Bosky v. Kroger Texas, LP

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-40715

JEANNE BOSKY,
Plaintiff-Appellant,

versus

KROGER TEXAS, LP;
KROGER LIMITED PARTNERSHIP I,
Defendants-Appellees.

Appeal from the United States District Court
For the Eastern District of Texas

April 8, 2002

Before HIGGINBOTHAM, DeMOSS, and BENAVIDES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This is an appeal from a grant of summary judgment in a slip

and fall case. The plaintiff challenges the timeliness of the

removal to federal court of this diversity case and the grant of

summary judgment on the merits of her claim for personal injury

suffered in a slip and fall at a Kroger store. We affirm. We

agree with the grant of summary judgment on the merits and that the

case was properly removed. We write further only to explain the

standard for resolving the question of timeliness of removal.
 I

There is a difference in language in the two paragraphs of 28

U.S.C. § 1446(b) describing the documents which trigger the time

limits for notices of removal. The first paragraph governs notices

of removal based on an "initial pleading setting forth the claim

for relief upon which such action or proceeding is based."1 By

contrast, the second paragraph governs notices of removal based on

"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."2

Bosky’s original petition failed to set forth a removable

claim, stating only a claim for unliquidated damages of an

unspecified amount in excess of $50,000, pursuant to Tex. R. Civ.

P. 47(b). The parties agree that the complaint was insufficient to

trigger the 30-day period for removing the case to federal court

and that this issue is controlled by the second paragraph of

section 1446.

Although not at issue here, the standard for determining

whether a notice of removal is timely filed under the first

paragraph of section 1446(b) is important for comparative purposes.

The time limit in the first paragraph is triggered "only when that

pleading affirmatively reveals on its face that the plaintiff is

1
28 U.S.C. § 1446(b) (emphasis added).
2
Id. (emphasis added).

2
seeking damages in excess of the minimum jurisdictional amount of

the federal court."3 Bosky argues that we should apply this

standard governing the timeliness of notices of removal based on

information from a party's initial pleading to the determination of

the timeliness of a notice of removal based on "receipt by the

defendant, through service or otherwise, of a copy of ... other

paper from which it may first be ascertained that the case is one

which is or has become removable" under the second paragraph of

section 1446(b).

We held in Chapman v. Powermatic, Inc.4 that "for the purposes

of the first paragraph of § 1446(b), the thirty day time period in

which a defendant must remove a case starts to run from defendant's

receipt of the initial pleading only when that pleading

affirmatively reveals on its face that the plaintiff is seeking

damages in excess of the minimum jurisdictional amount of the

federal court."5 We noted that this rule “promotes certainty and

judicial efficiency by not requiring courts to inquire into what a

particular defendant may or may not subjectively know" and that

3
Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir.
1992) (emphasis added); see also Leffall v. Dallas Indep. Sch.
Dist., 28 F.3d 521, 525 (5th Cir. 1994) (discussing the Chapman
rule and holding that, “[b]y the same token, the removal clock
began to run in the instant case only when the defendants received
a pleading that revealed on its face that [the plaintiff] was
asserting a cause of action based on federal law”).
4
969 F.2d 160 (5th Cir. 1992).
5
Id. at 163 (footnote omitted).

3
“the better policy is to focus the parties' and the court's

attention on what the initial pleading sets forth, by adopting a

bright line rule requiring the plaintiff, if he wishes the thirty-

day time period to run from the defendant's receipt of the initial

pleading, to place in the initial pleading a specific allegation

that damages are in excess of the federal jurisdictional amount."6

We rejected a due diligence requirement for determining whether a

case is removable,7 insisting that "the defendant's subjective

knowledge cannot convert a case into a removable action."8 We have

since held that specific damage estimates that are less than the

minimum jurisdictional amount, when combined with other unspecified

damage claims, can provide sufficient notice that an action is

removable so as to trigger the time limit for filing a notice of

removal.9 Notably, however, the removing defendant is always

required to "prove by a preponderance of the evidence that the

amount in controversy exceeds $75,000."10

II

6
Id.
7
See id.
8
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th
Cir. 1996).
9
See, e.g., Marcel v. Pool Co., 5 F.3d 81, 82-85 (5th Cir.
1993). See generally De Aguilar v. Boeing Co., 47 F.3d 1404, 1408-
12 (5th Cir. 1995).
10
Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th
Cir. 1999).

4
 "Setting forth," the key language of the first paragraph,

encompasses a broader range of information that can trigger a time

limit based on notice than would "ascertained," the pivotal term in

the second paragraph. To "set forth" means to "publish" or "to

give an account or statement of."11 "Ascertain" means "to make

certain, exact, or precise" or "to find out or learn with

certainty."12 The latter, in contrast to the former, seems to

require a greater level of certainty or that the facts supporting

removability be stated unequivocally.

The Tenth Circuit, following similar reasoning, noted in this

context in DeBry v. Transamerica Corp.:13

Section 1446(b) uses the word "ascertained" in
connection with the giving of notice. Webster's
New Collegiate Dictionary (1975), defines the term
"ascertain" as "to find out or learn with
certainty." Given that the deposition might have
placed the person on inquiry, it was not sufficient
to permit him to learn with certainty.14

The Tenth Circuit further observed that, “[i]f the statute is going

to run, the notice ought to be unequivocal” and “should not be one

which may have a double design.”15 Following DeBry, the Tenth

Circuit has required that the notice in "an amended pleading,

11
Webster's Ninth New Collegiate Dictionary 1077 (1990).
12
Id. at 107.
13
601 F.2d 480 (10th Cir. 1979).
14
Id. at 489.
15
Id.

5
motion, order or other paper from which it may first be ascertained

that the case is one which is or has become removable" be

unequivocal.16

We follow the Tenth Circuit’s DeBry rule. The Chapman measure

of the "affirmatively reveals on its face" standard does not apply

to the second paragraph of section 1446(b), but rather the

information supporting removal in a copy of an amended pleading,

motion, order or other paper must be "unequivocally clear and

certain" to start the time limit running for a notice of removal

under the second paragraph of section 1446(b). This clearer

threshold promotes judicial economy. It should reduce “protective”

removals by defendants faced with an equivocal record.17 It should

also discourage removals before their factual basis can be proven

by a preponderance of the evidence through a simple and short

statement of the facts. In short, a bright-line rule should create

a fairer environment for plaintiffs and defendants.

III

This reading of the second paragraph of section 1446(b) is not

in tension with our long-standing canon of statutory interpretation

that "removal statutes are to be construed strictly against removal

16
See, e.g., Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d
1072, 1078 (10th Cir. 1999); Akin v. Ashland Chem. Co., 156 F.3d
1030, 1036 (10th Cir. 1998).
17
Cf. Chapman, 969 F.2d at 163 (rejecting a rule because it
would promote premature “protective” removals).

6
and for remand."18 This canon does not trump a plain language

reading of the statute's terms.19 Moreover, this reading of the

second paragraph ought to reduce removals, consistent with the

policy behind this canon. This supposes that a defendant will be

less likely to act on more equivocal information provided in "an

amended pleading, motion, order or other paper" because such a

“protective” removal is no longer necessary to avoid the risk of

losing his right to removal by the lapse of time.

IV

Nor do we believe the standard we adopt today conflicts with

our cases holding that a defendant can still show a case to be

removable on the basis of a state court complaint which does not

explicitly state a demand for damages exceeding the threshold

amount in controversy.20 Those holdings are not relevant here

18
Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th
Cir. 1996).
19
See United States v. Fitch, 137 F.3d 277, 282 (5th Cir.
1998); cf. Chicasaw Nation v. United States, 122 S. Ct. 528, 535
(2001) (observing that canons “are not mandatory rules” but rather
are guides “designed to help judges determine the Legislature's
intent as embodied in particular statutory language” and so need
not be conclusive, such that “other circumstances evidencing
congressional intent can overcome their force").
20
See Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th
Cir. 2000); Luckett, 171 F.3d at 298; Allen v. R&H Oil & Gas Co.,
63 F.3d 1326, 1336 (5th Cir. 1995); Free v. Abbott Labs. (In re
Abbott Labs.), 51 F.3d 524, 526-27 (5th Cir. 1995); de Aguilar v.
Boeing Co., 11 F.3d 55, 57 (5th Cir. 1993); Marcel, 5 F.3d at 84;
Fontenot v. Global Marine, Inc., 703 F.2d 867, 871 n.7 (5th Cir.
1983).

7
because the timeliness requirement of the second paragraph of

section 1446(b) does not play unless "the case stated by the

initial pleading is not removable."21 Notably, our limited case law

holding that the jurisdictional amount in controversy requirement

was proven by "other paper" pursuant to the second paragraph of

section 1446(b) involved facts presented in the "other paper" from

which it would be "unequivocally clear and certain" under the

standard announced today that the amount in controversy requirement

was met and the case was removable under federal diversity

jurisdiction.22

AFFIRMED.

21
Chapman, 969 F.2d at 161.
22
See S.W.S. Erectors, 72 F.3d at 491-92, 494 (holding that
time requirements for filing a notice of removal were triggered by
the defendant's receipt of a transcript of the plaintiffs'
president's deposition in which he testified that the actual
damages fell between $70,000 and $80,000, when the minimum amount
in controversy for diversity jurisdiction was $50,000); cf. Wilson
v. Belin, 20 F.3d 644, 651 n.8 (5th Cir. 1994) ("Wilson makes
several other arguments, all of which fail. .... Second, Wilson
argues that the complaint, which had no ad damnum clause, did not
state claims that facially involved more than $50,000. ... Because
the record contains a letter, which plaintiff's counsel sent to
defendants stating that the amount in controversy exceeded $50,000,
it is 'apparent' that removal was proper. See Marcel v. Pool Co.,
5 F.3d 81, 84 (5th Cir. 1993) (allowing removal when it was
facially apparent that the claims exceeded $50,000).").

8