Deposition Testimony Is Not “A Pleading, Motion, Order or Other Paper” for Removal Purposes Under 28 U.S.C. § 1446(b)(3) Holds Ninth Circuit, Splitting with the Tenth Circuit

In Dietrich v. The Boeing Co., No. 19-56409 (9th Cir. Oct. 1, 2021), the Ninth Circuit aligns itself with other circuits in holding that the removal section 28 U.S.C. § 1446(b)(3) is triggered by the filing or service of “an amended pleading, motion, order or other paper” that discloses an “unequivocally clear and certain” basis for removal jurisdiction, not merely by the defendant learning of facts in discovery that could support removal. Yet the Ninth Circuit splits with the Tenth Circuit in further holding that a deposition is not such a “paper.”

When a complaint filed in state court facially states a basis for federal jurisdiction, the defendants must file a removal petition within 30 days of receiving that pleading. 28 U.S.C. § 1446(b)(1). But in cases where the basis of federal jurisdiction is not evident on the face of the complaint, 28 U.S.C. § 1446(b)(3) provides that if a “a notice of removal may be filed within 30 days after receipt by the defendant . . . of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.”

This case involved a state-court tort action “alleging that [plaintiff Dietrich’s] father and husband worked with asbestos-containing products manufactured and/or supplied by the defendants, resulting in her own exposure to asbestos when she washed their clothes, rode in their cars, or cleaned the house.” The complaint did not allege that the male relatives were exposed to asbestos in the U.S. military, which created a basis for federal-court jurisdiction under the federal officer removal statute, 28 U.S.C. § 1442.

Defendants were first served with a paper—amended interrogatory answers that expressly disclosed the military connection—that supported removal on April 19, 2019, and they removed twenty-seven days. But the plaintiff insisted that the 30 days was triggered earlier by “Dietrich’s children’s depositions, which were taken on April 8–10, 2019,” where it was first unambiguously disclosed that the asbestos exposure happened in the military. The district court agreed that the children’s testimony afforded “’ample’ information to remove ‘certainly prior to April 16, 2019,’” and ordered the case remanded to state court.

The Ninth Circuit reverses. The panel first holds, consistent with Fifth and Tenth Circuits (and arguably other circuits as well), that under § 1446(b)(3) a “paper” must be “unequivocally clear and certain” about the basis for federal jurisdiction. The requirement of clarity will “bring[] certainty and predictability to the process” of removals, “avoid[] gamesmanship in pleading,” and “avoid[] the spect[er] of inevitable collateral litigation over whether the [amended pleading, motion, order or other paper] contained a sufficient ‘clue,’ whether defendant had subjective knowledge, or whether defendant conducted sufficient inquiry” (quoting Harris v. Bankers Life & Casualty Co., 425 F.3d 689 (9th Cir. 2005)).

“Here, Boeing’s removal was timely, as no ground for removal was unequivocally clear and certain until after April 16, 2019. Dietrich served her amended responses to Boeing’s discovery requests on April 19, 2019. Those responses clearly stated: ‘CONNIE DIETRICH was exposed to asbestos fibers, particles and/or dust through her now deceased husband’s exposure to asbestos-containing components of BOEING’S aircraft . . . during Mr. DIETRICH’S time in the United States Marine [Corps].’ Before April 19, 2019, all the information available to Boeing was ambiguous or misleading as to whether Dietrich’s claims against Boeing were related to her husband’s service in the military.”

Regarding the children’s testimony, “even if Dietrich’s children’s depositions did affirmatively reveal a federal officer ground for removal, Boeing’s removal was timely unless it received the deposition transcripts on or before April 15, 2019. Clearly Boeing did not, because the court reporter did not even certify the transcripts until April 17, 2019, and April 23, 2019.” (Emphasis in original.)

It splits with the Tenth Circuit on whether deposition testimony can constitute a “paper” under § 1446(b)(3). “The Tenth Circuit has held that ‘the removal period commences with the giving of the [deposition] testimony, not the receipt of the transcript.’ Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d 1072, 1078 (10th Cir. 1999). We reject that interpretation as plainly inconsistent with § 1446(b)(3)’s requirement of ‘a pleading, motion, order or other paper.’ (Emphasis added).”

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