Category Archives: Remand/Removal

Removal Under Federal Officer Removal Statute Held to Begin on Date of Receipt of Deposition Transcript U.S. Court of Appeals for the Fifth Circuit, January 11, 2018

On February 23, 2017, the plaintiff filed a complaint against Avondale Shipyards, and numerous other defendants, alleging he suffered mesothelioma from his employment at Avondale. The plaintiff was deposed over eight days from March 9 to April 13, 2017. He was cross-examined by counsel for Avondale on March 10 and 20, 2017. On March 28, 2017, counsel for Avondale received a link to the deposition transcript. Avondale removed the matter on the basis of federal officer jurisdiction on April 27, 2017, 30 days following receipt…

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Denial of Remand When Removal Under Federal Officer Removal Statute Deemed Timely U.S. District Court for the District of Maryland, January 10, 2018

MARYLAND — The plaintiff filed her lawsuit in the Circuit Court for Baltimore County on June 5, 2015, alleging the decedent was exposed to asbestos at Bethlehem Steel Sparrows Point Shipyard as a riveter heater and boiler maker from 1948 through the 1970s. A co-worker was deposed on December 11, 2015, and testified that decedent was exposed to asbestos from Foster Wheeler products while building ships for the Vietnam War. Foster Wheeler removed the case base on the Federal Officer Removal Statute to the U.S.…

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Amended Complaint Deleting Federal Claims Does Not Destroy Jurisdiction Over a Validly Removed Case U.S. District Court for the Eastern District of Louisiana, December 6, 2017

LOUISIANA — This decision arises out of the court’s review of the plaintiffs’ motion to remand, and appellant’s motion for review of an order granting plaintiffs leave to amend their complaint. The shipyard worker plaintiff originally filed an action in state court naming numerous defendants. The initial petition included failure to warn and negligence claims against the appellant, among other causes of action, and strict products liability and failure to warn claims against a boiler defendant, who also opposed the motion to remand. Approximately three…

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Removal Upheld on Government Contractor Defense for Turbine and Gasket Manufacturers U.S. District Court for the Southern District of New York, November 27, 2017

NEW YORK — Plaintiffs Michael and Anne Donohue brought suit against multiple defendants including Westinghouse (CBS) and Crane Co. alleging Mr. Donohue contracted mesothelioma from exposure to asbestos containing products for which the defendants were liable. Mr. Donohue claimed exposure from his time working in the Navy and with the New York Fire Department (NYFD). CBS removed the case one day after the plaintiff’s trial deposition. Crane quickly joined the removal. Both asserted the government contractor defense which shields liability in certain instances. The plaintiffs…

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Plaintiff’s Failure to Establish Causation and Lack of Opposition Leads to Grant of Summary Judgment U.S. District Court for the Western District of Kentucky, October 27, 2017

KENTUCKY — Rojelio Surita brought this action against several defendants alleging his decedent, Nancy Surita, developed mesothelioma from exposure to asbestos containing products for which Defendants were liable. Nancy Surita gave deposition testimony stating that she assisted in brake jobs on the family farm while growing up in Illinois. She also recalled maintenance on vehicles while serving in the National Guard. Later she testified as to working on military trucks. Although she recalled Caterpillar as the manufacturer of the transmissions, she testified that she did…

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Defendant’s Third-Party Claims Remain Stayed in Federal Court While Plaintiff’s State Law Claims Remanded United States Court of Appeals, Fourth Circuit, October 24, 2017

MARYLAND — The plaintiff filed a complaint in the Circuit Court for Baltimore City, MD alleging state law claims arising from asbestos exposure against defendant/appellant Campbell-McCormick (CMC) and others. CMC subsequently filed a third-party complaint against GE and 12 other co-defendants for contribution. GE removed the case to the District of Maryland, asserting federal contractor defenses. The plaintiff filed a motion to sever and remand, and specifically requested the district court to decline to exercise supplemental jurisdiction of the plaintiff’s state law claims pursuant to…

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Remand Denied and Plaintiffs’ Mesothelioma Suit Dismissed Based on Lack of Personal Jurisdiction U.S. District Court for the District of Minnesota, October 10, 2017

MINNESOTA — In March 2016, the plaintiffs filed suit against multiple defendants, including Conwed Corporation, in Missouri Circuit Court in St. Louis alleging that the husband plaintiff’s mesothelioma was caused by exposure to the defendants’ asbestos-containing products, including Conwed’s ceiling tile. On January 19, 2017, the Missouri Circuit Court dismissed the plaintiffs’ complaint against Conwed without prejudice, finding, in part, that Conwed was “a Delaware corporation with its principal place of business in New York.” The plaintiffs refiled suit on March 16, 2017 in Ramsey…

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Fraudulent Joinder Determination Turns Only on Factual and Legal Basis, Not Intent U.S. District Court for the Western District of Missouri, Central Division, October 3, 2017

MISSOURI — Kansas resident plaintiffs filed an action in the Circuit Court of Jackson County, Missouri, alleging mesothelioma and asbestosis arising out of work first performed in the state of Missouri. Two defendants named in the state court petition were also residents of Kansas, and the rest were from various states. Defendant Athene Annuity & Life Assurance Company removed the case on the basis of diversity. In response to the plaintiffs’ motion to remand, Athene alleged that the plaintiffs had no intention of prosecuting claims…

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Lack of Service on Forum Defendants Fails to Defeat Removal Due to Diversity Jurisdiction U.S. District Court for the Eastern District of Louisiana, September 30, 2017

LOUISIANA — The plaintiffs originally filed their petition in the Civil District Court for the Parish of Orleans, State of Louisiana, after William Leech died of mesothelioma. The plaintiffs were residents of Arizona and named numerous defendants, including three who were Louisiana residents. Nine days after the petition was filed, and before any other defendants were served, defendant Honeywell International removed the action to federal court on the basis of diversity jurisdiction, which was uncontested. The decedent was a construction engineer who alleged asbestos exposure…

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Court’s Refusal to Exercise Supplemental Jurisdiction Over Dismissed Defendant Leads to Remand U.S. District Court for the Eastern District of Louisiana, September 18, 2017

LOUISIANA — The plaintiff filed this action against several defendants, including Industrial Development Corporation of South Africa, Limited (IDC), alleging he developed lung cancer from exposure to asbestos containing products for which the defendants were responsible. Immediately after the suit was filed, the plaintiff moved to dismiss claims against IDC. A co-defendant stevedoring company filed a third party complaint for contribution and/or indemnification against IDC before the court ruled on the pending motion to dismiss. IDC then removed the case to federal court. The plaintiffs…

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