Dietrich v. The Boeing Company, No. 19-56409 (9th Cir. 2021)
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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.
Court Description: Removal to Federal Court. The panel reversed the district court’s order remanding a removed action to state court, vacated the district court’s award of attorneys’ fees to the plaintiff under 28 U.S.C. § 1447(c), and remanded. Connie Dietrich sued The Boeing Co. and other defendants in state court in October 2018, alleging causes of action based on her exposure to asbestos that her family members brought home from work. Her complaint did not allege that her family members were exposed to asbestos through Boeing’s work for the United States military. Dietrich’s responses to Boeing’s first set of interrogatories, served on November 8, 2018, reaffirmed the seemingly “civilian” nature of her claims against Boeing. Dietrich produced her husband’s military records on November 30, 2018. On April 19, 2019, she served amended discovery responses, stating that she was exposed to asbestos through her husband’s exposure to asbestos-containing components * The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. 4 DIETRICH V. THE BOEING COMPANY of Boeing’s aircraft during his time in the Marine Corps. Boeing removed the action to federal court 27 days later, on May 16, 2019, under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). The district court granted Dietrich’s motion to remand on the ground that the removal was untimely under 28 U.S.C. § 1446(b). The panel held that it had jurisdiction over the remand order under 28 U.S.C. § 1447(d), which creates an exception to the general rule denying appellate review of remand orders for “an order remanding a case to the state court from which it was removed pursuant to [28 U.S.C. § 1442 or 1443].” The panel held that, even though the district court remanded pursuant to § 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 § 1442. The panel held that § 1446(b) sets a 30-day deadline to remove a case to federal court. Under the first pathway to removal, the basis for removal is clear from the complaint, and the 30 days begin to run from the date the defendant receives the initial pleading. Under the second pathway to removal, “a notice of removal may be filed within 30 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.” 28 U.S.C. § 1446(b)(3). Agreeing with other circuits, the panel held that the second pathway’s removal clock does not start until a paper makes a ground for removal “unequivocally clear and certain.” The panel held that “other paper” in § 1446(b)(3) does not include oral testimony. The panel concluded that Boeing’s removal was timely, as no ground for removal was DIETRICH V. THE BOEING COMPANY 5 unequivocally clear and certain until service of Dietrich’s amended discovery requests.
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