Removal Under Federal Officer Removal Statute Held to Begin on Date of Receipt of Deposition Transcript U.S. Court of Appeals for the Fifth Circuit, January 11, 2018
On February 23, 2017, the plaintiff filed a complaint against Avondale Shipyards, and numerous other defendants, alleging he suffered mesothelioma from his employment at Avondale. The plaintiff was deposed over eight days from March 9 to April 13, 2017. He was cross-examined by counsel for Avondale on March 10 and 20, 2017. On March 28, 2017, counsel for Avondale received a link to the deposition transcript. Avondale removed the matter on the basis of federal officer jurisdiction on April 27, 2017, 30 days following receipt of the transcript. The plaintiff filed a motion to remand on the basis that the removal was untimely, which was granted by the District Court.
The Fifth Circuit detailed the statutory language permitting removal, and after a thorough statutory construction analysis, found that oral testimony could not be considered “other paper” under the removal statute. While other circuit courts have held that starting the removal clock on the date of receipt of the transcript can be subject to manipulation, the Fifth Circuit held that a bright-line rule will prevent “protective” removals being effected before the transcript is produced. The Fifth Circuit also held that deposition transcripts were necessary to provide the evidence to demonstrate removal is proper. Therefore, the Fifth Circuit adopted the bright-line rule that the deadline to remove begins to run upon receipt of the deposition transcript. The Fifth Circuit then reversed the remand order and sent the case back to district court.