court of appeals there are four cases to be argued in this courtroom this morning we will hear the first case and then take a brief recess to reconstitute the panel and then the panel will yes your honor the answer to this question is not difficult your honor because congress has pretty much answered it for us fourteen forty six b three plain language leads index capably to the conclusion that removal delays  defendant's receipt of a deposition transcript not by what the defendant's lawyer hears a deponent say fourteen but with the language also says first when first ascertained correct correct in your honor it is no doubt here that get you didn't ascertain it us are tainted before either the deposition or the receipt of the transcript i'm sorry your honor i mean first of all the statute speaks in terms of receipt of that you must s thirteen the whether it's removable from the documents that you receive you know which is a relative pronoun relating back to the documents enumerated in the first part of the signature in fourteen forty three b i guess that to the extent that i understand your argument it's built on our own precedent and it's built on the text of fourteen forty six also in your honor it's based on this court ruled that removal delays cannot be based on the subject of knowledge of the defendant in our view that the one to sit in a desert deposition and remain subjective knowledge of the listener until it's reduced to a transcript transcribed by a disinterested third party or on but other courts there are a whole set of different views on this correctly well your honor with all due respect i don't believe the other courts with the exception of the tenth circuit in huffman him directly addressed issues that we're addressing today all in all of those courts and we're just looking at whether a deposition could be anything to do with the deposition could be  something that would trigger fourteen forty six b three other paper provision but they were looking at the question of a vince that create movability not to the time on this issue the huffman is just wrong your honor i would submit they did not consider the full text of one hundred forty six b three what they did is they looked at cases that had decided fourteen forty three b three in connection with whether it can be a removal of the end that they did not look at it in connection subjective knowledge they did not look at the fact this case that were before today is a federal officer removal case your honor in which you're supposed to construe the statute liberally you're wrong that was a general removal statute under fourteen forty one it wasn't under fourteen forty two your honor now fourteen forty six b three provides in relevant part that a notice of removal may fine within thirty days of receipt by a defendant a copy of an amended pleading order or other paper from which it may be first to certain that the case is removable under the a used history nearest stand it rule of construction whenever specific words fall though general words i'm sorry whenever general words the specific words in a statutory enumeration the general words must be construed to embrace only those objects similar in nature to the objects the root numerated in the preceding specific words as between the deposition transcript and the spoken word a deposition transcript sears almost all the salient qualities of the statutorily in numerated documents while the spoken word shares virtually none in fact almost every noun in pronoun in fourteen forty six b three point two a document first it talks about receipt of a document i'm sorry it talks about receipt of what if during the deposition there's a streaming printout of the transcript with that qualifier no sir i don't believe so because in that case you don't have the court reporter going over it to make sure all the words are correct up in mum your honor it should be a receipt of a certified copy of the transcript now as you know your honor in today's world you can pay the court reporter extra to get that the next day but no the dirty copies i don't believe should trigger you know th but what if the court reporter went over his or her work and finalized it and cleared up all of the errors and in sant the transcript electronically to the  attorneys or the or the or the parties and the hard copy didn't arrive by mail until several days later how would we count that your honor it is as would happen in this case i think it's when you read i think if you look at the cases where the courts say that the deposition date is what triggers the thirty day requirement there's there is that something missing which is that when you  based on the attorneys you know the affidavit from the attorney doesn't work are they just stating it conclusively in the pleading as to what the deposition says no i mean if you look at all of them it's an end to to as contacts in huston case which was cited by the district court they talked about manipulating the date that the the deposition date is a bright line but the transcript date can be manipulated but if you look at all these cases the deposition transcript has to be provided with the thirty days otherwise what is everybody looking at they have to be looking at the deposition transcript which suggests that in all these cases that they're being talked about the transcript is being provided very soon after the deposition which is what happened here which is what happens in every case so the idea that there is a have to be printed within thirty days i mean and the other doesn't have to be but as in reality the the whole theory that the deposition date triggers it presupposes that you're getting the transcript in time to see what is said because if you look at even in one of the cases the claim of cite the cap case which is a six circuit case in the footnote that discusses that  the courts are citing cases on this issue and they say you know we as not with the defendant knew but what the relevant documents said to determine what is federal if there is federal jurisdiction so if you're looking at what that documents said you've got to actually see the transcript so if the you know if you want to make the argument that the deposition day is that what triggers it and then you'll get the deposition transcript a week you know whether it's two days maybe the core porn is sick maybe you get it in four days so maybe you get it a week later so now you're limited to twenty three days from when you get the transcript and when you can determine what it's actually said and that's why we think this court's decision and bosky is so relevant because if you look at uses different fourteen forty six uses different language uses fourteen forty six b one setting forth the jurisdictional basis and fourteen forty six b three avondale came into the deposition gravity will have the documents but the as this court has said that the subject of knowledge until they get confirmation from the deposition testimony ok but then then that slips into that there are there was confirmation a what is said for purposes of being unequivocal you need the transcript but that you know that it was highlights the part of something a lot of times these removals are based on a combination of testimony and documents but the argument you've just given us is mostly responding to the huffman fear of gamesmanship correct that's what you're saying that the bright line rule you're saying isn't really subject to gamesmanship i don't think that there is any proof that it could ever be subject to gains and just because again we are you know trying to tease out what's paper and what's not paper is getting difficult for courts is it true that if we follow the precedent here urging in avondale serging we will maintain a clear split with the tenth circuit if there's no way to reconcile our position with the huffman decision is that a split that already exists and you're asking us to just continue the i think the husband decision is it's all yes so that so yes we do think that the of the decision but with that for me is it is a thorough analysis and hofmann and it purports to cite us favorably and it also cites right miller favorably for the more embrace of notion of what's a paper  if it were streaming in a printout which i assume can happen that would seem to me to be a voluntary act that is now in writing possessed by the defendant didn't happen here factually i would have thought that would be a triggering moment for the clock instead of oh well this is official the iran to have been worked out it's been transmitted otherwise you have a thought on that you know i i would probably tend to agree with the the in that you would want because those we have seen those the streaming transcripts and sometimes others give you a quick example there was we were in a trial recently in a couple weeks ago where the a court reporter missed a very key word that the everyone had that was sitting there and sitting there at trial with a bunch of the transits and they actually said the judge hold it hold it that's not what he said and the judge said it's ok it's going to be corrected so i see i think that is i'm getting a lot closer the idea though i think that's closer to the idea that it's not what we hear because people when they have employers will hear things differently it's what you can see by a disinterested observer on black and white in some way so i think again i can think the stream transcripts get you very close or get you a lot closer but you think you do want that extra checking to make sure that everything that there's not some kind of glaring error subject t you body else nobody else wants to be an attorney who needs a little help but no one on her side all right she need some help over here on her side i need somebody come sit with this lady over here and help her out oh  god i didn't know they had let you guys grow beards in school passed away eight weeks ago he died of me which is a rare and incurable cancer which is caused by exposure to a specific us before he died he was deposed over a period of five weeks with a deposition is when a party is questioned by the opposing counsel about or sometimes their own counsel about their they are the facts underlying their cases like in someone's office not in a courtroom right correct  conference room away and so in this case mr morgan was deposed over eight days while he was dying and on the second day that adle went in for the deposition it brought in mr morgan's employment records and those records  mr morgan had been injured six times not in a expenses related injury but other injuries like tripping phone kind of injuries while he was working on a government ship called the u s s huntsville now through the testimony mr morgan testified he did not recall working on the huntsville he only remembered working on one ship at avondale called it was a likes muscle however through repeated questioning by adults to counsel mr morgan admitted that if he did in fact work on the huntsville that he would have worked around insulator and would have been exposed to whatever the insulators were using it just for the students i'll explain this is important because the material that insulators use insulating material that typically goes around pipes or inbounds contains a sp though mr morgan was working in at the shipyard on ships and he alleging that he got as best as from the working on the ships and he filed a lawsuit in the state court and then when he was by the lawyers it turned out that maybe he had worked on a ship owned by the u s government which would then mean the lawsuit maybe could come into the federal courts out of the state court yes you know and the question is you have thirty days from when you learned this to bring it into federal court the question is whether that oral interview starts to thirty days are not until it's typed up and written up to the thirty day start that right to be clear there was no question at the time of the deposition that the deal had every intention remove in the case under the federal officer removal statute avondale attorney went into the deposition with the employment records with the direct intention of questioning mr morgan on this issue during the deposition avondale counsel commented that the ship was being retrofitted to be used for the entry of the apollo spacecraft into the atmosphere and i don't know the details but the ship was going to be used to track it so there was no question that this was avondale intent and by the end of the deposition avondale had to ascertain the facts it needed to establish federal officer  jurisdiction and to move the case therefore mr morgan's deposition form the basis of having deals removal to federal court that is to say it was the other paper that avondale needed to remove this case to federal court avondale and murphy oil tell you that there is a plain meaning which is not that the deposition meaning deposition testimony that it is some sort of deposition transcript your honor said is not true the definition  honor the legislature enacted the statute in one nine hundred forty nine and they could not conceive of any every sort of thing that would you know trigger this statute such as electronic filing so that they use the words other paper as a of phrases to intice a pate the known unknowns and that's what it is in this case and if you look at the briefs of the appellant's you can see the ambiguity when they try to define what other paper means just by using the phrase paper for example avondale says it's triggered by the electronic filing murphy omitting tense in its brief that no it's got to be a paper or written document avondale maintains in this case that point when the defendant responds that they need to reduce their evidence now if it at that point they still don't have a transcript certainly they can ask for more time but as you know palin state they're trying to make it sound like they're going to get the transcript probably at that point they will have the transcript but again if they don't they can request more time to get it so for purposes of removal they don't need the transcript at that point they can simply remove on their sort of plain statement focusing on the word paper for a minute we had a case three four years ago nothing to do with what we're dealing with here but it was a it was a case construing rule fifty eight which as you know requires a separate document for entry of of judgment and the panel issued an opinion a fifth circuit panel issued an opinion that said that the if the rule fifty eight document had to be a separate piece of paper  several weeks later the panel withdrew that opinion and reissued it to say it only had to be a a docket entry in recognition of the fact that in fact word paper because it wasn't properly descriptive of of what of what actually happened within the electronic docket entry on the docket of the district court but the point of all that in that motion and order specifically can also refer to to ricin think written or something oral and therefore i submit that other paper can also be oral any other definitions the definitions at o proposed and these are smart guys and the you know you're hearing from or the divine appellant from really good firms that have put their brains together and they can propose a consistent i'll turn it around and what and i was going language of the statute we understand your view paper is sort of a catch all we do have our own precedent where you going to get to a rector's yes the difficulty with the rector's for me just so you know is if your view distinguishing it were true that court every single deposition transcript would always be preceded with a deposition so it's hard to understand how that court could have written what it wrote that the triggering moment was the transcript if it would always be true there was an earlier triggering moment well the went in and directors the court was not addressing the specific issue of whether the deposition testimony versus the deficit it was very explicit that the transcript was the triggering moment and yet it would all they wouldn't have needed to have said that well what they also said your honour's they also pointed out that the deposition and they didn't say the deposition transcript is a new paper or event that triggers removeable and a new paper to me sounds an awful lot like other paper and with all due respect honor some people  pointed out that s w s erectors this is confusing and not necessarily consistent and if you look at the subsequent case law the courts are interpreting it in opposite ways some cases such a are interpreting it to mean that the deposition testimony triggers a time for removal other courts are interpreting it to mean that the deposition deposition transcript is triggering the time for move all and i want to talk to you about i think the rule the opponents are suggesting today willing we'll create a circuit split and not necessarily just with the tenth circuit we have cases from five circuits that support testimony rule those are the third circuit the sixth circuit the eighth circuit the ninth circuit and of course a ten circuit in half which is the six circuit court the six circuit cases the peterson case and your honor that's particularly important because for two reasons the first is it cites huffman and it was not squarely addressing what's before you today to not squarely address whether or not the testimony versus a transcript with title typed and trigger the time for mobile but it does address huffman in reaching its decision which suggests that had that issue been before the court perhaps it would have been a court with huffman it also addresses erectors for the proposition that the testimony triggers a time for mail and one thing that isn't is the sixth circuit opinion and i wanted to reach him so i thought it was important now in this case it's not directly on point because the plaintiff in that case conceded that it was timely removed from the time of the testimony but the court had this to say it said therefore we hold that if a defendant is able to ascertain for the first time from the plaintiff's deposition testimony that a case is removable than unnoticeable moodle is properly filed if it is filed within thirty days of that deposition and that's the court's holding in that case as ok now the district court relied on that ins though this was an important case to look at it looked to me that they when they make that statement about deposition testimony they're actually misquoting our earlier decision and eight oh did you were you able to look into that or have you double checked whether the festa six circuit and that exact phrase deposition testimony in fact turns on a so i can answer questions on procedurally are the parties given a rough draft of the copy to review and make sure that the deposition is correct and that the answers were taken down correctly by  the court reporter when there's a transcript become of fishel i mean do we have a situation i guess what i'm asking is her board takes it all down but don't the parties get a chance to review it and say it's correct or it's not correct and make changes before it actually official and does that that process make a difference well i i don't know if that always happens i know and it definitely frequently happens and there's sort of an additional wrinkle which is sometimes a deponent wants to read and sign their deposition which certainly makes sense and they have a period of time to do that in a lot of times the deponent will change their mind and not do so and so it's it's unclear to me when it in that  reviewed it and said oh gosh that's what i said but i really didn't work on that ship and so my answer it was not quite correct so i want to change my answer at the deposition are maybe the court reporter didn't take it down correctly so that we can we depend on a rough draft that has not been approved by both sides to make a determination as to whether the case should be removed are do we have to wait till there is an official transcript approach by both sides and i reviewed by the witness that was opposed i think we would depend on the testimony and it's like it like that motion for summary judgment if there's evidence on the other side if the defendant removes the case based on the testimony and the transcript and it ends up showing something else they can attract and attach that transcript to their opposition to the motion to remain on it and use that you know to to oppose in addition to looking at the other circuits that have considered this issue i think this court can look at use applied tenets of statutory construction and here that would be the policy or the the policy behind the statute the congressional intent in looking at the statute as a whole and in terms of the policy this is a bright line rule there's no question when a deposition occurs the judge is not left trying to sift through to transcripts and figure out if it's the draft transcript of the final transcript or if it's been read and signed or reading attorney affidavits to find out when they got the transcript it's a clear rule and there's nothing about a transcription that changes the deposition or that the irrefutable of the of a deposition in addition in terms of the the congressional intent congress enacted the statute in order to give the defendant  tutti to remove a case even after the initial pleading in addition congress wanted to ensure that the case was removed disk witness possible they wanted to do this so that the proper court would be ascertained as soon as possible and so there wouldn't be a waste of judicial and party resources in the wrong court again the testimony rule meets these goals and finally looking at the statute as a whole there are two provisions that are at play section the wind is the initial the initial pleading and it doesn't directly apply a pertain to this case but it's important because that provides that removal is triggered when there's a pleading that is sets forth the grounds for mobile this court explained in the chapman case that a setting forth means to affirmatively reveal on its face and set section b three which does apply to this case this court held in both bosky and again in the mumford case that this is this need not affirmatively revealing its face this is important because that suggests that a writing is not necessary and again as i mentioned motions and orders can be or they need not be written absolutely it under section b three it must be first ascertainable that the removal is possible and that's important because here opponents have told you that their concern under a testimony rule is that they'll have to remove the case based on their subjective knowledge not so your honour's be three is very clearly an objective knowledge test the test is when is it possible to first ascertain the browns removal that is based on a reasonable person the test is not when can this defendant in this particular case ascertain the grounds for movable indeed where that the contest then the defendant could wait six months or nine months down the line remove the case at that point and then claim that they had just ascertain the grounds for move will be three however is very clearly an objective test in addition were defendants really concerned about having to move the case subjectively they have the privilege of cross examin at the deposition and making sure they understand the testimony and that's precisely what avondale did here when it to cross examine mr morgan repeatedly until they got exactly the testimony they needed to move the case under the federal these reasons we believe one question besides hofmann if you claim the weight of circuit authority is your violent embrace of voluntary act rule what other circuit best articulate your that deposition oral statement would be the triggering moment what would you point us to other than hoffman as as an articulation of that point your honor we talked about the sixth circuit case so peters heaters but i'd like to also say the eighth circuit case is instructive it very clearly says that oral testimony given in open court starts that starts room of a period and that's important the federal officer removal issue avondale tells you that you don't have to consider it it's your your product whether or not to consider it but this court can affirm in any grounds it's developed in the record it has been fully  six but yes your honor mr morgan has passed away so so there's not that there's not that particular urgency anymore about our deciding the issue here rather than letting the district court do that well i mean for the sake of judicial efficiency certainly it would be it would be important and to give the morgan family some closure but you i do understand that you all are on a timeline due to the do that due to the fact that the case  honor i would like to start with judge higginson's question about the peterson case you are correct or on a peterson is based on a misquote of discords decision also in peterson you're on didn't think it was that important the man i'll believe since you brought it up yes and let's point out that this neither the district court nor the appalachians contest that this it is that the federal officer removal liberal interpretation extends to timeliness to speeds in for this panel to affirm the district court's remain and order it would have to take every benefit of the day out in favor of remaining in particular it would have to decide that the spoken word is the writ is written it would have to decide the best of us records is not only not binding precedent it's not even persuasive precedent also in this quote we just had to ignore its longstanding general rule which s w s rector's definitely extended to rule fourteen forty six b you'd have to ignore that you cannot us with respect to the other paper conversion district courts in this circuit for twenty years citing southwest directors and had no difficulty in a certain in the dates that defendants received deposition transcripts there's at least cited three in my reply brief here on in there is also two others is this case reflects it just is not that difficult to discern when a defendant gets the electronic copy of the transcript from the court i mean from the court for our thank dissent judge wiener talked about how it was the as a result of the ruling there would be protected from removals filed and that and that was one of the reasons why the court ruled the way it did in boston saying that it would have to be you know would the movable and then you don't really need the transcript until you get to the opposition to remain well that's not really the way it should work it should work where we hear something at a deposition let's file a rebuttal because ultimately we'll get the deposition transcript by the time of the hearing on the motion remain and that's not really how it should work the chip work where the lawyer sees the deposition transcript and decides whether the case should be is the last statement by your co counsel correct that the district courts in the fifth circuit  uniform in following deposition transcript there's no disharmony in the district court i don't know i don't know i think i'm not sure if that is one hundred percent correct i do know that that there are certainly in the western district in the eastern district cases courts judges that have made statements that are clearly support our position true but the my question based on what he said was is the s w s or rector rule so clear there is no difficulty in interpret ing it in our district courts or has there been some deposition oral statement triggering in fifth circuit district court i think that there has been at least one or two decisions where district court judges have said suggested that the deposition date is what triggers it but again the the problem with these the citizens is they're not they don't go the next step to say ok is it really  deposition that the statement oral statement by the witness or is it the deposition meaning including the deposition transcript and that's what's that's what's kind of the problem lot of these cases is they don't make that