                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          MAY 25 2000
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MELVIN GREEN,

                Plaintiff-Appellant,

    v.                                                    No. 99-5139
                                                    (D.C. No. 98-CV-352-H)
    HARSCO CORPORATION,                                   (N.D. Okla.)
    a Delaware Corporation,

                Defendant-Appellee,

                and

    FABSCO, INC., an Oklahoma
    Corporation,

                Defendant.


                             ORDER AND JUDGMENT           *




Before KELLY , McKAY , and HENRY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Plaintiff-appellant Melvin Green appeals the district court’s May 4, 1999

order granting defendant-appellee Harsco Corporation’s motion for summary

judgment, and its June 14, 1999 order denying plaintiff’s motion to vacate and

remand the matter to state court. The district court acquired diversity jurisdiction

pursuant to 28 U.S.C. § 1332(a) and (c). We exercise jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm.


                                    Background

      In 1991, Green sustained a work-related injury to his back which required

two surgeries. As a result, Green was absent from work at Harsco for over one

year. 1 On May 22, 1995, Green sustained a second on-the-job injury to his back,

but continued to perform his work duties at Harsco. Harsco claimed that the first

it knew of this second injury was when it was notified that Green had filed

a workers’ compensation claim. At that point, Harsco requested that Green leave

work until he received a release from his doctor. Harsco asserted that Green

received a release to work from Dr. Jerry McKenzie on June 16, 1995, but never


1
       At the time of Green’s injury he was employed by defendant Fabsco
Corporation. In February 1995, Fabsco became a division of Harsco. To
minimize confusion, we will refer to Green’s employer as Harsco throughout
this discussion.

                                         -2-
returned to work. In fact, Harsco asserted that it did not learn of the release until

it was filed with the state workers’ compensation court in October 1996.

      Harsco asserts that it authorized treatment for Green with Dr. Hendricks,

his previous surgeon, but that Green never saw Dr. Hendricks. Harsco then had

Green examined by Dr. Paul. Even though Dr. Paul medically released Green to

return to work, Green continued to be absent. Finally on April 3, 1997, almost

two years after Green had been told to leave work until he received a doctor’s

release, Harsco terminated him because it no longer had a position for him.

      In June 1997, Green filed suit in Oklahoma state court alleging

wrongful termination in violation of the Oklahoma Workers’ Compensation Act,

Okla. Stat. tit. 85, § 5, and a claim under the Family and Medical Leave Act

(FMLA), 29 U.S.C. §§ 2601-2654. Because Green’s FMLA claim invoked federal

question jurisdiction, Harsco removed the case to federal court. Green withdrew

his FMLA claim, and the district court remanded the matter back to state court.

In May 1998, Harsco again removed the matter to federal court based on diversity

jurisdiction. Although Green initially moved for remand based on his allegation

that Harsco’s principal place of business defeated diversity jurisdiction, he

withdrew his motion after receiving Harsco’s response. Following a hearing and

the district court’s entry of summary judgment in favor of Harsco, Green moved




                                          -3-
under Fed. R. Civ. P. 60(b)(6)   2
                                     to vacate the summary judgment order and to

remand the case to state court, alleging that the district court did not have subject

matter jurisdiction because the amount in controversy did not exceed $75,000.

The district court denied the motion, and Green filed a timely notice of appeal.

      On appeal, Green states his issues as: (1) the federal district court lacked

jurisdiction to consider Green’s claims; and (2) there were disputed issues of

material fact that precluded the court’s grant of Harsco’s summary judgment

motion. We conclude that the district court had jurisdiction to consider Green’s

claims, and that the grant of summary judgment was correct.


                                         Discussion

                                      A. Jurisdiction

      “When a plaintiff files in state court a civil action over which the federal

district courts would have original jurisdiction based on diversity of citizenship,

the defendant or defendants may remove the action to federal court . . . .”

Caterpillar Inc. v. Lewis , 519 U.S. 61, 68, (1996) (   citing 28 U.S.C. § 1441(a)).

“The burden is on the party requesting removal to set forth, in the notice of

removal itself, the ‘ underlying facts supporting [the] assertion that the amount in


2
      Rule 60(b)(6) provides that “the court may relieve a party or a party’s legal
representative from a final judgment, order, or proceeding for the following
reasons: . . . (6) any other reason justifying relief from the operation of the
judgment.”

                                             -4-
controversy exceeds [$75,000].’”       Laughlin v. Kmart Corp. , 50 F.3d 871, 873

(10th Cir. 1995) ( quoting Gaus v. Miles, Inc. , 980 F.2d 564, 567 (9th Cir. 1992)).

A plaintiff objecting to removal may file a motion asking the district court to

remand the case to state court.     See Caterpillar , 519 U.S. at 69. “‘This court has

jurisdiction over a denial of a motion to remand to state court when coupled with

the appeal of a final judgment.’”     Huffman v. Saul Holdings Ltd. Partnership     ,

194 F.3d 1072, 1076 (10th Cir. 1999) (     quoting Leffall v. Dallas Indep. Sch. Dist   .,

28 F.3d 521, 524 n.1 (5th Cir. 1994));     see also Caterpillar , 519 U.S. at 74 (stating

that a timely motion for remand is all that is required to preserve appellate review

of an objection to removal).

       “[T]here are two types of improperly removed cases: those in which the

federal court has no subject matter jurisdiction and those with defects in the

removal procedure itself.”    Huffman , 194 F.3d at 1076. Here, Green’s assertion

that the court had no subject matter jurisdiction is an issue that can never be

waived and may be raised at any time.      See id. at 1076-77. “‘Because removal is

an issue of statutory construction, we review a district court’s determination of

the propriety of removal de novo.’”      Id. (quoting Leffall , 28 F.3d at 524).

       28 U.S.C. § 1332(a) provides that “district courts shall have original

jurisdiction of all civil actions where the matter in controversy exceeds the sum

or value of $75,000, . . . and is between– (1) citizens of different States.” Here,


                                             -5-
Green asserts that the amount in controversy had not been established as in excess

of $75,000, and therefore removal to federal court was inappropriate. In

determining whether the requirements of federal diversity jurisdiction have been

established, this court must look to the plaintiff’s complaint.       See Penteco Corp.

Ltd. Partnership–1985A v. Union Gas Sys., Inc.        , 929 F.2d 1519, 1521 (10th Cir.

1991). “Where the pleadings are found wanting, [however], an appellate court

may also review the record for evidence that diversity does exist.”        Id.

       Green’s amended complaint put forward three claims for damages generally

in excess of $10,000 as required by the Oklahoma Pleading Code, Okla. Stat. tit.

12, § 2008(A)(2).   3
                        In his first motion to remand, however, Green stated that he

did “not dispute that the amount in controversy exceeds $75,000.00.” Appellant’s

App. at 314. Moreover, in his response to Harsco’s first request for admissions,

Green admitted that his claim for damages exceeded $75,000.            See id. at 345A.

Harsco relied on these admissions in its notice of removal, alleging that Green’s

response to Harsco’s first request for admissions was “‘other paper from which it

may be ascertained that the case is one which is or has become removable.’”

Appellee’s Supp. App. at 297 (     quoting 28 U.S.C. § 1446(b)).


3
      Section 2008(A)(1) states that “[e]very pleading demanding relief for
damages in money in excess of Ten Thousand Dollars ($10,000.00) shall, without
demanding any specific amount of money, set forth only that the amount sought as
damages is in excess of Ten Thousand Dollars ($10,000.00), except in actions
sounding in contract.”

                                             -6-
       “Where the complaint does not demand a dollar amount, the removing

defendant bears the burden of proving by a preponderance of evidence that the

amount in controversy exceeds [$75,000].”           Singer v. State Farm Mut. Auto. Ins.

Co. , 116 F.3d 373, 376 (9th Cir. 1997);      see also Laughlin , 50 F.3d at 873. Here,

the district court was satisfied that Harsco had shown, by a preponderance of the

evidence, that the amount in controversy exceeded the jurisdictional amount.

We agree. Green voluntarily admitted that the amount of damages he was seeking

exceeded the jurisdictional amount.        See, e.g., Huffman , 194 F.3d at 1078 (holding

that a deposition constitutes “other paper” within the meaning of § 1446(b)). This

was sufficient to invoke Harsco’s reliance for removal purposes and in fact, this,

combined with Green’s admission in his first motion to remand, constituted more

evidence of the amount in controversy than could have been ascertained from

Green’s complaint specifying an amount of damages. Consequently, the amount

in controversy was adequately established, the district court had subject matter

jurisdiction, and the district court correctly denied Green’s motion to remand.




                                              -7-
                                B. Summary Judgment

       “We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.”       Simms v. Oklahoma

ex rel. Dep’t of Mental Health & Substance Abuse Servs          ., 165 F.3d 1321, 1326

(10th Cir.), cert. denied , 120 S. Ct. 53 (1999). Summary judgment is appropriate

where no genuine issues of material fact exist and the moving party is entitled to

judgment as a matter of law.     See Fed. R. Civ. P. 56(c). When reviewing a grant

of summary judgment, we view the evidence and draw reasonable inferences

therefrom in the light most favorable to the nonmoving party.         See Simms ,

165 F.3d at 1326.

       Initially, Harsco asserts that because Green did not object to the order

granting summary judgment in his motion to vacate and remand, he has waived

that issue on appeal. We do not agree. Green’s motion, filed within ten days of

the entry of judgment, tolls the time for filing Green’s notice of appeal under

Fed. R. App. P. 4(a)(4).    See Fed. R. App. P. 4(a)(4)(vi) (providing that a Rule 60

motion filed within ten days after service of the judgment tolls the time for filing

a notice of appeal until entry of an order disposing of Rule 60 motion). Here, the

district court entered summary judgment in favor of Harsco on May 4, 1999.

Green filed his Rule 60(b) motion on May 11, 1999, within ten days of the

summary judgment order. Therefore, the time for filing a notice of appeal from


                                            -8-
the district court summary judgment decision was tolled until entry of the district

court decision on Green’s Rule 60(b) motion on June 14, 1999. Green

subsequently timely filed his notice of appeal on July 1, 1999, rendering his

summary judgment issues properly before this court.    4



      Because this case is “grounded on diversity jurisdiction,” we apply

Oklahoma substantive rules of law.     Blanke v. Alexander , 152 F.3d 1224, 1228

(10th Cir. 1998). “A federal court sitting in diversity must apply the law of the

forum state, in this case Oklahoma, and thus must ascertain and apply Oklahoma

law with the objective that the result obtained in the federal court should be the

result that would be reached in an Oklahoma court.”        Wood v. Eli Lilly & Co. ,

38 F.3d 510, 512 (10th Cir. 1994). In reviewing this case, we are obligated to

“apply Oklahoma law, as announced by that state’s highest court.”        Hays v.

Jackson Nat’l Life Ins. Co   ., 105 F.3d 583, 587 (10th Cir. 1997). The district

court’s determination of Oklahoma law is reviewed de novo.          See Salve Regina

College v. Russell , 499 U.S. 225, 239 (1991).

      Green contends that the district court erred in concluding that there was no

disputed issue of fact as to whether Harsco’s termination of Green was in



4
       We note that Harsco appears to confuse these circumstances with waiver of
issues not ruled on by the district court. Here, the summary judgment issues were
ruled on by the district court, and in light of Green’s timely appeal, are properly
considered here.

                                          -9-
retaliation for his filing a worker’s compensation claim in violation of the

Oklahoma Worker’s Compensation Act, Okla. Stat. tit. 85, § 5. Section 5(A)(1)

prohibits any “person, firm, partnership, corporation or other entity [from]

discharg[ing] . . . any employee because the employee has in good faith . . .

[i]nstituted or caused to be instituted any proceeding under the [Oklahoma

Workers’ Compensation Act].” In order to establish a claim under this statute,

Green had to prove that (1) he was employed; (2) he suffered an on-the-job

injury; (3) he received medical treatment putting his employer on notice that he

had initiated worker’s compensation proceedings; and (4) he was consequently

terminated from his employment.        See Wallace v. Halliburton Co.     , 850 P.2d 1056,

1059 (Okla. 1993). To establish the fourth element, Green had to produce

evidence sufficient to support a legal inference that the termination was

“significantly motivated” by retaliation for exercising his statutory rights.      Id.

       It appears to be undisputed that Green established the first three elements

of his prima facie case. The district court’s focus was, therefore, on the fourth

element--whether a consequent termination occurred. Green’s only argument on

appeal in support of his contention that he was terminated as a consequence of his

filing a worker’s compensation claim is that the timing of his discharge raises an

inference of retaliatory discharge. He claims that he was constructively

discharged when he was originally sent home after Harsco learned of his back


                                             -10-
injury and his worker’s compensation claim. That issue is not reviewable. In its

summary judgment order, the district court noted that, in his response to Harsco’s

motion for summary judgment, Green conceded that he had no viable claim for

constructive discharge.   See Appellant’s App. at 34 n.1. In this light the court

dismissed this claim with prejudice.    See id. Because this court will not consider

on appeal a claim abandoned in the district court,      see O’Connor v. City & County

of Denver , 894 F.2d 1210, 1214 (10th Cir. 1990), we will not consider Green’s

constructive discharge argument.

       Reviewing the evidence in the light most favorable to Green, we do not

believe that a reasonable jury could conclude that his termination was motivated

by retaliation for filing a worker’s compensation claim.      See Taylor v. Cache

Creek Nursing Centers,    891 P.2d 607, 610 (Okla. Ct. App. 1994) (holding that

plaintiff is required to produce evidence establishing an inference that termination

was a consequence of filing a worker’s compensation claim). Green simply failed

to establish any link between his termination, a full twenty-one months after his

injury, and his worker’s compensation claim. Therefore, Green failed to establish

a “consequent termination” of employment.         Id.




                                           -11-
                                    Conclusion

      Upon careful review of the parties’ appellate briefs, the district court’s

orders, and the record on appeal, this court AFFIRMS the grant of summary

judgment in favor of Harsco for substantially the reasons set forth in the district

court’s order dated May 4, 1999. Additionally, we AFFIRM the district court’s

denial of Green’s post-judgment motion to vacate and remand.



                                                    Entered for the Court



                                                    Monroe G. McKay
                                                    Circuit Judge




                                        -12-
