Defendant Pump and Compressor Manufacturer’s Removal Deemed Untimely U.S. District Court, N.D. California, February 25, 2019
CALIFORNIA — The plaintiffs Michael Roy Harris and Elsie Harris sued multiple parties, including Ingersoll-Rand Company (IR), alleging that Michael developed mesothelioma due to asbestos exposure resulting from his work at two U.S. Navy shipyards and while serving in the Navy. The plaintiffs initially filed suit in the Superior Court of California, County of Alameda, on May 25, 2018. Over six months later, on December 17, 2018, IR removed the case to the Northern District of California. The plaintiffs filed the instant motion to remand.
The plaintiffs’ complaint alleged that Harris was exposed to asbestos as a fireman/boiler tender on the USS Mispillion from 1966-1968, as a sheet metal worker/pipefitter at Hunters Point Naval Shipyard in 1966 and 1968 through 1973, and as a shipfitter/pipefitter/pipefitter foreman from 1973 through 1995. IR answered the plaintiffs’ complaint and asserted the “Government Contractor Defense.” On June 28, IR responded to the plaintiffs’ first set of interrogatories, admitting that it manufactured “pumps and compressors, some of which, during limited periods of time, may have had internal part(s) such as gaskets or seal packing materials, manufactured by third parties, that contained encapsulated asbestos fibers.”
The plaintiffs’ discovery responses served on July 28, 2018, indicated that Harris was allegedly exposed to pipe covering block, cement, cloth, packing, and gaskets at Hunters Point and Mare Island Naval Shipyards. The plaintiffs’ counsel stated in an email on September 12 that “[T]ypically for Harris, it will be pumps; but we are still trying to determine which ships he worked on.” On November 16, the plaintiffs responded to IR’s special interrogatories, explicitly stating that Harris worked with or around IR pumps and compressors over the course of his Navy career and as a shipfitter, sheet metal worker, and pipefitter at Hunters Point and Mare Island Naval Shipyards.
In reviewing the instant motion for remand, the court determined that “the cumulative effect of the plaintiffs’ papers through September 12 provided notice” and based on the information, IR could have ascertained that a casual nexus existed between its actions taken at the direction of a federal officer, namely developing and manufacturing pumps used on U.S. Navy vessels, including the USS Mispillion, as well as in U.S. Navy shipyards, and the plaintiffs’ claims of asbestos exposure working aboard those vessels and within those shipyards. Therefore, IR could have determined, at least as early as September 12, that the instant case was removable to federal court pursuant to federal officer jurisdiction.
The court held that IR’s motion was untimely, and granted plaintiffs’ motion to remand.
Only the Westlaw citation is currently available 2019 WL 913619.