Connie Dietrich v. the Boeing Company

                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CONNIE DIETRICH, an individual,        No. 19-56409
                 Plaintiff-Appellee,
                                           D.C. No.
                 v.                    2:19-cv-04291-
                                          JAK-PJW
THE BOEING COMPANY, improperly
denominated as The Boeing
Company, individually and as             OPINION
successor by merger to McDonnell
Douglas Corporation, successor by
merger with Douglas Aircraft
Company,
               Defendant-Appellant,

                and

AUTOZONE WEST, INC., AKA
Autozone, Inc., individually and as
successor in interest to Chief Auto
Parts, Inc.; BORGWARNER MORSE
TEC LLC, as successor by merger to
Borg-Warner Corporation;
HONEYWELL INTERNATIONAL, INC.,
individually and as successor in
interest to Allied Signal, Inc.,
individually and as successor in
interest to Bendix Corporation;
KELLY-MOORE PAINT COMPANY INC;
MASONEILAN INTERNATIONAL, INC.,
2         DIETRICH V. THE BOEING COMPANY


individually and as successor in
interest to Mason-Neilan Regulator
Company and Annin Valve Co.;
METALCLAD INSULATION LLC, FKA
Metalclad Insulation Corporation;
OWENS-ILLINOIS, INC., individually
and as successor in interest to
Owens-Illinois Glass Company;
SOCO WEST, INC., Brenntag West,
Inc. f/k/a SOCO-Lynch Corporation
successor in interest to Western
Chemical and Manufacturing, Co.;
THE PEP BOYS - MANNY, MOE AND
JACK OF CALIFORNIA; UNION
CARBIDE CORPORATION; WESTERN
AUTO SUPPLY COMPANY; DOES, 1
through 400, inclusive,
                          Defendants.

      Appeal from the United States District Court
         for the Central District of California
      John A. Kronstadt, District Judge, Presiding

        Argued and Submitted January 13, 2021
         Submission Vacated January 14, 2021
           Resubmitted September 24, 2021
                 Pasadena, California

                 Filed October 1, 2021
              DIETRICH V. THE BOEING COMPANY                         3

Before: Michelle T. Friedland and Mark J. Bennett, Circuit
        Judges, and David A. Ezra, * District Judge.

                   Opinion by Judge Bennett


                          SUMMARY **


                  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.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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.


                         COUNSEL

Eric B. Wolff (argued), Chief Counsel, Perkins Coie LLP,
Seattle, Washington; Brent M. Karren and Timothy D.
Swain, Manning Gross & Massenburg LLP, Los Angeles,
California; for Defendant-Appellant.

Tyler Stock (argued) and Benno Ashrafi, Weitz &
Luxenburg P.C., Los Angeles, California, for Plaintiff-
Appellee.


                         OPINION

BENNETT, Circuit Judge:

    

28 U.S.C. § 1446

(b) sets a thirty-day deadline to remove
a case to federal court. Often, the basis for removal is clear
from the complaint (or other initial pleading), and so the
thirty days begin to run from the date a defendant receives
the initial pleading. 

28 U.S.C. § 1446

(b)(1). This is the first
pathway to removal. But “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 . . . 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.” 

Id.

 § 1446(b)(3). This is the
second pathway to removal.

    In Harris v. Bankers Life & Casualty Co., 

425 F.3d 689

(9th Cir. 2005), we established some guiding principles for
6           DIETRICH V. THE BOEING COMPANY

determining whether the case stated by the initial pleading is
removable. We also established some guiding principles for
determining whether “an amended pleading, motion, order
or other paper” starts the clock for the second pathway.
Those principles include “bring[ing] certainty and
predictability to the process” of removals; “avoid[ing]
gamesmanship in pleading”; and “avoid[ing] the spect[er] of
inevitable collateral litigation over whether the pleadings
contained a sufficient ‘clue,’ whether defendant had
subjective knowledge, or whether defendant conducted
sufficient inquiry.” 

Id. at 697

. We held that these principles
are best “served by a bright-line approach,” 

id.,

 but we did
not define what such a “bright-line” approach should look
like, other than requiring that a ground for removal be
“revealed affirmatively” in the relevant paper, 

id. at 695

. We
left district courts to determine case by case whether the
initial pleading “set[s] forth” a ground for removal, or
whether a ground for removal is “ascertain[able]” from a
subsequent paper. 

28 U.S.C. § 1446

(b)(1), (3).

    This case demonstrates why more guidance from our
court is needed. The timeliness of the removal by
Defendant-Appellant The Boeing Company (“Boeing”)
under the second pathway has confounded the parties, the
district court, and our court. As a result, the parties have
been embroiled in collateral litigation for nineteen months,
in a case in which time is distinctly of the essence. Thus, to
help avoid similar collateral litigation in the future, and to
reinforce the principles we announced in Harris, we now
adopt a more explicit standard for the second pathway. That
pathway’s removal clock does not start until a paper makes
a ground for removal “unequivocally clear and certain.”
            DIETRICH V. THE BOEING COMPANY                 7

      I. FACTS AND PROCEDURAL HISTORY

    Plaintiff-Appellee Connie Dietrich was diagnosed with
malignant pleural mesothelioma in July 2018. She sued
several defendants in October 2018, alleging that her father
and husband worked with asbestos-containing products
manufactured and/or supplied by the defendants, resulting in
her own exposure to asbestos when she washed their clothes,
rode in their cars, or cleaned the house.

    Dietrich’s complaint against Boeing did not allege that
her family members were exposed to asbestos through
Boeing’s work for the United States military, a connection
that would have alerted Boeing to a possible basis for
removal to federal court under the federal officer removal
statute, 

28 U.S.C. § 1442

. See Durham v. Lockheed Martin
Corp., 

445 F.3d 1247, 1251

 (9th Cir. 2006) (discussing
requirements for military contractors to invoke the federal
officer removal statute). Boeing was one of twelve named
defendants, yet Dietrich expressly excepted Boeing from her
strict liability claim, which was premised on the other
defendants having sold asbestos-containing products that
harmed those like Dietrich, her father, and her husband. This
suggested that Dietrich was not suing Boeing for having sold
asbestos-containing products to a third-party like the
military, but that Dietrich’s claims against Boeing were
premised only on her husband’s exposure to asbestos as an
employee of Boeing. Dietrich’s complaint did not otherwise
suggest that her claims against Boeing—or any of the
defendants, for that matter—arose from her father’s or
husband’s work on military aircraft. And Dietrich’s
preliminary fact sheet limited her “locations of exposure” to
Lakewood, California and Long Beach, California, where
Douglas Aircraft Company (“Douglas”), a Boeing
predecessor, operated a facility producing commercial
8            DIETRICH V. THE BOEING COMPANY

aircraft, rather than Hawaii, where her husband was
stationed during most of his military service.

    On November 8, 2018, Dietrich served her responses to
Boeing’s first set of interrogatories, which reaffirmed the
seemingly “civilian” nature of her claims against Boeing.
She stated: “From 1948 to 1957, Mr. Dietrich worked as an
aircraft mechanic in the United States Marine Corps . . . .
After he left the service, Mr. Dietrich performed the same
type of work for Douglas Aircraft in Long Beach, CA.”
(Emphasis added). Then, on November 30, 2018, Dietrich
produced her husband’s military records, not as a strategic
move to build her case against Boeing, but in compliance
with the Case Management Standing Order of the Los
Angeles Superior Court. In other words, the production of
those records did not speak to the nature or scope of
Dietrich’s actual claims against Boeing. Indeed, although
the records showed that Dietrich’s husband was stationed in
California at the tail end of his military service, Dietrich later
testified in her deposition in December 2018 that her
husband had never told her whether he worked on asbestos-
containing aircraft while stationed there.

    On April 19, 2019, Dietrich served amended responses
to Boeing’s discovery requests, stating clearly for the first
time that “CONNIE DIETRICH was exposed to asbestos . . .
through her now deceased husband’s exposure to asbestos-
containing components of BOEING’S aircraft . . . during
Mr. DIETRICH’S time in the United States Marine
[Corps].” (Emphasis added). Boeing removed twenty-
seven 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,
concluding that the removal was untimely under our decision
in Durham v. Lockheed Martin Corp., 

445 F.3d 1247

 (9th
              DIETRICH V. THE BOEING COMPANY                          9

Cir. 2006). We stated in Durham that “a federal officer
defendant’s thirty days to remove commence when the
plaintiff discloses sufficient facts for federal officer
removal.” 

Id. at 1253

. From that statement, the district court
determined that our court had adopted a “sufficient facts”
standard for starting the removal clock under § 1446(b)(3)—
the second removal pathway. The district court believed we
had held the relevant question to be when the defendant had
sufficient information to be able to remove. Thus, because
the district court found “[a]mple facts sufficient to give
Boeing grounds to remove this action . . . by late 2018, and
certainly prior to April 16, 2019,” the court concluded that
“the removal on May 16, 2019 was untimely.” It also
awarded Dietrich $3,500 in attorneys’ fees under 

28 U.S.C. § 1447

(c), concluding that Boeing’s removal was not
“objectively reasonable.” See Martin v. Franklin Cap.
Corp., 

546 U.S. 132, 141

 (2005) (“Absent unusual
circumstances, courts may award attorney’s fees under
§ 1447(c) only where the removing party lacked an
objectively reasonable basis for seeking removal.”).

                      II. JURISDICTION

   We have 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 section 1442 or 1443 of this title.” 1



    1
       

28 U.S.C. § 1447

(d) provides in full: “An order remanding a case
to the State court from which it was removed is not reviewable on appeal
or otherwise, except that an order remanding a case to the State court
from which it was removed pursuant to section 1442 or 1443 of this title
shall be reviewable by appeal or otherwise.”
10          DIETRICH V. THE BOEING COMPANY

Boeing removed under § 1442(a)(1), the federal officer
removal statute, so the exception applies.

    Previously, we had held that our court could review an
order remanding a case removed under §§ 1442 or 1443 only
if the case was remanded pursuant to one of those two
provisions. See County of San Mateo v. Chevron Corp.,

960 F.3d 586, 598

 (9th Cir. 2020). Boeing removed
pursuant to § 1442(a)(1), but the district court remanded
pursuant to § 1446(b), so we would have lacked jurisdiction
to review the propriety of the remand order under our
precedent. But the Supreme Court recently abrogated our
removal jurisdiction rule in BP P.L.C. v. Mayor and City
Council of Baltimore, 

141 S. Ct. 1532

 (2021). The Court
confirmed that courts of appeals have jurisdiction to review
a remand order in its entirety so long as the case was
removed under §§ 1442 or 1443. Id. at 1537–38. Thus, we
proceed to the merits of Boeing’s appeal.

             III. STANDARD OF REVIEW

    We review remand orders de novo, Roth v. CHA
Hollywood Med. Ctr., L.P., 

720 F.3d 1121, 1124

 (9th Cir.
2013), and their accompanying awards of attorneys’ fees for
an abuse of discretion, “overturn[ing] the district court’s
decision only if it is based on clearly erroneous findings of
fact or erroneous determinations of law,” Dahl v. Rosenfeld,

316 F.3d 1074, 1077

 (9th Cir. 2003).

                    IV. DISCUSSION

    As discussed above, § 1446(b) lays out two pathways for
removal. Dietrich’s initial complaint does not set forth a
ground for removal, so the first pathway does not apply.
Thus, the question we must answer on appeal is at what point
the removal clock began under the second pathway. That is,
            DIETRICH V. THE BOEING COMPANY                  11

at what point could the federal officer ground for removal
first be ascertained from an amended pleading, motion,
order, or other paper?

    To answer that question, we turn first to the text of the
statute. Hawaii v. Off. of Hawaiian Affs., 

556 U.S. 163, 173

(2009). While § 1446(b)(1) requires only a pleading that
“set[s] forth” a ground for removal to start the removal clock
under the first pathway, § 1446(b)(3)’s second pathway
requires an amended pleading, motion, order, or other paper
from which a ground for removal may be “ascertained.”
“Set forth” means only to “give an account or statement of.”
Set forth, Merriam-Webster, https://www.merriam-
webster.com/dictionary/set. “Ascertain” means “to find out
or learn with certainty.” Ascertain, Merriam-Webster
(emphasis added), https://www.merriam-webster.com/
dictionary/ascertain. “The latter, in contrast to the former,
seems to require a greater level of certainty or that the facts
supporting removability be stated unequivocally.” Bosky v.
Kroger Tex., LP, 

288 F.3d 208, 211

 (5th Cir. 2002)
(emphasis added).

    The Fifth and Tenth Circuits have adopted the
“unequivocally clear and certain” standard. See id.; Paros
Props. LLC v. Colo. Cas. Ins. Co., 

835 F.3d 1264, 1269

 (10th
Cir. 2016); see also Northrop Grumman Tech. Servs., Inc. v.
DynCorp Int’l LLC, 

865 F.3d 181

, 187 n.5 (4th Cir. 2017)
(seeming to accept Bosky’s “unequivocally clear and
certain” standard as the appropriate standard for removals
under § 1446(b)(3)). This test has also been applied by many
other circuits in all but name. See Romulus v. CVS
Pharmacy, Inc., 

770 F.3d 67, 75

 (1st Cir. 2014) (requiring
“a clear statement of the damages sought or . . . [a] paper
set[ting] forth sufficient facts from which the amount in
controversy can easily be ascertained by the defendant by
12           DIETRICH V. THE BOEING COMPANY

simple calculation” for removal based on diversity
jurisdiction); Moltner v. Starbucks Coffee Co., 

624 F.3d 34, 38

 (2d Cir. 2010) (per curiam) (requiring “a paper that
explicitly specifies the amount of monetary damages
sought” for removal based on diversity jurisdiction); Berera
v. Mesa Med. Grp., PLLC, 

779 F.3d 352, 364

 (6th Cir. 2015)
(requiring “solid and unambiguous information that the case
is removable,” which “is akin to actual notice”); Walker v.
Trailer Transit, Inc., 

727 F.3d 819, 825

 (7th Cir. 2013)
(requiring “specific and unambiguous notice that the case
satisfies federal jurisdictional requirements and therefore is
removable”). We believe the “unequivocally clear and
certain” test hews to the text of § 1446(b)(3).

    We also believe the “unequivocally clear and certain”
standard will solidify the “jurisdictional and procedural
interests” we developed in Harris to guide our interpretation
of removal statutes.       It will “bring[] certainty and
predictability to the process” of removals by its very name,
requiring a basis for removal to be unequivocally clear and
certain. Harris, 

425 F.3d at 697

. It will “avoid[]
gamesmanship in pleading,” preventing plaintiffs from
strategically starting the removal clock without the
defendants’ realization, while still allowing plaintiffs to start
the clock and prevent strategic delays simply by making the
basis for removal unequivocally clear and certain. 

Id.

 It
will “avoid[] the spect[er] of inevitable collateral litigation
over whether the [amended pleading, motion, order or other
paper] contained a sufficient ‘clue,’ whether defendant had
subjective knowledge, or whether defendant conducted
sufficient inquiry,” by preventing cases exactly like the one
we confront today, in which the parties are litigating what
Boeing should have known and when it should have known
it. 

Id.

 Finally, by “guard[ing] against premature and
protective removals and minimiz[ing] the potential for a
            DIETRICH V. THE BOEING COMPANY                  13

cottage industry of removal litigation,” the “unequivocally
clear and certain” standard will “assur[e] that removal occurs
once the jurisdictional facts supporting removal are evident,”
and thus will “ensure respect for the jurisdiction of state
courts.” 

Id. at 698

.

    Relying on Durham v. Lockheed Martin Corp., 

445 F.3d 1247

 (9th Cir. 2006), Dietrich argues that the removal clock
instead begins under the second pathway as soon as
sufficient information is available to permit the defendant to
remove to federal court. But that was not the holding of
Durham. In Durham, we were not deciding whether the
thirty-day clock had begun under the second pathway, much
less what standard to apply were that the question. Instead,
we were deciding whether the thirty-day clock had been
reset by the defendant’s discovery of another ground for
removal under the federal officer removal statute, after
having already discovered and allowed the thirty-day clock
to expire on a different ground for removal. 

Id. at 1249

. We
held “that a federal officer defendant’s thirty days to remove
commence when the plaintiff discloses sufficient facts for
federal officer removal, even if the officer was previously
aware of a different basis for removal.” 

Id. at 1253

.

    Viewed in context, then, the operative part of Durham’s
holding was that the removal clock begins upon the
revelation of a federal officer ground for removal “even if
the officer was previously aware of a different basis for
removal.” 

Id.

 The language preceding that holding—“that
a federal officer defendant’s thirty days to remove
commence when the plaintiff discloses sufficient facts for
federal officer removal”—does not tell us when the facts
disclosed by the plaintiff will be sufficient. 

Id.

 The district
court equates facts sufficient to allow removal with facts
sufficient to require removal within thirty days. But in Roth
14            DIETRICH V. THE BOEING COMPANY

v. CHA Hollywood Medical Center, L.P., 

720 F.3d 1121

, we
concluded that a defendant may remove before it must do so.

Id. at 1123

. Thus, especially when read alongside Roth,
Durham does not answer how we determine when “it may
first be ascertained” from an “amended pleading, motion,
order or other paper . . . that the case is one which is or has
become removable.” 

28 U.S.C. § 1446

(b)(3) (emphasis
added).

    Applying the “unequivocally clear and certain” standard,
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 § 1446(b)(3). Here, Boeing’s removal was timely, as no
ground for removal was unequivocally clear and certain until
after April 16, 2019. 2 Dietrich served her amended
responses to Boeing’s discovery requests on April 19, 2019.
Those responses clearly stated: “CONNIE DIETRICH was
exposed to asbestos fibers, particles and/or dust through her
now deceased husband’s exposure to asbestos-containing
components of BOEING’S aircraft . . . during
Mr. DIETRICH’S time in the United States Marine
[Corps].” Before April 19, 2019, all the information
available to Boeing was ambiguous or misleading as to
whether Dietrich’s claims against Boeing were related to her
husband’s service in the military. This information included
Dietrich’s decision to expressly exempt Boeing from
Dietrich’s strict liability cause of action; the geographical
limitation on Dietrich’s locations of exposure; Dietrich’s
response to Boeing’s first set of interrogatories that her

     2
      April 16, 2019, is the relevant date because Boeing removed thirty
days later, on May 16, 2019. Thus, unless a pleading, motion, order, or
“other paper” started the removal clock before April 16, 2019, Boeing’s
removal was timely under § 1446(b).
              DIETRICH V. THE BOEING COMPANY                        15

husband started working on Douglas aircraft after his
military service had ended; and Dietrich’s statement during
her deposition that her husband had never told her
specifically whether he had worked on asbestos-containing
aircraft while briefly stationed in California.

     The district court’s determination that Boeing had
“ample” information to remove “certainly prior to April 16,
2019” relied in part on Dietrich’s children’s depositions,
which were taken on April 8–10, 2019. However, as the
Fifth Circuit explained in Morgan v. Huntington Ingalls,
Inc., 

879 F.3d 602

 (5th Cir. 2018), “[t]he plain meaning of,
purpose of, and policy considerations behind § 1446(b) all
support the conclusion that oral testimony at a deposition
does not constitute [an] ‘other paper.’” Id. at 608; see also
id. at 610 n.26. The plain meaning of “other paper” does not
cover oral testimony, and we so hold here, because “‘paper’
is defined as ‘[a] written or printed document or
instrument.’” Id. at 608 (first alteration omitted) (quoting
Paper, Black’s Law Dictionary 1266 (4th ed. 1951)). 3 Thus,
even if Dietrich’s children’s depositions did affirmatively
reveal a federal officer ground for removal, Boeing’s
removal was timely unless it received the deposition
transcripts on or before April 15, 2019. Clearly Boeing did
not, because the court reporter did not even certify the
transcripts until April 17, 2019, and April 23, 2019.




    3
      The Tenth Circuit has held that “the removal period commences
with the giving of the [deposition] testimony, not the receipt of the
transcript.” Huffman v. Saul Holdings Ltd. P’ship, 

194 F.3d 1072, 1078

(10th Cir. 1999). We reject that interpretation as plainly inconsistent
with § 1446(b)(3)’s requirement of “a pleading, motion, order or other
paper.” (Emphasis added).
16          DIETRICH V. THE BOEING COMPANY

    We adhere to Harris’s principles of certainty, fairness,
efficient dispute resolution, and federalism by adopting the
“unequivocally clear and certain” standard. We hope that
this standard will increase certainty, promote fairness, and
materially reduce the types of delays that occurred in this
case, delays that conflict with one of the basic principles of
our legal system—justice delayed is justice denied.

   Finally, given the time sensitive nature of this dispute,
we urge the district court to resolve this case as swiftly as
possible on remand.

   REVERSED, and the award of attorneys’ fees is
VACATED, with the parties to bear their own costs on
appeal.