This Month in Snap Removal: The District of Nevada Muddies Its Snap Removal Waters and Throws Proponents a Life Preserver

Faegre Drinker’s snap removal team continuously monitors snap removal updates across the country (for a basic explanation of snap removal and previous updates, see Faegre Drinker’s prior posts here; for a breakdown on how each federal jurisdiction treats snap removal, see Faegre Drinker’s interactive snap removal map here).

The United States District Court for the District of Nevada is no stranger to consideration of the practice of snap removal—indeed, the District of Nevada has issued a number of decisions in 2020 and 2021, all holding that snap removal was improper unless and until at least one defendant has been served. But a recent opinion out of the District rejects the reasoning in those earlier decisions and holds that snap removal is proper even if no defendant has been served.

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New FDA Policy on Homeopathic Drugs Survives Preliminary Injunction Appeal

Overview

The FDA’s recent policy shift regarding homeopathic drugs was recently supported by the D.C. Circuit Court of Appeals in MediNatura v. FDA, No. 20-5341 (D.C. Cir. 2021), when it upheld the denial of a preliminary injunction to block the FDA from withdrawing a longstanding enforcement policy regarding homeopathic drug products.

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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.

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In D.D.C., Remand Arguments Are “No Match” For Plain Language Supporting Snap Removal

Pre-service removal—known colloquially as “snap removal”—continues to be adopted in more jurisdictions. For a basic explanation of snap removal, see Faegre Drinker’s prior posts here.

In Doe v. Daversa Partners, 2021 WL 736734, at *3 (D.D.C. Feb. 25, 2021), the U.S. District Court for the District of Columbia joins the Second, Third, and Fifth Circuit Courts of Appeal affirming the practice of snap removal. Noting that the D.C. Circuit had not yet opined on the issue, the Daversa court provided a thorough analysis and rationale for refusing remand under the circumstances.

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En Banc Eighth Circuit Reverses Precedent and Holds Forum-Defendant Rule Is a Nonjurisdictional Defect Plaintiffs Can Waive

As the new year loomed, the Eighth Circuit, sitting en banc, overruled its prior cases dealing with a specific application of the forum-defendant exception to removal on the basis of diversity jurisdiction. Under the forum-defendant rule, a defendant who is a citizen of the forum state cannot remove a lawsuit from state court to federal court if the removal is solely on the basis of diversity jurisdiction. Before this decision, the Eighth Circuit stood alone in holding that the forum-defendant rule was jurisdictional and could never be waived. The unanimous en banc court overruled its prior cases and aligned with all other federal circuits to consider the question, concluding that violation of the forum-defendant rule is not a jurisdictional defect and therefore must be raised as a basis for remanding a case back to state court within 30 days after removal or the argument is waived. Among other practical consequences of the decision, plaintiffs who believe a defendant has improperly removed a case in violation of the forum-defendant rule now must raise the violation in 30 days or risk waiving it.

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PREP Act Does Not Require Federal Forum for State Law Negligence Claims Related to COVID-19

A New Jersey District Court Judge has ruled that the March 2020 federal liability immunity statute for pandemic-related countermeasures does not create a basis for federal jurisdiction, resulting in the remand of two COVID-19-related personal injury actions.

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