Fifth Circuit Address “Other Paper” for Removal Under 28 U.S.C. § 1446(b)(3)

Moore v. Huntington Ingalls, Inc., No. 17-30523 (Jan. 11, 2018) U.S. 5th Cir.).

The plaintiff sued in state court for damages alleging he contracted mesothelioma while working at Avondale Shipyards. His deposition lasted 8days. Huntington received a link to the transcript and removed within 30 days of receiving the link but 38 days after the relevant testimony. The trial court remanded the case on the basis that the 30 day period began to run at the deposition not receipt of the transcript.

28 U.S.C. § 1446(b)(3) states as follows:

(3)  Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 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.

The Fifth Circuit panel in a case of first impression held that the 30 day period to remove begins on receipt of the deposition transcript. “We adopt a bright-line rule today: Section 1446(b)(3)’s removal clock begins ticking upon receipt of the deposition transcript.” Removal was timely.

The case, was, however, remanded for the trial court to determine if Huntington satisfied the requirements for removal under the Federal Officer Removal Statute.

A copy of this decision is not yet available in Lexis or WestLaw as of this writing.