Second Motion to Remand Denied When Plaintiff Asserted Claims She Previously Waived U.S. District Court for the District of Oregon, February 2, 2018

OREGON — The plaintiff initially filed her lawsuit on behalf of her father’s estate, in Oregon state court, alleging he was exposed to asbestos while working at Norwest Marine & Iron Works Shipyard and Albina Engine & Machine Works Shipyard. Both shipyards serviced military and civilian vessels. Neither the original nor amended complaints contained specific ship information. Defendants GE and CBS removed to federal court based upon the federal officer removal statute after plaintiff provided a ship list. The plaintiff filed a motion to remand, asserting that she was not claiming exposure aboard any U.S. Navy vessel. The court granted the motion to remand.

Shortly after remand, the plaintiff sent the defendants a request for production of documents regarding evidence of the plaintiff’s exposure while working in the pump rooms on the USS Franklin D. Roosevelt. The next day, a settlement attorney acting on behalf of  theplaintiff sent counsel for GE and CBS emails summarizing the facts of the case and alleging exposure to GE and CBS products on Navy ships, identifying several by name. Following the discovery request and settlement emails, GE and CBS again removed to federal court. The plaintiff again filed a motion to remand, stating that the discovery request was sent in error, that the settlement attorney was not an attorney of record and that the correspondence cannot serve as a basis for removal.

The court found that a settlement-related letter or email constituted notice, pursuant to 28 U.S.C. § 1446(b), to the extent that it reasonably puts a defendant on notice that the case is removable. The court found plaintiff’s argument that the email was inadmissible pursuant to the Federal Rules of Evidence unpersuasive. The court stated that the email was not being used to prove a claim, but to show that the plaintiff demonstrated an intent to pursue claims against defendants based on exposure aboard U.S. Navy ships. Both emails identified in detail the U.S. Navy vessels on which the plaintiff’s decedent allegedly worked, the equipment belonging to each defendant found aboard those ships, and the work that the plaintiff’s decedent performed on those ships. The emails only identified U.S. Navy vessels and no other ships. Accordingly, the court found the email indicated that the plaintiff had an intent to pursue the claims.

The plaintiff argued that the settlement attorney was not an “attorney of record” and therefore the emails should be ignored. However, the plaintiff admitted that her counsel retained a national law firm to assist with settlement, who then reached out to the attorney who sent the email, as was customary in other cases. The court found the fact that the plaintiff had not communicated directly with the attorney who sent the email irrelevant. Based on all of these factors, the court denied the plaintiff’s motion to remand.

Read the full decision here.

 


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