Plaintiff Marvin Smith alleged asbestos exposure while serving as a fireman in the U.S. Navy from 1951-54, and while working as a fireman and warehouseman at various shipyards and warehouses. The plaintiff and his wife sued various defendants in state court after he was diagnosed with pleural mesothelioma. Defendant Crane Co. removed this mesothelioma case to federal court under the federal officer removal statute; the plaintiffs moved to remand, alleging untimely removal, which the court granted.
The plaintiffs argued removability was ascertainable when Smith was deposed; Crane argued it was ascertainable after the plaintiffs filed supplemental answers to joint interrogatories approximately eight months after the plaintiff’s deposition. During his deposition, the plaintiff testified regarding his naval service and his work performed on valves and gaskets on the USS Dortch. Supplemental interrogatory responses stated the plaintiff was exposed to equipment manufactured and sold by Crane on the USS Dortch.
The plaintiffs argued Smith’s deposition testimony was detailed enough for Crane to ascertain removability. The court pointed the parties to a trio of cases decided in October 2012, wherein the court found General Electric’s removal timely because it was done within 30 days of receipt of interrogatory answers. “…[T]he 30 day clock for federal officer removability ‘begins ticking when the initial pleading or another appropriate paper reveals the nexus between the plaintiff’s claims and the actions allegedly taken by the defendant under the direction of a federal officer…the identity of the exact U.S. Navy ships on which the plaintiff was allegedly exposed to the defendant’s asbestos products gave the defendants adequate notice’ to trigger the 30 day removal timeframe.” Here, the identification of the USS Dortch as the Navy ship on which Smith served and was allegedly exposed to asbestos was sufficient to put Crane on notice that the action was subject to removal. Thus, Crane’s notice of removal was untimely.