NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 1 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ORANGE COUNTY WATER DISTRICT; No. 21-55778
et al.,
D.C. No.
Plaintiffs-Appellees, 8:21-cv-01029-SVW-AS
v.
MEMORANDUM*
3M COMPANY,
Defendant-Appellant,
and
E. I. DU PONT DE NEMOURS &
COMPANY; et al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted February 15, 2022
Pasadena, California
Before: OWENS and MILLER, Circuit Judges, and CHRISTENSEN,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Dana L. Christensen, United States District Judge for
the District of Montana, sitting by designation.
Defendant-Appellant 3M Company (“3M”) challenges the district court’s
remanding of this case to California state court on timeliness grounds. We reverse.
We review a district court’s decision to remand a removed lawsuit de novo.
Corona-Contreras v. Gruel, 857 F.3d 1025, 1028 (9th Cir. 2017). In this case, the
district court concluded a footnote in 3M’s co-defendants’ reply brief triggered the
30-day removal deadline imposed by § 1446(b)(3). Assuming, without deciding,
that a co-defendant’s reply brief is an “other paper” within the meaning of
§ 1446(b)(3), the reply brief at issue in this case did not make the “ground for
removal unequivocally clear and certain,” as is necessary to start § 1446(b)(3)’s
30-day removal period. Dietrich v. Boeing Co., 14 F.4th 1089, 1095 (9th Cir.
2021).1
Here, the footnote was not clear and unequivocal about anything, but merely
stated that maybe, perhaps, some military installations in the Orange County area
are “potential sources of the” environmental contamination at issue. Nothing in
1
We recognize the district court did not have the benefit of our decision in
Dietrich when it issued its remand order. But this does not foreclose reversal
based on Dietrich’s reasoning. See United States v. Hernandez, 769 F.3d 1059,
1061 (9th Cir. 2014) (per curiam) (reversing because of decision issued after the
district court ruling at issue). Moreover, as we pointed out in Dietrich,
§ 1446(b)(3)’s 30-day removal period begins once a basis for removal may be
“ascertained,” and “ascertained” requires something be found or learned “with
certainty.” 14th F.4th at 1093 (emphasis original). Given this understanding, even
without Dietrich, the district court wrongly concluded the removability of this case
could be ascertained from the footnote at issue.
2
this footnote drew a causal connection between 3M and the suspected source of the
environmental contamination forming the basis of this lawsuit. Without this, the
footnote could not have triggered the 30-day removal deadline because it did not
clearly and unequivocally apprise 3M of the information necessary to invoke the
federal officer removal statute. See Durham v. Lockheed Martin Corp., 445 F.3d
1247, 1251 (9th Cir. 2006) (citing Jefferson County v. Acker, 527 U.S. 423, 431
(1999)).
Perhaps 3M could have filled in the gaps between the footnote and a basis
for federal officer removal on its own. But 3M’s subjective knowledge, or what it
could have possibly uncovered through its own investigation, is immaterial to the
removal analysis under § 1446(b)(3). Harris v. Bankers Life and Cas. Co., 425
F.3d 689, 694 (9th Cir. 2005). The focus is instead on what the four corners of the
“other paper” at issue clearly and unequivocally revealed. Id.; Dietrich, 14 F.4th at
1095. For the reasons stated above, the footnote in the reply brief at issue did not
clearly and unequivocally place 3M on notice of the basis for federal officer
removal in this case. Accordingly, we must reverse.
As a final matter, we decline 3M’s invitation to resolve the issue of whether
it has a colorable government contractor defense without the benefit of a district
court ruling on the issue. In doing so, we adhere to our general practice of waiting
“for the district court to decide [an issue] in the first instance” out of recognition
3
that it is “usually best positioned to apply the law to the record.” Planned
Parenthood of Greater Wash. & N. Idaho v. U.S. Dept. of Health & Human Servs.,
946 F.3d 1100, 1110–11 (9th Cir. 2020). The district court shall resolve this issue
on remand.
REVERSED AND REMANDED.
4