In a July 12, 2013 opinion, the US Court of Appeals for the Eighth Circuit, in Dalton v. Walgreen Co., held that the defendant, Walgreens, had no basis to remove the case because the basis for seeking removal, found in discovery responses received by Walgreens's counsel in a separate case, did not trigger the start of a 30-day period for removal under 28 U.S.C. § 1446(b)(3).

The plaintiffs, including Dalton, filed a putative class action in Missouri state court on April 5, 2012, seeking damages relating to Walgreens's alleged practice of unlawful internet tracking of consumers. Because the plaintiffs had stipulated that the amount in controversy fell below the threshold needed for federal jurisdiction under CAFA and the Supreme Court had not yet issued its decision in Standard Fire Ins. Co. v. Knowles, the case was not initially removable.

Almost a year after the case was filed, Walgreens filed a notice of removal under 28 U.S.C. § 1446(b)(3). Walgreens based its removal on discovery responses its attorneys received from Dalton in a separate case that triggered a new 30-day period in which Walgreens may remove the case. The district court found that the amount in controversy could not be proven by reference to discovery papers in another case and remanded the case sua sponte.

The Eighth Circuit agreed with the district court. The court held that the discovery responses from another case are not "other papers" under the meaning of Section 1446(b)(3) as a matter of law so they did not trigger a 30-day window in which Walgreens could remove the case. The court noted, however, that although Walgreens had no statutory basis for removing the case at the time, future discovery may make the case removable in the future.

Practitioners in the Eighth Circuit seeking removal of a case that is not removable by its initial pleading should be aware that the courts may narrowly interpret 28 U.S.C. § 1446(b)(3) when determining whether a case is removable.

For more information on removal, see Practice Notes, Removal: Overview and Removal: How to Remove a Case to Federal Court.