Curtis Morgan v. Dow Chemical Company
879 F.3d 602
5th Cir.2018Background
- Plaintiff Curtis Morgan sued multiple defendants in Louisiana state court for asbestos-related injuries, naming Huntington Ingalls (Avondale) and Murphy Oil among others. The complaint did not identify specific vessels.
- Morgan was deposed across eight days (Mar 9–Apr 13, 2017); relevant testimony about work on the USS Huntsville occurred during those depositions but Morgan could not recall the ship until shown medical records.
- Avondale received a link to the deposition transcript on March 28, 2017, and removed the case under the federal-officer removal statute, 28 U.S.C. § 1442(a)(1), on April 27, 2017 (30 days after receipt of the transcript; 38 days after the oral testimony).
- The district court remanded, holding removal untimely because it viewed the § 1446(b)(3) 30-day clock as beginning at the time of the oral deposition testimony rather than receipt of the transcript; it did not determine whether § 1442’s substantive requirements were satisfied.
- On appeal Avondale and Murphy Oil contested timeliness; Morgan challenged Murphy Oil’s standing to appeal. The Fifth Circuit addressed standing, the timeliness question (transcript vs oral testimony), and remanded for the district court to decide the § 1442 merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1446(b)(3) 30-day removal period begins when plaintiff gives deposition testimony | Morgan: clock begins on date of oral testimony | Defendants: clock begins on receipt of deposition transcript (a copy of "other paper") | Held: clock begins upon receipt of the deposition transcript |
| Whether oral deposition testimony itself is "other paper" under § 1446(b)(3) | Morgan: oral testimony can be "other paper" triggering removal | Defendants: "other paper" denotes written material; transcript is the operative "other paper" | Held: oral testimony alone is not "other paper"; transcript is required to start the clock |
| Murphy Oil’s standing to appeal the remand order | Morgan: Murphy Oil lacks standing to appeal because it has no independent statutory removal right under § 1442 | Murphy Oil: it has a procedural interest in timely removal and faces similar issues in other cases | Held: Murphy Oil lacks Article III standing; its appeal dismissed |
| Whether removal under § 1442 was substantively proper | Morgan: § 1442 not met (district court did not decide) | Defendants: Avondale argued federal-officer jurisdiction supports removal | Held: Fifth Circuit vacated remand and remanded for the district court to consider § 1442’s substantive requirements (left undecided on appeal) |
Key Cases Cited
- S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489 (5th Cir.) (deposition transcript can be "other paper")
- Bosky v. Kroger Tex., LP, 288 F.3d 208 (5th Cir. 2002) ("other paper" must be unequivocally clear; prefer bright-line rules to limit protective removals)
- Addo v. Globe Life & Acc. Ins. Co., 230 F.3d 759 (5th Cir.) (post-complaint communications can be "other paper")
- Chapman v. Powermatic, Inc., 969 F.2d 160 (5th Cir.) (statutory construction and reliance on written notice for removal timing)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (constitutional standing requirements)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (procedural injury alone insufficient for Article III standing)
- Rohm & Hass Texas, Inc. v. Ortiz Bros. Insulation, Inc., 32 F.3d 205 (5th Cir.) (standing to appeal limitations)
- Decatur Hosp. Auth. v. Aetna Health Inc., 854 F.3d 292 (5th Cir.) (reviewability of remand orders when removal relied on federal officer statute)