The California Appellate Law Podcast

What to know about “snap” and “super snap” removals

• Tim Kowal & Jeff Lewis • Season 1 • Episode 128

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Are you expecting a lawsuit? And do you want to get that lawsuit into federal court? If your client is domiciled in California, you need to know about “snap removals.” If you get wind of the lawsuit before it is served, you might be able to defeat the removal-bar on home-state defendants.

But don’t commit a “super snap” removal. That’s when you remove before the complaint is officially filed. The 9th Circuit just rejected those.

We discuss Casola v. Dexcom, Inc., and how to learn about lawsuits before they are even filed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Announcer  0:03 
welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis,

Jeff Lewis  0:17  
welcome everyone. I am Jeff Lewis

Tim Kowal  0:19 
and I'm Tim Kowal. Both Jeff and I are certified appellate specialists, and as uncertified podcast co hosts, we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice as always. If you find this podcast helpful, please recommend it to a colleague, and if you don't find it helpful, recommend it to your opposing counsel. Okay, one more, one more case this week, Jeff, that I thought would be kind of a groundbreaker for our audience. It had some terms that I was not aware of. Tell us about this cola case. Jeff, yeah, first

Jeff Lewis  0:50  
of all, this will be of huge interest to those who practice in the Ninth Circuit more than the state court. So Corey Webster, turn up your volume. And Frank Campbell, turn down the volume on this podcast. You know, I do a lot of anti slap cases. I'm familiar with terms like slap, anti slap and slap back. This week, I learned new terms I'd never heard before, snap, super snap and a snapback, in terms of the interplay of removal and remand between the state courts and the federal court. So let me talk to you about the Casola V Dexcom decision coming out of the ninth circuit on April 10, a snap and a super snap refer to tactics used by a defendant to remove a case from state court to the federal court before the lawsuit is served in the case of a snap, or in some cases, before the Clerk of the Court has even processed a complaint and issued a summons, which is known as a super snap, and it's a proposed legislation to address these problems that's pending before Congress to allow a remand motion of these kind of snaps, and that's called a snap back doesn't exist yet.

Tim Kowal  1:55  
And this and before this, before I read this case, Jeff, I wasn't aware of any of these things. I didn't I didn't know there were people out there with their ear to the ground to see if there had been a case filed but not yet served on my client. Yeah. One of the interesting

Jeff Lewis  2:09  
side notes of this case is discusses a subscription service by a courthouse news, a free plug for them by the Ninth Circuit, where you could be alerted to case filing and have an email delivered to your box with a copy of the complaint, even before the clerk had done its thing in terms of processing and stamping it and issuing a summons. In particular, genesis of this case was a filing on a Wednesday of Thanksgiving of a complaint. It was presented for filing electronically, but it wasn't processed before the following Monday after Thanksgiving. Yeah,

Tim Kowal  2:39  
we're all familiar with that situation where you, you file a motion or a pleading and you're you're waiting. You kept checking in with your paralegal or your filing clerk and ask, did we, did we get the conformed copy back? Did the clerk file it and you're waiting with bated breath to see if it gets filed timely, or if it's kicked for some technical reason? Yeah.

Jeff Lewis  3:00  
I, you know, you and I have talked in other podcasts about waiting for notices of appeal to be processed, especially in the Orange County Superior Court, although I will say somebody fixed something down there, because things are really moving a lot quicker. In my experience, in the Orange County Superior Court, you're not waiting as long for documents to be processed.

Tim Kowal  3:18 
Yeah. So in this case, there was a there was a complaint that was e filed, but it was several days actually before it was actually filed, and then this courthouse News Service, I wasn't aware there was such a service that that could basically intercept or they could they had access to files, complaints or other filings that had been e filed but not yet made their way to the official court record.

Jeff Lewis  3:44 
You know, and I am familiar with the services that give you a heads up on case names, case filings with names of the parties. I wasn't prior to reading this decision, aware of the service that actually gives you a copy of the unconformed or pre conformed copy of the pleading that's been presented electronically.

Tim Kowal  3:58  
It seemed like there was pre existing litigation. This was a this was one in a saga of litigation. So Council were aware they were anticipating there was going to be a new lawsuit filed, and so they either got a subscription to courthouse news service or already had a subscription and were watching and waiting for this state court complaint to be E filed. Yeah, yeah.

Jeff Lewis  4:21 
And by the way, this whole process snap removal and super snap removal is to do an end run around something called the forum defendant rule. You know, there's a limit on the types of cases that could be removed from state court to federal court, that if any of the parties are properly joined and served as defendants happen to be citizens of the forum state you run afoul of the forum defendant rule and removal is no longer an option. So to get around that barrier to removal, some savvy firms employ the either snapback or super snapback procedure. In this particular case, the Ninth Circuit ruled on the Super. Snap removal that it's not proper media

Tim Kowal  5:04  
super Snap is not available, but it's still, it's still not certain whether you can do the snap removal. And again, Jeff, when you went over this rule of the Home Rule, was it the home defendant rule, I had a flashback to I remember that was on one of my Civ pro flash cards when studying for my civil procedure exam back in Law School, the home defendant rule. So I had a that came flooding back that that there is still, there's federal diversity jurisdiction for this, for this case, but removal under the removal statute is not available when the when the defendant is in his or her or its home state, right, right? I

Jeff Lewis  5:46 
guess we should have had a trigger warning at the beginning of this podcast that this might bring back terrible emotions for those studying for the bar in terms of civil procedure. But yeah, so ultimately, look the Ninth Circuit ruled when a complaint is presented to a clerk, but the clerk hasn't done their thing in terms of the stamping and processing. You can't take advantage of the snap procedure and affect a super snap. The Ninth Circuit in its footnote one dodged the question that did not decide whether a normal snap, an unsuper Snap, removal that occurs after filing but before service, is appropriate. Other circuits have ruled on this issue. The 10th Circuit, I believe, for bids snap removals, and the third, the second, third and fifth do allow for SNAP removals. And I guess it's unknown whether the Ninth Circuit will approve or not of this process. And I should also note that in 2020 Congress was considering an act called the the removal jurisdiction clarification act of 2020 which would, if it had passed, introduce a snapback provision, which would authorize the filing of remand motions in certain snap cases if they're timely made.

Tim Kowal  6:57 
Well, let's, let's go back over that, when you mentioned that that was the 10th and third or you said 10th Circuit forbids snap removals. But again, the ninth circuit here didn't get to the question of SNAP removals. Remember, the difference is that in this case, the complaint was e filed, but it was not yet actually filed by the time the defendant, the home state defendant, filed the notice of removal. So at that point, you've got a a notice of removal in district court seeking to remove a state court filing that the state court records the state courts have no record of. Yeah,

Jeff Lewis  7:36  
and the key here is, when you're filing your notice of removal, you have to attach a copy of the state court pleadings. If you don't have a state court pleading that has a stamp on it because the stamp hasn't been affixed by the clerk, you're going to run a file the super snap rule. One of

Tim Kowal  7:50 
the interesting tidbits about this case is that the notice of removal, instead of giving a superior court case number of the state court case, it gave the courthouse news reference number, indicating that it had not been accepted as filed by in the state court and again. And just to clarify, for those who may be puzzling, what you know, what is, what is the significance of filing and service on the removal procedure? And it's under, under 28 USC, 1441, which is the removal statute. Subdivision b2 says that the that home defendant. You know, the rule that that home defendants may not remove applies to defendants who have been served. So that's the textual element there that well, if I'm a defendant on a filed case, but I haven't yet been served, then I could, I have this small window where I can file a notice of removal, but as soon as I'm served, then I'm hosed because under 1441, b2 then I become a served home state defendant who cannot file a notice of removal. So that's that's this split of the circuit split on the on the snap procedure that you know the, I guess the 10th Circuit. Did you say the 10th Circuit allows, oh no, forbids it, but the second, third and fifth circuits are apparently more textualist and say, well, 1441, only applies to a home state defendant who has been served. And so if it's been filed but not yet served, then you have a narrow window to file a notice of removal. So the but the Ninth Circuit didn't get there, because it has to at least be filed first. That's the threshold. Issue is it has to be filed at a minimum. You can't take a notice of removal of a case that hasn't been filed. And the Ninth Circuit said, well, there are different definitions of filed. If there is a statute of limitations issue and you're trying to get to the courthouse to beat the statute of limitations, you're filing it on the last day. Then if the clerk takes, you know, a day, two days a week to get around to officially filing it, you're okay, presumably for statute of limitations purposes, but for removal purposes specifically. Under this 28 USC, 1441, for the the home rule, the home state defendant who has not been, not been served, that applies only to lawsuits that have been actually filed as an officially processed as filed. Yeah,

Jeff Lewis  10:16 
you know one final footnote I'll put on this case discussion, and that is, there's a reason that you and I haven't heard about this procedure and why it's not tested on the State Bar, and that is in looking at some legal commentators who have commented on this proposed bill before Congress. It rarely comes up. There's a very small segment of the bar, in a very small segment of cases that employ this snap procedure. And so some commentators have suggested that maybe this is a solution in search of a problem.

Tim Kowal  10:44 
Well, yeah, but this, in this case, as we as we noted the the defendant's attorneys were anticipating this lawsuit being filed in state court. Apparently, they very much wanted it in federal court, and knew that they couldn't do it because their defendant was was domiciled in California and would be barred from removal under the home state defendant rule, at least, and at least after their client was served. And so they wanted to make sure that they filed that notice of removal before it was before their defendant was served. And in these days of, you know, in this, that type of case, obviously would be, it would be difficult, you know where, you know who's who's where the parties can be found, right, right? Okay, so that we just want to get in and out with that important case. If you practice in in federal court and are looking to get your cases, let me get your, your clients, cases removed to federal court. You want to be aware of SNAP removals, super snap removals, and and the legislative proposal. What is it to snap back? The snap back? Okay, right. All right,

Jeff Lewis  11:49 
yeah, I think that's going to do it for today. If you have any suggestions for us or future episodes, or you want to mail Tim some sugar super snap peas, he would enjoy eating those each week we cover issues to lay the groundwork for an appeal when preparing for trial, and that's it for today.

Tim Kowal  12:05 
Yep, yep.

Announcer  12:06  
We'll see you next time you have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode our hosts and other episodes visit the California appellate law podcast website at c a l podcast.com that's c a l podcast.com thanks to Jonathan Caro for our intro music. Thank you for listening, and Please join us again. You