matter jurisdiction over cases involving disputes between “citizens of different states” so that out-of-state litigants will have access to an unbiased federal forum that protects them from unfair advantages or perceived advantages that home-state litigants might enjoy in their local state courts. The denial of this right is the prime intent of those who seek an amendment in their quest to keep lawsuits in supposedly favorable state courts when they rightfully belong in the federal courts.

Plaintiffs maintain that amending the statute will preserve their choice to file in state courts. This justification is misleading because a federal court sitting in diversity applies the law of the state in which it sits. The argument that these plaintiffs have the privilege to pursue their claims in their local state courts is further flawed because the issue of pre-service removal only arises when a plaintiff elects to file a lawsuit in a state court that is not the plaintiff’s home state.

The true beneficiaries of the proposal in question are not traditional plaintiffs who choose to file a lawsuit in their local state court.

Instead, the actual beneficiaries are a small group of entrepreneurial plaintiffs who forum shop for a state court that they believe will be most favorable to their case. The proposal is simply an attempt to preserve the questionable plaintiffs’ tactic of joining immaterial, local defendants to their lawsuit in order to create a fictitious lack of diversity jurisdiction thereby subverting the defendants’ removal of the case to federal court.

“At the end of the day, after all the arguments have been made,” said DRI Executive Director John R. Kouris, “It comes down to maintaining fairness in the civil justice system. The Constitution and current law do just that.”