1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JUSTIN HAYES, Case No. 25-cv-02502-SI
8 Plaintiff, ORDER DENYING MOTION TO 9 v. REMAND
10 VCOM SOLUTIONS, INC., Re: Dkt. No. 15 11 Defendant.
12 13 Plaintiff filed a motion to remand after defendant’s snap removal. Pursuant to Civil Local 14 Rule 7-1(b), the Court determined that the motion is suitable for resolution without oral argument, 15 and VACATED the May 2, 2025 hearing. For the reasons outlined below, the Court DENIES 16 plaintiff’s motion. 17 18 BACKGROUND 19 On Friday, March 7, 2025, plaintiff Justin Hayes filed a complaint against his former 20 employer vCom Solutions, Inc. (“defendant”) in the Contra Costa County Superior Court, asserting 21 state law claims of racial discrimination, failure to prevent discrimination and retaliation, adverse 22 employment action in violation of public policy, and invasion of privacy. Dkt. No. 1-3 (“Compl.”) 23 at 1. When plaintiff filed his action, the court did not provide or publish certain case documents 24 required to effectuate service, including the Notice of Case Assignment. Dkt. No. 16-2 (“Williams 25 Decl.”) ¶ 4. On Monday, March 10, 2025, plaintiff’s counsel left a message with the court clerk 26 regarding the missing documents. Id. ¶ 5. Two days later, on Wednesday, March 12, 2025, 27 1 defendant removed this case to federal court based on diversity jurisdiction.1 Id. ¶ 6; Dkt. No. 1 at 2 4-9. The next day, plaintiff’s counsel connected with the state court clerk, who said there had been 3 “a publishing error” and placed the required documents on the online system later that day. Williams 4 Decl. ¶ 7. Plaintiff’s counsel then emailed defendant’s counsel to inquire whether they would 5 acknowledge service. Id. ¶ 8. Defendant responded several days later, explaining that it did not 6 believe service of the state court complaint was necessary post-removal. Id. ¶ 13; Dkt. No. 16-8. 7 On March 27, 2025, plaintiff filed this motion to remand the case to the Superior Court of 8 Contra Costa County. Dkt. Nos. 15, 16. 9 10 LEGAL STANDARD 11 The proponent of federal jurisdiction, typically the defendant, has the burden of establishing 12 that removal is proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). When removal is 13 based on diversity of citizenship, there must be complete diversity of citizenship and the amount in 14 controversy requirement must be met. 28 U.S.C. § 1332. 15 There is a caveat to removal jurisdiction in diversity cases known as the “forum defendant 16 rule.” Section 1441(b)(2) of Title 28 of the United States Code provides: 17 A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if 18 any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. 19 (Emphasis added.) “Snap removal,” the procedural tactic at issue in this case, is “[t]he practice of 20 circumventing application of the forum-defendant rule by removing before defendants are served.” 21 Lam Sing v. Sunrise Senior Mgmt., Inc., No. C 23-00733 WHA, 2023 WL 3686251, at *3 (N.D. 22 Cal. May 26, 2023). 23
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27 1 Plaintiff is a resident of Hawaii. Dkt. No. 16 at 4. Defendant is a California corporation with its principal place of business in California. Dkt. No. 1 at 5. The notice of removal contends 1 DISCUSSION 2 In the absence of guidance from the Ninth Circuit,2 courts in the Northern District of 3 California generally permit snap removals, largely relying on the plain language of § 1441(b)(2). 4 See Republic Western Insurance Co. v. International Insurance Co., 765 F. Supp. 628, 629 (N.D. 5 Cal. 1991); City of Ann Arbor Employees’ Retirement System v. Gecht, No. C-06-7453EMC, 2007 6 WL 760568, at *8 (N.D. Cal. Mar. 9, 2007); Regal Stone Ltd. v. Longs Drug Stores California, 7 L.L.C., 881 F. Supp. 2d 1123, 1128 (N.D. Cal. 2012); Loewen v. McDonnell, No. 19-CV-00467- 8 YGR, 2019 WL 2364413, at *9 (N.D. Cal. June 5, 2019). In World Financial Group Insurance 9 Agency v. Olson, the court followed the district’s majority view, but recognized this approach could 10 “promote gamesmanship under certain circumstances.” No. 19-CV-07670-LHK, 2024 WL 730356, 11 at *5 (N.D. Cal. Feb. 22, 2024). Not every court in this district has allowed snap removals, however. 12 See In re Roundup Prods. Liab. Litig., No. 16-MD-02741-VC, 2019 WL 423129, at *1 (N.D. Cal. 13 Feb. 1, 2019) (denying snap removal); Whyte Monkee Prods. LLC v. Netflix, Inc., 730 F. Supp. 3d 14 947, 953 (N.D. Cal. 2024) (expressing skepticism about snap removal, but denying remand because 15 the court had federal question and supplemental jurisdiction). 16 The three appellate courts to directly address this issue have held that snap removals are 17 permissible. See Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 152 (3d Cir. 2018); 18 Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 705, 707 (2d Cir. 2019); Texas Brine Co., 19 L.L.C. v. Am. Arb. Ass’n, Inc., 955 F.3d 482, 486-87 (5th Cir. 2020). However, the Eleventh Circuit 20 implied that snap removals may be inappropriate, and that a district court may undo defendant 21 gamesmanship in the absence of plaintiff gamesmanship, largely relying on a purpose argument 22 rather than a literal reading of the statute. See Goodwin v. Reynolds, 757 F.3d 1216, 1221 (11th Cir. 23 2014). 24 While the “properly joined and served” language of § 1441(b)(2) deters gamesmanship by 25 plaintiffs, snap removals can “promote gamesmanship” by defendants. World Fin. Grp. Ins. Agency, 26
27 2 While leaving a decision on snap removals open, the Ninth Circuit recently disallowed “super snap removals,” where removal occurs before a county clerk endorses the filing and issues a 1 2024 WL 730356, at *5. The purpose of removal based on diversity jurisdiction is to protect out- 2 of-state defendants in state court from potential prejudices in favor of local litigants. Lively v. Wild 3 Oats Markets, Inc., 456 F.3d 933, 940 (9th Cir. 2006). However, when defendants are in-state 4 residents, the need for protection from such prejudice is absent, and thus removal is inconsistent 5 with the purpose of the forum defendant caveat to diversity jurisdiction. See id. 6 The Court finds plaintiff’s purpose-based arguments thoughtful and well-reasoned. This 7 case, involving an out-of-state plaintiff and a single, fast-acting in-state defendant, presents the most 8 severe example of snap removal. Plaintiff filed his complaint on Friday, March 7, 2025, and 9 defendant removed the following Wednesday, before plaintiff had received from the state court the 10 documents necessary to serve his complaint. Williams Decl. ¶¶ 3-6. While defendant asserts 11 otherwise, these circumstances suggest an element of gamesmanship in defendant’s removal action.3 12 See Dkt. No. 17 at 3.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JUSTIN HAYES, Case No. 25-cv-02502-SI
8 Plaintiff, ORDER DENYING MOTION TO 9 v. REMAND
10 VCOM SOLUTIONS, INC., Re: Dkt. No. 15 11 Defendant.
12 13 Plaintiff filed a motion to remand after defendant’s snap removal. Pursuant to Civil Local 14 Rule 7-1(b), the Court determined that the motion is suitable for resolution without oral argument, 15 and VACATED the May 2, 2025 hearing. For the reasons outlined below, the Court DENIES 16 plaintiff’s motion. 17 18 BACKGROUND 19 On Friday, March 7, 2025, plaintiff Justin Hayes filed a complaint against his former 20 employer vCom Solutions, Inc. (“defendant”) in the Contra Costa County Superior Court, asserting 21 state law claims of racial discrimination, failure to prevent discrimination and retaliation, adverse 22 employment action in violation of public policy, and invasion of privacy. Dkt. No. 1-3 (“Compl.”) 23 at 1. When plaintiff filed his action, the court did not provide or publish certain case documents 24 required to effectuate service, including the Notice of Case Assignment. Dkt. No. 16-2 (“Williams 25 Decl.”) ¶ 4. On Monday, March 10, 2025, plaintiff’s counsel left a message with the court clerk 26 regarding the missing documents. Id. ¶ 5. Two days later, on Wednesday, March 12, 2025, 27 1 defendant removed this case to federal court based on diversity jurisdiction.1 Id. ¶ 6; Dkt. No. 1 at 2 4-9. The next day, plaintiff’s counsel connected with the state court clerk, who said there had been 3 “a publishing error” and placed the required documents on the online system later that day. Williams 4 Decl. ¶ 7. Plaintiff’s counsel then emailed defendant’s counsel to inquire whether they would 5 acknowledge service. Id. ¶ 8. Defendant responded several days later, explaining that it did not 6 believe service of the state court complaint was necessary post-removal. Id. ¶ 13; Dkt. No. 16-8. 7 On March 27, 2025, plaintiff filed this motion to remand the case to the Superior Court of 8 Contra Costa County. Dkt. Nos. 15, 16. 9 10 LEGAL STANDARD 11 The proponent of federal jurisdiction, typically the defendant, has the burden of establishing 12 that removal is proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). When removal is 13 based on diversity of citizenship, there must be complete diversity of citizenship and the amount in 14 controversy requirement must be met. 28 U.S.C. § 1332. 15 There is a caveat to removal jurisdiction in diversity cases known as the “forum defendant 16 rule.” Section 1441(b)(2) of Title 28 of the United States Code provides: 17 A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if 18 any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. 19 (Emphasis added.) “Snap removal,” the procedural tactic at issue in this case, is “[t]he practice of 20 circumventing application of the forum-defendant rule by removing before defendants are served.” 21 Lam Sing v. Sunrise Senior Mgmt., Inc., No. C 23-00733 WHA, 2023 WL 3686251, at *3 (N.D. 22 Cal. May 26, 2023). 23
24 25 26
27 1 Plaintiff is a resident of Hawaii. Dkt. No. 16 at 4. Defendant is a California corporation with its principal place of business in California. Dkt. No. 1 at 5. The notice of removal contends 1 DISCUSSION 2 In the absence of guidance from the Ninth Circuit,2 courts in the Northern District of 3 California generally permit snap removals, largely relying on the plain language of § 1441(b)(2). 4 See Republic Western Insurance Co. v. International Insurance Co., 765 F. Supp. 628, 629 (N.D. 5 Cal. 1991); City of Ann Arbor Employees’ Retirement System v. Gecht, No. C-06-7453EMC, 2007 6 WL 760568, at *8 (N.D. Cal. Mar. 9, 2007); Regal Stone Ltd. v. Longs Drug Stores California, 7 L.L.C., 881 F. Supp. 2d 1123, 1128 (N.D. Cal. 2012); Loewen v. McDonnell, No. 19-CV-00467- 8 YGR, 2019 WL 2364413, at *9 (N.D. Cal. June 5, 2019). In World Financial Group Insurance 9 Agency v. Olson, the court followed the district’s majority view, but recognized this approach could 10 “promote gamesmanship under certain circumstances.” No. 19-CV-07670-LHK, 2024 WL 730356, 11 at *5 (N.D. Cal. Feb. 22, 2024). Not every court in this district has allowed snap removals, however. 12 See In re Roundup Prods. Liab. Litig., No. 16-MD-02741-VC, 2019 WL 423129, at *1 (N.D. Cal. 13 Feb. 1, 2019) (denying snap removal); Whyte Monkee Prods. LLC v. Netflix, Inc., 730 F. Supp. 3d 14 947, 953 (N.D. Cal. 2024) (expressing skepticism about snap removal, but denying remand because 15 the court had federal question and supplemental jurisdiction). 16 The three appellate courts to directly address this issue have held that snap removals are 17 permissible. See Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 152 (3d Cir. 2018); 18 Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 705, 707 (2d Cir. 2019); Texas Brine Co., 19 L.L.C. v. Am. Arb. Ass’n, Inc., 955 F.3d 482, 486-87 (5th Cir. 2020). However, the Eleventh Circuit 20 implied that snap removals may be inappropriate, and that a district court may undo defendant 21 gamesmanship in the absence of plaintiff gamesmanship, largely relying on a purpose argument 22 rather than a literal reading of the statute. See Goodwin v. Reynolds, 757 F.3d 1216, 1221 (11th Cir. 23 2014). 24 While the “properly joined and served” language of § 1441(b)(2) deters gamesmanship by 25 plaintiffs, snap removals can “promote gamesmanship” by defendants. World Fin. Grp. Ins. Agency, 26
27 2 While leaving a decision on snap removals open, the Ninth Circuit recently disallowed “super snap removals,” where removal occurs before a county clerk endorses the filing and issues a 1 2024 WL 730356, at *5. The purpose of removal based on diversity jurisdiction is to protect out- 2 of-state defendants in state court from potential prejudices in favor of local litigants. Lively v. Wild 3 Oats Markets, Inc., 456 F.3d 933, 940 (9th Cir. 2006). However, when defendants are in-state 4 residents, the need for protection from such prejudice is absent, and thus removal is inconsistent 5 with the purpose of the forum defendant caveat to diversity jurisdiction. See id. 6 The Court finds plaintiff’s purpose-based arguments thoughtful and well-reasoned. This 7 case, involving an out-of-state plaintiff and a single, fast-acting in-state defendant, presents the most 8 severe example of snap removal. Plaintiff filed his complaint on Friday, March 7, 2025, and 9 defendant removed the following Wednesday, before plaintiff had received from the state court the 10 documents necessary to serve his complaint. Williams Decl. ¶¶ 3-6. While defendant asserts 11 otherwise, these circumstances suggest an element of gamesmanship in defendant’s removal action.3 12 See Dkt. No. 17 at 3. 13 Nonetheless, as this Court recently held in a separate case, the Court recognizes the 14 importance of consistent holdings within the Northern District to provide clarity and predictability 15 for litigants and holds that a fair reading of the plain language of § 1441(b)(2) allows snap removals. 16 See Adelaja v. Guillen, No. 24-CV-08159-SI, 2025 WL 502050 (N.D. Cal. Feb. 14, 2025). To 17 maintain in-district consistency, the Court DENIES plaintiff’s motion to remand. 18 While most cases in this district dealing with snap removals involve multiple defendants, the 19 fact that this case involves a single defendant does not change the result, even though it places that 20 result in a harsher light. To be sure, one earlier opinion from this district held that the language 21 “properly joined and served” anticipates multiple defendants and therefore snap removal does not 22 apply where there is a single defendant, distinguishing district precedent with multiple defendants. 23 Tourigny v. Symantec Corp., 110 F. Supp. 3d 961, 964 (N.D. Cal. 2015). However, the Court will 24 not follow the distinction made in Tourigny for two reasons. First, a subsequent opinion from this 25 26 3 Snap removal benefits aggressive and technologically savvy defendants that have begun 27 monitoring state court dockets and removing newly filed cases in the short time window between filing and service on forum defendants. § 96:22. Forum selection provisions, 8 Bus. & Com. Litig. 1 district found Tourigny unpersuasive, in large part because Tourigny relied on a case from the 2 || Eastern District of Pennsylvania that the Third Circuit implicitly abrogated in Encompass. See Glob. 3 || Indus. Inv. Ltd. v. Chung, No. 19-CV-07670-LHK, 2020 WL 2027374, at *3 (N.D. Cal. Apr. 28, 4 |} 2020). Second, if the “joined and served” language, interpreted literally, only applies to cases 5 || involving multiple defendants, the Court does not see why the entirety of the forum defendant rule 6 || in section 1441(b)(2), interpreted literally, should be read differently. And if read consistently, this 7 interpretation would render the forum defendant rule applicable only to cases with multiple 8 defendants and removal would always be proper in cases of a single in-state defendant. The Court 9 does not read the statute as limiting the forum defendant rule in that manner, nor have other courts 10 || done so. 11 12 CONCLUSION
13 For the foregoing reasons and for good cause shown, the Court DENIES plaintiff's motion
v 14 || to remand. Considering that different districts in this circuit have reached different consensus
15 positions,* the Court hopes that the Ninth Circuit may have an opportunity to rule on the propriety a 16 of snap removals soon.
= 17 18 IT IS SO ORDERED. 19 Dated: May 2, 2025 20 Lag | plas SUSAN ILLSTON United States District Judge 22 23 24 || ——_—qe— — * For example, in the Central District of California, there is “strong consensus” to disallow 26 snap removals because of the purpose of the forum defendant rule. Black v. Monster Beverage Corp., No. EDCV1502203MWFDTB, 2016 WL 81474, at *3 (C.D. Cal. Jan. 7, 2016); see also 27 Deutsche Bank Nat’! Tr. Co. as Tr. for Am. Home Mortg. Inv. Tr. 2007-1 v. Old Republic Title Ins. Grp., Inc., 532 F. Supp. 3d 1004, 1010-11 (D. Nev. 2021) [“Judges in this District who have reached 28 || the question have uniformly held that ‘snap removal’ is improper under 28 U.S.C. § 1441(b)(2).”].