Federal Court Defines “Other Paper” in Removal Statute § 1446 U.S. District Court for the Middle District of Louisiana, June 21, 2017
The plaintiff filed a petition for damages in the 18th Judicial District Court for the Parish of Iberville on February 23, 2017, and named Avondale, among others, as a defendant. The plaintiff alleged he contracted mesothelioma during his employment with Avondale caused by “dangerously high levels of toxic substances, including asbestos and asbestos containing products, in the normal course of his work.” Defendant Avondale filed a notice of removal to the United States District Court of Louisiana on April 28, 2017 under the federal officer removal statute, 28 U.S.C. § 1442. The plaintiff opposed and argued that Avondale’s notice of removal was filed untimely.
The procedure for removal, pursuant to 28 U.S.C. § 1446, states in relevant part: “if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty 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.” Courts have held that § 1446(b)(3) provides that “where the timeliness of a federal officer’s removal is at issue, § 1442’s liberal interpretation is extended to § 1446.” See Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006) (holding “that a federal officer defendant’s thirty days to remove commence when the plaintiff discloses sufficient facts for federal officer removal, even if the officer was previously aware of a different basis for removal”).
The key issue in this case was the interpretation of the phrase “within thirty days after receipt by the defendant . . . of other paper.” Here, Avondale removed the case within thirty days of receiving the transcript from the plaintiff’s deposition. However, this was outside the 30-day window of when the deposition actually took place. Therefore, the central dispute is when does the 30-day trigger commence — the day of the deposition or the day defendant receives the transcript?
The United States District Court, Middle District of Louisiana found that § 1446(b)(3) and was ambiguous to this question and controlling case law was split. Thus, the court looked to persuasive authority from other circuit courts. Here, the court found more persuasive those cases holding that the 30-day removal period commences to run from the date of the deposition, not the date the transcript is received. This conclusion was bolstered by the majority of courts considering this question, including the Tenth, Third, Ninth, and Sixth Circuits. The main premise is: the day of the deposition is the day where defendant gained actual notice that the case was removable. This court found that to be consistent with the policies underlying § 1446 and that defendants are not permitted to ‘sit idly’ while the statutory 30–day removal period runs and ‘squander both judicial resources and the resources of his adversary. [Citation Omitted].
Accordingly, after considering these cases from other circuits, the court found that Avondale was required to remove within thirty days of the plaintiff’s deposition. As Avondale failed to do so, the court found the removal was untimely and the suit should be remanded to state court.