Remand Granted After Finding that Removal Period was Triggered by Plaintiffs’ Discovery Responses

NEW YORK – The plaintiffs sued dozens of defendants, including Cleaver-Brooks, alleging that Frederick Brown developed an asbestos-related injury as a result of exposure to the defendant’s products. The complaint was filed in July 2017. The plaintiff served answers to interrogatories in October 2017. The responses stated in pertinent part “…While performing my sheet metal worker duties, I was exposed to asbestos from the work I did as well as from the work of tradesmen around and in close proximity to me who were cleaning, maintaining, removing and installing asbestos insulation on boilers, pumps, valves, pump motors, generators, pipes, pipe covering, turbines, compressors, distilling plants, refrigerating units and blowers on the U.S.S. Constellation, as well as other ships dry docked at Brooklyn Navy Yards. Brown was later deposed but was not asked any questions by Cleaver-Brooks as Brown did not testify as to any of its products. In May of 2019, the plaintiffs produced documents in connection with settlement.  Those documents demonstrated for the first time the presence of Cleaver-Brooks equipment onboard the ship.

Cleaver-Brooks then removed the case on federal officer removal statute within 30 days of receipt of the produced documents. The plaintiff moved for remand arguing that their discovery responses from 2017 placed the defendant on notice of removal. Cleaver-Brooks countered that it only learned of the possibility of removal upon receipt of the documents whereby Cleaver-Brooks was first named. The court quickly stepped in and found the removal untimely. Although Cleaver-Brooks was not specifically identified by name in the discovery responses, courts have repeatedly concluded that such detail is not necessary to trigger the 30 day removal clock. Relying on the Lew decision, the court pointed out that all that is needed is the specific ship, time, and product to trigger the 30 day removal period. Here, the discovery responses contained that information. Accordingly, the motion to remand was granted.