Holston v. Carolina Freight Carriers Corp.

• Citation: 936 F.2d 573,1991 WL 112809
• Decision Date: 26 June 1991
• Docket Number: No. 90-1358,90-1358
• Parties: Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. David HOLSTON, Plaintiff-Appellant, v. CAROLINA FREIGHT CARRIERS CORPORATION, a foreign corporation, and Michael Bruno, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 573

936 F.2d 573

Unpublished Disposition

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

David HOLSTON, Plaintiff-Appellant, v. CAROLINA FREIGHT CARRIERS CORPORATION, a foreign

corporation, and Michael Bruno, Defendants-Appellees.

No. 90-1358.

United States Court of Appeals, Sixth Circuit.

June 26, 1991.

Before BOYCE F. MARTIN, Jr. and BOGGS, Circuit Judges, and ENGEL, Senior Circuit Judge.

PER CURIAM.

David Holston appeals from the district court's denial of his motions to remand and for a rehearing, and from the district court's grant of summary judgment to defendants on his two state-law claims of wrongful discharge based upon an alleged unequal application of Carolina Freight's anti-nepotism policy, and of breach of an oral contract to employ him. Because we hold that Carolina's removal petition was untimely, we reverse the district court and remand this case with instructions that it be returned to state court.

I

Holston was employed as a "casual" truck driver by Carolina Freight at its Troy, Michigan terminal from April 1987 until March 1988. "Casual" was a job classification under the collective bargaining agreement ("CBA") then in effect between Carolina Freight and the Teamsters Union, Local 614 ("union"). A "casual" driver was a temporary employee with neither seniority rights nor job security. As a "casual" driver, Holston was required to join the union to keep his job. Holston did join the union. Holston signed a union authorization/check off card that gave Carolina Freight permission to deduct union dues from his salary. Carolina Freight received Holston's card in December 1987.

Holston was informed in March 1988 by defendant Michael Bruno, a supervisor at Carolina Freight's Troy terminal, that he could no longer be used as a "casual" there because Carolina Freight had an anti-nepotism policy barring the use of close relatives at the same terminal, and Holston's father also worked there. Holston also states that other Carolina Freight supervisors told him that he would be sent to the company's driving school to obtain a C-2 trucking license, and that he would then be hired for a full-time job.

Holston filed his complaint in Michigan state court on May 12, 1989. Holston's complaint mentions neither his membership in a labor union or the existence of a collective bargaining agreement. Carolina Freight did not immediately attempt to remove, filing an answer instead. Carolina Freight amended its answer on August 29, 1989 to include a "pre-emption" defense. Carolina Freight also submitted answers to Holston's interrogatories on August 22, 1989. Its answer to interrogatory nine indicated that Holston was employed as a "casual." While the answer itself made no reference to the CBA, Carolina Freight attached a copy of the CBA to the answer to support its claim that Holston had no seniority or vested job rights under the CBA.

Carolina Freight took Holston's deposition on October 5, 1989. At this deposition, Holston admitted facts that showed he was a member of the union, that the oral promise was made while he was employed as a "casual"--a job covered by the CBA--and that the full-time job he was promised by the Carolina Freight supervisors was also covered under the CBA.

Carolina Freight filed its removal petition on October 24, 1989. It alleged that its petition was timely filed within thirty days of its receipt of the transcript of Holston's deposition. The basis for the removal petition was that Holston's state-law claims really stated a federal law claim under Sec. 301 of the Labor Management Relations Act ("LMRA"). Holston then filed a petition for remand, arguing that Carolina Freight's petition was not timely because it had actual knowledge that the case was potentially pre-empted at the time the amended answer was filed on August 29. Carolina Freight then filed a motion for summary judgment.

The district court denied Holston's motion for remand and granted Carolina Freight's summary judgment motion on February 9, 1990. Holston then filed a motion for rehearing, alleging that Carolina Freight's possession of his card authorizing the withholding of union dues was "newly discovered evidence" showing that Carolina Freight had actual knowledge of the potential for pre-emption at the time the case was filed. This motion was denied on March 12, 1990. Plaintiff's timely appeals followed.

II

A

The federal courts have no jurisdiction over Holston's state claims unless Carolina Freight's removal petition is valid and timely. See United States ex rel. Walker v. Gunn, 511 F.2d 1024 (9th Cir.), cert denied, 423 U.S. 849 (1975). Assuming without deciding that Carolina Freight's allegation that Holston's state law claims are pre-empted by Sec. 301 of the LMRA states a valid basis for removal, we nevertheless hold for the following reasons that the petition is untimely.

B

Both parties agree that removal jurisdiction may exist for this case only because of 28 U.S.C. Sec. 1446(b). That section consists of two paragraphs. Both parties agree that only the second paragraph is at issue here. That second paragraph reads as follows:

If the case stated by the initial pleading is not removable, 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, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

28 U.S.C. Sec. 1446(b). ¹

It has been uniformly held that the failure to file for removal within the thirty-day period, while waivable by plaintiff is a formal barrier to the exercise of federal jurisdiction.

Holston contends that Carolina Freight's removal petition is untimely because it was not filed within thirty days of the date when Carolina Freight had unambiguous information that Holston's claim was really a claim for violation of the CBA. Holston's contention would deprive us of jurisdiction if Sec. 1446(b) starts the thirty-day period running when a defendant has information ² in its possession that would lead it to believe without speculation that the case is removable. See Mielke v. Allstate Insurance Co., 472 F.Supp. 851 (E.D.Mich.1979) (defendant is not required to file for removal solely upon speculation that the case might be removable). If Sec. 1446(b) requires, as Carolina Freight contends, that the information establishing removal must come from a source outside of defendant's control, then the case is properly before us. Carolina Freight filed its petition within thirty days of its receipt of the transcript of Carolina's deposition of Holston, ³ which contained facts suggesting the possibility of removal.

We hold that Sec. 1446(b) starts the thirty-day period running from the date that a defendant has solid and unambiguous information that the case is removable, even if that information is solely within its own possession. We reach this conclusion from considering the purpose of this section.

It is axiomatic that the statutes conferring removal jurisdiction are to be construed strictly. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941). See Holly Farms Corp. v. Taylor, 722 F.Supp. 1152 (D.Del.1989); McCurtain County Production Corp. v. Cowett, 482 F.Supp. 809 (E.D.Okla.1978) (doubts about removal should be resolved in favor of remand). This is because removal jurisdiction encroaches on state jurisdiction, and the interests of comity and federalism require that federal jurisdiction be exercised only when it is clearly established. Thus, any ambiguity regarding the scope of Sec. 1446(b) must be resolved in favor of remand to the state courts.

We believe that Sec. 1446(b) is ambiguous regarding the issue presented here. The second paragraph of section 1446(b)'s "clear purpose is to commence the running of the thirty-day period once the defendant receives actual notice that the case has become removable...." 14A C. Wright, A. Miller and M. Kane, Federal Practice and Procedure, Sec. 3732 at 520. However, the statute is not clear from whom the defendant must receive that notice. A creative interpretation of the statute can give rise to an inference that the defendant must receive the notice from the plaintiff or another external source. One such interpretation involves examining the structure of the statute. The thirty-day period only starts running upon receipt of a pleading, summons, motion, order, or other paper. All the specifically named papers come from either the plaintiff or the court. These papers may come into defendant's possession "through service," and a defendant cannot "serve" itself. These papers must also be "received" by the defendant, and it can be said that an entity cannot receive things from itself. This long line of inductive reasoning leads to the hypothesis that Sec. 1446(b) implicitly starts the thirty-day clock running only when the defendant receives information about the removability of a case from another source.

There is another way of reading the statute. The statute triggers the thirty-day period from the receipt of notice of facts that lead to the possibility of removal, not from a clear statement that the case is removable. Neither paragraph of Sec. 1446(b) prevents the source of that notice from being the defendant. The fact that an "other paper" received "otherwise" than by service triggers the thirty-day period leaves open the possibility that such facts can come to the defendant by a myriad of means not squarely contemplated by the drafters of Sec. 1446(b). Such means can obviously include papers discovered by ...