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Plaintiffs’ Motion to Remand Granted Due to Railroad Company Defendant’s Untimely Motion for Removal  

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United States District Court for the Eastern District of Wisconsin , July 13, 2022

Plaintiffs Trisha and David Babler filed a lawsuit to recover damages Trisha allegedly sustained as a result of “take-home” asbestos exposure from her father, who was employed at Soo Line Railroad Company (SLR).  Plaintiffs named Sprinkmann Sons Corporation as a defendant “based on inferences that Sprinkmann was either a contractor at the North Fond du Lac SLR facility and/or supplied asbestos-containing materials to SLR for use at that facility.”  

Discovery ultimately revealed no evidence of Sprinkmann providing contracting services at SLR’s North Fond du Lac facility. Furthermore, although Sprinkmann invoices indicated that Sprinkmann had purchased asbestos-containing products in Milwaukee and that some of those products were “similar in nature” to the asbestos-containing products described by witnesses in this case, none of the invoices connected Sprinkmann to SLR. As such, on March 31, 2022, Sprinkmann filed a motion for summary judgment in the Milwaukee County Circuit Court.  On April 13, plaintiffs filed a one-sentence response in which they did not object to the dismissal of Sprinkmann. Therefore, the Court dismissed Sprinkmann on April 27.  

On May 12, SLR removed the case to the United States District Court for the Eastern District of Wisconsin. Plaintiffs moved for remand on the basis that SLR’s removal was untimely.  

“No matter when it becomes apparent that a case may be removable, a case may not be removed on the basis of diversity jurisdiction more than one year after commencement of the action, ‘unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.’”  Although SLR filed its notice of removal more than one year after the case was filed, SLR argues that the bad-faith exception applies. SLR specifically contends that the case could not be removed earlier due to the presence of the only non-diverse defendant, Sprinkmann, which was included in the lawsuit in bad faith to overcome diversity jurisdiction.   

In support of its argument that the claims against Sprinkmann lacked merit, SLR pointed out Plaintiffs’ lack of evidence to support naming Sprinkmann as a defendant and their lack of objection to the dismissal of Sprinkmann.  

The court initially clarified that 28 U.S.C. § 1446(b)(3) provides that in the event a pleading does not state a removal case, a notice of removal must be filed “within thirty days after receipt by the defendant . . . of a copy 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 removable.”  Section 1446(c)(1) adds an additional requirement that, absent bad faith, a case cannot be removed after one year.  

According to the court, it was “ascertainable” that plaintiffs’ claims against Sprinkmann lacked merit on March 31, 2022, when Sprinkmann filed its summary judgment motion. However, SLR waited until May 12, to seek to remove the case—nearly two weeks beyond the thirty-da

Read the full decision here