Second Notice of Removal by Pump Defendant Found Timely Despite Administrative Close of Original Action United States District Court, S.D. New York, July 30, 2019

NEW YORK – The plaintiff Francis Keating filed suit against dozens of companies alleging he contracted lung cancer as a result of exposure to asbestos containing products for which the defendants were liable. Specifically, he believed he had been exposed to asbestos while working as a machinist in the United States Navy from 1953-1974 and while working for Eastman Kodak and Motorola as a refrigeration technician during the 1970s and 1980s. Aurora Pump Co. contacted the plaintiff and sought the plaintiff’s consent for the entry of summary judgment on the basis that the plaintiff had not identified in his discovery responses “which offending equipment Aurora, as opposed to its co-defendants, was alleged to have manufactured.” In the meantime, the co-defendants removed the case to federal court based on federal officer statute on November 8, 2018. However, a filing error caused the matter to be administratively closed. A second notice of removal was filed by Aurora on December 27, 2019. On the second filing, the notice contained language stating that Aurora had learned of eligibility to remove the case upon receiving an email from the plaintiff’s counsel alerting it that the plaintiff’s claims were related to equipment made by Aurora pursuant to government contracts. At first, Aurora took no action based upon receipt of the email from the plaintiff because the case had already been removed (the first removal).

The plaintiff argued that the removal was untimely and moved to remand the case back to state court. He also sought fees, as he believed the removal was made without a colorable defense. Aurora responded  in opposition. The court began a discussion on the legal standard for subject matter jurisdiction. The federal officer removal statute permits removal when the removing the defendant:

  1. Is a federal agency or officer, or acted under the discretion of one
  2. Has a colorable federal defense
  3. Can establish a causal connection between the conduct in question and the federal directive.

In the instant matter, Aurora argued that it made its equipment “in accordance with precise, detailed specifications promulgated by the Navy Sea Command” and under supervision of the same. Those specifications prevented it from placing warning labels on its products, according to Aurora. The court then turned to whether Aurora had a colorable federal defense under the “government contractor defense.” The court was satisfied as to a colorable federal defense based on its argument that it designed and manufactured the equipment pursuant to the U.S. Navy’s required specifications.  The issue left for the court was whether the removal was untimely. The notice of removal must be filed “within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order, or other paper from which it may first be ascertained that the case is or has become removable.” Aurora took the position that the initial pleading was not removable because nothing stated the suit was about exposure to asbestos during the plaintiff’s government employment. The plaintiff countered and argued that the attachments to the complaint referred Aurora to exposure to asbestos onboard U.S. Navy ships during1953-1974. The court agreed with the plaintiff that the initial pleadings started the clock for removal. However, the question then became what effect the first removal may have had on Aurora’s subsequent removal after the case was administratively closed. The filing defect was not a reason for the court to “elevate form over substance.” Moreover, the court did not lose jurisdiction over the original removing the defendants. Accordingly, the removal was timely despite the second removal having been opened under a separate case number.

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