Judge Otis Wright II of the Central District of California on Thursday denied a Maryland state senator's motion to remand his defamation lawsuit to state court. In so doing, Judge Wright endorsed the propriety of "snap removal," at least in certain specific factual circumstances—a jurisdictional issue that has divided federal courts throughout the country.
The senator based his remand motion on what is commonly referred to as the "forum defendant rule." Under that rule, the presence of an in-state defendant will defeat jurisdiction even if the parties are completely diverse. The senator argued that the forum defendant rule applied in this instance because he is a Maryland resident who filed a lawsuit in California state court against a California-based media company and four related individuals, all of whom reside in California.
Important to note, however, is that none of the defendants had been served with the complaint at the time they removed the case to federal court. This is crucial because, under the plain language of the removal statute, the forum defendant rule will apply only where the in-state defendant has been "properly joined and served." Based on that language, some courts, including the U.S. Court of Appeals for the Third Circuit, have held that, if a case is removed before the forum defendant is served, the forum defendant rule does not apply and federal jurisdiction will exist.
Other courts have rejected that interpretation and have held that adherence to the plain language would produce "absurd results." Those courts are wary of snap removal, largely out of fear that it would promote gamesmanship in the age of electronic docket monitoring.
Observing that the U.S. Court of Appeals for the Ninth Circuit had not yet weighed in on the issue, and that district courts within the Ninth Circuit are divided, Judge Wright held that snap removal was permissible, at least under the specific facts of the case. In so holding, Judge Wright observed that the plain language of the statute unambiguously provides that the forum defendant rule will apply only if the plaintiff properly serves at least one in-state defendant. He then held that, although such an interpretation may lead to absurd results under some factual circumstances, the defendants' conduct in this case was "not tantamount to gamesmanship" and "[p]laintiff was not deprived of a meaningful opportunity to serve [d]efendants prior to removal."
In particular, Judge Wright emphasized that defendants removed the case 10 days after the complaint was filed and six days after the summonses were issued by the clerk. The plaintiff therefore had a meaningful opportunity to serve the in-state defendants before they removed. He also noted that the plaintiff had previously litigated his claims against defendants in Maryland state court (where they were dismissed for lack of personal jurisdiction), and thus defendants' whereabouts were known to him at the time he refiled his case in California.
Judge Wright's thoughtful opinion offers useful guidance for media clients, as defamation plaintiffs will often name an in-state journalist as a defendant in order to defeat diversity jurisdiction. If the in-state defendant has not been served, snap removal should be considered, especially if the plaintiff has had an opportunity to effect service prior to removal.
Note: Members of Ballard Spahr's Media and Entertainment Law Group represented the defendants in this action.
Attorneys in Ballard Spahr's Media and Entertainment Law Group are dedicated to supporting the free press and the First Amendment rights of groups and individuals. The Group helps clients navigate challenging media law issues across all platforms and industries.Copyright © 2019 by Ballard Spahr LLP.
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