Defendants generally prefer to be in federal court. Among other advantages for defendants in federal court are more favorable procedural rules for defendants, limitations on voir dire, tighter control by federal judges than state court judges, and more pro-defendant jurors because federal jurors usually are drawn from larger geographic areas than their state court counterparts. Accordingly, defendants who have the option to remove a state court suit to federal court almost always avail themselves of that opportunity.
Removal of a suit from state court to federal court is proper only if the case involves federal court jurisdiction, diversity, or a statute that authorizes removal. There is one further limitation on removal. Under Section 1441(b)(2) of Title 28 of the United States Code, a suit cannot be removed if any citizen of the state where the action is filed has been “joined and served” as a defendant. This is referred to variously as the “no local defendant rule” or the “forum defendant rule.” The plain language of Section 1441(b)(2) requires that the local defendant be “joined and served.” And therein lies the rub. Can a defendant “snap remove” a case to federal court during the window of time that the local defendant is joined, but not yet served? Federal courts have disagreed on the answer to this question.
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