In Encompass Insurance Co. v. Stone Mansion Restaurant Inc., the Third Circuit relied on a technical reading of the statute and a strict textualist analysis to conclude that the stratagem known as “snap removal” was permitted under the plain language of 28 U.S.C. § 1441(b)(2). This provision codifies the so-called “forum defendant rule,” providing that “[a] civil action otherwise removable solely on the basis of . . . [diversity] jurisdiction . . . 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 Third Circuit ruled that under the plain language of the statute, forum defendants could, in fact, remove to federal court under certain circumstances. Using this little-known technique, a defendant sued in a state court in its home state may circumvent the forum defendant rule and remove the matter to federal court so long as they file the notice of removal before they are “properly joined and served.”
This article will explore the tensions between textualism and the realities of modern litigation as revealed in Encompass and its progeny. It explains the underpinnings of textualism and briefly discusses the basics of removal and the forum defendant rule, as well as snap removal.
Various district court decisions that have grappled with snap removal are analyzed, and Encompass is discussed in detail.
COMMENT: Technology & Textualism: A Case Study on the Challenges a Rapidly Evolving World Poses to the Ascendant Theory, 52 Golden Gate U. L. Rev.