The US Court of Appeals for the Ninth Circuit recently adopted a more explicit standard for assessing the timeliness of the removal of a state-court lawsuit to federal court. See Dietrich v. The Boeing Company, No. 19-56409 (9th Cir. Oct. 1, 2021). Under the federal removal statute, 28 U.S.C. § 1446(b), a defendant must file a notice of removal within thirty days of either (1) an initial pleading demonstrating a basis for removal (§ 1446(b)(1)), or (2) the defendant's receipt 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" (§ 1446(b)(3)). In an effort to dispel uncertainty and reduce collateral litigation over removal, Dietrich holds that, under the second path, the thirty-day clock does not begin to run until the defendant receives a document making the basis for removal "unequivocally clear and certain."
In Dietrich, the plaintiff's claim against The Boeing Corporation arose from her family members' work on asbestos-containing aircraft. The plaintiff subsequently disclosed in discovery responses that the alleged exposure occurred during work on military aircraft, which provided Boeing with a basis for removal. The district court initially remanded the case, finding that Boeing was in possession of sufficient facts to support removal well before the plaintiff served the discovery responses. The Ninth Circuit reversed, explaining that, until the plaintiff served the discovery responses, the ground for removal was not "unequivocally clear and certain," as is required for the removal clock to begin under the second pathway of § 1446(b)(3). In adopting this standard, the Ninth Circuit also held that information learned in a deposition does not start the removal clock; instead, the clock begins to run from the date of receipt of the certified deposition transcript.
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