Products Liability Law Reporter

A federal district court held that a plaintiff’s discovery responses, not her complaint, triggered the 30-day removal period in a take-home asbestos exposure suit.

Gloria Craig filed suit in state court against various defendants, including Paramount Global (Westinghouse) and General Electric Co., alleging she developed mesothelioma after being exposed to asbestos-covered work clothes her husband brought into their home. The plaintiff, who filed suit in June 2022, asserted that the asbestos got onto her husband’s clothes while he was working at Alabama Dry Dock and Shipbuilding Co. in Mobile, Ala. After the plaintiff’s October 2022 discovery responses, Westinghouse removed the action to federal court in November 2022, citing federal officer jurisdiction under 28 U.S.C. §1442(a)(1). General Electric later joined the removal.

The plaintiff, who conceded the defendants’ removal satisfied the substantive requirements for the exercise of federal officer jurisdiction, moved to remand on the basis that removal was untimely under 28 U.S.C. §1446(b)(3), which provides a 30-day removal period after receipt of an amended pleading, motion, order, or other paper from which it may be ascertained that the case is one that is or has become removable.

Denying the motion, the district court noted that courts must liberally construe §1442 in favor of removal. Citing case law, the court said that to assess the timeliness of removal, a court must consider the document received by the defendant from the plaintiff and determine whether that document and notice of removal unambiguously establish federal jurisdiction. The removal period does not begin until a defendant is able to ascertain removability and make a simple and short statement of the facts in the removal petition, the court said.

The court rejected the plaintiff’s argument that by August 2022, it was obvious that the case involved the USS Lexington, Navy vessels, and Westinghouse and General Electric equipment. Involvement of the defendants’ equipment did not establish removability, the court said, noting that the 30-day removal period is not triggered by an ability to speculate removability. Here, in the plaintiff’s October 2022 discovery responses, she specifically identified the defendants’ equipment as being on the USS Lexington and alleged that her husband’s exposure to Westinghouse products occurred onboard a military vessel. This, the court held, triggered the running of the 30-day removal period under §1446(b)(3).

Consequently, the court concluded that removal had been timely.

Citation: Craig v. A.W. Chesterton Co., No. 22-00462-JB-B (S.D. Ala. May 18, 2023).