Tuesday, October 18, 2005

Notice of Removability Determined through Examination of the Four Corners of the Complaint, Not through Subjective Knowledge or Further Inquiry

The Ninth Circuit in Harris v. Bankers Life and Cas. Co., --- F.3d ----, 2005 WL 2456929 (9th Cir. Oct. 06, 2005) announced its position on the question of whether defendants have the burden to investigate removability within 30 days of receiving an indeterminate complaint. Here's an excerpt:

The question we must decide is whether, under 28 U.S.C. § 1446(b), the burden lies with the defendant to investigate the necessary jurisdictional facts within the first thirty days of receiving an indeterminate complaint, or whether the determination be limited to the face of the initial pleading. Courts are divided on this issue, although every circuit court to consider the question has rejected the duty to investigate approach. The Ninth Circuit has not resolved this question.

. . .

We now conclude that notice of removability under § 1446(b) is determined through examination of the four corners of the applicable pleadings, not through subjective knowledge or a duty to make further inquiry. Thus, the first thirty-day requirement is triggered by defendant's receipt of an "initial pleading" that reveals a basis for removal. If no ground for removal is evident in that pleading, the case is "not removable" at that stage. In such case, the notice of removal may be filed within thirty days after the defendant receives "an amended pleading, motion, order or other paper" from which it can be ascertained from the face of the document that removal is proper. See 28 U.S.C. § 1446(b).


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