F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 25 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MELVIN GREEN,
Plaintiff-Appellant,
v. No. 99-5139
(D.C. No. 98-CV-352-H)
HARSCO CORPORATION, (N.D. Okla.)
a Delaware Corporation,
Defendant-Appellee,
and
FABSCO, INC., an Oklahoma
Corporation,
Defendant.
ORDER AND JUDGMENT *
Before KELLY , McKAY , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiff-appellant Melvin Green appeals the district court’s May 4, 1999
order granting defendant-appellee Harsco Corporation’s motion for summary
judgment, and its June 14, 1999 order denying plaintiff’s motion to vacate and
remand the matter to state court. The district court acquired diversity jurisdiction
pursuant to 28 U.S.C. § 1332(a) and (c). We exercise jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
Background
In 1991, Green sustained a work-related injury to his back which required
two surgeries. As a result, Green was absent from work at Harsco for over one
year. 1 On May 22, 1995, Green sustained a second on-the-job injury to his back,
but continued to perform his work duties at Harsco. Harsco claimed that the first
it knew of this second injury was when it was notified that Green had filed
a workers’ compensation claim. At that point, Harsco requested that Green leave
work until he received a release from his doctor. Harsco asserted that Green
received a release to work from Dr. Jerry McKenzie on June 16, 1995, but never
1
At the time of Green’s injury he was employed by defendant Fabsco
Corporation. In February 1995, Fabsco became a division of Harsco. To
minimize confusion, we will refer to Green’s employer as Harsco throughout
this discussion.
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returned to work. In fact, Harsco asserted that it did not learn of the release until
it was filed with the state workers’ compensation court in October 1996.
Harsco asserts that it authorized treatment for Green with Dr. Hendricks,
his previous surgeon, but that Green never saw Dr. Hendricks. Harsco then had
Green examined by Dr. Paul. Even though Dr. Paul medically released Green to
return to work, Green continued to be absent. Finally on April 3, 1997, almost
two years after Green had been told to leave work until he received a doctor’s
release, Harsco terminated him because it no longer had a position for him.
In June 1997, Green filed suit in Oklahoma state court alleging
wrongful termination in violation of the Oklahoma Workers’ Compensation Act,
Okla. Stat. tit. 85, § 5, and a claim under the Family and Medical Leave Act
(FMLA), 29 U.S.C. §§ 2601-2654. Because Green’s FMLA claim invoked federal
question jurisdiction, Harsco removed the case to federal court. Green withdrew
his FMLA claim, and the district court remanded the matter back to state court.
In May 1998, Harsco again removed the matter to federal court based on diversity
jurisdiction. Although Green initially moved for remand based on his allegation
that Harsco’s principal place of business defeated diversity jurisdiction, he
withdrew his motion after receiving Harsco’s response. Following a hearing and
the district court’s entry of summary judgment in favor of Harsco, Green moved
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under Fed. R. Civ. P. 60(b)(6) 2
to vacate the summary judgment order and to
remand the case to state court, alleging that the district court did not have subject
matter jurisdiction because the amount in controversy did not exceed $75,000.
The district court denied the motion, and Green filed a timely notice of appeal.
On appeal, Green states his issues as: (1) the federal district court lacked
jurisdiction to consider Green’s claims; and (2) there were disputed issues of
material fact that precluded the court’s grant of Harsco’s summary judgment
motion. We conclude that the district court had jurisdiction to consider Green’s
claims, and that the grant of summary judgment was correct.
Discussion
A. Jurisdiction
“When a plaintiff files in state court a civil action over which the federal
district courts would have original jurisdiction based on diversity of citizenship,
the defendant or defendants may remove the action to federal court . . . .”
Caterpillar Inc. v. Lewis , 519 U.S. 61, 68, (1996) ( citing 28 U.S.C. § 1441(a)).
“The burden is on the party requesting removal to set forth, in the notice of
removal itself, the ‘ underlying facts supporting [the] assertion that the amount in
2
Rule 60(b)(6) provides that “the court may relieve a party or a party’s legal
representative from a final judgment, order, or proceeding for the following
reasons: . . . (6) any other reason justifying relief from the operation of the
judgment.”
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controversy exceeds [$75,000].’” Laughlin v. Kmart Corp. , 50 F.3d 871, 873
(10th Cir. 1995) ( quoting Gaus v. Miles, Inc. , 980 F.2d 564, 567 (9th Cir. 1992)).
A plaintiff objecting to removal may file a motion asking the district court to
remand the case to state court. See Caterpillar , 519 U.S. at 69. “‘This court has
jurisdiction over a denial of a motion to remand to state court when coupled with
the appeal of a final judgment.’” Huffman v. Saul Holdings Ltd. Partnership ,
194 F.3d 1072, 1076 (10th Cir. 1999) ( quoting Leffall v. Dallas Indep. Sch. Dist .,
28 F.3d 521, 524 n.1 (5th Cir. 1994)); see also Caterpillar , 519 U.S. at 74 (stating
that a timely motion for remand is all that is required to preserve appellate review
of an objection to removal).
“[T]here are two types of improperly removed cases: those in which the
federal court has no subject matter jurisdiction and those with defects in the
removal procedure itself.” Huffman , 194 F.3d at 1076. Here, Green’s assertion
that the court had no subject matter jurisdiction is an issue that can never be
waived and may be raised at any time. See id. at 1076-77. “‘Because removal is
an issue of statutory construction, we review a district court’s determination of
the propriety of removal de novo.’” Id. (quoting Leffall , 28 F.3d at 524).
28 U.S.C. § 1332(a) provides that “district courts shall have original
jurisdiction of all civil actions where the matter in controversy exceeds the sum
or value of $75,000, . . . and is between– (1) citizens of different States.” Here,
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Green asserts that the amount in controversy had not been established as in excess
of $75,000, and therefore removal to federal court was inappropriate. In
determining whether the requirements of federal diversity jurisdiction have been
established, this court must look to the plaintiff’s complaint. See Penteco Corp.
Ltd. Partnership–1985A v. Union Gas Sys., Inc. , 929 F.2d 1519, 1521 (10th Cir.
1991). “Where the pleadings are found wanting, [however], an appellate court
may also review the record for evidence that diversity does exist.” Id.
Green’s amended complaint put forward three claims for damages generally
in excess of $10,000 as required by the Oklahoma Pleading Code, Okla. Stat. tit.
12, § 2008(A)(2). 3
In his first motion to remand, however, Green stated that he
did “not dispute that the amount in controversy exceeds $75,000.00.” Appellant’s
App. at 314. Moreover, in his response to Harsco’s first request for admissions,
Green admitted that his claim for damages exceeded $75,000. See id. at 345A.
Harsco relied on these admissions in its notice of removal, alleging that Green’s
response to Harsco’s first request for admissions was “‘other paper from which it
may be ascertained that the case is one which is or has become removable.’”
Appellee’s Supp. App. at 297 ( quoting 28 U.S.C. § 1446(b)).
3
Section 2008(A)(1) states that “[e]very pleading demanding relief for
damages in money in excess of Ten Thousand Dollars ($10,000.00) shall, without
demanding any specific amount of money, set forth only that the amount sought as
damages is in excess of Ten Thousand Dollars ($10,000.00), except in actions
sounding in contract.”
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“Where the complaint does not demand a dollar amount, the removing
defendant bears the burden of proving by a preponderance of evidence that the
amount in controversy exceeds [$75,000].” Singer v. State Farm Mut. Auto. Ins.
Co. , 116 F.3d 373, 376 (9th Cir. 1997); see also Laughlin , 50 F.3d at 873. Here,
the district court was satisfied that Harsco had shown, by a preponderance of the
evidence, that the amount in controversy exceeded the jurisdictional amount.
We agree. Green voluntarily admitted that the amount of damages he was seeking
exceeded the jurisdictional amount. See, e.g., Huffman , 194 F.3d at 1078 (holding
that a deposition constitutes “other paper” within the meaning of § 1446(b)). This
was sufficient to invoke Harsco’s reliance for removal purposes and in fact, this,
combined with Green’s admission in his first motion to remand, constituted more
evidence of the amount in controversy than could have been ascertained from
Green’s complaint specifying an amount of damages. Consequently, the amount
in controversy was adequately established, the district court had subject matter
jurisdiction, and the district court correctly denied Green’s motion to remand.
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B. Summary Judgment
“We review the district court’s grant of summary judgment de novo,
applying the same legal standard used by the district court.” Simms v. Oklahoma
ex rel. Dep’t of Mental Health & Substance Abuse Servs ., 165 F.3d 1321, 1326
(10th Cir.), cert. denied , 120 S. Ct. 53 (1999). Summary judgment is appropriate
where no genuine issues of material fact exist and the moving party is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(c). When reviewing a grant
of summary judgment, we view the evidence and draw reasonable inferences
therefrom in the light most favorable to the nonmoving party. See Simms ,
165 F.3d at 1326.
Initially, Harsco asserts that because Green did not object to the order
granting summary judgment in his motion to vacate and remand, he has waived
that issue on appeal. We do not agree. Green’s motion, filed within ten days of
the entry of judgment, tolls the time for filing Green’s notice of appeal under
Fed. R. App. P. 4(a)(4). See Fed. R. App. P. 4(a)(4)(vi) (providing that a Rule 60
motion filed within ten days after service of the judgment tolls the time for filing
a notice of appeal until entry of an order disposing of Rule 60 motion). Here, the
district court entered summary judgment in favor of Harsco on May 4, 1999.
Green filed his Rule 60(b) motion on May 11, 1999, within ten days of the
summary judgment order. Therefore, the time for filing a notice of appeal from
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the district court summary judgment decision was tolled until entry of the district
court decision on Green’s Rule 60(b) motion on June 14, 1999. Green
subsequently timely filed his notice of appeal on July 1, 1999, rendering his
summary judgment issues properly before this court. 4
Because this case is “grounded on diversity jurisdiction,” we apply
Oklahoma substantive rules of law. Blanke v. Alexander , 152 F.3d 1224, 1228
(10th Cir. 1998). “A federal court sitting in diversity must apply the law of the
forum state, in this case Oklahoma, and thus must ascertain and apply Oklahoma
law with the objective that the result obtained in the federal court should be the
result that would be reached in an Oklahoma court.” Wood v. Eli Lilly & Co. ,
38 F.3d 510, 512 (10th Cir. 1994). In reviewing this case, we are obligated to
“apply Oklahoma law, as announced by that state’s highest court.” Hays v.
Jackson Nat’l Life Ins. Co ., 105 F.3d 583, 587 (10th Cir. 1997). The district
court’s determination of Oklahoma law is reviewed de novo. See Salve Regina
College v. Russell , 499 U.S. 225, 239 (1991).
Green contends that the district court erred in concluding that there was no
disputed issue of fact as to whether Harsco’s termination of Green was in
4
We note that Harsco appears to confuse these circumstances with waiver of
issues not ruled on by the district court. Here, the summary judgment issues were
ruled on by the district court, and in light of Green’s timely appeal, are properly
considered here.
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retaliation for his filing a worker’s compensation claim in violation of the
Oklahoma Worker’s Compensation Act, Okla. Stat. tit. 85, § 5. Section 5(A)(1)
prohibits any “person, firm, partnership, corporation or other entity [from]
discharg[ing] . . . any employee because the employee has in good faith . . .
[i]nstituted or caused to be instituted any proceeding under the [Oklahoma
Workers’ Compensation Act].” In order to establish a claim under this statute,
Green had to prove that (1) he was employed; (2) he suffered an on-the-job
injury; (3) he received medical treatment putting his employer on notice that he
had initiated worker’s compensation proceedings; and (4) he was consequently
terminated from his employment. See Wallace v. Halliburton Co. , 850 P.2d 1056,
1059 (Okla. 1993). To establish the fourth element, Green had to produce
evidence sufficient to support a legal inference that the termination was
“significantly motivated” by retaliation for exercising his statutory rights. Id.
It appears to be undisputed that Green established the first three elements
of his prima facie case. The district court’s focus was, therefore, on the fourth
element--whether a consequent termination occurred. Green’s only argument on
appeal in support of his contention that he was terminated as a consequence of his
filing a worker’s compensation claim is that the timing of his discharge raises an
inference of retaliatory discharge. He claims that he was constructively
discharged when he was originally sent home after Harsco learned of his back
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injury and his worker’s compensation claim. That issue is not reviewable. In its
summary judgment order, the district court noted that, in his response to Harsco’s
motion for summary judgment, Green conceded that he had no viable claim for
constructive discharge. See Appellant’s App. at 34 n.1. In this light the court
dismissed this claim with prejudice. See id. Because this court will not consider
on appeal a claim abandoned in the district court, see O’Connor v. City & County
of Denver , 894 F.2d 1210, 1214 (10th Cir. 1990), we will not consider Green’s
constructive discharge argument.
Reviewing the evidence in the light most favorable to Green, we do not
believe that a reasonable jury could conclude that his termination was motivated
by retaliation for filing a worker’s compensation claim. See Taylor v. Cache
Creek Nursing Centers, 891 P.2d 607, 610 (Okla. Ct. App. 1994) (holding that
plaintiff is required to produce evidence establishing an inference that termination
was a consequence of filing a worker’s compensation claim). Green simply failed
to establish any link between his termination, a full twenty-one months after his
injury, and his worker’s compensation claim. Therefore, Green failed to establish
a “consequent termination” of employment. Id.
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Conclusion
Upon careful review of the parties’ appellate briefs, the district court’s
orders, and the record on appeal, this court AFFIRMS the grant of summary
judgment in favor of Harsco for substantially the reasons set forth in the district
court’s order dated May 4, 1999. Additionally, we AFFIRM the district court’s
denial of Green’s post-judgment motion to vacate and remand.
Entered for the Court
Monroe G. McKay
Circuit Judge
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