Remand Granted and Attorneys’ Fees Awarded Against Valve Manufacturer

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U.S. District Court for the Western District of Washington, August 9, 2021

On June 1, 2021, David and Linda Welch filed claims in King County Superior Court against various defendants who are allegedly responsible for mining, manufacturing, and/or installing the asbestos that has caused David’s newly diagnosed pleural mesothelioma. The plaintiffs moved for an expedited trial pursuant to RCW 4.44.025 on June 23, 2021. Defendant Velan Valve Corp filed an instant motion to remove after the plaintiffs had filed for voluntary dismissal against Velan.

By way of background, Velan was served with a copy of the complaint on June 3, 2021. During the weeks of June 21 and 28, counsel for Velan discussed potential settlement of the claims. Counsel for Velan entered a notice of appearance on behalf of Velan on July 2, 2021. Four days later, on July 6, 2021, the plaintiffs filed and served a motion to voluntarily dismiss their claims against Velan under Washington Superior Court Rule CR 41(a)(1)(B), noting the motion for July 19, 2021. Later that day, Velan filed a notice of removal signed by co-defendant Tuvim. Velan removed this matter based on federal officer jurisdiction.

The plaintiffs contacted Tuvin to query whether he had overlooked the motion for voluntary dismissal that had been filed that morning. Tuvim indicated he was aware of the motion but refused to withdraw the notice of removal. Ultimately, on July 19, 2021, the Superior Court denied without prejudice the plaintiffs’ motion for voluntary dismissal given the jurisdictional effect of the removal.

Velan argued that it had every right to remove the action because the non-discretionary dismissal order had yet to be signed by the court and because Velan would have missed the removal window under 28 U.S.C. § 1446(b)(1) if it waited until the motion noted on July 19.

However, the court ruled that it lacked subject matter jurisdiction over this matter given the plaintiffs’ efforts to dismiss Velan prior to removal. Considering 28 U.S.C. § 1446 and Washington law interpreting Superior Court Rule CR 41(a)(1)(B), the court found that removal was improper. By filing their motion to voluntarily dismiss their claims against Velan, the plaintiffs rendered them a “dead letter.” The plaintiffs’ right to dismissal was absolute and fixed at the time the motion was filed—six hours before Velan filed its notice of removal. By filing a notice of removal, Velan was able to impede the mandatory voluntary dismissal process which was improper because the plaintiffs’ action taken before the removal had rendered the claims against Velan a nullity pending only non-discretionary, mandatory judicial approval. Therefore, the court found it lacked subject matter jurisdiction and granted the motion to remand.

The plaintiffs also asked the court to award fees and costs for their efforts in obtaining a remand of this case to King County Superior Court. The court agreed as Velan lacked an objectively reasonable basis for seeking removal. It knew that under CR 41(a)(1)(B) the plaintiffs’ right to dismissal was fixed before Velan filed the removal, and that the superior court lacked any discretion to refuse the dismissal. The only means of stopping the plaintiffs’ absolute right to mandatory dismissal was to do what Velan did—remove the action. Moreover, Velan’s notice of removal did not disclose the pending motion for voluntary dismissal—a critical fact relevant to determine jurisdiction.

Therefore, the court granted the plaintiffs’ request for attorneys’ fees and costs.

Read the full decision here.