FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMY ROTH; SHANA EKIN, as No. 13-55771
individuals and on behalf of
themselves and all others D.C. No.
similarly situated, 2:12-cv-07559-
Plaintiffs-Appellees, ODW-SH
v.
OPINION
CHA HOLLYWOOD MEDICAL
CENTER, L.P., DBA CHA
Hollywood Presbyterian
Medical Center and
Hollywood Presbyterian
Medical Center; CHS
HEALTHCARE MANAGEMENT,
L.L.C.,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted
June 6, 2013—Pasadena, California
Filed June 27, 2013
2 ROTH V. CHA HOLLYWOOD MEDICAL CENTER
Before: Stephen S. Trott, Carlos F. Lucero*, and
William A. Fletcher, Circuit Judges.
Opinion by Judge W. Fletcher
SUMMARY**
Class Action Fairness Act / Removal
The panel reversed the district court’s remand to state
court under the Class Action Fairness Act of a wage-and-hour
class action.
The panel held that a defendant who has not lost the right
to remove a state action to federal court because of a failure
to timely file a notice of removal under 28 U.S.C.
§§ 1446(b)(1) or (b)(3) may remove to federal court when it
discovers, based on its own investigation, that a case is
removable. The panel concluded that removal of this case
was not barred by § 1446(b)(1) or (b)(3).
*
The Honorable Carlos F. Lucero, Circuit Judge for the U.S. Court of
Appeals for the Tenth Circuit, 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.
ROTH V. CHA HOLLYWOOD MEDICAL CENTER 3
COUNSEL
Karin L. Bohmholdt (argued), Mark D. Kemple, and Bryan J.
Lazarski, Greenberg Traurig, LLP, Los Angeles, California,
for Defendants-Appellants.
Louis M. Marlin (argued) and Kristen Marquis Fritz, Marlin
& Saltzman, LLP, Irvine, California; Donald C. Potter, Law
Office of Donald C. Potter, Pasadena, California, for
Plaintiffs-Appellees.
OPINION
W. FLETCHER, Circuit Judge:
Defendants appeal from the district court’s remand to
state court under the Class Action Fairness Act (“CAFA”).
28 U.S.C. § 1453(c)(1). The district court construed
28 U.S.C. § 1446(b)(1) and (b)(3) to permit removal only
during the two thirty-day periods specified in those
subsections. It held that removal was improper because
defendants had not sought removal during either such period.
We granted review and now reverse.
Section 1446(b)(1) and (b)(3) specify that a defendant
must remove a case within thirty days of receiving from the
plaintiff either an initial pleading or some other document, if
that pleading or document shows the case is removable.
However, these two periods do not otherwise affect the time
during which a defendant may remove. That is, the two
periods specified in § 1446(b)(1) and (b)(3) operate as
limitations on the right to removal rather than as
authorizations to remove.
4 ROTH V. CHA HOLLYWOOD MEDICAL CENTER
We hold that a defendant who has not lost the right to
remove because of a failure to timely file a notice of removal
under § 1446(b)(1) or (b)(3) may remove to federal court
when it discovers, based on its own investigation, that a case
is removable.
I. Procedural History
Plaintiff-Appellee Amy Roth filed a state-law wage-and-
hour class action in Los Angeles Superior Court on April 27,
2011. Roth, along with an added plaintiff, filed a first
amended complaint (“FAC”) on May 24, 2012, naming for
the first time CHA Hollywood Medical Center (“CHA”) as a
defendant.
On September 4, 2012, CHA, joined by the other
defendants, filed a notice of removal in the Central District of
California. Defendants alleged diversity jurisdiction under
CAFA based on the diverse citizenship of one would-be class
member. Defendants further alleged an amount in
controversy in excess of $5,000,000. 28 U.S.C. § 1332(d)(2).
Defendants also alleged federal question jurisdiction under
the Labor Management Relations Act based on the existence
of a collective-bargaining agreement. 28 U.S.C. § 1331;
29 U.S.C. § 185(a).
Plaintiffs moved to remand. In opposing the motion,
defendants submitted the declaration of Ms. Daisy Tacbas,
who stated that she had been employed in California by CHA
during the class period in a position that qualified her as a
member of the would-be plaintiff class. In her declaration,
dated August 15, 2012, Ms. Tacbas stated that she had moved
to Nevada in late 2011 and that she intended to live in Nevada
for the foreseeable future. Defendants also submitted
ROTH V. CHA HOLLYWOOD MEDICAL CENTER 5
declarations from the CHA Vice President of Human
Resources and the CHA General Counsel, dated October 15,
2012, stating that the amount in controversy is in excess of
$5,000,000. Defendants also submitted evidence showing
that there was a collective-bargaining agreement.
The district court granted the motion to remand. It found
that the defendants had not received from the plaintiffs, in the
FAC or other document, sufficient indication that the case
was removable under either CAFA diversity jurisdiction or
federal question jurisdiction. It held that the defendants could
not remove based on information discovered by CHA, as
opposed to information contained in the FAC or some other
document received from plaintiffs. In the district court’s
view, removal was improper, even if the jurisdictional
requirements of CAFA or federal question had been satisfied,
because neither of the thirty-day periods specified in
§ 1446(b)(1) or (b)(3) had been triggered by documents
received from plaintiffs.
Defendants appeal, contending that the case is removable
based on diversity jurisdiction under CAFA. They do not
appeal the denial of federal question removal.
II. Standard and Timing of Review
We review de novo a district court’s remand order.
Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 679
(9th Cir. 2006). Generally, “[u]nder CAFA, we have 60 days
from the time we accept the appeal to complete all action on
such appeal, including rendering judgment.” Lowdermilk v.
U.S. Bank Nat’l Ass’n, 479 F.3d 994, 996 (9th Cir. 2007)
(internal quotation marks omitted).
6 ROTH V. CHA HOLLYWOOD MEDICAL CENTER
III. Discussion
Under 28 U.S.C. § 1441, a defendant may generally
remove a civil action from state court to federal district court
if the district court would have had subject matter jurisdiction
had the action been originally filed in that court:
(a) Generally.--Except as otherwise expressly
provided by Act of Congress, any civil action
brought in a State court of which the district
courts of the United States have original
jurisdiction, may be removed by the defendant
or the defendants, to the district court of the
United States for the district and division
embracing the place where such action is
pending.
28 U.S.C. § 1441(a). Procedures for removal are set forth in
28 U.S.C. § 1446. Section 1446(a) provides generally that a
defendant seeking to remove a civil action shall file a notice
of removal in the district court. Section 1446 also contains
restrictions on removal, including a requirement that a notice
of removal be filed within thirty days of receipt from the
plaintiff of an initial pleading or other document from which
it is ascertainable that the case is removable. 28 U.S.C.
§ 1446(b)(1), (b)(3). Specifically, the statute reads:
b) Requirements; generally.--(1) The notice
of removal of a civil action or proceeding
shall be filed within 30 days after the receipt
by the defendant, through service or
otherwise, of a copy of the initial pleading
setting forth the claim for relief upon which
such action or proceeding is based, or within
ROTH V. CHA HOLLYWOOD MEDICAL CENTER 7
30 days after the service of summons upon the
defendant if such initial pleading has then
been filed in court and is not required to be
served on the defendant, whichever period is
shorter.
...
(3) Except as provided in subsection (c), 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,
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.
28 U.S.C. § 1446(b)(1)–(3).
The question presented in this case is whether the two
thirty-day periods described in § 1446(b)(1) and (b)(3) are the
only periods during which the defendant may remove, or if
they are merely periods during which a defendant must
remove if one of the thirty-day time limits is triggered.
Plaintiffs contend that the two thirty-day periods are both
limitations on, and exclusive authorizations for, removal.
Defendants contend that authorization for removal is
provided by § 1441(a), and that the two thirty-day periods
specified in § 1446(b)(1) and (b)(3) are merely procedural
limitations on removal if triggered. Although defendants in
this case have sought to remove pursuant to CAFA, the
question arises in diversity removal cases generally. See
28 U.S.C. § 1453(b).
8 ROTH V. CHA HOLLYWOOD MEDICAL CENTER
We have not found any cases in our circuit that answer
this question. We held in Harris v. Bankers Life and
Casualty Co., 425 F.3d 689, 693–94 (9th Cir. 2005), that a
defendant does not have a duty of inquiry if the initial
pleading or other document is “indeterminate” with respect to
removability. Thus, even if a defendant could have
discovered grounds for removability through investigation, it
does not lose the right to remove because it did not conduct
such an investigation and then file a notice of removal within
thirty days of receiving the indeterminate document. Harris
did not address a case in which a defendant conducted its own
investigation, even though not required to do so, and
discovered that a case was removable.
We conclude that §§ 1441 and 1446, read together, permit
a defendant to remove outside the two thirty-day periods on
the basis of its own information, provided that it has not run
afoul of either of the thirty-day deadlines. For good reason,
§ 1446(b)(1) and (b)(3) place strict limits on a defendant who
is put on notice of removability by a plaintiff. A defendant
should not be able to ignore pleadings or other documents
from which removability may be ascertained and seek
removal only when it becomes strategically advantageous for
it to do so. But neither should a plaintiff be able to prevent or
delay removal by failing to reveal information showing
removability and then objecting to removal when the
defendant has discovered that information on its own.
Similarly, a plaintiff’s ignorance of the citizenship of would-
be class members should not defeat removal if defendant
independently knows or learns that information.
The FAC in this case was at best “indeterminate.” Harris,
425 F.3d at 693. It did not reveal on its face that there was
diversity of citizenship or that there was sufficient amount in
ROTH V. CHA HOLLYWOOD MEDICAL CENTER 9
controversy to support jurisdiction under CAFA. After
receiving the FAC, CHA consulted its own employment files
to identify the potential class members. It quickly located
Ms. Tacbas, who signed a declaration stating that she is a
citizen of Nevada. Ms. Tacbas’s Nevada citizenship is
enough to provide the requisite minimal diversity under
CAFA. See 28 U.S.C. § 1332(d)(2)(A). CHA also consulted
its Vice President of Human Resources and its General
Counsel, who signed declarations stating that the amount in
controversy is excess of $5,000,000. See id. § 1332(d)(2).
Plaintiffs may well have suspected, given the class period
and the size of the would-be class, that one or more class
members had left California by the time suit was filed. But
because the would-be plaintiff class comprises CHA
employees whose names and other identifying information
are known to CHA, we may infer that CHA is in a better
position than plaintiffs to investigate the citizenship of those
would-be class members. It would be odd, even perverse, to
prevent removal in this case, and we see nothing in the text of
§§ 1441 and 1446 to require such a result.
We recognize that there is language in a Fifth Circuit
decision suggesting that the two thirty-day periods specified
in § 1446(b)(1) and (b)(3) are the only periods during which
a case may be removed. In S.W.S. Erectors, Inc., v. Infax,
Inc., 72 F.3d 489, 491 (5th Cir. 1996), defense counsel
prepared an affidavit describing a conversation with the
plaintiff in which the plaintiff stated that the anticipated
damages satisfied the amount in controversy requirement.
The defendant filed a notice of removal more than thirty days
after his attorney’s preparation of the affidavit. Id. at 494.
The court held that the affidavit was not an “other paper”
received from the plaintiff under § 1446(b)(3), and thus did
10 ROTH V. CHA HOLLYWOOD MEDICAL CENTER
not trigger the thirty-day period. Id. The court held further
that a statement in a deposition, after which a notice of
removal had been timely filed, constituted an “other paper,”
and that removal was therefore proper. Id. In the course of
its opinion, the court wrote:
We find that an affidavit created by the
defendant and based on the defendant’s
subjective knowledge cannot convert a non-
removable action into a removable one. We
hold that the affidavit, created entirely by the
defendant, is not “other paper” under section
1446(b) and cannot start the accrual of the 30-
day period for removing.
Id. (emphasis added). Read without regard to context, the
italicized sentence suggests that an action is not removable
when the information supporting removal comes from the
defendant rather than the plaintiff. However, we are inclined
to think that the sentence should be understood in context to
mean only that a “defendant’s subjective knowledge cannot
convert a non-removable action into a removable one” such
that the thirty-day time limit of § 1446(b)(1) or (b)(3) begins
to run against the defendant.
We discern one practical objection to our reading of
§§ 1441 and 1446(b). It may be that in some diversity cases,
defendants will be able to take advantage of the fact that
neither the “initial pleading” nor any later document received
from plaintiff triggers one of the two thirty-day periods. In
such cases, defendants may sometimes be able to delay filing
a notice of removal until it is strategically advantageous to do
so. In a non-CAFA diversity case, the advantage gained
through such gamesmanship is limited by the fact that a
ROTH V. CHA HOLLYWOOD MEDICAL CENTER 11
notice of removal must be filed, in any event, within one year
of the commencement of the action. See 28 U.S.C.
§ 1446(c)(1). However, in a CAFA case, there is no such
time limit. A CAFA case may be removed at any time,
provided that neither of the two thirty-day periods under
§ 1446(b)(1) and (b)(3) has been triggered. See 28 U.S.C.
1453(b).
It is thus at least theoretically possible in a CAFA case for
a defendant to wait until the state court has shown itself ill-
disposed to defendant, or until the eve of trial in state court,
before filing a notice of removal. That is not what happened
in the case before us. Defendants promptly investigated to
determine whether the case was removable. Then, upon
learning that it was removable, they promptly filed a notice
of removal. But the theoretical possibility of abusive
gamesmanship remains.
Our best answer — and a likely sufficient answer — is
that plaintiffs are in a position to protect themselves. If
plaintiffs think that their action may be removable and think,
further, that the defendant might delay filing a notice of
removal until a strategically advantageous moment, they need
only provide to the defendant a document from which
removability may be ascertained. 28 U.S.C. § 1446(b)(3).
Such a document will trigger the thirty-day removal period,
during which defendant must either file a notice of removal
or lose the right to remove.
We cannot be certain whether the case now before us will
prove removable. Among other things, plaintiffs have not yet
had the opportunity to provide evidence showing that their
class action qualifies for the local controversy exception
under 28 U.S.C. § 1332(d)(4)(A). We hold only that removal
12 ROTH V. CHA HOLLYWOOD MEDICAL CENTER
is not barred here by § 1446(b)(1) or (b)(3). We remand to
the district court for further proceedings consistent with this
opinion.
REVERSED and REMANDED.