Category Archives: Remand/Removal

Case Remanded to State Court Following Resolution of Claims that Invoked Federal Officer Statute U.S. District Court for the Northern District of Ohio, Eastern Division, March 17, 2017

The plaintiffs commenced this action in state court alleging that various products caused plaintiff Ralph Shonkwiler to develop mesothelioma. Defendant CBS Corporation (Westinghouse) removed the matter to federal court based on the federal officer statute since the plaintiffs claimed exposure to their product was a Navy turbine and the claimed exposure took place while plaintiff was serving in the Navy aboard the U.S.S. Ingram. In January 2017, the plaintiffs informed the court that all claims against Westinghouse were resolved and Westinghouse was dismissed from the…

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Case Remanded to Florida State Court Because Defendant Not Fraudulently Joined to Defeat Diversity U.S. District Court for the Southern District of Florida, March 10, 2017

In this case alleging asbestos exposure from talc, mesothelioma plaintiff filed a motion to remand back to Florida state court after defendant Johnson & Johnson removed to federal court based upon diversity jurisdiction. The defendant argued that the plaintiff fraudulently joined defendant Publix Super Markets, Inc. (Publix) to destroy diversity. The court determined Publix was not fraudulently joined and remanded. In determining remand, the court must evaluate the factual allegations in the light most favorable to the plaintiff. If there is even a possibility that…

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Appellate Court Affirms Dismissal in Federal Court Without Prejudice; Allows Plaintiffs to Refile in State Court U.S. Court of Appeals for the Ninth Circuit, March 9, 2017

Plaintiffs Richard Zanowick and Joan Clark-Zanowick filed suit in state court in July 2014. The defendants timely removed the case to federal court on diversity grounds a month later. With the case now in federal court, Richard Zanowick passed away on October 12, 2014. The plaintiffs filed and electronically served a notice of his death on November 17, 2014. Pursuant to Rule 25(a)(1), the plaintiffs were required to file a motion to substitute a new party for Richard Zanowick within 90 days, or in this…

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Federal Court Denies Defendants’ Motion to Dismiss on Jurisdiction Without Prejudice U.S. District Court for the Middle District of Florida, Tampa Division. January 12, 2017

On September 26, 2016, Plaintiff Marc Killam filed suit in the Thirteenth Judicial Circuit in and for Hilsborough County, Florida against various defendants after learning of his asbestosis diagnosis. Killam alleged he was exposed to asbestos through his Naval Service, from 1973-77 aboard the USS McCandless while at sea and in the Philadelphia Navy Yard. Here, Killam claims a number of defendants manufactured, sold, distributed, installed, or promoted the asbestos products with which he came into contact. He also alleged, that from 1978-80, as an…

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Remand Denied Under Federal Officer Jurisdiction Analysis for Plaintiff Alleging Asbestos Exposure in U.S. Navy U.S. District Court for the Middle District of Florida, Tampa Division, December 27, 2016

Plaintiff Marc Killiam served in the U.S. Navy from 1973 to 1977 aboard the USS McCandless while at sea and in the Philadelphia Navy Yard. He alleges that as a boiler tender he removed and replaced various asbestos containing products and that exposure to asbestos from those products caused his asbestosis. He filed suit in Hillsborough County, Florida on September 26, 2016 against various defendants, including Crane Co. Crane removed the case to the U.S. District Court on October 13, 2016 pursuant to 28 U.S.C.…

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Take Home Mesothelioma Case Remanded After Plaintiff Adds Dismissed Defendant to Amended Complaint U.S. District Court for the Middle District of Louisiana, November 4, 2016

Charleen Guedry brought this action against multiple defendants for her alleged development of mesothelioma as a result of exposure through her husband’s work clothes. Mr. Guedry worked at International Maintenance/Turner from 1983-2005. The plaintiffs moved to dismiss claims without prejudice against defendant Arnco on May 12, 2016. Co-defendant Brock indicated to the plaintiffs its intent to remove the case on diversity since Arnco was being dismissed. On May 19, 2016, the plaintiffs withdrew the dismissal of Arnco and desired to conduct discovery based on receiving…

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Affidavits Used in Other Cases Enough to Establish Removal Under Federal Officer Jurisdiction U.S. District Court for the Southern District of Illinois, November 30, 2016

The plaintiff brought a wrongful death lawsuit after her husband died of mesothelioma, alleging asbestos exposure during her husband’s service in the Navy. Originally filed in Madison County, Illinois, defendant Crane Co. removed on the basis of the federal officer removal statute. The plaintiff filed a motion to remand, arguing that Crane waived its right to remove by first filing a motion to dismiss in state court, and that Crane failed to establish federal subject matter jurisdiction. The court denied the plaintiff’s motion. Regarding waiver…

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Broad Interpretation of the Federal Officer Removal Statute Keeps Case Against Boeing in Federal Court U.S. Court of Appeals for the Third Circuit, November 22, 2016

The plaintiff filed a failure-to-warn product liability suit against, among others, The Boeing Company, after his wife Mary became ill from alleged secondary asbestos exposure. Boeing removed to federal court based upon the federal officer removal statute. The district court remanded, and the appellate court reversed. The plaintiff alleged Mary suffered take home asbestos exposure through laundering the clothes of her first husband Robert Keck. While working for New Brunswick Plating Co. in the late 1970s, Keck sandblasted the landing gear of World War II…

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Take Home Mesothelioma Case Remanded After Defendant Files Untimely Removal; Costs Denied U.S. District Court for Eastern District Of Louisiana, November 17, 2016

The plaintiffs brought claims sounded in negligence, intentional tort, fraud and strict liability for their decedent’s mesothelioma which was alleged to have developed after coming into contact with her husband’s asbestos laden clothes. Mr. Tregre was alleged to have worked for Avondale Industries, a predecessor to Huntington Ingalls, Inc. while onboard ship construction. Avondale removed the case to the U.S. District Court on May 16, 2016 under federal officer removal statute and argued that it built ships under contract for the U.S. who required the…

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Federal Court Denies Remand on Outer Continental Shelf Lands Act Jurisdiction and Dismisses Fraud Counts of Complaint U.S. District Court for Eastern District Of Louisiana, November 17, 2016

The U.S. District Court for the Eastern District of Louisiana issued two opinions in the matter of Sheppard v. Liberty Mut. Ins. Co., et al. which denied the plaintiffs’ motion to remand and dismissed the plaintiffs’ fraud cause of action against the defendants. Plaintiff Jesse Frank Sheppard originally filed in the Civil District Court for the Parish of Orleans. Sheppard alleged that he developed lung cancer and/or mesothelioma as a result of exposure to asbestos while working for Freeport Sulphur Company. The plaintiff sued…

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