In New York, whether your case proceeds in state or federal court can have a significant impact on your client’s resolution strategy. Differences in the potential jury pool, expert disclosure, scientific evidence admissibility, discovery rules, subpoena power—to name a few—will all play a role in foreseeing the course and outcome of your case. For that reason, every litigator’s ears perk up when they hear something new or unusual when it comes to removal under 28 U.S.C. §1441, et seq. This article will discuss the Second Circuit’s recent decision in Gibbons v. Bristol-Myers Squibb Company, 919 F.3d 699 (2d Cir. March 26, 2019), which upheld the use of a clever mechanism known as “snap removal” that some defendants have successfully employed to circumvent the well-known “forum defendant” exception to removal so they can litigate in their preferred forum of federal court.
Most civil actions brought in state court over which a federal district court has original jurisdiction may be removed by the defendants to district court. 28 U.S.C. §1441(a). Section 1441 permits removal on the basis of federal question jurisdiction (28 U.S.C. §1331) or diversity jurisdiction (28 U.S.C. §1332). But, when it comes to removal based on diversity jurisdiction, the removal statute provides that “[a] civil action otherwise removable solely on the basis of [diversity] 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.” 28 U.S.C. §1441(b)(2). This prohibition to removal is known as the “forum defendant rule.” Lively v. Wild Oats Markets, 456 F.3d 933, 939 (9th Cir. 2006). Removal based on diversity jurisdiction is intended to protect out-of-state defendants from possible prejudices in state court. Id. at 940. Obviously, the need for such protection does not exist where the defendant is a citizen of the forum state. “Within this contextual framework, the forum defendant rule allows the plaintiff to regain some control over forum selection by requesting that [a case removed to federal court in violation of the rule] be remanded to state court.” Id.
