Dietrich v. The Boeing Company, No. 19-56409 (9th Cir. 2021)Annotate this Case
The Ninth Circuit reversed the district court's order remanding a removed action to state court, vacated the district court's award of attorneys' fees to plaintiff under 28 U.S.C. 1447(c); and remanded for further proceedings. This appeal stemmed from plaintiff's suit against Boeing and others in state court, alleging causes of action based on her exposure to asbestos that her family members brought home from work.
The panel held that it had jurisdiction over the remand order under 28 U.S.C. 1447(d), explaining that even though the district court remanded pursuant to section 1446(b), under BP P.L.C. v. Mayor and City Council of Baltimore, 141 S. Ct. 1532 (2021), the panel had jurisdiction to review the remand order because the case was removed under section 1442.
The panel explained that 28 U.S.C. 1446(b) lays out two pathways for removal. Because plaintiff's initial complaint does not set forth a ground for removal, the first pathway does not apply. Applying the "unequivocally clear and certain" standard, the panel concluded that an amended pleading, motion, order, or other paper must make a ground for removal unequivocally clear and certain before the removal clock begins under the second pathway of section 1446(b)(3). In this case, Boeing's removal was timely because no ground for removal was unequivocally clear and certain until service of plaintiff's amended discovery requests.