Brown v. Amchem Products, Inc.

Background

Frederick G. Brown and Diana Brown filed an asbestos-liability lawsuit against Cleaver-Brooks, Inc. and 27 other defendants in New York state court on July 7, 2017. They asserted, among other claims, products-liability and negligence claims based on Mr. Brown’s alleged exposure to asbestos-containing products.

The plaintiffs served Cleaver-Brooks with interrogatory responses in October 2017. Those responses stated that Mr. Brown had worked as a sheet metal worker at the Brooklyn Navy Yard, including aboard the U.S.S. Constellation, during approximately 1959 to 1962. They also identified the types of asbestos-containing equipment to which he had been exposed, including distilling plants. The responses further stated that Mr. Brown specifically remembered exposure to asbestos-containing products made by certain defendants, including Cleaver-Brooks boilers, although the responses did not clearly state that Cleaver-Brooks manufactured the distilling plant aboard the U.S.S. Constellation.

Cleaver-Brooks removed the case to federal court on June 21, 2019, under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). That statute permits certain cases involving acts performed under federal authority to be moved from state to federal court. Cleaver-Brooks argued that removal was timely because it occurred within 30 days after May 22 and 23, 2019 correspondence in which the plaintiffs’ counsel discussed Cleaver-Brooks equipment aboard the U.S.S. Constellation and produced ship records.

The plaintiffs moved to remand, meaning they asked the federal court to return the case to state court. They argued that the October 2017 interrogatory responses had already triggered the 30-day removal period.

Issue

The issue was whether Cleaver-Brooks could remove the case in June 2019, or whether the 30-day removal period began when the plaintiffs served their interrogatory responses in October 2017.

Court’s analysis

The court explained that under 28 U.S.C. § 1446(b), removal generally must occur within 30 days after the defendant receives the initial pleading. If the initial pleading does not show that the case is removable, a later amended pleading, motion, order, or other paper can start a new 30-day period when it first makes removability ascertainable.

The court held that discovery documents, including interrogatory responses, can qualify as the paper that starts the removal period. A defendant must use a reasonable amount of intelligence to determine whether removal is possible, but does not have an independent duty to investigate beyond the information in the relevant document. At the same time, a defendant may not ignore facts that are readily apparent from the document.

The court found that the October 2017 interrogatory responses gave Cleaver-Brooks enough information to ascertain removability. The responses identified the specific ship, the approximate time and location of Mr. Brown’s work, and the types of asbestos-containing equipment involved. The court concluded that the responses did not need to identify Cleaver-Brooks as the manufacturer of the distilling plant to trigger the removal period.

The court rejected Cleaver-Brooks’ argument that it could not determine whether the alleged exposure occurred aboard the U.S.S. Constellation or at residential and commercial sites. The court stated that the 30-day period begins when removal is ascertainable, not when removal is certain or uncontestable. It also concluded that Cleaver-Brooks could have determined removability from the October 2017 responses without conducting an independent investigation.

Ruling

The court held that Cleaver-Brooks’ June 2019 removal was untimely under 28 U.S.C. § 1446(b)(3) because it occurred more than 30 days after the October 2017 interrogatory responses. Judge Paul G. Gardephe granted the plaintiffs’ motion to remand, directed the Clerk of Court to close the federal case and return it to the Clerk of the New York Supreme Court in New York County, and stated that any other pending motions were moot. The opinion addressed the timing of removal and did not decide the underlying asbestos-liability claims.