The key litigated issue in Swindell-Filiaggi was whether removal was proper where the out-of-state defendant removed the action before the plaintiff served the in-state defendant. Under the forum defendant rule, removal of a diversity jurisdiction case is improper if an in-state defendant is "properly joined and served" (28 U.S.C. § 1441(b)(2)). The Eastern District of Pennsylvania is divided on whether this requirement should be read literally to allow the defendants to successfully remove a case by filing a notice of removal before the plaintiff has an opportunity to serve the in-state defendant.

On December 12, 2012, the plaintiffs, citizens of New Jersey, filed a complaint in Philadelphia County's Court of Common Pleas after suffering alleged injuries from a leak of vinyl chloride monomer (a known human carcinogen). The complaint named as defendants CSX Corporation (CSX), a citizen of Virginia and Florida, and Conrail, a citizen of Pennsylvania. The plaintiffs e-mailed a courtesy copy of the complaint to Conrail's counsel on the day it was filed. The following day, before the plaintiffs had an opportunity to serve either defendant, CSX filed a notice of removal. Several hours after CSX filed the notice of removal, Conrail waived service. The plaintiffs then moved to remand the action to state court on the basis of the forum defendant rule because Conrail, the in-state defendant, had been properly served with the complaint.

On February 8, 2013, the court issued an opinion remanding the action to state court. Unlike several previous decisions in the Eastern District of Pennsylvania, the court declined to read the "properly joined and served" requirement of the forum defendant rule literally. Under the plain meaning of the rule, an out-of-state defendant could successfully remove a case to federal court when it has the "technical wherewithal to file for removal before the plaintiff can effectuate service" of an in-state defendant. The court found that this result is absurd and instead looked to the purpose of the removal statute, which is to limit the ability of defendants to remove cases to federal court. Additionally, several courts have recognized that the forum defendant rule is designed to prevent a plaintiff from blocking removal by joining a citizen of the forum state as a defendant when the plaintiff has no intent to serve or proceed against the in-state defendant.

The court granted plaintiff's motion to remand and held that removal was improper under the forum defendant rule because Conrail is a citizen of Pennsylvania and was properly served on the same day that CSX filed for removal. The court also denied the defendants' request for a stay, which deprived them of an opportunity to appeal the issue because the Third Circuit loses jurisdiction to hear the appeal once the remand order is sent to state court.

While the Eastern District of Pennsylvania remains split on whether the forum defendant rule should be read literally, according to the Swindell-Filiaggi court, the "weight of authority" in the district does not follow the plain meaning of the forum defendant rule. Accordingly, parties seeking to remove an action to the Eastern District of Pennsylvania before the plaintiff has had an opportunity to serve an in-state defendant should be aware that this attempt may be unsuccessful.