In Severing Late Third-Party Claims Against Defendant with Federal Defenses, Court Remands Case That had Been Litigated in State Court for Almost Two Years U.S. District Court for the Western District of Kentucky, Louisville, October 26, 2015

In this case, an action was brought in Jefferson Circuit Court asserting state-law claims for the asbestos exposure and death of the decedent, Glen Brown. Defendant General Electric Company (GE) was granted leave to assert a third-party claim against Tennessee Valley Authority (TVA), who then removed the matter to federal court pursuant to 28 U.S.C. 1442(a)(1), the federal officer removal statute. The plaintiff moved to remand the matter and to sever GE’s claims against TVA.

The court first looked at the severance of GE’s claims against TVA and held: “Given the nature of the GE’s claim against TVA, the procedural history of the state court action, and GE’s assertion of claims against TVA at the eleventh hour, the Court concludes that it is appropriate to sever GE’s claims against TVA from the other removed claims. Plaintiffs’ original claims against Defendants can proceed to trial, and GE’s claims against TVA are necessarily premised upon GE having any liability to Plaintiffs for their injuries.”

The court then remanded the case, stating: “Plainly, the Remaining Claims, which are exclusively derived from state law, ‘substantially predominate’ over Plaintiff’s single failure to warn claim against the sole ‘federal officer’ Defendant. Moreover, the Court concludes that compelling reasons counsel in favor of remanding the Remaining Claims to state court. First, the Remaining Claims have been pending in state court (Plaintiff’s chosen forum) for nearly two years. Effecting a forum change at this crossroads, when all of the Parties have spent considerable time and money preparing for a state court trial (as opposed to a trial in a federal forum), would cause unnecessary hardship to all involved.”

Read the full decision here.


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