Hearing of the Courts, Intellectual Property, and the Internet Subcommittee of the House Judiciary Committee - Opening Statement of Rep. Johnson, Hearing on Growing Problem of "Snap" Removals to Federal Court

Hearing

Rep. Hank Johnson (GA-04), Chairman of the Judiciary Subcommittee on Courts, Intellectual Property and the Internet (IP), held a hearing today on the growing problem of "snap" removals to federal court, a new tactic that has emerged in the often high-stakes fight to move litigation from state to federal court. When a lawsuit is filed in state court, a defendant may try to "remove" the case to federal court by invoking the courts' diversity jurisdiction. The following is Congressman Johnson's opening statement.

"A new tactic has emerged in the often high-stakes fight to move litigation from state to federal court. When a lawsuit is filed in state court, a defendant may try to "remove" the case to federal court by invoking the courts' diversity jurisdiction. But 28 U.S.C. Section 1441 prohibits removal if any defendant is a citizen of the state where the case was filed. This requirement is called the "forum defendant rule." It was most recently codified in 1948, but it has been federal law since 1789.

"But some well-resourced defendants have found a way to circumvent the forum defendant rule. Some courts have read Section 1441 to prevent removal only after a forum defendant has been served, and defendants are taking advantage of that fact through sophisticated docket-monitoring technology.

"As state court systems have gone digital, defendants are now able to monitor state court dockets across the country in real time. They are thus able to remove a case almost as soon as it is filed, and well before a plaintiff can effect service. This is not an exaggeration: In some instances, defendants have removed a case less than 10 minutes after the plaintiff filed it in state court.

"Many courts have deplored this tactic, which is often called "snap removal," and for good reason. Courts have called snap removals quote unquote "pre-service machinations," "bizarre," "clear gamesmanship," "telltale forum manipulation," an "ironic absurdity," an "absurd loophole," "at clear odds with congressional intent," and an "abuse" that "serves no conceivable public policy goal" and "eviscerates the forum defendant rule."

"Snap removals violate the basic tenets of federal jurisdiction and procedure. This tactic offends the foundational principle that state courts are the best places to resolve questions of state law. This tactic also undermines the centuries-old rule that the plaintiff decides where to file suit. Snap removals also invite wasteful gamesmanship and clog the federal courts' dockets, which are already full.

"Although the members of the 80th Congress could not have anticipated this kind of gamesmanship when they codified the forum defendant rule 70 years ago, I am confident that they did not intend to enable it. Federal practice is supposed to be just, speedy, and inexpensive, but snap removals cause needless expense, substantial delays, and are inherently unfair.

"Unfortunately, however, the courts are badly splintered on what to do about snap removals. Looking at the purpose of the forum defendant rule and the removal statutes, some courts have held that Section 1441 does not allow snap removals. Other courts have focused on the quote unquote "plain" text of the statute to hold that snap removals are permitted. But even courts that allow snap removals have criticized them, and have called on Congress to fix the problem.

"Today's hearing is the first step in that direction. Our witnesses represent a wide breadth of expertise and experience, and I look forward to hearing from them."

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