Motion to Remand Granted; Defendants Failed to Timely File Notice of Removal

U.S. District Court for the District of South Carolina, Charleston Division, September 8, 2021

In this asbestos action, plaintiff Cynthia Warren commenced an action alleging that her husband, Bobby Warren, developed mesothelioma following exposure to asbestos from several defendants’ products, including Westinghouse. Pursuant to 28 U.S.C. §1446(a), Westinghouse filed a Notice of Removal on September 11, 2020. Westinghouse argued that removal was timely as they removed the matter less than thirty days following the plaintiff’s service of supplemental discovery responses. The plaintiff filed a motion to remand, contending that Westinghouse should have removed the matter after the filing of the complaint (January 2020), or service of the plaintiff’s discovery responses (April 8, 2020).

Westinghouse opposed the plaintiff’s motion to remand, asserting that removal was proper since at least one of the plaintiff’s claims fall within the federal officer removal statute. They further asserted that removal was timely as the plaintiff’s supplemental discovery responses was “its first clear and unequivocal notice that the plaintiff was, in fact, alleging asbestos exposure from Westinghouse turbines that had been custom-designed, manufactured, and supplied while Westinghouse was acting under the Navy’s detailed supervision and control.”

Ultimately, the court rejected Westinghouse’s arguments and held that removal was untimely. The court noted that the amended complaint gave Westinghouse notice that the plaintiff’s claims stemmed from allegations of asbestos exposure from machinery, including turbines, at the Charleston Naval Shipyard. Indeed, the amended complaint did not allege that the plaintiff was exposed to asbestos at any location other than Navy vessels at the Charleston Naval Shipyard. Further, the plaintiff’s discovery responses asserted exposure to asbestos from “thermal insulation, gaskets, and packing used on the marine equipment he worked on throughout his career, including but not limited to: turbines … which were manufactured by … Westinghouse … and others.” The plaintiff also provided Mr. Warren’s employment records which identified the vessels that Mr. Warren worked on. The court held that “it is clear that the plaintiff’s April 8 discovery answers and attached exhibits provided Westinghouse with the information it needed to investigate what equipment it may have supplied to the Navy for use on the vessels on which the decedent worked.” As such, Westinghouse’s notice of removal should have been filed after filing of the amended complaint, but no later than thirty days following service of the plaintiff’s discovery responses in April 2020. Thus, the court granted the plaintiff’s motion to remand.

Read the full decision here.