It's an appeal that's necessitated by a messed-up contemporary filing system in state court -- one that wasn't anticipated by the people who crafted the old-school removal rules during the pre-electronic filing era -- as applied to a common trick that sophisticated parties routinely employ to game the system in a way that Congress didn't anticipate when it, too, crafted the removal rules in a pre-electronic era. So it's basically one set of antiquated rules as applied to another set of antiquated rules; rules that both made sense in the old days, but that lead to abuse nowadays.
Here are the basic underlying rules:
(1) In the old days, you "filed" a lawsuit when you physically handed it to the Clerk. But now, most cases are (and must be) e-filed, typically using service providers, and the case isn't technically "filed" until after the Clerk "processes" the complaint and officially "files" it, which may be several days (or even a week) later.
(2) Both now and in the old days, you've got 30 days to remove a lawsuit from state court to federal court. In the old days, we'd know full well when those 30 days started running: from the filing date (i.e., delivery to the Clerk). But what about in the new days? Does it start ticking upon the e-filing date, or only once the complaint is "accepted" by the Clerk and officially "filed"?
(3) In the old days, you pretty much found out about a lawsuit once you got served with it. But in the new days, most sophisticated corporate parties have services that tell them immediately once a lawsuit has been filed against them, even before service, and -- nowadays -- even in advance of the complaint actually being "accepted and filed" by the Clerk (because they have access to the e-filing records). A party can't remove a lawsuit from its home state in a diversity suit, but there's an exception for parties that are not yet served (because we don't want sham unserved parties to prevent removal). In the new days, can you "snap-remove" a lawsuit -- even from your home state, and even when you're the sole defendant -- as long as you find out about the lawsuit quickly and remove it before the plaintiff has had a chance to serve you yet? Moreover, in the very-new days, can you "super-snap-remove" a lawsuit even before it's been "officially filed" by the Clerk?
There are some other additional complexities addressed in Judge Callahan's opinion; e.g., appellate jurisdiction (or lack thereof) over remand orders, as well as timeliness issues. Regardless, in my view, she answers all of them correctly. Or at least all of them that she needs to.
The Ninth Circuit holds that "super-snap" removals aren't proper. You can't remove a lawsuit from state court before it's "officially" filed; i.e., in the period after it's submitted for e-filing but before it's been "accepted" by the Clerk. Such removals aren't effective; they're void. So back to state court you go.
That all seems right to me, for the exact reasons Judge Callahan articulates. She does a great job both discussing the textual provisions here as well as the equities.
Expressly left unresolved, however, is whether "regular" snap-removal is permissible; i.e., removal after the lawsuit is "accepted" (e.g., one minute after the Clerk electronically issues the summons) but before the lawsuit is officially served.
This, in my view, is where textualism fails. Yes, the statute says that you can remove, even from your home state in a diversity case, if the defendant who resides in that state is not yet served. But that leads to abuse, and conflicts with the core purpose of the statute, which was to stop removal in diversity cases when it wasn't needed because the defendant resides there anyway. So, for someone like me, the proper way to resolve cases like that are to interpret the statute consistent with its clear purpose, and to say that you're only an "unserved" party for purpose of that provision if you're unserved because you're basically a sham party added to prevent removal. Which categorically wouldn't be the case where, as here, you're the ONLY defendant, and the only reason you're not yet served is because you removed the case before the plaintiff even had a practical chance to serve you. Problem solved, IMHO, and justice advanced.
But that's not what textualists -- or other circuits -- have done. To society's detriment, I believe.
But that's an issue for another day. For now, at least, "super" snap removal isn't permitted. And, maybe, one of these days we'll stop "regular" snap removal as well.
Or maybe not.
Regardless, in the meantime, take advantage of the rules, and pay attention to what lawsuits (if any) are filed against you. And promptly remove them before you're served.
Just wait until the thing is actually officially "accepted".
P.S. - I also agreed with Judge Callahan's concluding decision to have both sides bear their own costs. That's entirely equitable as well, I think, given the complexity of the underlying issues. Well done.
