U.S. District Court for the Southern District of New York, July 8, 2021
Plaintiffs Domenic and Carol Pezzo brought suit against numerous defendants, alleging that the defendants exposed Domenic to asbestos through the course of his employment in various private and public sector roles. On December 10, 2020, almost three months after the suit was initiated, defendant AMETEK, Inc. removed the action to federal court, invoking federal officer removal jurisdiction pursuant to 28 U.S.C. § 1442(a) based on information learned through discovery. The plaintiffs argued that this removal is untimely and moved to remand to state court.
Written discovery was conducted in November 2020, and the plaintiffs’ discovery responses specified that Domenic had used asbestos-containing washers, dryers, and presses while working as a ship serviceman aboard the USS Wasp in the 1960s. At his deposition in November 2020, Domenic identified all laundry equipment aboard the ship was Prosperity, a brand that AMETEK acquired in 1963. Several weeks later, AMETEK retained new counsel, who reviewed the discovery and concluded that AMETEK had a colorable government contractor defense. AMETEK therefore sought removal on December 10, 2020, 36 days after prior counsel had obtained the plaintiffs’ discovery responses and 30 days after Domenic Pezzo’s deposition.
The party asserting federal court jurisdiction generally bears the burden of establishing that the case is properly in federal court, and all doubts are resolved against removability (internal citations omitted). The plaintiffs argued that AMETEK’s removal of this action was untimely, as 28 U.S.C. § 1446(b) requires a defendant to remove an action within 30 days of receiving notice of the basis for removal. The plaintiffs contend that their discovery responses put AMETEK on notice of the government contractor defense, which AMETEK disputes. Specifically, AMETEK argues that the interrogatory responses do not mention the Prosperity brand and, therefore, did not put it on notice of this defense and begin the countdown for removal.
While a defendant need not perform an independent investigation into a plaintiff’s indeterminate allegations, a defendant is presumed to be familiar with its own business, including whether the equipment a defendant provided to the government is off-the-shelf or made to specification. Defendants are expected to know the brands they control and the items they manufacturer. The 30-day removal period begins when a defendant, “applying a reasonable amount of intelligence,” would be able to ascertain the basis for removal from the case materials. Courts in this jurisdiction have held that the removal prior begins upon a defendant’s receipt of evidence very similar to the information contained in the plaintiffs’ discovery responses, even without specifying brand or manufacturer names. Because the plaintiffs’ discovery responses stated that Domenic Pezzo was exposed to asbestos-containing laundry equipment aboard the USS Wasp between 1965 and 1967, and because AMETEK had acquired a laundry-equipment brand in 1963 that provided equipment to the government, the government contractor defense was ascertainable, and the removal clock started ticking the day that the plaintiffs served their discovery responses upon AMETEK’s prior counsel, even if prior counsel failed to provide them to the new defense counsel. Therefore, because AMETEK did not seek to remove this case until 36 days after AMETEK’s prior counsel received the discovery responses, its removal to federal court was untimely, and the court remanded this matter to the Supreme Court of the State of New York, New York County.