Uncertainty in federal removal procedure: the riddle of the "other paper": litigants are in a linguistic quandary about what triggers the 30-day period for removal, but the problem could be fixed by statutory amendment.

• Author: Clanton, Adam C.

IMAGINE that Defense Counsel X is assigned to a state court suit in the United States with no federal question issues but with diversity and a plaintiff seeking only $45,000 in his initial complaint filed on November 1. Under these circumstances, X has no basis to petition for removal of the case to federal court because the amount in controversy is less than $75,000, as required by 28 U.S.C. [section] 1332 for removal. On December 1, however, the plaintiff amends his complaint and now claims $77,000. Now X knows the case has become removable. But when does X need to petition for removal?

After reading the procedural removal requirements of 28 U.S.C. [section] 1446(b), X would have a clear answer:

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty 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. So as long as X files a removal petition by December 31, 30 days after the amended complaint made the suit eligible for removal, X will meet the procedural requirement.

But, suppose the state court case circumstances are different. Assume that on December 1, the plaintiff has not amended the complaint, but on that date X receives a copy of a deposition transcript in which the plaintiff has testified under oath that his medical expenses had risen to "well over $77,000." What should X do if he wants to remove the case to federal court? Although X has received no copy of an amended pleading, motion or order, as required under the language of Section 1446(b), is the deposition transcript a form of documentation sufficient as an "other paper"? Has the transcript triggered the 30-day removal period?

Now it is December 30, and X files for removal on the basis of the deposition transcript, confident the motion is within the 30-day removal period and that the transcript is an "other paper." But what if, while X received the deposition transcript on December 1, the actual oral deposition on which the transcript is based took place on November 15, and it was on that date that X first learned of possible diversity jurisdiction. Did this oral notice serve as an "other paper" in effect rendering X's December 30 removal petition almost two weeks overdue?

Remarkably, as simple as these circumstances seem, the federal courts remain divided as to what material suffices as an "other paper" to trigger the 30-day removal period. Some allow only documents within the formal court proceedings to begin the removal period. Thus, receipt of a deposition transcript would not trigger removal. Other courts allow informal documentation, such as interrogatories, affidavits, deposition transcripts and even attorneys' correspondence, to start removal. Still other courts have adopted a more liberal interpretation, holding that any information that provides "actual notice" may serve as an "other paper."

In view of the plain meaning of the statutory language and the competing public policies, one must conclude that Congress added the phrase "other paper" as a general writing requirement that embraces informal as well as formal written material, but excludes notice given to a defendant in unwritten form.

"OTHER PAPER" AS ONLY FORMAL COURT DOCUMENTS

At the outset, one might first turn to the legislative history of 1446(b) to understand the meaning Congress had intended to give to the phrase "other paper." Given the divide, however, it should not be surprising that there is an almost complete absence of legislative history. In 1949, Congress amended Section 1446(b) to add the present provision permitting removal of cases not initially removable. In the House Report accompanying the amendments, Congress stated simply:

The second paragraph of the amendment to subsection (b) is intended to make clear that the fight of removal may be exercised at a later stage of the case if the initial pleading does not state a removable case but its removability is subsequently disclosed. (1) In light of this extreme generality, courts have been left to their own devices to determine the depth and breadth of the meaning of specific phrases and have applied variety of methods of statutory interpretation to arrive at very diverse conclusions.

1. Constructionism and Context Clues

   A minority of federal courts adhere to the position that "other paper" applies only to formal court documents in the record of the state proceedings. The primary motivation behind this view, according to Mill-Bern Associates Inc. v. Dallas Semiconductor Corp., (2) is adherence to "the customary canons of statutory interpretation, without worrying how the construction is characterized." In Mill-Bern, for example, the defendants invoked the "other paper" provision with respect to receipt of a deposition transcript that indicated for the first time that complete diversity existed between the parties. Endorsing a constructionist vision of statutory review, the court ruled in favor of remand, concluding that "other paper" refers only to off official court documents.

   Although the court understood that a "plain meaning" review of the phrase "other paper" made no distinction between informal or formal papers, it applied the principle of ejusdem generis, whereby a court consults the context in which the words appear to resolve potential ambiguity of meaning:

   The words "other paper" are part of a series: "amended pleading, motion, order or other paper." Following as they do three specific terms, the general words "other paper" should be understood to describe something that shares some common characteristic or quality with the other terms in the series. The first three terms in the series--amended pleading, motion, order--each describe a document that serves a relatively formal purpose in the litigation and is formally filed and/or served on the parties. (3) By examining the similar identity of specifically enumerated documents that are meant to trigger removal, the minority position concludes that Congress intended "other paper" to match the qualifications of the other documents explicitly stated, and it limits review to formal material found in the state proceedings.

   While this contextual analysis is used to further the minority position, other courts have used this same interpretive methodology to arrive at a much broader understanding of the scope of Section 1446(b), one that encompasses both formal and informal documents within the meaning of the statute.

   In order to understand this "broader" view, one should look at a larger segment of the Section 1446(b) language than that quoted in Mill-Bern. Paragraph 2 of Section 1446(b) states that "removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper." (Emphasis added.) Although the language in the series noted in Mill-Bern indeed includes only formal court documents, when taken in conjunction with the language in the statute describing method of receipt, the meaning of "otherwise" produces a less formalistic result, for not all papers that effectively trigger removal need be delivered in a formal manner.

   Indeed, by examining the meaning of "other paper" in light of the "service or otherwise" language, the federal court in the Southern District of Mississippi observed in Sunburst Bank v. Summit Acceptance Corp.:

   Although notice must be in writing, the statute does not require "service" of that notice in some formal legal sense. Notification may be "through service or otherwise." Thus, while Congress insisted that notice of facts permitting removal must be in an "amended pleading, motion, order or other paper," the method of delivery or receipt of the writing was not circumscribed. (4) By adopting a more holistic contextual analysis, the Sunburst court arrived at the opposite conclusion--that an "other paper" can come in a wide variety of formats, including informal attorney correspondence. By failing to mandate any method of formal delivery, the plain meaning approach to Section 1446(b) implicitly suggests that papers not requiring service may also fall into the category of "other paper." Stated more clearly, if a sufficient paper can be delivered by any means, formal or informal, so too does it hold that the document delivered need not be formal.

   On a quick glance, one might attempt to challenge the majority's broad reading of the phrase "otherwise" and its application to "other paper" in light of the U.S. Supreme Court's 1999 ruling in Murphy Brothers Inc. v. Michetti Pipe Stringing Inc. (5) Prior to Murphy Brothers, courts were split over the question of whether a courtesy copy of a complaint given to the defendant prior to the plaintiff's filing of suit in state court could trigger the 30-day removal period under the phrase "service or otherwise." (6) Some courts, such as the 11th Circuit in Murphy Brothers, concluded that the plain meaning of "otherwise" incorporates a broad array of material, including facsimile correspondence, so that the 30day removal period begins on receipt of an informal courtesy copy, even if the plaintiff has not yet filed the complaint in state court.

   The Supreme Court rejected this view, holding that a facsimile transmission prior to service of process does not fall within the scope of the "otherwise" language of Section 1446(b) and is inadequate to trigger the removal period. The Court noted that in the absence of service of process, a "court ordinarily may not exercise power over a party the complaint names as defendant." Recognizing that "one becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority," the Court concluded that inherent in the "otherwise" language is the requirement that the defendant be served...