The plaintiff was diagnosed with mesothelioma and filed suit against a sea of defendants in New York state court. After responding to interrogatories indicating that he was exposed to asbestos while in the Navy, Foster Wheeler timely removed this case to federal court based upon the federal government-contractor defense. When the only defendant remaining was Crane, the plaintiffs moved for leave to file a first amended complaint which would eliminate any federal claims or defenses. At the time the paintiff moved for leave to amend, Crane’s summary judgment was pending. The court granted leave to amend.
Crane argued granting the plaintiffs’ motion would be prejudicial because it would adversely impact their pending summary judgment. However, Crane’s motion – which argued there is no evidence that it manufactured or sold any product that injured the plaintiff, and that it is not responsible for asbestos-containing material placed into the stream of commerce by others – does not address any federal claims or defenses. Crane also argued the amendments would be futile. Here, the plaintiffs sought to delete claims, not add claims, to deprive the court of federal question jurisdiction. Thus, the court considered whether a motion to remand would be futile; the court noted: “Indeed, Crane seems to admit that a follow-on motion to remand may be meritorious.” Further, it was possible that the court would decide to retain jurisdiction over the plaintiffs’ state law claims, since a summary judgment motion has been fully briefed. Thus the amendment is not futile.