United States District Court, S.D. Texas, Victoria Division
KEVIN D. SMETHERS, et al., Plaintiffs,
BELL HELICOPTER TEXTRON INC, Defendant.
MEMORANDUM OPINION AND ORDER
C. Hanks, Jr. United States District Judge
the Court are Plaintiffs Kevin D. and Cheryl A.
Smethers's (together, "Smethers") Amended
Motion to Remand. Dkt. 10. After considering the parties'
responsive pleading, relevant authority, and for reasons
explained below, the Motion to Remand will be granted.
filed suit in the 24th District Court of Refugio
County, Texas. Smethers named Bell as the lone defendant.
Dkt. 1-1. Smethers provided Bell with a courtesy copy of the
Complaint on the same day it was filed but before formal
service was performed. The 24th District Court
issued a citation for Bell to Smethers the next day. A day
later, and before being served, Bell filed its Notice of
Removal, removing the case to this Court. Bell's sole
basis for removal was the complete diversity of citizenship
between the parties pursuant to 28 U.S.C. § 1332.
Smethers then filed its amended motion to remand pursuant to
28 U.S.C. § 1447(c). The motion to remand asserts that
Bell is a forum defendant, having its principal place of
business in Fort Worth, Texas. As such, Smethers argues that
removal violates the spirit-if not the plain language-of 28
U.S.C. § 1441's 'forum-defendant rule.'
Standard of Review
a defendant may remove to federal court any state court civil
action over which the federal court would have "original
jurisdiction." 28 U.S.C. § 1441(a); see Gasch
v. Hartford Ace. & Indent. Co., 491 F.3d 278, 281
(5th Cir.2007). Federal courts have "original
jurisdiction" over civil actions where the parties are
diverse and the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interests and costs. 28
U.S.C. § 1332(a). Under the provision known as the
forum-defendant rule, "a civil action otherwise
removable solely on the basis of [diversity jurisdiction] 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) (emphasis added).
courts must remand cases before them "[i]f at any time
before the final judgment it appears that the district court
lacks subject matter jurisdiction." 28 U.S.C. §
1447(c). "[D]oubts regarding whether removal
jurisdiction is proper should be resolved against federal
jurisdiction." Acuna v. Brown & Root Inc.,
200 F.3d 335, 339 (5th Cir.2000). The removing party
therefore bears the burden of showing by a preponderance of
the evidence that removal is proper. Manguno v.
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723
The Forum Defendant Rule and 'Snap Removal'
present action, it is undisputed that: 1) removal is based
solely upon diversity of citizenship; 2) complete diversity
exists between the parties; 3) Bell is a citizen of Texas,
the forum state; and 4) Bell had not been served at the time
of removal. Smethers argues that removal is procedurally
improper. Specifically, Smethers argues that Bell engaged in
'snap removal, ' relying upon a loophole in the
language of the statute and subverting its underlying
legislative intent. Bell counters that the plain language of
the statute permits removal here and that-in any case-this is
not an example of snap removal. Bell is correct that the
plain language of the statute permits removal of this claim.
The dispositive issue then is whether the Court should look
beyond the plain language of the statute to determine whether
to remand the case.
alleged loophole known as 'snap removal' is created
by the phrase 'properly joined and served' contained
in 28 U.S.C. § 1441(b)(2). Judge Boyle of the Dallas
division of the United States Southern District of Texas
recently and thoroughly examined the phenomenon of snap
removal. See Breitweiser v. Chesapeake Energy Corp.,
CIVIL ACTION NO. 3:15-CV-2043-B, 2015 WL 6322625 (N.D. Tex.
October. 20, 2015). Snap removal refers to "the emerging
litigation tactic used ... to circumvent the forum defendant
rule." Id. at *2. Because removal here is
prohibited only where the defendant has been served,
defendants can remove "almost immediately after a
plaintiff files in state court, but before the plaintiff has
the opportunity to formally serve a forum defendant."
Id. Judge Boyle further explains that,
The hallmark of a snap removal is its timing: a snap removal
occurs (1) just after the state court case has been filed,
and (2) just before the plaintiff has the opportunity to
serve any forum defendants. This particular timing of events
creates a possible loophole in the forum-defendant rule ....
This loophole has been used [by forum defendants] with
variable rates of success ....
Id. at *3. Essentially, the difference between
'snap' and 'proper' removal is "one of
degree, not of kind." See Lovell Maufg Co. v.
Cary, 147 U.S. 472, 476 (1893).
District Court Split and ...