Curtis Morgan v. Dow Chemical Company , 879 F.3d 602 ( 2018 )

Case: 17-30523 Document: 00514303847 Page: 1 Date Filed: 01/11/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-30523 FILED
January 11, 2018
Lyle W. Cayce
Clerk
CURTIS D. MORGAN,
Plaintiff–Appellee,
versus
HUNTINGTON INGALLS, INCORPORATED,
Formerly Known as Northrup Grumman Ship Systems, Incorporated;
J. MELTON GARRETT; ALBERT BOSSIER; LAMORAK INSURANCE CO.;
MURPHY OIL USA, INCORPORATED,
Defendants–Appellants.
Appeals from the United States District Court
for the Middle District of Louisiana
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Defendants Huntington Ingalls, Incorporated (“Huntington Ingalls”),
J. Melton Garrett, Albert Bossier, Lamorak Insurance Company, and Murphy
Oil USA, Incorporated (“Murphy Oil”), appeal an order of remand in which the
district court found removal untimely under 28 U.S.C. § 1446(b)(3).
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Defendants contend that removal was timely instituted within thirty days of
receipt of a deposition transcript indicating the case might be removable under
28 U.S.C. § 1442(a)(1). Plaintiff Curtis Morgan challenges Murphy Oil’s stand-
ing to appeal. Because the removal clock began on receipt of the deposition
transcript, we vacate the order and remand to the district court for consid-
eration of whether Huntington Ingalls meets the substantive requirements for
federal officer jurisdiction. We dismiss Murphy Oil’s appeal for want of
standing.
I.
Morgan, a “sheet metal tacker” for Avondale Shipyards 1 in 1966, alleges
that his employment exposed him to asbestos and resulted in his contracting
asbestos-related mesothelioma among other health problems. On February 23,
2017, Morgan sued seventy-eight defendants, including Huntington Ingalls,
former alleged executive officers and insurers of Avondale Shipyards, 2 and
Murphy Oil in state court under theories of negligence and strict liability. His
pleading did not identify any vessels on which he worked.
Morgan was deposed during eight days from March 9 to April 13, 2017.
Avondale specifically questioned him on two days (March 10 and 20). Morgan
stated that he worked at Avondale’s main yard and on one vessel, a Lykes
vessel. He did not remember working on any other vessel. On March 20, Avon-
dale’s lawyer questioned Morgan about working on the USS Huntsville, 3 but
1 Avondale’s formal identity is Huntington Ingalls Incorporated—formally known as
Northrup Grumman Shipbuilding Inc., Northrup Grumman Ship Systems, Inc., Avondale
Industries, Inc., Avondale Shipyards, Inc., and Avondale Marine Ways, Inc.
2 Consistent with the briefs, we hereinafter refer to these parties and Avondale
Shipyards collectively as “Avondale.”
3 The USS Huntsville was converted in the mid-1960s to support NASA’s Apollo
manned missions to the moon. The Navy hired Ling-Temco-Vaught Inc. for the “design,
preparation of working plans and other data, modification, renovation, and repair” of the
2
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Morgan could not remember the ship. Avondale showed Morgan medical
records indicating he had allegedly worked and been injured on the USS
Huntsville during his employment. Morgan reiterated that he could not
remember the ship. “But if the records indicate that [he] had those injuries
aboard the HUNTSVILLE, [he] would agree that [he] worked on the
HUNTSVILLE[.]”
On March 28, 2017, Avondale received a link to the deposition transcript.
It removed the case on April 27, 2017, which was 30 days after receipt of the
transcript but 38 days after the relevant testimony. The basis for the removal
was the federal officer removal statute, 28 U.S.C. § 1442, which allows removal
of state cases commenced against
[t]he United States or any agency thereof or any officer . . . of the United
States or of any agency thereof, in an official or individual capacity, for
or relating to any act under color of such office or on account of any
right, title or authority claimed under any Act of Congress for the ap-
prehension or punishment of criminals or the collection of the revenue.
§ 1442(a)(1).
Morgan contested removal as untimely under § 1446(b)(3) and claimed
that the court “lack[ed] federal subject matter jurisdiction under [the federal
officer removal statute].” The district court agreed removal was untimely. It
determined that section 1446’s removal clock began running on the date of the
relevant oral testimony. Because removal was untimely, the court remanded
and did “not decide whether the[ ] substantive requirements of § 1442 ha[d]
been met.”
Avondale and Murphy Oil appeal. Morgan moved to dismiss Murphy
Oil’s appeal, contending that it lacks standing to appeal. We expedited the
ship. Avondale was in turn hired as a subcontractor for the “design, . . . modification,
renovation, and repair . . . , outfitting and delivery of” the ship.
3
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appeal because of Morgan’s ill health, but he died September 14, 2017.
II.
It makes little practical difference whether Murphy Oil has standing to
appeal. Avondale’s standing to appeal is not questioned, so we will still reach
the issue of whether the deposition testimony or transcript starts the removal
clock. If the case is removable by Avondale, the entire case will be deemed
removable, such that Morgan’s claims against all other defendants, including
Murphy Oil, will be heard in federal court as well. 4
But, “Article III standing implicates the federal judiciary’s power to
adjudicate disputes [so] it can be neither waived nor assumed.” Rohm & Hass
Texas, Inc. v. Ortiz Bros. Insulation, Inc., 32 F.3d 205, 207 (5th Cir. 1994)
(footnote omitted). “Merely because a party appears in the district court
proceedings does not mean that the party automatically has standing to appeal
the judgment rendered by that court.” 5 A defendant must meet both consti-
tutional and prudential standing requirements. 6
“[T]he irreducible constitutional minimum of standing contains three
elements[:]” (1) “[T]he plaintiff must have suffered an ‘injury in fact’—an inva-
sion of a legally protected interest which is (a) concrete and particularized and
4 See Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 463 (5th Cir. 2016) (“[R]emoval
of the entire case is appropriate so long as a single claim satisfies the federal officer removal
statute.”) (citing 14C WRIGHT & MILLER, FED. PRAC. & PROC. Juris. § 3726 (4th ed.) (“Section
1442(a)(1) authorizes removal of the entire case even if only one of the controversies it raises
involves a federal officer or agency.”)).
5 Rohm & Hass, 32 F.3d at 208. (“[A] party generally may not appeal a district court’s
order to champion the rights of another, and even ‘[a]n indirect financial stake in another
party’s claims is insufficient to create standing on appeal.’”) (quoting Morrison-Knudsen Co.
v. CHG Int’l, Inc., 811 F.2d 1209, 1214 (9th Cir. 1987)) (alterations in original).
6 Bennett v. Spear, 520 U.S. 154, 162 (1997) (“The question of standing ‘involves both
constitutional limitations on federal-court jurisdiction and prudential limitations on its
exercise.’”) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).
4
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(b) ‘actual or imminent, not “conjectural” or “hypothetical”’”; (2) “there must be
a causal connection between the injury and the conduct complained of”; and
(3) “it must be ‘likely,’ . . . that the injury will be ‘redressed by a favorable deci-
sion.’” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (citations
omitted). Murphy Oil has the burden to establish standing. In re Deepwater
Horizon, 857 F.3d 246, 253 (5th Cir. 2017).
Murphy Oil points to no sufficient “injury in fact.” The primary injury it
alleges is “a procedural right to remove cases within thirty days of receipt of a
deposition transcript.” Because it “has, in fact, litigated [this] issue . . . in other
personal injury litigation” and “consistently faces situations where a case is
potentially removable upon close review of the deposition transcript,” Murphy
Oil believes that “[t]he district court’s ruling . . . impinges on Murphy’s
procedural removal rights.” That is a speculative grievance well short of a
concrete injury. See Defs. of Wildlife, 504 U.S. at 560. The hypothetical
potential to confront this issue in future possible litigation with different
plaintiffs is too conjectural to constitute an injury in fact. 7
Further, Murphy Oil “cannot satisfy the demands of Article III by alleg-
ing a bare procedural violation.” Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1550
(2016). It must also show “some concrete interest that is affected by the depri-
vation.” Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009); accord
Spokeo, 136 S. Ct. at 1549. Murphy Oil asserts that it “maintains an interest
in a federal forum for this and other, future removable litigation,” such that
“the District Court’s remand has now deprived Murphy of its preferred forum.”
But, Murphy Oil itself has no right to be in federal court in the first place. Only
Avondale, its co-defendant, can invoke the federal officer removal statute. Had
See Rohm & Hass, 32 F.3d at 211 (finding “greater potential liability should [defen-
7
dant] ever file for bankruptcy” too “attenuated” to satisfy Article III).
5
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Avondale not chosen to remove, Murphy Oil could not have asserted federal
officer jurisdiction on Avondale’s behalf. Congress granted the right to remove
under § 1442 to only certain classes of defendants, none of which includes
Murphy Oil. 8 A generalized desire to litigate in federal court, without holding
a corresponding right to be in federal court in the first place, is insufficient to
satisfy the injury-in-fact prong of Article III. Murphy Oil experienced no
concrete and particularized injury sufficient to satisfy the injury-in-fact prong
of Article III, so its appeal is dismissed for lack of jurisdiction.
III.
A.
A remand order “is not reviewable on appeal or otherwise, except that an
order remanding a case to the State court from which it was removed pursuant
to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.”
28 U.S.C. § 1447(d) (emphasis added). Avondale removed under § 1442(a)(1),
so we have appellate jurisdiction. 9
We review a remand order de novo. Preston v. Tenet Healthsystem Mem’l
Med. Ctr., Inc., 485 F.3d 793, 796 (5th Cir. 2007). In cases involving § 1442,
the remand order is reviewed “without a thumb on the remand side of the
scale.” 10
8 See 28 U.S.C. § 1442(a) (“A civil action or criminal prosecution that is commenced in
a State court and that is against or directed to any of the following may be removed by them
. . . .”) (emphasis added).
9 See Decatur Hosp. Auth. v. Aetna Health Inc., 854 F.3d 292, 295–96 (5th Cir. 2017)
(noting that although “we ordinarily lack jurisdiction to review a remand order based on [ ] a
defect [in removal procedure] . . . the fact that [defendant] relied upon the federal officer
removal statute in its notice of removal permits appellate review.”).
10 Decatur, 854 F.3d at 295 (quoting Savoie, 817 F.3d at 462); see also Durham v. Lock-
heed Martin Corp., 445 F.3d 1247, 1253 (9th Cir. 2006) (“[W]here the timeliness of a federal
officer’s removal is at issue, we extend section 1442’s liberal interpretation to section 1446.”).
6
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Section 1446(b)(1) permits removal “30 days after the receipt by the
defendant, through service or otherwise, of a copy of the initial pleading setting
forth the claim for relief.” “[I]f the case stated by the initial pleading is not
removable,” a defendant can also remove “within 30 days after receipt . . . 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.”
§ 1446(b)(3). Avondale removed under the latter provision, claiming that the
transcript of Morgan’s deposition is “other paper” from which it was able to
ascertain that the case was removable under the federal officer statute.
B.
Though this court has not yet confronted the precise question whether
oral testimony at a deposition is “other paper” within the meaning of
§ 1446(b)(3), we have held that “a transcript of the deposition testimony is
‘other paper.’” S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir.
1996). Thus, in this case, we review only whether oral deposition testimony
can constitute other paper, and if so, whether the testimony or the transcript
started the removal clock in this instance. 11
C.
The plain meaning of, purpose of, and policy considerations behind
§ 1446(b) all support the conclusion that oral testimony at a deposition does
not constitute “other paper.” “[I]n any case requiring statutory construction,
11 Morgan cites our unpublished decision in Ameen v. Merck & Co., 226 F. App’x 363
(5th Cir. 2007), for support that oral testimony can be “other paper.” There, we cited S.W.S.
Erectors, for the proposition that a deposition was an “other paper.” We found “removal [ ]
timely, as Appellees removed within 30 days of becoming aware that the case might be
removable.” Id. at 368. That case does not necessarily suggest that the removal clock was
triggered by the testimony, but only that removal was timely. To the extent Ameen can be
read to suggest that oral testimony triggers the removal clock, it is a nonbinding opinion and
a misreading of S.W.S. Erectors.
7
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the High Court has instructed us to adhere to the plain language of the law
. . . .” 12 Though “removal statutes are to be construed strictly against removal
and for remand[,] [t]his canon does not trump a plain language reading of the
statute’s terms.” 13
Except as provided in subsection (c), if the case stated by the initial
pleading is not removable, a notice of removal may be filed within 30
days after receipt by the defendant, through service or otherwise, 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.
§ 1446(b)(3) (emphasis added). 14
“[P]aper” is defined as “[a] written or printed document or instrument.”
BLACK’S LAW DICTIONARY 1266 (4th ed. 1951). 15 “[R]eceipt” is defined as the
“[a]ct of receiving; also, the fact of receiving or being received; that which is
received.” Id. at 1433. 16 “Copy” is defined as “[t]he transcript or double of an
original writing.” Id. at 405. “‘Ascertain’ means ‘to make certain, exact, or
precise’ or ‘to find out or learn with certainty.’” 17 Thus, “ascertain” requires “a
12 Chapman v. Powermatic, Inc., 969 F.2d 160, 164 (5th Cir. 1992) (alteration in orig-
inal) (quoting FDIC v. Meyerland Co. (In re Meyerland Co.), 960 F.2d 512, 516 (5th Cir. 1992)
(en banc)) (looking to the plain language of § 1446(b)).
13Bosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir. 2002) (footnotes omitted) (inter-
nal quotation marks omitted) (looking to the plain language of § 1446(b)).
14 Section 1446 was updated in December 2011 when Congress enacted the Federal
Courts Jurisdiction and Venue Clarification Act. Pub. L. No. 112-63, 125 Stat. 758 (2011).
There were, however, no substantive changes to the relevant portion of § 1446, only struc-
tural changes. H.R. Rep. No. 112-10, at 14 (2011) (“New paragraph 1446(b)(3) is essentially
the same as the text of the second paragraph of current subsection 1446(b), except that the
1-year limit on removal in diversity cases is made part of a new subsection . . . .”).
The relevant statutory language was first put into effect in 1949. The 1951 edition
15
of BLACK’S LAW DICTIONARY is the edition closest to the original statutory enactment.
16 “Receive” is similarly defined as “[t]o take into possession and control; accept cus-
tody of.” BLACK’S LAW DICTIONARY 1433 (4th ed. 1951).
17Bosky, 288 F.3d at 211 (quoting WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY
107 (1990)).
8
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greater level of certainty or that the facts supporting removability be stated
unequivocally.” Id. “[T]he information supporting removal in a copy of an
amended pleading, motion, order or other paper” under § 1446(b)(3) 18 “must be
‘unequivocally clear and certain’ to start the time limit running.” Id.
The plain meaning of each of these words suggests that the information
giving notice of removal must be contained in a writing. The defendant must
actually “receive” a “copy” of the pertinent information. To say that a defen-
dant receives a copy of the information upon oral testimony defies logic. The
definition of “paper” contemplates a written “document” or “instrument.” 19 The
definition of “copy” specifically states that the “double” must be in “writing.”
Oral testimony is not a written document or instrument. Further, as Bosky
explains, “ascertain” requires a high level of certainty. Although it is possible
that an oral deposition can provide such certainty, transcripts are often the
key that a court must use to evaluate disputes over whether the testimony
forms the basis for removal.
Moreover, under the ejusdem generis canon of statutory construction,
“other papers” should be read similarly to “amended pleading, motion, order.” 20
All three of those items are generally reduced to a writing—though not
always. 21 All, however, are modified by “a copy of,” which emphasizes the
18At the time of Bosky, § 1444(b) did not have subsections but was instead long para-
graphs. The 2011 amendment divided § 1444(b) into subsections but did not make a substan-
tive change.
19 An instrument is “[a] written document; a formal or legal document in writing, such
as a contract, deed, will, bond or lease. . . . A document or writing which gives formal expres-
sion to a legal act or agreement for the purpose of creating, securing, modifying, or terminat-
ing a right.” BLACK’S LAW DICTIONARY 941 (4th ed. 1951).
20 See Chapman, 969 F.2d at 164 (“[T]he recitation . . . of the words ‘amended pleading,
motion, order,’ before the words ‘or other paper[]’ [ ] clearly refer[s] to actions normally and
logically occurring after the filing of the initial pleading.”).
21 A pleading is a “formal written statement[] of accusation or defense presented by
9
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written nature of these three documents. 22
We comply with the plain language “unless ‘literal application of a stat-
ute will produce a result demonstrably at odds with the intentions of its
drafters.’” 23 The removal statute generally favors “reduc[ing] removals.” 24
But, “the purpose of the removal statute” is also “to encourage prompt resort
to federal court when a defendant first learns” of the facts supporting remova-
bility. Addo v. Globe Life & Acc. Ins. Co., 230 F.3d 759, 762 (5th Cir. 2000).
“[D]efendant[s] will be less likely to act on more equivocal information provided
in an ‘amended pleading, motion, order or other paper’ because such a ‘pro-
tective’ removal is no longer necessary to avoid the risk of losing [their] right
to removal by the lapse of time.” Bosky, 288 F.3d at 212. The two competing
goals of the removal statute are both to encourage prompt, proper removals
and to prevent hasty, improper removals.
It “promotes [both the purpose of § 1446 and] judicial economy” to
“reduce ‘protective’ removals by defendants” and “discourage removals before
the parties alternately in an action at law.” BLACK’S LAW DICTIONARY 1311 (4th ed. 1951).
A motion is “[p]rimarily an application for a rule or order made viva voce to a court or judge,
but the term is generally employed with reference to all such applications, whether written
or oral.” Id. at 1164. An order is “[a] mandate, precept; a command or direction authori-
tatively given; a rule or regulation. . . . Every direction of a court or judge made or entered
in writing, and not included in a judgment.” Id. at 1247.
22 Accord Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir. 1993) (explaining
that under § 1446(b) “[t]he thirty days is measured from receipt of whatever writing . . . con-
stitutes first notice.”). See also 14C WRIGHT & MILLER, FED. PRAC. & PROC. Juris. § 3731 (4th
ed.) (“Although the requisite notice of removability may be communicated to defendants in
either a formal or an informal manner, the communication should be in writing.”); Adam C.
Clanton, Uncertainty in Federal Removal Procedure: The Riddle of the “Other Paper,” 71 DEF.
COUNS. J. 388, 398 (2004) (explaining that the “plain meaning” of “other paper” cannot in-
clude an “oral deposition [as it] is neither written, nor is it printed”).
23 Chapman, 969 F.2d at 164 (quoting Meyerland, 960 F.2d at 516).
24 Bosky, 288 F.3d at 211–12 (explaining that “removal statutes are to be construed
strictly against removal and for remand”) (quoting Eastus v. Blue Bell Creameries, L.P.,
97 F.3d 100, 106 (5th Cir. 1996)).
10
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their factual basis can be proven by a preponderance of the evidence through
a simple and short statement.” Id. at 211. Here, if we were to require removal
on the day of the oral deposition, defendants are likely to remove immediately
upon any whiff that removal is proper and before having the chance to review
the record and confirm that they in fact can remove. 25 Thus, it promotes the
purpose of the statute to begin the removal clock on receipt of the transcript.
There are several policy considerations advanced by the parties and the
district court. Though all have merit, the considerations favoring the tran-
script approach are more persuasive. Morgan and the district court primarily
rely on the concern expressed in Huffman v. Saul Holdings Limited Partner-
ship, 194 F.3d 1072, 1078 (10th Cir. 1999), that “the date of receipt of a tran-
script may also be subject to manipulation,” given that “the applicable rule of
civil procedure does not provide a deadline for obtaining a transcript of a
deposition, see FED. R. CIV. P. 30(b)(2), (f)(2).” 26 Thus, theoretically defendants
25 Additionally, at the time of its enactment, various “methods of oral notification,”
such as “[d]epositions, telephone conversations and other oral testimony existed in the liti-
gation process.” Clanton, supra note 22, at 399. “Congress was quite capable of recognizing
the possible disconnect between deposition testimony and deposition transcripts and the
effects it would have on removal procedure when it . . . include[d] ‘other paper.’” Id.
26 The district court and Morgan also reference three cases in the Third, Sixth, and
Ninth Circuit as supporting the position that the removal clock begins on the date of the
deposition. None of those circuits, however, actually addressed the issue of deposition testi-
mony versus transcript. These cases are better characterized as standing for the general idea
that a deposition can constitute an “other paper” than for actually deciding whether the
defendant must remove within thirty days of the testimony or the transcript. See Papp v.
Fore-Kast Sales Co., 842 F.3d 805, 816 n.10 (3d Cir. 2016) (noting that the plaintiff “con-
cede[d] that answers to deposition questions ‘can constitute “other paper” for purposes of
triggering the time for removal.’”); Peters v. Lincoln Elec. Co., 285 F.3d 456, 465–66 (6th Cir.
2002) (citing S.W.S. Erectors for the proposition that “a plaintiff’s responses to deposition
questioning may constitute an ‘other paper’”); Carvalho v. Equifax Info. Serv., LLC, 629 F.3d
876, 886–87 (9th Cir. 2010) (“[A] plaintiff’s response to deposition questions can constitute
‘other paper’.”).
Moreover, these decisions are distinguishable. They involved removals within thirty
days of the deposition. See Papp, 842 F.3d at 816 n.10 (“As a result, the relevant date for
determining the timeliness of Boeing’s motion to remove was the September 5, 2013
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could delay ordering the transcripts and thus buy extra time. Based on that
policy concern, the Tenth Circuit held that “the removal period commences
with the giving of the testimony.” 27
But, Avondale contends that depositions often last months. 28 Requiring
counsel to file on the date of the oral testimony may involve filing before a
deposition is complete and all the relevant information is obtained. The length
and complexity of a deposition may thereby compel defendants to file more
protective removals.
deposition of Mary Papp, and Boeing’s October 4, 2013 filing was therefore timely.”); Peters,
285 F.3d at 466 (“Plaintiff does not dispute that Defendant Lincoln filed its Notice of Removal
of this case within 30 days of the date of his deposition.”); Carvalho, 629 F.3d at 887 (“[T]he
notice of removal was filed within thirty days of Carvalho’s deposition testimony.”).
Curiously, the opinions of the district court a quo and the Sixth Circuit in Peters rest
in part on a misquoting of our opinion in Addo. Specifically, the district court and the Sixth
Circuit represent that the following appears in Addo:
Holding that a plaintiff’s deposition testimony may be an “other paper” under
§ 1446(b) is consistent with the purpose of the removal statute to encourage prompt
resort to federal court when a defendant first learns that the plaintiff is alleging a
federal claim.
Peters, 285 F.3d at 466. But Addo says nothing about “deposition testimony.” Instead, the
issue was whether a post-complaint demand letter could constitute “other paper” under the
removal statute. See Addo, 230 F.3d at 761–62. Addo actually says, “Holding that a post-
complaint letter, which is not plainly a sham, may be ‘other paper’ under § 1446(b) is con-
sistent with the purpose of the removal statute . . . .” Id. at 762 (emphasis added) (footnote
omitted). Addo thus does not answer the question presented.
Morgan separately cites Atwell v. Boston Sci. Corp., 740 F.3d 1160 (8th Cir. 2013).
There, the Eighth Circuit quickly held that “oral statements, made at a court hearing and
later transcribed, like deposition testimony, satisfy § 1446(b)(3)’s ‘other paper’ requirement.”
Id. at 1162 (emphasis added). It noted, “The thirty-day time limit begins running when a
plaintiff ‘explicitly discloses’ she is seeking a remedy that affords a basis for federal juris-
diction.” Id. That opinion provides no reasoning, so to the extent it can be read as disagreeing
with our approach, it is unpersuasive.
27 Huffman, 194 F.3d at 1078. “[T]he notice of removal was untimely if [the] deposition
testimony provided sufficient notice that the amount in controversy exceeded the juris-
dictional minimum.” Id. at 1079.
28 For instance, in the instant case the pertinent deposition was taken over a period
of eight days during a one-month period.
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Additionally, a removing defendant bears the burden of pointing to the
evidence demonstrating that removal is proper. 29 Where a removal is based
on a statement made during the deposition, the transcript will often be used to
evidence the alleged statement. Thus, it is counterintuitive to start the clock
before obtaining the very evidence the defendant will rely on to support
removal. Even under the Tenth Circuit’s “notice” standard, it is likely that a
district court will need to sift through the deposition to determine whether the
answer was “clear and unequivocal” enough to trigger the thirty days. 30 The
main way to sift through the deposition will of course be to look at the tran-
script. In fact, that is exactly what Morgan does in his brief to show that
“Avondale was well aware of the implication of [Morgan’s] testimony with
respect to its planned removal.” Morgan devotes nearly two pages to combing
the transcript.
Our past cases concerning “other paper” suggest that these latter con-
cerns carry more weight. In S.W.S. Erectors, 72 F.3d at 491, along with the
deposition issue, we also addressed whether an affidavit created by the defen-
dant’s counsel alleging removable facts “learned during a telephone conver-
sation with [plaintiff’s] attorney” was an “other paper” starting the removal
clock. We rejected that contention, as “the defendant’s subjective knowledge
29 See Bosky, 288 F.3d at 211 (“It should also discourage removals before their factual
basis can be proven by a preponderance of the evidence through a simple and short statement
of the facts.”); § 1446(a) (“[D]efendants desiring to remove . . . shall file . . . a short and plain
statement of the grounds for removal . . . .”).
30 See Bosky, 288 F.3d at 211 (“[T]he information supporting removal in a copy of an
amended pleading, motion, order or other paper must be ‘unequivocally clear and certain’ to
start the time limit running.”); see also Cole ex rel. Ellis v. Knowledge Learning Corp.,
416 F. App’x 437, 440 (5th Cir. 2011) (explaining that “[a] discovery response may constitute
an ‘other paper’” where such response is “‘unequivocally clear and certain,’ so that defendant
may ascertain the action’s removability”).
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No. 17-30523
cannot convert a case into a removable action.” Id. at 494. 31 Thus, to remove,
a defendant needs more than his own averment in a removal petition that a
favorable answer was provided during a deposition. 32
Moreover, Bosky, 288 F.3d at 211, counsels against a rule that would
increase “protective” removals. 33 Though it is true that the Federal Rules do
not set a deadline for obtaining a transcript, that one negative policy implica-
tion is not enough to outweigh our precedent, the plain meaning of § 1446(b)(3),
and the contrary policy considerations. 34 “In short, a bright-line rule should
create a fairer environment for plaintiffs and defendants.” 35
We adopt a bright-line rule today: Section 1446(b)(3)’s removal clock
begins ticking upon receipt of the deposition transcript. Avondale thus timely
removed within thirty days of receiving the deposition transcript.
IV.
Morgan alternatively requests that we affirm the remand based on Avon-
dale’s failure to meet the substantive requirements of federal officer removal.
31See also Chapman, 969 F.2d at 163 (noting, in the context of § 1446(b)(1), that “[w]e
adopt this rule because we conclude that it promotes certainty and judicial efficiency by not
requiring courts to inquire into what a particular defendant may or may not subjectively
know”).
32See Addo, 230 F.3d at 762 (noting “our rule that ‘other paper’ must result from the
voluntary act of a plaintiff which gives the defendant notice of the changed circumstances
which now support federal jurisdiction.”).
33See also Chapman, 969 F.2d at 163 (adopting a rule for § 1446(b)(1) removal because
a contrary rule would “encourage defendants to remove prematurely cases . . . to be sure that
they do not accidentally waive their right to have the case tried in a federal court.”).
Additionally, § 1446(c)(1) places a one-year deadline on removal for diversity cases,
34
which should help curtail some potential manipulation.
35 Bosky, 288 F.3d at 211 (“[A] clearer threshold promotes judicial economy.”); see also
Chapman, 969 F.2d at 163 (“We believe the better policy is to . . . adopt[ ] a bright line rule
. . . .”).
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“‘It is the general rule, of course, that a federal appellate court does not con-
sider an issue not passed upon below.’” 36 Because Morgan’s death eliminates
any need for an expedited appeal, there is “no reason to alter the normal
course” of remanding this issue to the district court. 37
Accordingly, the order of remand to state court is VACATED, and this
matter is REMANDED to the district court for further proceedings as needed.
We place no limitation on the matters that the district court may address, as
needed, on remand.
36 Humphries v. Elliott Co., 760 F.3d 414, 418 (5th Cir. 2014) (quoting Singleton v.
Wulff, 428 U.S. 106, 120 (1976)). Accord Savoie, 817 F.3d at 466 (“As the district court never
had the opportunity to consider whether these defenses are colorable, we will remand to allow
it to do so in the first instance.”).
37Humphries, 760 F.3d at 418 (refusing to determine whether federal officer jurisdic-
tion was proper in the context of an expedited appeal).
15