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Diversity Jurisdiction: Removal & Remand

Posted by Ted A. Schmidt | Oct 15, 2021 | 0 Comments

Diversity Jurisdiction: Removal & Remand

The Boeing Co. v. Autozone West, Inc., No. 19-56409 (9th Cir., October 1, 2021) (J. Bennett) https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/01/19-56409.pdf

THIRTY DAY DEADLINE TO REMOVE CASE FROM STATE COURT TO FEDERAL COURT BASED UPON DIVERSITY JURISDICTION BEGINS TO RUN FROM THE DATE A DEFENDANT RECEIVES THE COMPLAINT OR IF THE RIGHT TO REMOVE IS NOT “CLEAR” FROM THE COMPLAINT, THIRTY DAYS FROM RECEIPT OF A “PLEADING, MOTION, ORDER OR OTHER PAPER” WHERE THE RIGHT IS “UNEQUIVOCALLY CLEAR AND CERTAIN” FROM SUCH DOCUMENTS

Plaintiff sued defendants in California state court in October 2018, based upon asbestos exposure that her husband brought home from work. While the initial complaint alleged the asbestos came from defendant Boeing, it did not state the asbestos came from work with the U.S. Military. On April 8-10,1019 plaintiff's children gave deposition testimony that the asbestos came from their father during his service in the U.S. Marine Corp. On April 19, 2019 plaintiff served amended discovery responses which stated her husband brought home asbestos from components on a Boeing aircraft he was in during his service in the U.S. Marine Corps.  Boeing removed the case to federal court 27 days later. 28 U.S.C. § 1442(a)(1). The U.S. Federal District Court granted plaintiff's motion to remand to the state court based upon untimeliness.  28 U.S.C. § 1446(b). the 9th Circuit reversed the trial court and vacated its award of attorneys' fees to plaintiff.

The court held that the thirty day deadline to remove a case based upon diversity begins to run on the date the defendant receives a complaint that clearly alleges facts that create diversity or if not clear in the complaint from the date the defendant receives a copy of an “amended pleading, motion, order or other paper from which it may fist be ascertained that the case is one which is or has become removable.” Deposition testimony does not constitute a “pleading, motion, order or paper” (at least until the deposition is transcribed and provided counsel in written from). Hence, though defendant may have been on notice of the right to remand over thirty days before the filing of the removal action, until that notice occurred “unequivocally clear and certain” from a “pleading, motion, order or paper” the deadline does not begin to run.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".

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