Trial, the magazine published by the American Association for Justice (AAJ), has an article coauthored by Weitz & Luxenberg associate attorney Brendan A. McDonough and Rayna E. Kessler, a partner at Robbins Kaplan, in the May 2021 issue examining the practice of snap removals and how to counter the practice.
In Maintain a Foothold, the attorneys look at the trend of defendants filing for removal of a case from state to federal court, sometimes even before the defendant has been served. This is known as a snap removal. After providing a history of how this practice developed, the attorneys look at the issue of service and how plaintiffs’ attorneys can avoid having the case moved to federal court.
Active Monitoring of Court Dockets
According to the attorneys, snap removal is made possible in part because most states have moved to electronic filing, “Third-party vendors monitor electronic state court dockets, scanning for complaints that name their corporate client as a defendant.” (1) Companies are immediately warned about the lawsuit and can take immediate action to protect themselves, including filing for removal to federal court. Often this is done even before the company’s agents or the company itself are formally served.
Complicating the issue further is what constitutes proper service, and who needs to be served. Arguments have been made in court that service to an appointed agent for a company is not sufficient and the defendant company itself must be served.
Serving of papers is made more difficult when defendants make individuals authorized to accept service unavailable until after snap removals have been filed. Cases such as Dutton v. Ethicon and Jackson v. Howmedica Osteonics Corp. considered what constituted proper service and have been used to establish guidelines.
“The court rejected the defendant’s arguments in Jackson as to service on the agent,” (1) so this makes it easier for the plaintiff to properly serve, Mr. McDonough points out. “A whole new strategy needed to be developed to protect the rights of the clients filing a claim.”
Snap Serve Strategies
Mr. McDonough suggests several strategies for countering snap removal. “Snap serve” is a plan where the plaintiffs’ attorneys have process servers in place at the agent’s premises.
The process server should have confirmed the address of the agent before the case is filed. The server should be waiting in a car with a mobile printer and a hotspot.
The filing attorney should “provide servers with the summons and the entire (unfiled) complaint beforehand so they can pre-print the bulk of the service packet, except for the first page of the complaint and any documents that are generated by the state court filing system at the time of filing.” (1)
As soon as the complaint is filed with the state court, the attorney should create a PDF of the first page and immediately email the PDF to the server. Then call the server to warn them the information is coming so they can print and run the documents inside. Document this with photos on a smartphone that can show time and GPS location.
This should be done for both the defendant’s agent and also at the defendant’s headquarters. The goal is to beat the defendant’s filing of a snap removal.
The attorneys also recommend, when the defendant is granted a snap removal, that plaintiffs’ attorneys should immediately file for a remand. How courts handle removals varies from jurisdiction to jurisdiction.
McDonough’s Legal Background
Mr. McDonough received a B.S. in biological and biomedical engineering from Cornell University in Ithaca, New York in 2010. He began working at Weitz & Luxenberg as a legal assistant performing legal and factual research assignments, and reviewing materials to prepare for depositions.
He received his J.D. from Rutgers School of Law in 2016. Mr. McDonough rejoined W&L in 2017 as an attorney engineer in our Drug and Medical Device Litigation practice group. “I am happy working at W&L, because this firm focuses on helping clients and providing them with the relief they need,” he emphasizes.