Hines v. Ac and S, Inc.

• Decision Date: 24 January 2001
• Docket Number: No. Civ.A. 3:00-CV-2637.,Civ.A. 3:00-CV-2637.
• Citation: 128 F.Supp.2d 1003
• Parties: Norman HINES and Frankie Hines, Plaintiffs, v. AC AND S, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

128 F.Supp.2d 1003

Norman HINES and Frankie Hines, Plaintiffs, v. AC AND S, INC., et al., Defendants.

No. Civ.A. 3:00-CV-2637.

United States District Court, N.D. Texas, Dallas Division.

January 24, 2001.

Ashley L. Watkins, Waters & Kraus, Dallas TX, for Plaintiffs.

Michael John Ramirez, Dunn Kacal Adams Pappas & Law, Dallas, TX, Ronald Walker, Walker Keeling & Carroll, Victoria, TX, Lewis Charles Miltenberger, Bourland Kirkman Seidler & Evans, Fort Worth, TX, Gary D. Elliston, DeHay & Elliston, Dallas, TX, Mary Lou Mauro, Galloway Johnson Tompkins Burr & Smith, Houston, TX, Tom Foley, Foley & Colley, Tyler, TX, James M. Harris, Jr., Harris Lively & Duesler, Beaumony, TX, James Michael Riley, Coats Rose Yale Ryman & Lee, Houston, TX, William C. `Trey' Dowdy, III, Strasburger & Price, Dallas, TX, Raymond Paul Harris, Jr., Whittenburg Whittenburg & Schachter, Dallas, TX, Mel D. Bailey, DeHay & Elliston, Dallas, TX, Robert Wilkinson, Dogan & Wilkinson, Pascagoula, MS, Robert H. Nunnally, Jr., Cantilo Bennett & Wisener, Dallas, TX, Todd Wade, Brown McCarroll Oaks Hartline, Houston, TX, John L. Hill, Jr., Locke Liddell & Sapp, Houston, TX, David M. Taylor, Thompson Coe Cousins & Irons, Dallas, TX, Dale G. Markland, Vinson & Elkins, Dallas, TX, J. Jeffery Mundy, Brobeck Phleger & Harrison, Austin, TX, Randy Burns, Baker Botts, Dallas, TX, Thomas F. Dougall, Bowers Orr & Dougall, Columbia, SC, Todd Suddleston, Eric D. Wewers, DeHay & Elliston, Dallas, TX, William Gallerston, Brown Sims, Houston, TX, Robert Bass, Forman Perry Watkins Krutz & Tardy, Dallas, TX, Gregory Michael Sullivan, Mayor Day Caldwell & Keeton, Houston, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

KENDALL, District Judge.

Before the Court are Defendants' Notice of Removal, filed December 4, 2000; Defendants' Amended Notice of Removal, filed December 6, 2000; Defendants' Supplementary Notice of Removal, filed December 14, 2000; Plaintiffs' Responses thereto; and Plaintiffs' Motion to Remand, filed December 7, 2000. Parties have also submitted supplementary briefing on issues raised in a hearing before this Court on December 8, 2000. Having considered the motions, briefs, and the applicable law, this Court is of the opinion that the Plaintiffs' Motion to Remand should be GRANTED, and this matter returned to the 354th District Court of Texas.

FACTUAL BACKGROUND

Plaintiffs originally filed this asbestos class action lawsuit in the 354th Judicial District Court of Hunt County, Texas. After the presiding judge severed the other class plaintiffs, only Norman and Frankie Hines remained as active plaintiffs. On July 26, 2000, Plaintiff Norman Hines served Defendants with his answers to master discovery, in which he listed his relevant work history, including several years spent working at the Operation Saline Water Plant in Wrightsville, North Carolina. Plaintiff Norman Hines served Defendants with Supplemental Answers to Master Discovery on November 6, 2000. On December 1, Defendant A.P. Green and Defendant Harbison filed a notice of removal under federal enclave jurisdiction since, the Defendants claimed, the Operation Saline Water Plant ("OSWP") was a federal enclave at the time of the alleged exposure.

On December 8, 2000, this Court held an emergency hearing to determine which of the defendants had consented to removal and to gather more information on the federal enclave issue. At the hearing, lead removal Defendant A.P. Green represented that all the Defendants, save any insolvent or nominal ones, consented to removal. This representation was not accurate. Four days after the hearing, on December 12, 2000, Defendants filed four additional removal consents. That same day, Defendants also received the transcript from the deposition of William Sebrell, a coworker of Plaintiff Norman Hines. On December 14, 2000, Defendants filed their Second Amended Notice of Removal.

ANALYSIS

Two questions are before this Court, either of which suffices to determine if remand is proper: 1) did the exposure occur on a federal enclave; and 2) was the removal timely? This Court will focus on the question of timing.

Plaintiffs make a straightforward argument: Defendants collectively had notice of the factual basis of the federal enclave issue when they received the July 26, 2000 discovery answers (the "Discovery Answers"); the removal period ended 30 days later, on August 26, 2000. Defendants repeatedly try to push the removal period forward in time. Defendant AP Green, in its original notice of removal, states that it only became aware of the federal enclave issue when it received the supplemental answers to Master Discovery (the "Supplemental Answers"), on or around November 6, 2000. By this reckoning, the removal period ended on December 6, 2000.

During the court hearing, Defendant A.P. Green tried, yet again, to move the hands of the clock forward, then suggesting that they had still not received any `other paper' from Plaintiffs from which one could ascertain that the case was removable. Defendants finally proposed that the removal period began on December 12, 2000, with the receipt of William Sebrell's deposition transcript (the "Sebrell transcript"). Notwithstanding the fact that they had filed a removal on December 1 and argued in a hearing on December 8, Defendants claimed that the removal period had only just begun.

The timing of a removal is governed by 28 U.S.C. § 1446(b), which provides that "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...." The last consents to removal were received on December 12, 2000. Under § 1446(b), this means that removal is timely only if Defendant first received facts permitting it to ascertain that the case was removable no earlier than November 12, 2000.¹

A. Defendants' Claims

Defendants make the following claims: 1) no materials, prior to the Sebrell transcript, constitute "other paper"; 2) nothing prior to the Sebrell transcript was a voluntary act by the Plaintiffs, such that the removal period should begin; 3) all the facts for removal, prior to those established in the Sebrell transcript, existed only within Defendants' subjective knowledge, and cannot start the removal period; and 4) whether a lawsuit is removable must be facially apparent from the "other paper." This Court will deal with the claims in that given order.

1. Other paper

The first question before this Court is which, if any, of the materials or statements provided by Plaintiffs to Defendants constitutes "other paper" under § 1446(b). Courts in this circuit have construed "other paper" to include: answers to interrogatories; see Leboeuf v. Texaco, 9 F.Supp.2d 661, 665 (E.D.La.1998); responses to requests for admissions; see Johnson v. Dillard Dept. Stores, Inc., 836 F.Supp. 390, 391 (N.D.Tex.1993); deposition testimony; see Trotter v. Steadman Motors, Inc., 47 F.Supp.2d 791, 793 (S.D.Miss.1999); and even product identification documents given in discovery; see Pack v. AC and S, Inc., 838 F.Supp. 1099, 1102 (D.Md.1993) (reconsideration denied).

Neither party argues that this matter was removable upon the initial pleadings. However, Defendant dubiously contends that the first and only "other paper" it has received was the Sebrell transcript. Defendants' analysis strangely omits potential "other papers" that were delivered prior to the Sebrell transcript: the Discovery Answers and the Supplementary Answers. Defendant AP Green does not deny that it, or any other Defendant, received these documents; nor does it provide any colorable argument as to why these documents are not "other papers." This Court finds that either set of discovery answers fulfills the "other papers" requirement of § 1446(b).

2. Voluntary act

Next, Defendants cite S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir.1996), for the proposition that facts bearing upon removal cannot arise from the Defendants' subjective knowledge. This Court finds that precedent inapplicable. In S.W.S. Erectors, the plaintiff's initial state court pleading only alleged damages in excess of that court's minimum jurisdictional limits. Over the telephone, defendant's counsel learned from plaintiff's counsel that the damages actually exceeded $100,000. He memorialized the conversation in an affidavit and, over thirty days later, filed a notice of removal on diversity grounds. The plaintiff argued that the removal was untimely, as the creation of the affidavit should have triggered the removal period. The defendant responded that an affidavit based upon its own subjective knowledge could not initiate the removal period. The district court did not reach the question, but the Fifth Circuit, upon review, sided with the defendant, holding that the "`other paper' conversion requires a voluntary act by the plaintiff." Id. at 494 (emphasis in original).

Having held that both sets of discovery answers satisfy the "other paper" requirement, the next question to ask is whether either of these "other papers" is not a "voluntary act" by Plaintiffs. Defendants' second amended notice of removal contends that the deposition is voluntary. This claim does not illuminate how the Discovery Answers and Supplemental Answers are `involuntary,'² so as to preclude them from starting the removal period. Defendants uncontroversially argue that the Sebrell transcript was a voluntary act. However, their implication by omission that the discovery answers were involuntary is entirely unconvincing. Even less plausible is the claim that the factual statement placing exposure at the OSWP is insufficient to trigger the removal period. The Discovery Answers and the Supplemental Answers are both voluntary acts by the Plaintiffs, notwithstanding the limited relevance of that standard to federal...