The removal statute says what it says and should be given its plain meaning. That was the holding of the United States Court of Appeals for the Third Circuit in Encompass Ins. Co. v. Stone Mansion Rest., 902 F.3d 147 (3d Cir. 2018), a decision in which the court found that pre-service removal, sometimes also referred to as “snap removal,” is a proper and legitimate method to secure a federal forum.
In Encompass, the Third Circuit considered whether pre-service removal from state court to federal court is barred by the forum defendant rule under 28 U.S.C. §1441(b). The forum defendant rule precludes removal based on diversity of citizenship “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.” Encompass, the liability carrier for a party to a fatal motor vehicle accident, settled a claim brought by an injured passenger and sought contribution from Stone Mansion under Pennsylvania’s Dram Shop Act. Stone Mansion, a Pennsylvania corporation, agreed to accept service of the complaint electronically but did not complete Encompass’s acceptance of service form, explaining to Encompass instead that it would remove the case to federal court, which it did before formally accepting service. Encompass moved to remand the case back to state court on the grounds that, although there existed diversity of citizenship between the parties, the forum defendant rule nevertheless prohibited removal. The United States District Court for the Western District of Pennsylvania declined to remand the case back to the Pennsylvania Court of Common Pleas.
