No remand in ‘snap removal’ case

A federal judge has denied a man’s motion to remand a slip-and-fall personal injury case to the Richmond Circuit Court after the defendants removed the case to federal court.

U.S. District Judge David J. Novak‘s decision diverged from a 2013 ruling in the Eastern District of Virginia where the court held that “permitting a forum defendant to appear and seek federal jurisdiction for an action through removal, whilst simultaneously asserting that it cannot be barred from removing because it has not been properly made party to the action … is patently absurd.”

The March 1 memorandum order denying the plaintiff’s motion is Spigner v. Apple Hospitality Reit, Inc. (VLW 022-3-127). Per court documents, a pretrial conference for the matter will be held next month.

Background

Dontarius Spigner said he was injured after he tripped and fell over pavers in the pool area of a Richmond Marriott hotel in 2019. He filed a complaint in Richmond Circuit Court in October 2021, claiming negligence against defendants Apple Hospitality REIT, Apple Seven SPE Richmond and Marriott International. Spigner sought damages for his alleged personal injury caused by the defendants’ failure to “properly maintain pavers” in the pool area of the hotel.

In December 2021, the three defendants together removed Spigner’s claims to the U.S. District Court for the Eastern District of Virginia. The defendants “had not yet received service of process when they removed, having only obtained a courtesy copy of Plaintiff’s Complaint.”

Spigner filed a motion and brief to remand to state court on Jan. 7, 2022. He argued that Apple’s and Seven’s status as Virginia corporations precludes removal of the suit to the Eastern District, and that any removal before service of process would be “premature and therefore improper.”

The defendants filed a response later that month.

‘Snap removal’

Novak said the “validity of the procedural maneuver at issue in this case, known as ‘snap removal,’ hinges on whether 28 U.S.C. § 1441(b)(2) permits a forum defendant to remove before they have received service of process.”

The code section — known as the forum defendant rule — forbids removal in certain circumstances, providing “a civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title 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.”

The judge noted that each side agreed on many points, including that, without the snap removal tactic, the forum defendant rule would not allow the defendants to remove to the federal court because of Apple’s and Seven’s uncontested status as Virginia corporations.

“This dispute boils down to whether this Court should follow the plain meaning of § 1441(b)(2) and permit Defendants’ removal to this Court before service of process. Defendants argue that it should, and Plaintiff argues that it should not,” Novak said.

Spigner contended that such a literal interpretation of the statute would “lead to an absurd result.” He cited Campbell v. Hampton Roads Bankshares, Inc., where the Eastern District determined that granting snap removal to a forum defendant while simultaneously saying the defendant can’t be barred from removal because it has not been made party to the action “is patently absurd.”

Spigner further argued that the courtesy copy of his complaint received by the defendants qualified as actual notice, making them “properly joined and served.”

But the defendants claimed that, since Spigner had not served them with process at the time of removal, the forum defendant restriction hadn’t yet taken effect; the forum defendant rule, they argued, only applies to “properly joined and served” parties.

The defendants pointed out that a “consensus” has developed among several circuit courts of appeal that have addressed snap removal after the Campbell decision. The defendants claim that the plain meaning analysis used by the circuits “should prevail over the absurdity determination in Campbell.”

As such, the defendants argued that Campbell “stands only as persuasive authority to this Court.”

Novak acknowledged that the caselaw “essentially lays out two different paths to analyze snap removal issues,” with one path rejecting snap removal as exemplified in Campbell, while the other allowing snap removal as upheld in the circuits.

In interpreting the statute, Novak said the court “finds significant Congress’ inclusion of the phrase ‘properly joined and served.’”

“Had Congress intended to preclude any forum defendant from removing, it could have omitted the phrase ‘properly joined and served,’” he continued.

By its plain language, the forum defendant rule does not prohibit removal until a defendant has been properly served. Here, the defendants “removed before receiving service of process. Thus, upon initial analysis, the Court finds Defendants’ removal proper.”

The judge rejected Spigner’s argument that removal was “premature,” noting that nothing in the statutory language or pertinent caselaw implies the possibility of “‘premature’ removal.”

“Because the Court has no cause to depart from the plain language of § 1441(b)(2), and because no standard exists to classify pre-service removal as premature, the Court considers Defendants’ removal proper,” Novak explained.

Virginia Beach attorneys Shawn A. Voyles and Paul R. Schmeding of McKenry Dancigers Dawson served as counsel for the defendants. Voyles said the decision “is important to corporate defendants in the Eastern District of Virginia who would rather litigate in federal court where cases move quickly and where summary judgment is much more attainable than in circuit court.”

Richmond attorney Brooke Alexander of Run River Law represented Spigner. Alexander did not respond to a request for comment by deadline.