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Bill V. Wilkinson and Lawrence W. Zeringue of Wilkinson Law Firm, Tulsa, Oklahoma, for Plaintiffs-Appellants.

Jeffrey H. Contreras of Jeffrey H. Contreras, P.C., Oklahoma City, Oklahoma, for Defendant-Appellee.

Plaintiffs leased space from Saul to operate their retail furniture store in a shopping center in Tulsa, Oklahoma. On July 2, 1996, they brought suit in state court against Saul, alleging breach of the parties' leases, rescission, and fraud. The complaint requested "actual and punitive damages against Saul, both in amounts in excess of $ 10,000." Appellants' App. at 4. Saul counterclaimed for $13,486.54, plus interest, costs, and attorneys' fees, as the amount Huffman and Newton owed under the terms of the leases as of October 1, 1996. Id. at 13.

At his deposition, taken April 28, 1997, Marshall Huffman testified that plaintiffs were seeking money damages in "excess of $300,000" for "ruining" their business and harming his reputation. Id. at 56. Counsel for Saul did not ask any general questions of Mr. Huffman concerning the elements of the requested damages. Follow-up questioning focused on "documentation" in support of the damage claim. Mr. Huffman stated that he had one supporting document, apparently a compilation of balance sheets and income statements, see id. at 48, 56, but that he did not yet have "economic research" documents, id. at 58. Later in the deposition, counsel for Saul paraphrased Mr. Huffman's testimony as "say[ing] he's seeking $300,000 for losing his business." Id. at 40.

Mr. Huffman also identified an economist, Dr. John Bonham, who would testify as an expert witness on damages. See id. at 58. Dr. Bonham's expert report, produced at his June 3, 1997 deposition, calculated damages at $1,900,000. See id. at 72. On June 25, 1997, Saul filed a notice of removal, contending that the expert report provided the first notice that the case satisfied diversity jurisdiction requirements. Prior to that date, Saul contended, it was without a reliable basis to demonstrate that the amount in controversy exceeded $75,000.

Plaintiffs moved to remand the action to state court on the ground that Saul's notice of removal was untimely under 28 U.S.C. § 1446, in that it was filed more than thirty days after service of the summons and more than thirty days after Mr. Huffman's deposition. The district court determined that neither the initial pleading nor Huffman's deposition testimony provided Saul with proper notice that the jurisdictional amount was in controversy. According to the district court, "[s]uch notice was not given until Defendant received Plaintiff's damage analysis and economic figures on June 3, 1997." Id. at 74.

Subsequently, the district court granted Saul's motion for summary judgment, entering judgment against plaintiffs on their claims and in favor of Saul on its counterclaims. This appeal followed.

"This court has jurisdiction over a denial of a motion to remand to state court when coupled with the appeal of a final judgment." Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 n.1 (5th Cir. 1994). "Because removal is an issue of statutory construction, we review a district court's determination of the propriety of removal de novo." Id. at 524.

To be removable, a civil action must satisfy the requirements for federal jurisdiction. See 28 U.S.C. § 1441(a). The courts are to "rigorously enforce Congress' intent to restrict federal jurisdiction in controversies between citizens of different states." Miera v. Dairyland Ins. Co., 143 F.3d 1337, 1339 (10th Cir. 1998) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938)). "[T]here is a presumption against removal jurisdiction," Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995), so that all doubts are resolved in favor of remand, see Fajen v. Foundation Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982).

The parties agree, and the record confirms, that the requirements for diversity jurisdiction exist in this case: "the matter in controversy exceeds the sum or value of $75,000," and the parties are "citizens of different States." 28 U.S.C. § 1332(a). The sole issue is whether Saul's notice of removal was timely pursuant to 28 U.S.C. § 1446(b).⁽²⁾ The statute provides, in relevant part:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. . . .

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.

Id.; see also Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 119 S.Ct. 1322, 1325 (1999). Compliance with the applicable thirty-day time limitation is mandatory. See Snapper, Inc. v. Redan, 171 F.3d 1249, 1253 (11th Cir. 1999) ("The failure to comply with these express statutory requirements for removal can fairly be said to render the removal 'defective' and justify a remand pursuant to § 1447(c)."); Schmitt v. Ins. Co. of N. Am., 845 F.2d 1546, 1551 (9th Cir. 1988) ("[R]emand of the present case became mandatory under section 1447(c) once the district court determined that [defendant's] petition for removal was untimely.").⁽³⁾

Plaintiffs assert that Saul's notice of removal was untimely, whether the thirty-day time period is measured from service of the initial pleading, under the first paragraph of § 1446(b), or from Saul's deposition testimony, under the second paragraph. On the first alternative, plaintiffs argue that a reasonably qualified attorney could have ascertained from their initial pleading that potential damages exceeded the statutory amount, and therefore the removal period expired thirty days after service of the summons. See Appellants' Opening Br. at 10. We disagree with that proposition.

The initial pleading stated a claim for actual and punitive damages "in excess of $10,000," Appellant's App. at 4, based on breach of obligations arising out of a landlord-tenant relationship. Saul could only guess as to whether the claim also exceeded $75,000. See Laughlin, 50 F.3d at 873 (determining that a complaint filed in Oklahoma state court requesting damages "in excess of $10,000" for each of two employment claims was insufficient to establish the requisite jurisdictional amount); Gaitor v. Peninsular & Occidental S.S. Co., 287 F.2d 252, 254-55 (5th Cir. 1961) (stating that "nebulous mathematical phraseology" in the prayer of a personal injury action too indefinite to support diversity jurisdiction). Under the circumstances of this case, the thirty-day clock did not begin to run upon receipt of the initial pleading.⁽⁴⁾

Because the initial pleading did not permit Saul to discern the amount in controversy, we must determine at what point Saul received "a copy of an amended pleading, motion, order or other paper from which it [could] first be ascertained that the case [was] one which [had] become removable." 28 U.S.C. § 1446(b). The parties propose different dates for this occurrence. Plaintiffs contend that Mr. Huffman's deposition testimony triggered the running of the thirty-day removal period, and therefore the notice of removal was filed twenty-eight days late. Saul asserts that receipt of the expert report marked the beginning of the period, and therefore the notice of removal was timely.

Under § 1446(b), the removal period does not begin until the defendant is able "to intelligently ascertain removability so that in his petition for removal he can make a simple and short statement of the facts." DeBry v. Transamerica Corp., 601 F.2d 480, 489 (10th Cir. 1979). "If the statute is going to run, the notice ought to be unequivocal. It should not be one which may have a double design." Id. Moreover, the circumstances permitting removal must normally come about as a result of a voluntary act on the part of the plaintiff. See id. at 486-88.

To analyze the suitability of plaintiffs' proposed date, we must first determine whether a deposition constitutes an "other paper" within the meaning of § 1446(b). A majority of the federal district courts have not required receipt of an actual written document. Instead, they have held that a discovery deposition does satisfy the requirement. See, e.g., Effinger v. Philip Morris, Inc., 984 F. Supp. 1043, 1047-48 (W.D. Ky. 1997) (collecting cases); Haber v. Chrsyler Corp., 958 F. Supp. 321, 326 (E.D. Mich. 1997); Riggs v. Continental Baking Co., 678 F. Supp. 236, 238 (N.D. Cal. 1988); Smith v. International Harvester Co., 621 F. Supp. 1005, 1008 (D. Nev. 1985); see also 28 U.S.C.A. § 1446 (Commentary on 1988 Revision) ("The ['other paper'] that reveals the phoniness of the nondiverse defendant's joinder may be, e.g., the deposition of some nonparty witness."); 14C Charles Alan Wright et al., Federal Practice and Procedure § 3732 at 300-10 (3d ed. 1998) ("The federal courts have given the reference to 'other paper' an embracive construction . . . . Various discovery documents such as depositions . . . usually are accepted as 'other paper' sources that initiate a new thirty-day period of removability.") (footnotes omitted). See also S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996) (holding that a deposition transcript is an "other paper").

For several reasons, we adopt the majority rule. The intent of the statute is to "mak[e] sure that a defendant has an opportunity to assert the congressionally bestowed right to remove upon being given notice in the course of the case that the right exists." Wright, et. al, supra at 306. Unquestionably, information elicited during a deposition may serve that purpose. For purposes of the removal statute, deposition testimony stands on equal footing with written forms of discovery, such as interrogatories and requests for information.

A defendant cannot forgo one recognized means of obtaining information related to jurisdiction for another and then argue that the manner in which the information was provided, which was in compliance with defendant's request, precludes imputing knowledge of the information to the defendant. Such manipulation would provide a windfall for the defendant which is clearly contravened by the removal statute's emphasis on effecting removal as soon as possible.

Golden Apple Management Co. v. Geac Computers, Inc., 990 F. Supp. 1364, 1368 (M.D. Ala. 1998) (citation omitted). We hold that deposition testimony, taken under state rules of procedure during the course of litigation in the state court, qualifies as an "other paper" under § 1446(b).

Because the applicable rule of civil procedure does not provide a deadline for obtaining a transcript of a deposition, see Fed. R. Civ. P. 30(b)(2), (f)(2), the date of receipt of a transcript may be subject to similar manipulation. Accordingly, the removal period commences with the giving of the testimony, not the receipt of the transcript.⁽⁵⁾

In the instant case, therefore, the notice of removal was untimely if Mr. Huffman's deposition testimony provided sufficient notice that the amount in controversy exceeded the jurisdictional minimum. Generally, "the amount sued for fixe[s] the amount in controversy" for jurisdictional purposes. Wabash Ry. v. Vanlandingham, 53 F.2d 51, 51 (8th Cir. 1931). In a removal case, it is the obligation of the removing defendant to establish that the amount in controversy requirement has been satisfied. See Laughlin, 50 F.3d at 873. As a practical matter, however, the burden is "rather light" if the sum claimed by the plaintiff exceeds the jurisdictional amount. 14B Wright et al., Federal Practice and Procedure, § 3702 at 44. Where a plaintiff has not instituted suit in federal court, "[t]here is a strong presumption that the plaintiff has not claimed a large amount in order to confer jurisdiction on a federal court or that the parties have colluded to that end." St. Paul Mercury Indem. Co., 303 U.S. at 290.⁽⁶⁾

At the conclusion of Mr. Huffman's deposition, Saul had the benefit of a petition setting out the factual premise of plaintiffs' lawsuit; financial documents produced in discovery; and, most importantly, the voluntary and unequivocal testimony of Mr. Huffman that plaintiffs were seeking $300,000 in damages. This combination of materials was sufficient to put Saul on notice that the amount in controversy exceeded the jurisdictional minimum. Indeed, Saul had accumulated much more information than is available to a defendant who receives an initial pleading specifying an amount of damages. That defendant is obligated, under the first paragraph of § 1446(b), to remove a case within thirty days. Dr. Bonham's report increased the amount of requested damages and provided calculations supporting plaintiff's damages case. It did not, however, affect Saul's awareness that the amount in controversy exceeded $75,000.⁽⁷⁾

Mr. Huffman's deposition testimony triggered the thirty-day period of removability. Consequently, the notice of removal filed on July 25, 1997, was untimely.

CONCLUSION

The district court's denial of the motion to remand is reversed and the action is remanded with instructions to vacate its judgment and remand the action to the district court for Tulsa County, Oklahoma.

REVERSED and REMANDED.

^1. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

^2. Because the removal issue is dispositive of this case, we do not reach issues relating to entry of summary judgment.

^3. We note that, "[a]lthough the time limit is mandatory and a timely objection to a late petition will defeat removal, a party may waive the defect or be estopped from objecting to the untimeliness by sitting on his rights." Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980); accord In re Uniroyal Goodrich Tire Co., 104 F.3d 322, 324 (11th Cir. 1997) (stating that untimeliness of removal petition is not a jurisdictional defect); Shaw v. Dow Brands, Inc., 994 F.2d 364, 368-69 (7th Cir. 1993) (same).

^4. The record in this case provides no indication that, at the time it received the initial pleading, Saul had additional information concerning the amount of plaintiffs' damage claim. Accordingly, we do not reach the question of whether a court should inquire into a defendant's subjective knowledge or a reasonable person's understanding. We note, however, that other federal courts have determined that these inquiries would inject needless uncertainty and inefficiency into the removal process, and concluded that the removal clock begins "to run from defendant's receipt of the initial pleading only when that pleading affirmatively reveals on its face that the plaintiff is seeking damages in excess of the minimum jurisdictional amount of the federal court." Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992); see also Essenson v. Coale, 848 F. Supp. 987, 989 (M.D. Fla. 1994) ("Defendants are not required to translate injury claims into a dollars and cents claim not specifically asserted.") (quotation omitted); Smith v. Bally's Holiday, 843 F. Supp. 1451, 1453 n.5 (N.D. Ga. 1994) (finding no duty to investigate in case in which the facts, as pleaded, do not indicate a high level of damages).

^5. To establish the jurisdictional facts, it may become necessary to submit a written transcript of the testimony in federal court. Cf. Laughlin, 50 F.3d at 873 (requiring the removing party to state the underlying facts supporting assertion of amount in controversy). In an era of electronic communication, however, the filing of a "paper" may become obsolete. See Carley Capital Group v. Deloitte & Touche, L.L.P., 27 F. Supp.2d 1324, 1329 (N.D. Ga. 1998) (mentioning a "paperless" office system).

^6. We note, however, that the parties cannot "concede" jurisdiction by agreeing that the jurisdictional amount requirement has been satisfied. The court's obligation to determine the presence of the appropriate amount in controversy is independent of the parties' stipulations. See Laughlin, 50 F.3d at 873. "[I]f, upon the face of the complaint, it is obvious that the suit cannot involve the necessary amount, removal will be futile and remand will follow." St. Paul Mercury Indem., 303 U.S. at 292.

^7. In this case, the record existing at the time of removal plainly demonstrated that the amount in controversy exceeded the jurisdictional amount. Accordingly, we do not need to determine the precise burden of proof to be met by the removing party when the amount is subject to challenge. This situation may occur when plaintiff has not specified a damage amount or has asserted an amount below the jurisdictional threshold. See Gafford v. General Elec. Co., 997 F.2d 150, 157-58) (6th Cir. 1993) (discussing the various burdens of proof courts have placed on the removing defendant).

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