As Hamlet might have said if he had been a trial lawyer,
"To remove, or not to remove. That is the
question." And he might well have added, "And when
to remove? Aye, there's the rub." Recent
amendments to the federal removal statute and to the Texas Rules of
Civil Procedure have made the plot of that drama a little different
than it used to be.
For a number of years now, the Fifth Circuit has been creating and
refining a distinction between when a defendant may remove a
diversity case and when it must remove the case. A case
may be removed whenever the defendant is prepared to
allege in good faith in the notice of removal, and prove by a
preponderance of the evidence if necessary, that the amount in
controversy exceeds $75,000; the Fifth Circuit calls controversies
about this issue "amount disputes." On the other
hand, the thirty-day deadline by which a case must be
removed is triggered only by receipt of an original or amended
pleading or other paper that
