The plaintiff filed a complaint in state court. It did not assert any federal claims, and the parties were not diverse. The defendant answered and the parties started discovery, during which a previously unknown basis for federal subject matter jurisdiction surfaced. The 30-day deadline for removal after the initial pleading had long passed. Is it too late for the defendant to remove the case to federal court? Maybe not.
A federal court does not have power to adjudicate a case unless there is either federal question jurisdiction or diversity jurisdiction. Federal question jurisdiction exists when the lawsuit presents an issue arising from an alleged violation of a federal law, a treaty, or the U.S. Constitution. Diversity jurisdiction, as codified in 28 U.S.C. § 1332, exists when the parties on either side of the dispute are citizens of different states and the amount in controversy exceeds $75,000. As most of us learned on our first day of law school, the parties cannot waive subject matter jurisdiction.
State courts, on the other hand, are courts of general jurisdiction and can hear all manner of cases. As a result, plaintiffs frequently file cases in state court that could be heard in federal court. The myriad strategic reasons for a plaintiff to do so are beyond the scope of this discussion. The important point here is that when federal jurisdiction otherwise exists over the plaintiff’s claims, 28 U.S.C. § 1441, the federal removal statute, permits defendants to remove the case from state court to a federal court with original jurisdiction. The rules governing removal provide very specific time limits, and a removing defendant bears the burden of proving that removal is proper and that the requirements of federal jurisdiction are met.
The procedures for removing a civil action are set out in 28 U.S.C. § 1446. Under 28 U.S.C. § 1446(b)(1), a defendant seeking to remove a case from state court must file a notice of removal in the district court for the district and division where the case is pending. The notice, along with all “process, pleadings and orders” with which the defendant has been served, must be filed within 30 days after receipt of the initial pleading or within 30 days after service of the summons. But section 1446 recognizes that a basis for removal may not be readily evident in the initial pleading and provides a second 30-day period when the case can become removable after service of the initial pleading.
Section 1446(b)(3) permits a defendant to file a notice of removal within “thirty 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.” The U.S. Court of Appeals for the Ninth Circuit recently addressed this second pathway for removal in Deitrich v. Boeing.
The plaintiff in Dietrich was diagnosed with malignant mesothelioma caused by exposure to asbestos. In her October 2018 complaint, she alleged that she had been exposed to asbestos her husband brought home from his work at Boeing. The complaint did not allege that her husband had also been exposed to asbestos while in the military. The plaintiff’s initial interrogatory responses also indicated that her claims against Boeing arose from her husband’s civilian work with Boeing. But in April 2019, approximately seven months after she filed her complaint, the plaintiff for the first time indicated in amended discovery responses that she had been exposed to asbestos through her husband’s work on Boeing aircraft while he was a U.S. marine. Boeing removed the case to federal court 27 days later under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). The district court, however, found that removal was untimely under 28 U.S.C. § 1446(b) and granted the plaintiff’s motion to remand the case.
On appeal, the Ninth Circuit first noted that section 1446 provides two distinct 30-day time frames for removal. When the predicate for removal is apparent in the complaint, the removal clock starts to run from the date the defendant received the initial pleading. When a basis for removal is not immediately apparent in the complaint, a second removal window runs for 30 days from the defendant’s receipt of an “amended pleading, motion, order or other paper from which it may be first ascertained” that the case is removable.
The Dietrich parties spent 19 months locked in collateral litigation over whether the basis for removal articulated in the plaintiff’s amended discovery responses was sufficiently evident to trigger the second removal clock under 28 U.S.C. § 1446(b)(3). The appellate court emphasized the need to articulate a bright-line standard and held that the second removal clock does not start until a paper makes a ground for removal “unequivocally clear and certain.” On that basis, the circuit court found that Boeing’s removal after receipt of the plaintiff’s amended discovery responses, which disclosed her husband’s asbestos exposure during this military service as the predicate for her asbestos claims, was timely.
The Ninth Circuit reversed the district court order remanding the case to state court and also reversed an award of attorney fees to the plaintiff.
The “other paper” that formed the basis for triggering the later removal period in Dietrich, an amended discovery response, is not likely to arise often. But discovery responses are among a variety of documents, including deposition transcripts, post-complaint settlement demand letters, and even an email attaching a proposed nominal party agreement, that courts have found sufficient to commence the section 1446(b)(3) period for filing a notice of removal. Other items, such as a declaration drafted entirely by a defendant, an intervening Supreme Court decision in an unrelated case, and oral communications, have been deemed not to qualify as “other papers” sufficient to commence a second removal period.
Timeliness is crucial. The statutory time limits for removal are mandatory, and the rules are construed against conferring federal jurisdiction. That said, Dietrich illustrates that the availability of federal jurisdiction can be a dynamic factor in civil litigation—one that can change as the case develops well after the pleadings are “set.” Often, lawyers will think about removal only at the earliest stages of the case. This may be a mistake. The possibility of removal should remain top of mind.
Even when a basis for removal is not immediately apparent on the face of a complaint, for defendants who would prefer to litigate their case in federal court, it is important to carefully review every subsequent paper, including discovery responses (and even, as in Dietrich, amended discovery responses), motions, and declarations, to promptly identify when an “amended pleading, motion, order or other paper” makes it “unequivocally clear and certain” that removal is appropriate. The clock begins to run from the date the defendant receives that document, and he or she will only have 30 days to serve a notice of removal. Do not let time run out. Review every filing, order, and discovery response with an eye toward determining whether there may be a newly revealed basis for federal jurisdiction. If one appears, act promptly.
