Courtroom, Gavel And Law Books

Plaintiff’s Motion to Remand Denied; Court Finds Defendants’ Removal Timely

Court: United States District Court for the Southern District of Alabama, Southern Division

This action was filed in the Circuit Court of Mobile County, Alabama, on June 23, 2022. The complaint named numerous defendants, including Paramount Global (“Westinghouse”) and General Electric Company. Plaintiff Gloria Craig suffers from mesothelioma allegedly as a result of her take-home exposure to asbestos via her ex-husband. Specifically, plaintiff alleged Mr. Craig brought home asbestos on his clothes while he was working at Alabama Dry Dock and Shipbuilding Co. (“ADDSCO”) in Mobile, Alabama.

Westinghouse removed this action on November 16, 2022, based on “federal officer” jurisdiction under 28 U.S.C. § 1442(a)(1). GE joined in the removal on November 18, 2022. Plaintiff conceded defendants’ removal satisfied the substantive requirements for the exercise of “federal officer” jurisdiction. She moved for remand on the sole ground that removal was untimely under 28 U.S.C § 1446.

Courts are to construe removal under § 1442(a) liberally. Indeed, “[u]nlike certain other removal provisions, § 1442(a) must be liberally construed in favor of removal.” Morgan v. BillVann Co., 2011 U.S. Dist. LEXIS 140394, *12 (S.D. Ala. Dec. 6, 2011) (citing Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770, 777 (E.D. Pa. 2010) (“the Court must broadly construe Defendants’ ability to remove under Section 1442(a)(1) as to avoid frustrating its policy objective of having the validity of the defense of official immunity tried in a federal court by applying a narrow, grudging interpretation”); McGee v. Arkel Int’l, LLC, 716 F. Supp. 2d 572, 578 (S.D. Tex. 2009) (“In light of the policy behind § 1442(a), the statute must be interpreted liberally to allow a defendant acting under the control of a federal officer to assert his or her federal defenses in federal court.”); Parlin v. DynCorp, Inc., 579 F. Supp. 2d 629, 634 (D. Del. 2008) (“Unlike section 1441, which is strictly construed …, section 1442(a) is liberally construed to give full effect to the purposes for which it was enacted.”). See also, Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1253 (9th Cir. 2006) (“where the timeliness of a federal officer’s removal is at issue, we extend section 1442’s liberal interpretation to section 1446.”).

To assess the timeliness of a removal under § 1446(b), the court must consider “the document received by defendant from the plaintiff – be it the initial complaint or a later received paper – and determine whether that document and notice of removal unambiguously establish federal jurisdiction.” Lowery v. Alabama Power Co., 483 F.3d 1184, 1213 (11th Cir. 2007).

Plaintiff argued defendants could have ascertained removability no later than the service of discovery responses on August 29, 2022, such that defendants’ removal more than 30 days thereafter was untimely. Defendants argued removal was timely under subsection (b)(3) of § 1446, which allows for removal within thirty days of receipt of “an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removeable[.]”

Defendants argued that plaintiff’s October 19, 2022 discovery responses were the “paper” from which it could first be ascertained the case became removable since the answers specifically alleged Westinghouse and GE products were “on the USS Lexington” on which Mr. Craig worked for the first time.

Since plaintiff specifically identified defendants’ equipment as being onboard a military vessel for the first time in the October 19, 2022 discovery responses, the court found the running of the 30-day removal period under § 1446(b) began on October 19, 2022. Defendants’ removal motion was made on November 16, 2022, making defendants’ motion timely. Therefore, the court denied plaintiff’s motion to remand to state court.

Read the full decision here.