Faculty Publications
 

Title

The Forum-Defendant Rule, the Mischief Rule, and Snap Removal

Document Type

Article

Publication Date

2021

Abstract

Samuel Bray’s The Mischief Rule reconceptualizes and revitalizes that venerable canon of statutory interpretation. Bray’s new approach to the mischief rule offers a textual solution to an ongoing civil procedure puzzle—forum defendants and “snap removal.” The forum-defendant rule provides that a diversity case is not removable from state to federal court when a properly joined and served defendant is a citizen of the forum state. Snap removal occurs when a defendant removes before the forum defendant has been properly served, “snapping” the case into federal court. Three courts of appeals and a majority of district courts have endorsed this practice, concluding that it is consistent with the unambiguous text of 28 U.S.C. § 1441(b)(2) and does not produce an absurd result, despite contravening congressional intent that such cases remain in state court. Bray’s reconstruction of the mischief rule offers a textual solution—by focusing on the mischief Congress targeted with the “properly served” language of § 1441(b)(2), courts can broadly interpret existing statutory text to prohibit snap removal as a clever evasion of the forum-defendant rule.

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