Two District Courts Focus on “Gamesmanship” in a Double Dose of Rejection for Snap Removal


Faegre Drinker’s snap removal team closely monitors snap removal updates across the United States (for a basic explanation of snap removal and previous updates, see Faegre Drinker’s prior posts here; for a breakdown on which jurisdictions allow snap removal, see Faegre Drinker’s interactive snap removal map here).

In two recent decisions out of the District of Maryland and the Western District of Washington, both courts emphasized “gamesmanship” as a reason for rejecting the practice of snap removal in each jurisdiction. Interestingly, though, one district focused on gamesmanship by plaintiffs while the other district focused on gamesmanship by defendants.

The District of Maryland, already a split district on the issue of snap removal, rejected the practice in Sommer v. BMW of North America, LLC, 2021 WL 1890651 (D. Md. May 11, 2021) with a thorough discussion of the principles underlying the forum defendant rule. The Court also distinguished its holding from a previous District of Maryland decision (Robertson v. Iuliano, 2011 WL 453618, at *3 (D. Md. Feb. 4, 2011)), which upheld the practice of snap removal in 2011.

In Sommer, the plaintiff, a citizen of Tennessee, brought claims in Maryland state court against two defendants arising from a car accident. The two defendants—BMW of North America, LLC and an individual defendant—were citizens of Delaware/New Jersey and Maryland, respectively. The plaintiff served BMW on October 13, 2020. BMW thereafter removed the case to federal court on October 19, one day before the forum defendant was served.

In concluding that remand was warranted, the Sommer court recognized that a previous District of Maryland decision (Robertson) had upheld the practice of snap removal but reasoned that “federal courts remain split on the issue of whether the forum defendant rule prohibits pre-service removal.” The Sommer court found an oft-cited Eleventh Circuit case and several previous District of Maryland decisions to be persuasive, each of which had emphasized that “a literal reading of § 1441(b)(2) is at odds with the purpose of the forum defendant rule.” Based on these decisions, the Sommer court reasoned that the removal statute was written to “prevent gamesmanship by plaintiffs.” Specifically, the court considered whether the defendants were “inconsequential parties” that the plaintiff had joined to defeat removal and whether the plaintiff had “sat on their hands” with respect to service. According to the court, neither such circumstance had occurred in Sommer. The court therefore held that there was no evidence of gamesmanship by the plaintiff in Sommer, and remand was warranted.

The Western District of Washington similarly emphasized gamesmanship in a recent decision rejecting snap removal, though the court focused alternatively on gamesmanship by defendants in remanding the case to state court. In Pratt v. Alaska Airlines, Inc., 2021 WL 1910885 (W.D. Wash. May 12, 2021), the plaintiff, a citizen of California, sued the defendant, a citizen of Washington and Alaska, alleging wrongful termination and retaliation in Washington state court.

The court—relying on a 2020 decision from the Western District of Washington which noted, in dicta, that the practice of snap removal was “controversial” and “questionable”—held that remand was warranted in large part because the word “any” in the text of § 1441(b)(2) requires at least one defendant to be served prior to removal. Because Alaska Airlines, as the only defendant, had not been served before it removed the case, the court concluded that removal was improper.

The court’s analysis did not end there, however. Instead, the court went on to consider the legislative history of the forum defendant rule before noting that the advent of electronic case filing created opportunities for gamesmanship by defendants to monitor dockets and remove before forum defendants are served. The court also distinguished the three Circuit Court decisions that have upheld snap removal by noting they did not consider the “any” language in the text of § 1441(b)(2) and otherwise referred to gamesmanship as a Congressional concern driving the adoption of the “properly joined and served” language.

Stay up to date on these and other snap removal rulings by visiting Faegre Drinker’s interactive snap removal map.

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About the Author: Kip S.M. McDonald

Kip McDonald defends and counsels clients in product liability, multidistrict and mass tort litigation matters nationwide. He collaborates with clients to develop defense strategies and manages the details, from pre-suit negotiation, pretrial proceedings — including international e-discovery — to expert discovery and trial.

About the Author: Hannah R. Anderson

Hannah Anderson brings enthusiasm and a critical eye to Faegre Drinker’s litigation team. She represents domestic and international manufacturing companies, medical device manufacturers, and other corporate clients in both product liability/mass tort and environmental litigation.

About the Author: J. Benjamin Broadhead

Ben Broadhead is a product liability associate residing in Faegre Drinker’s Indianapolis office. Ben focuses his practice on medical device litigation and mass torts.

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