By The Law Offices of John Day, P.C. on Dec 15, 2021 07:10 am
The Fifth Circuit Court of Appeals has ruled that a defendant in a state court lawsuit served with process can immediately remove to federal court before the in-state defendants are served and the federal court will assume control of the for the out-of-state party (ies). The decision is Texas Brine Company, L.L.C. v. American Arbitration Association. Thus, a plaintiff filing an action in state court with both in-state and out-of-state defendants and who is attempting to avoid federal court will want to promptly serve at least one in-state defendant. The word on the street is that some out-of-state defendants are monitoring state court filings and will immediately remove a case before they are served and any in-state defendant is served. (This practice was criticized in Bowman v. PHH Mortgage Co.; the Bowman court required that one least one defendant needed to be properly served and joined before removal could properly take place.) Continue reading
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