Concrete Factual Information Starts the 30-Day Removal Clock United States District Court, N.D. Illinois, Eastern Division., June 22, 2018

ILLINOIS — In September 2016, the plaintiff was diagnosed with mesothelioma, and in September 2017, he filed suit against a defendant, and a number of other parties, alleging his illness was caused by exposure to asbestos. The plaintiff claimed that his exposure occurred between 1970 and 2004 while he was serving in the United States Air Force, working as a commercial airline mechanic, and/or engaging in home remodeling and other activities.

The defendant was served with the plaintiff’s complaint on September 21, 2017 and filed an answer on October 30, 2017, including an affirmative defense that the defendant was immune from liability as a government contractor who manufactured the products to which the plaintiff claims exposure from. In October 2017, the plaintiff executed an authorization for release of his military records. About a month later, in November 2017, the plaintiff filed a disclosure of expected trial witnesses, which included a disclosure that the plaintiff and several other witnesses intended to testify about the plaintiff’s work at certain military bases. On March 13, 2018, the defendant finally gained electronic access to the plaintiff’s military records that showed, while serving in the United States Air Force, the plaintiff worked on various airplanes manufactured by the defendant. One week later on March 20, 2018, day one of the plaintiff’s discovery deposition took place and it was revealed that the plaintiff had in fact worked on one of the specific aircrafts manufactured by the defendant. On April 12, 2018, the defendant removed the case to federal court on the basis of federal officer jurisdiction. the plaintiff moved to remand back to state court arguing defendant’s notice of removal was untimely as it was not filed within 30 days of the defendant being served with the complaint. The defendant opposed the remand, arguing their notice was timely and filed within 30 days of obtaining the information needed to satisfy a basis for its assertion of federal officer jurisdiction.

The plaintiff relies primarily upon the fact that the defendant asserted in its affirmative defenses its immunity as to the government contractor defense. The court acknowledged this fact, but did not find this dispositive. The court noted, specifically, that the standards governing assertion of an affirmative defense and the decision to remove a case to federal court are quite different. The court conceded that a defendant could assert a government contractor defense “based only on the possibility that a federal contract would be at issue.” Bond v. Am. Biltrite Co., No. CV 13-1340-SLR-CJB, 2014 WL 657402, at *4 (D. Del. Feb. 20, 2014). By contrast, “a defendant seeking to remove under Section 1442(a) must be able to muster more evidence than that—it must instead have identified concrete factual information that, viewed in the light most favorable to it, entitles it to a complete defense. Id. Here, the defendant did not have that “concrete factual information” until it learned specific information through the plaintiff’s discovery deposition. If the defendant acted precipitously and filed a notice of removal based on incomplete information, they would have done so erroneously and potentially could have faced sanctions for a baseless removal.

Based upon the above, the court found that the 30-day removal deadline did not begin until the defendant learned on March 13, 2018, through the plaintiff’s military records, of the plaintiff’s potential exposure to the defendant’s products, and notice of removal filed on April 12, 2018, was timely.  The motion to remand was denied.

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