Mill-Bern Associates v. Dallas Semiconductor Corp.

• Citation: 69 F.Supp.2d 240
• Decision Date: 21 September 1999
• Docket Number: No. CIV.A.98-11348-GAO.,CIV.A.98-11348-GAO.
• Parties: MILL-BERN ASSOCIATES, INC., Plaintiff v. DALLAS SEMICONDUCTOR CORPORATION; Gregory Cappelli; and William Galluccio, Defendants.
• Court: U.S. District Court — District of Massachusetts

Page 240

69 F.Supp.2d 240

MILL-BERN ASSOCIATES, INC., Plaintiff v. DALLAS SEMICONDUCTOR CORPORATION; Gregory Cappelli; and William Galluccio, Defendants.

No. CIV.A.98-11348-GAO.

United States District Court, D. Massachusetts.

September 21, 1999.

Francis A. Mooney, McLaughlin, Mooney & Associates, Wellesley, MA, Edward J. Byrnes, Woburn, MA, for Plaintiff.

Joan A. Lukey, Hale & Dorr, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

O'TOOLE, District Judge.

Mill-Bern Associates, Inc. ("Mill-Bern"), a Massachusetts corporation, brought this action in the Massachusetts Superior Court against Dallas Semiconductor Corporation ("Dallas"), a Texas corporation, and two individual employees of Dallas: Gregory Cappelli, a resident of New York, and William Galluccio, a resident of Massachusetts. The defendants, commonly represented, answered in the state court, stating in one of their affirmative defenses their belief that Galluccio, the Massachusetts resident, had been added to the lawsuit for the sole purpose of defeating diversity jurisdiction.

On June 23, 1998, the defendants conducted a deposition of a witness designated by Mill-Bern pursuant to Fed.R.Civ.P. 30(b)(6). The defendants contend that the witness's testimony revealed that Mill-Bern had no viable claims against Galluccio. As a result of the deposition, they concluded that their suspicions about Galluccio's joinder as a defendant had been confirmed. Consequently, on July 10, 1998, the defendants filed a notice of removal pursuant to 28 U.S.C. §§ 1441(b) and 1446(b), asserting that but for the fraudulent joinder of Galluccio, there would be complete diversity of citizenship between the plaintiff and the other defendants, giving the Court jurisdiction under 28 U.S.C. § 1332 and qualifying the case for removal.

After the case was entered in this Court, the plaintiff moved to remand. Essentially, Mill-Bern makes two arguments in favor of its motion. First, it says the case was not properly removed, because the removal notice was filed more than thirty days after the service of the complaint and no event has occurred that extended or renewed that time limit. See 28 U.S.C. § 1446(b). Second, the plaintiff argues that the claims asserted against Galluccio could not be held to be meritless on the basis of a single deposition when there is more discovery to be conducted by both sides, cf. Fed.R.Civ.P. 56(f), and that, in any event, the fact that the claims against Galluccio may not succeed is not an adequate basis for concluding that Galluccio was named as a defendant solely to defeat diversity.

A. Timeliness

Ordinarily, a case must be removed within thirty days after the defendant has received the "initial pleading setting forth the claim for relief." 28 U.S.C. § 1446(b). If the case is not removed within this time, the right to remove expires. However, a case that is not originally removable might, in the course of proceedings, become removable. The second paragraph of § 1446(b) provides for this later opportunity to remove:

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, ...

The defendants seek to take advantage of this second opportunity. On its face, Mill-Bern's complaint did not present a removable case because there was not complete diversity between the plaintiff and all defendants. The defendants argue that the June 23rd deposition first revealed the suit's removability by demonstrating that the claims asserted against Galluccio were baseless. Since the defendants filed notice of removal within thirty days of the deposition, removal should be proper under § 1446(b). To succeed on this theory, the defendants must show not only that the content of the deposition made the case removable, but also that the deposition was the kind of "other paper" that may renew an otherwise expired right of removal. In the defendants' view, the deposition, or at least the written transcript of it, qualifies as an "other paper."

There is no authoritative support for the defendants' theory in this circuit. However, courts elsewhere have held that deposition testimony may constitute an "other paper." See, e.g., S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir.1996) (concluding that transcript of deposition testimony is "other paper" permitting removal under § 1446(b)); Haber v. Chrysler Corp., 958 F.Supp. 321, 326-27 (E.D.Mich. 1997) (concluding that deposition itself was "other paper" triggering time for removal, so that attempted removal more than thirty days after date of deposition was untimely).

Such cases seem to take the view that the term "other paper" in § 1446(b) should be given "an embracive construction" to include "a wide array of documents." See 14C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3732, at 300, 306 & n. 28 (3d ed.1998). That is a doubtable proposition. As a general matter, the removal statutes are to be strictly construed. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); American Home Assurance Co. v. Insular Underwriters Corp., 494 F.2d 317, 319 (1st Cir. 1974); Santiago v. Barre Nat'l, Inc., 795 F.Supp. 508, 510 (D.Mass.1992). Strict construction would seem to call for giving a narrower, rather than a broader, interpretation to the scope of the words "other paper" in § 1446(b).

Moreover, whether "other paper" is expansively or narrowly construed as a general matter does not determine whether a particular case will be removable. Removability is determined by the peculiar facts of each case. In one case, an expansive interpretation may lead to a conclusion that removal was timely, while in another case, where the timing and sequence of events is different, the same expansive interpretation may lead to a conclusion of untimeliness. See Rahwar v. Nootz, 863 F.Supp. 191, 192 (D.N.J.1994) (on more expansive interpretation, removal timely and jurisdiction upheld); Central Iowa Agri-Sys. v. Old Heritage Advertising and Publishers, 727 F.Supp. 1304, 1305-06 (S.D.Iowa 1989) (on more expansive interpretation, removal untimely and case remanded); Harrell v. Reynolds Metals Co., 599 F.Supp. 966, 968 (N.D.Ala.1985)(on stricter interpretation, removal untimely and case remanded); Gottlieb v. Firestone Steel Prods. Co., 524 F.Supp. 1137, 1139 (E.D.Pa.1981) (on stricter interpretation, removal timely and jurisdiction upheld).

The variety of outcomes suggests that courts may sometimes be tempted by the prospect of an appealing result to choose the mode of interpretation of § 1446(b) — strict or expansive — that will lead to that result. Indeed, some courts have explicitly justified their mode of interpretation by the desirable policy end it serves. See Haber, 958 F.Supp. at 326; Brooks v. Solomon Co., 542 F.Supp. 1229, 1230-31 (N.D.Ala.1982). However, because a chosen mode of interpretation will not itself determine whether the case has been timely removed or not, policy cannot justify choosing either a strict or an expansive interpretation of the words "other paper."

The better approach is simply to construe the words "other paper" according to the customary canons of statutory interpretation, without worrying how the construction is characterized. The canon of first resort is that the words of the statute should be given their "plain meaning." See Couvertier v. Gil, 173 F.3d 450, 452 (1st Cir.1999). Application of this canon eliminates the idea that an "other paper" need not be a paper at all. See Gottlieb, 524 F.Supp. at 1139. But cf. Haber, 958 F.Supp. at 327 (deposition testimony itself was "other paper"); Poole v. Western Gas Resources, Civ. A. No. 97-2929, 97-3035, 1997 WL 722958, at *2 (E.D.La. Nov.18, 1997) ("This Court finds no functional difference between a deposition and a transcript of a deposition for purposes of the removal statute."). In their ordinary meaning, the words "other paper" suggest a document of some kind, not just an oral transmittal of information.

The defendants here do not take the extreme position that the oral deposition itself was the "other paper." Rather, they contend that their receipt of the written transcript of the deposition renewed their opportunity to remove the case. A second canon of construction, ejusdem generis, requires consulting the context in which the words appear for help in understanding the meaning to be given them. The words "other paper" are part of a series: "amended pleading, motion, order or other paper." Following as they do three specific terms, the general words "other paper" should be understood to describe something that shares some common characteristic or quality with the other terms in the series. See Berniger v Meadow Green-Wildcat Corp., 945 F.2d 4, 8 (1st Cir.1991); Macaulay v. Boston Typographical Union, No. 13, 692 F.2d 201, 204 (1st Cir.1982). The first three terms in the series — amended pleading, motion, order — each describe a document that serves a relatively formal purpose in the litigation and is formally filed and/or served on the parties.¹ It is easy to conclude that a "paper" that shares those characteristics — a filed affidavit, for example — falls within the scope of the phrase. Is it just as acceptable to understand the phrase to encompass "papers" that are not similarly filed or served?

Another way of putting the question is to ask which of the two following rephrasings of the series expressed in the statute better captures the intended meaning: (A) "amended pleading, motion, order or other similar paper;" or (B) "amended pleading, motion, order or other paper of any kind." The second choice places no limit on what might qualify as an "other paper," and is broad enough to...