Harris v. Bankers Life ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT H. HARRIS, 
Plaintiff-Appellant, No. 04-35115
v.
 D.C. No.
CV-03-00093-SEH
BANKERS LIFE AND CASUALTY
COMPANY; KENNETH L. BROWN, OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
June 10, 2005—Seattle, Washington
Filed October 6, 2005
Before: David R. Thompson, M. Margaret McKeown, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge McKeown
13861
HARRIS v. BANKERS LIFE AND CASUALTY CO. 13863
COUNSEL
L. Randall Bishop, Jarussi & Bishop, Billings, Montana, for
the plaintiff-appellant.
13864 HARRIS v. BANKERS LIFE AND CASUALTY CO.
John R. Gordon, Spoon, Gordon & McHugh, Missoula, Mon-
tana, for the defendants-appellees.
OPINION
McKEOWN, Circuit Judge:
We consider for the first time in this circuit whether the
jurisdictional facts supporting removal of an action from state
court to federal court must be apparent from the face of the
initial pleading or whether the mere spectre of removability
triggers a duty of inquiry. Specifically, is removability deter-
mined by the face of the initial pleading or by defendant’s
knowledge, constructive or otherwise, of the requisite juris-
dictional facts? Our interpretation of 28 U.S.C. § 1446 leads
us to join our sister circuits in holding that the “thirty day time
period [for removal] . . . starts to run from defendant’s receipt
of the initial pleading only when that pleading affirmatively
reveals on its face” the facts necessary for federal court juris-
diction. Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th
Cir. 1992); see also Lovern v. General Motors Corp., 121
F.3d 160, 162 (4th Cir. 1997) (“[W]e will allow the court to
rely on the face of the initial pleading and on the documents
exchanged in the case by the parties to determine when the
defendant had notice of the grounds for removal, requiring
that those grounds be apparent within the four corners of the
initial pleading or subsequent paper.”). Consequently, we
affirm the district court’s denial of the motion to remand this
case to state court; the removal was both proper and timely.
BACKGROUND
In 1972, Robert Harris bought a disability and life insur-
ance policy from Bankers Life & Casualty Co. (“Bankers”).
When a heart attack disabled Harris in 2002, he made a
demand for his monthly disability benefit. Bankers made two
HARRIS v. BANKERS LIFE AND CASUALTY CO. 13865
payments and then refused to make further payments, claim-
ing that Harris was only “partially disabled.”
In January 2003, Harris filed a suit in Montana state court
against Bankers and the Bankers insurance agent who sold
Harris his policy, Kenneth Brown. Harris pleaded contract
and state statutory claims against Bankers and misrepresenta-
tion and fraud claims against Brown. The complaint stated the
following with respect to the parties: 1) Harris is a resident of
Montana; 2) Bankers is an Illinois corporation authorized and
licensed to sell insurance policies in Montana; and 3) “In
May, 1972, Defendant KENNETH L. BROWN, resided in
. . . Montana, and was a ‘Licensed Resident Agent’ in . . .
Montana for BANKERS LIFE.” Harris’ original and amended
state complaints did not assert a current place of citizenship
for Brown. Harris’ state complaint was served on Bankers on
January 28, 2003.
In the state court action, Bankers produced various docu-
ments in response to Harris’ discovery requests. Among the
documents was an index or “agent” card pertaining to Brown
that included the following information: 1) Brown’s birth
date, 2) Brown’s social security number, 3) Brown’s address
in Kentucky as of 1973, and 4) a statement that Brown was
terminated by Bankers in 1973 due to health problems. Bank-
ers also provided the following response to an interrogatory
requesting the name, last-known address, and telephone num-
ber of every sales agent or representative who solicited the
sale of disability or income protection policies in Montana
since 1972: “[E]fforts are currently being made to determine
if sales agents or representatives working [in] Montana over
thirty (30) years ago can be located. This answer will be sup-
plemented in accordance with the Montana Rules of Civil
Procedure as discovery progresses.”
Trial was set for February 2004. In late October 2003,
Bankers filed a motion to continue the trial date because,
13866 HARRIS v. BANKERS LIFE AND CASUALTY CO.
among other reasons, Harris had not yet served or dismissed
Brown, a named party in the suit.
In an October 21, 2003 letter, Harris’ counsel expressed
opposition to any efforts to continue the trial date. From this
communication, Bankers concluded that Harris had effec-
tively abandoned his claims against Brown because “the cur-
rent deadlines set in the State Court Action would not be
achievable” if Harris intended to pursue his claims against
Brown. Bankers then wrote to Harris’ counsel asking whether
Harris intended to pursue service against Brown. When no
response was forthcoming, Bankers filed a notice of removal
on November 3, 2003, claiming that the thirty-day clock for
removal under 28 U.S.C. § 1446(b) began to run on October
21, 2003. Bankers asserted that there was complete diversity
because Harris is a citizen of Montana and Bankers is a citi-
zen of Illinois and “Brown is not a party to this matter” as a
result of Harris’ failure to serve Brown. Bankers’ position was
that complete diversity was not evident from Harris’ initial
pleading or amended pleading because the only residency
stated for Brown was Butte, Montana.
Following the removal notice, Harris’ counsel stated that he
was continuing to search for Brown; he then filed a motion
for remand in federal district court. Only a few days later,
Harris’ counsel filed an affidavit in federal court stating that
Brown died in 1983; this information was gleaned by cross-
referencing Brown’s data from the index card produced dur-
ing discovery with a Social Security Death Index available on
the Internet.
Reasoning that Harris had abandoned his claim against
Brown or, alternatively, that Brown’s presence could be
ignored because naming a dead defendant was the equivalent
of fraudulent joinder,1 the district court concluded that Bank-
1
Because we conclude that Bankers’ removal was timely, we need not
address the fraudulent joinder issue.
HARRIS v. BANKERS LIFE AND CASUALTY CO. 13867
ers’ removal was, “in substance,” timely pursuant to 28
U.S.C. § 1446(b). The court expressed frustration with Harris’
timeliness argument:
Plaintiff’s argument against timeliness of removal is
grounded, in substance, in the scenario that he was
entitled to name Brown, a person dead for over 19
years, as a party, take no action to pursue the claims
pleaded against Brown, represent to opposing coun-
sel, even after the case was removed to this Court,
“that plaintiff continues to search for Mr. Brown,”
and nevertheless assert that Bankers did not act in a
timely fashion to remove the case upon concluding
that Plaintiff had abandoned the claim against
Brown. Acceptance of that position would require
approval by the Court of a measure of sharp practice
bordering upon a fraud upon the Court. It will not do
so.
Harris appeals the district court’s denial of his motion for
remand, a question we review de novo. United Computer Sys-
tems, Inc. v. AT&T Corp., 298 F.3d 756, 760 (9th Cir. 2002).
ANALYSIS
The procedure for removal is set out in 28 U.S.C.
§ 1446(a):
A defendant or defendants desiring to remove any
civil action or criminal prosecution from a State
court shall file in the district court . . . a notice of
removal . . . containing a short and plain statement
of the grounds for removal, together with a copy of
all process, pleadings, and orders served upon such
defendant or defendants in such action.
[1] The statute provides two thirty-day windows during
which a case may be removed—during the first thirty days
13868 HARRIS v. BANKERS LIFE AND CASUALTY CO.
after the defendant receives the initial pleading or during the
first thirty days after the defendant receives a paper “from
which it may first be ascertained that the case is one which is
or has become removable” if “the case stated by the initial
pleading is not removable.” 28 U.S.C. § 1446(b).
Three removal scenarios are presented in a potential diver-
sity case: 1) the case clearly is removable on the basis of juris-
dictional facts apparent from the face of the complaint, i.e.,
complete diversity of citizenship; 2) the case clearly is not
removable on the basis of jurisdictional facts apparent from
the face of the complaint, i.e., lack of complete diversity; or
3) it is unclear from the complaint whether the case is remov-
able, i.e., the citizenship of the parties is unstated or ambigu-
ous. This latter scenario, sometimes referred to as an
“indeterminate” pleading, is the one at issue here.
Harris’ state court complaint did not allege Brown’s current
citizenship, only his past residence. Indeed, it is not uncom-
mon for a state court pleading to omit the necessary facts
needed to determine diversity. “[T]he citizenship of the par-
ties or the corporation’s principal place of business or its state
of incorporation normally will not be set forth in a complaint
filed in a state court so that that pleading therefore will not
reveal the existence of diversity of citizenship jurisdiction.”
14C Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure, § 3734 at 368-69
(3d ed. 1998) (footnotes omitted). Obviously, diversity of citi-
zenship is a federal, not a state, concern. See 28 U.S.C. § 1332
(requiring that suit be between “citizens of different States”
for federal jurisdiction predicated on diversity of citizenship).
[2] The question we must decide is whether, under 28
U.S.C. § 1446(b), the burden lies with the defendant to inves-
tigate the necessary jurisdictional facts within the first thirty
days of receiving an indeterminate complaint, or whether the
determination be limited to the face of the initial pleading.
Courts are divided on this issue, although every circuit court
HARRIS v. BANKERS LIFE AND CASUALTY CO. 13869
to consider the question has rejected the duty to investigate
approach.2 The Ninth Circuit has not resolved this question.3
Our decision in Cantrell v. Great Republic Ins. Co., 873
F.2d 1249 (9th Cir. 1989), a federal question case, skirted this
issue but did not squarely decide it.4 In Cantrell, the plaintiff
sued her insurance company in state court for unlawful rescis-
sion of her contract. Id. at 1249-50. The claims in Cantrell’s
state complaint were preempted by federal law—the
Employee Retirement Income Security Act. More than two
years after Cantrell filed her state court complaint, the defen-
dants removed the case to the federal court. Thus, the defen-
dants’ only option for establishing timely removal was under
the second thirty-day window of 28 U.S.C. § 1446(b). Id. at
1254. The defendants had to demonstrate that they removed
2
See Moore’s Federal Practice 3d, 107.30[3][f] (3d ed. 2005) (“Courts
are split on whether to impose a duty to investigate and determine remov-
ability when the initial pleading indicates that the right to remove may
exist. When it is apparent that removal may be justified, some courts
impose a duty on potential movants to investigate potential reasons for
removal. Other courts require that the right to remove must be unequivo-
cally apparent from the pleading and impose no duty to investigate when
the right to remove may be indicated by the pleading.”) (emphasis in origi-
nal) (footnotes omitted).
3
See Rico-Chinn v. Prudential Ins. Co. of Am., No. 05-01975, 2005 WL
1632289, at *2 (N.D. Cal. July 12, 2005) (“The Ninth Circuit has not
decided the issue of whether the jurisdictional facts supporting removal
must be apparent from the face of the complaint in order for the 30-day
period set forth in the first paragraph of § 1446(b) to commence on the
date the complaint is received.”).
4
Moore’s Federal Practice cites to Cantrell as an example of a case that
held there was a duty to investigate grounds for removal where the initial
pleading failed to list a federal cause of action. Moore’s, supra note 2, at
n.100; see also Akin v. Ashland Chem. Co., 156 F.3d 1030, 1035 n.2 (10th
Cir. 1998) (citing Cantrell among cases that held “where it is apparent that
removal may be justified a duty is imposed upon movants to investigate
potential reasons for removal”) (emphasis in original). Unlike Moore’s
and Akin, we do not read Cantrell as imposing a duty upon a defendant
to investigate within the first thirty days of receiving an indeterminate
complaint.
13870 HARRIS v. BANKERS LIFE AND CASUALTY CO.
the case within thirty days of receiving a “paper,” in this case
Cantrell’s amended complaint, that revealed the case was
removable. The court rejected defendants’ argument and con-
cluded that the case was removable on the basis of the initial
complaint. Plaintiff’s “artful pleading” of state law could not
avoid federal jurisdiction, nor was any discovery necessary to
reveal the true nature of Cantrell’s claims: “Cantrell’s origi-
nal complaint gave [defendants] notice of the federal question
raised by Cantrell’s complaint . . . .” Id. at 1255 n.11 & 1256.
Our analysis in Cantrell presages the more precise holding
we reach today: We now conclude that notice of removability
under § 1446(b) is determined through examination of the
four corners of the applicable pleadings, not through subjec-
tive knowledge or a duty to make further inquiry. Thus, the
first thirty-day requirement is triggered by defendant’s receipt
of an “initial pleading” that reveals a basis for removal. If no
ground for removal is evident in that pleading, the case is “not
removable” at that stage. In such case, the notice of removal
may be filed within thirty days after the defendant receives
“an amended pleading, motion, order or other paper” from
which it can be ascertained from the face of the document that
removal is proper. See 28 U.S.C. § 1446(b). In coming to this
resolution, we consider the language of the statute and survey
the various approaches taken by our sister circuits and district
courts.
[3] We start with the plain language of the statute. The sec-
ond thirty-day period for removal applies when “the case
stated by the initial pleading is not removable.” 28 U.S.C.
§ 1446(b). Under these circumstances, “a notice of removal
may be filed 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 . . . .” Id. In other
words, even if a case were not removable at the outset, if it
is rendered removable by virtue of a change in the parties or
HARRIS v. BANKERS LIFE AND CASUALTY CO. 13871
other circumstance revealed in a newly-filed “paper,” then the
second thirty-day window is in play.
[4] Thus, the first thirty-day period for removal in 28
U.S.C. § 1446(b) only applies if the case stated by the initial
pleading is removable on its face. If we were to flip the bur-
den and interpret the first paragraph of 28 U.S.C. § 1446(b)
(the first thirty-day window) to apply to all initial pleadings
unless they clearly reveal that the case is not removable,
defendants would be faced with an unreasonable and unrealis-
tic burden to determine removability within thirty days of
receiving the initial pleading.
[5] Our reading of the statute is consistent with the Fourth
Circuit’s view in Lovern v. General Motors Corp., where the
court reasoned that a “case stated by the initial pleading is not
removable” when the ground for removal is not on the face
of the initial pleading:
[W]e conclude that only where an initial pleading
reveals a ground for removal will the defendant be
bound to file a notice of removal within 30 days.
Where, however, such details are obscured or omit-
ted, or indeed misstated, that circumstance makes the
case “stated by the initial pleading” not removable,
and the defendant will have 30 days from the revela-
tion of grounds for removal in an amended pleading,
motion, order, or other paper to file its notice of
removal . . . .
Thus, the statute expressly encompasses the case
in which the actual facts supporting federal jurisdic-
tion remain unaltered from the initial pleading, but
their existence has been manifested only by later
papers, revealing the grounds for removal for the
first time. It thus appears that the statute does not
preclude defendants from removing a case where
their discovery of the grounds of federal jurisdiction
13872 HARRIS v. BANKERS LIFE AND CASUALTY CO.
is belated because facts disclosing those grounds
were inadequately or mistakenly stated in the com-
plaint.
121 F.3d 160, 162 (4th Cir. 1997) (emphasis in original).
[6] In rejecting the defendant’s subjective knowledge as a
test for notice, the Fourth Circuit emphasized reliance on “the
four corners of the initial pleading or subsequent paper:”
[W]e will not require courts to inquire into the sub-
jective knowledge of the defendant, an inquiry that
could degenerate into a mini-trial regarding who
knew what and when. Rather, we will allow the
court to rely on the face of the initial pleading and
on the documents exchanged in the case by the par-
ties to determine when the defendant had notice of
the grounds for removal, requiring that those
grounds be apparent within the four corners of the
initial pleading or subsequent paper.
Id. We join with the other circuits that have adopted the same
approach to indeterminate pleadings—the ground for removal
must be revealed affirmatively in the initial pleading in order
for the first thirty-day clock under § 1446(b) to begin.5
5
See Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 206 (2d Cir.
2001) (“[T]he summons with notice names RJU as a defendant and seeks
damages and equitable relief with respect to this entity, but does not dis-
close its address. This defect makes it impossible to assess whether there
is complete diversity and, hence, a basis for removal. Accordingly, we
find no error with the district court’s conclusion that removability could
not be ascertained from the face of that document.”); In re Willis, 228 F.3d
896, 897 (8th Cir. 2000) (“We find the thirty-day time limit of section
1446(b) begins running upon receipt of the initial complaint only when the
complaint explicitly discloses the plaintiff is seeking damages in excess of
the federal jurisdictional amount.”); Huffman v. Saul Holdings Ltd. P’ship,
194 F.3d 1072, 1077 (10th Cir. 1999) (holding that defendant “could only
guess” if the initial pleading that claimed damages “in excess of $10,000”
HARRIS v. BANKERS LIFE AND CASUALTY CO. 13873
[7] Applying this interpretation of § 1446(b), we quickly
resolve that Bankers’ removal of this case was timely. The
face of Harris’ initial pleading did not affirmatively reveal
information to trigger removal based on diversity jurisdiction
because the initial pleading only stated Brown’s 1972 resi-
dency, not his citizenship, and certainly not his citizenship as
of the filing of the complaint. Diversity jurisdiction is based
on the status of the parties at the outset of the case—here,
their state of citizenship in 2003. See Kanter v. Warner-
Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (parties’
actual citizenship, not residency, determines diversity); Smith
v. Sperling, 354 U.S. 91, 93, n.1 (1957) (diversity of citizen-
ship is determined as of the filing of the complaint). Thus, the
case was not removable on the basis of the initial pleading.
[8] Instead, the case became removable on October 21,
2003, when it became apparent that Harris had abandoned his
claims against Brown. At that point, the complete diversity
between the remaining parties first became ascertainable. See
S. Pac. Co. v. Haight, 126 F.2d 900, 905 (9th Cir. 1942)
(notice of removal timely where plaintiff announced intent to
proceed to trial without serving resident defendants). Bankers
filed its notice of removal within the thirty day window.
stated a case that was removable and refusing to start the thirty-day clock
at receipt of the initial pleading); Leffall v. Dallas Indep. Sch. Dist., 28
F.3d 521, 525 (5th Cir. 1994) (“We stated that the removal clock begins
to run ‘from the defendant’s receipt of the initial pleading only when that
pleading affirmatively reveals on its face that the plaintiff is seeking dam-
ages in excess of the minimum jurisdictional amount of the federal court.’
. . . By the same token, the removal clock began to run in the instant case
only when the defendants received a pleading that revealed on its face that
Leffall was asserting a cause of action based on federal law.”); Chapman
v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992) (same); Foster v.
Mut. Fire, Marine & Inland Ins. Co., 986 F.2d 48, 53-54 (3d Cir. 1993)
(“The inquiry begins and ends within the four corners of the pleading. The
inquiry is succinct: whether the document informs the reader, to a substan-
tial degree of specificity, whether all the elements of federal jurisdiction
are present.”) (quoting Rowe v. Marder, 750 F. Supp. 718, 721 (W.D. Pa.
1990), aff’d by 935 F.2d 1282 (3d Cir. 1991).
13874 HARRIS v. BANKERS LIFE AND CASUALTY CO.
Harris admits that Brown’s citizenship was not revealed on
the face of his initial pleading, but claims there was a clue that
imposed a duty to investigate further. According to Harris,
Bankers should have looked in its files within the first thirty
days, found the 1973 index card pertaining to Brown, used the
information on the index card to ferret out details about
Brown, and then cross-referenced the date with the Internet or
other sources to find out that Brown had died ten years after
he was terminated by Bankers. Relying on Kaneshiro v. North
America Co. for Life and Health Ins., 496 F. Supp. 452
(D. Haw. 1980),6 Harris urges us to adopt a rule that the first
thirty-day period should apply where the initial pleading pro-
vides a “clue” as to removability:
[T]here appears to be a line of support for placing on
the defendant desiring removal the burden of scruti-
nizing the plaintiff’s initial pleading, even if it is
indeterminate on its face, and of removing within 30
days, at least unless the initial pleading provides “no
clue” that the case is actually removable. . . . [T]he
second paragraph of § 1446(b) is not applicable to
indeterminate pleadings, unless they provide “no
clue” to the fact that the case is actually removable.
Id. at 460.
Whether or not the “clue” and “burden [to] scrutiniz[e]”
language in Kaneshiro should be stretched as far as Harris
proposes is of little import as we decline to adopt Kaneshiro’s
reasoning. Significantly, in the twenty-five years since the
6
A number of district courts have adopted Kaneshiro’s “clue” analysis.
See e.g., Kuhn v. Brunswick Corp., 871 F. Supp. 1444, 1446 (N.D. Ga.
1994); Golke v. Lee Lumber & Bldg. Materials Corp., 671 F. Supp. 568,
570-71 (N.D. Ill. 1987); Richman v. Zimmer, Inc., 644 F. Supp. 540, 541-
42 (S.D. Fla. 1986).
HARRIS v. BANKERS LIFE AND CASUALTY CO. 13875
case was decided, no federal circuit court of appeals has
embraced its rationale.7
The jurisdictional and procedural interests served by a
bright-line approach are obvious. First and foremost, objec-
tive analysis of the pleadings brings certainty and predictabil-
ity to the process and avoids gamesmanship in pleading.8 Just
as important, an objective baseline rule avoids the spectre of
inevitable collateral litigation over whether the pleadings con-
tained a sufficient “clue,” whether defendant had subjective
knowledge, or whether defendant conducted sufficient inquiry.9
7
We note that Moore’s Federal Practice attempts to harmonize these
two lines of cases:
When a case is removable, but the initial pleading does not
reveal a ground for removal because the potential grounds are
obscured, omitted, or misstated, the case as stated by the initial
pleading is deemed not removable. . . . Thus, if in fact grounds
for removal exist, i.e., there is in fact complete diversity, but nei-
ther the pleadings nor other papers reveal the citizenship of the
parties, the clock does not begin to run.
On the other hand, if grounds exist, and the defendant had suf-
ficient knowledge of the existence of grounds for removal, the
30-day period begins to run. Indeed, indeterminate pleadings may
provide the basis for removal unless they provide “no clue” as to
the fact that the case is removable.
Moore’s, supra note 2, at § 107.30[3](a)(ii)(A) (footnotes omitted). If “no
clue” means the basis for removability cannot be determined from the face
of the pleadings, we agree with Moore’s characterization. But if the “clue”
test invokes a duty to investigate beyond the pleadings, the “clue” cases
cannot be harmonized with the prevailing view.
8
See In re Willis, 228 F.3d at 897 (“[T]his rule prevents a plaintiff from
disguising the amount of damages until after the thirty-day time limit has
run to avoid removal to federal court.”).
9
See Soto v. Apple Towing, 111 F. Supp. 2d 222, 226 (E.D.N.Y. 2000)
(“[T]here is no requirement in 28 U.S.C. § 1446(b) that a defendant exer-
cise a duty to investigate, and this Court will not read into the statute such
a condition. To do so would invite wasteful litigation as parties spar over
the issues of diligence and ascertainability.”); Chapman, 969 F.2d at 163
(“[Imposing a duty to investigate when a defendant receives an indetermi-
13876 HARRIS v. BANKERS LIFE AND CASUALTY CO.
We are unpersuaded by the argument that a predictable rule
will result in strategic delay in removal, thereby burdening the
state courts with a case that will ultimately be removed. Once
defendant is on notice of removability, the thirty-day period
begins to run. Defendant has neither the incentive nor the
ability to tinker with either actual notice or the time frame.
Additionally, 28 U.S.C. § 1446(b) prevents, at least in the
context of removal based on diversity, unreasonable waste of
judicial resources by limiting the extended period of removal
to one year after “commencement of the action.” The one-
year bar gives the defendant sufficient incentive and time to
determine the facts to justify removal without imposing an
undue burden to investigate removal within the first thirty
days of receiving an indeterminate complaint. See Lovern,
121 F.3d at 163 (“This [one-year] bar creates, we believe, a
sufficient incentive for defendants promptly to investigate the
factual requisites for diversity jurisdiction, including the citi-
zenship of the plaintiff and the amount in controversy.”).
Our reluctance to embrace the Kaneshiro framework is also
motivated by the concern that defendants may be encouraged
to engage in premature removals in order to ensure that they
do not waive their right to removal. Otherwise, defendants
will be subject to a court’s post-hoc consideration of whether
there was a “clue” in the initial pleading and whether the
defendant exercised due diligence to discover the grounds for
removability.10 As observed in Lovern, the pressure to file a
nate complaint as to removability] would needlessly inject uncertainty into
a court’s inquiry as to whether a defendant has timely removed a case, and
as a result would require courts to expend needlessly their resources trying
to determine what the defendant knew at the time it receive the initial
pleading and what the defendant would have known had it exercised due
diligence.”).
10
See Chapman, 969 F.2d at 163 (“[A rule requiring removal based on
an indeterminate initial pleading] would encourage defendants to remove
HARRIS v. BANKERS LIFE AND CASUALTY CO. 13877
premature notice of removal may lead to the imposition of
Rule 11 sanctions.11
Finally, we are not unmindful of the canon that instructs
that removal statutes should be construed narrowly in favor of
remand to protect the jurisdiction of state courts. See Sham-
rock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941);
Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). Our
interpretation of 28 U.S.C. § 1446(b) is consistent with the
goal of the canon, which guards against premature and protec-
tive removals and minimizes the potential for a cottage indus-
try of removal litigation. By assuring that removal occurs
once the jurisdictional facts supporting removal are evident,
we also ensure respect for the jurisdiction of state courts.
AFFIRMED.
prematurely cases in which the initial pleading does not affirmatively
reveal the amount in controversy is in excess of $50,000 so as to be sure
that they do not accidentally waive their right to have the case tried in fed-
eral court. We believe the better policy is to focus the parties’ and the
court’s attention on what the initial pleading sets forth, by adopting a
bright line rule requiring the plaintiff, if he wishes the thirty-day time
period to run from the defendant’s receipt of the initial pleading, to place
in the initial pleading a specific allegation that damages are in excess of
the federal jurisdictional amount.”).
11
See Lovern, 121 F.3d at 163 (“If a defendant were required to file a
notice of removal within 30 days after the service of the initial pleading,
even where that pleading did not reveal a ground for removal, he would
often be faced with an intractable dilemma of either risking Rule 11 sanc-
tions for noticing removal without making an adequate inquiry or forego-
ing removal altogether. The statute did not intend to put a defendant to this
choice.”).