Pezzo v. Air & Liquid Systems Corporation

Background

Domenic and Carol Pezzo brought a tort case against 35 defendants in New York state court. They alleged that defendants exposed Domenic to asbestos during his employment in various private- and public-sector roles. The complaint stated that Domenic had served in the U.S. Navy, including three years aboard the USS Wasp, but did not say whether that service involved asbestos exposure.

AMETEK, Inc. removed the case to federal court under 28 U.S.C. § 1442(a), a law allowing certain parties acting under federal authority—including qualifying government contractors—to remove state-court cases connected to that work. AMETEK said evidence obtained during discovery showed that it could assert a government-contractor defense.

Before Domenic Pezzo’s November 10, 2020 deposition, the Pezzos’ counsel sent counsel representing AMETEK and two co-defendants their discovery responses. The responses said that Domenic had personally used asbestos-containing washers, dryers, and presses while working as a ship serviceman aboard the USS Wasp from 1965 to 1967. At his deposition, he said the laundry equipment was made by Prosperity, a brand AMETEK had acquired in 1963.

AMETEK filed its notice of removal on December 10, 2020. The opinion states that this was 36 days after its counsel received the interrogatory responses and 30 days after Domenic’s deposition.

Issue and Arguments

The Pezzos moved to remand, meaning to return the case to state court. They argued that AMETEK’s removal was untimely under 28 U.S.C. § 1446(b), which generally requires removal within 30 days after the defendant receives a paper showing that the case is removable.

The Pezzos argued that their interrogatory responses gave AMETEK notice of the possible government-contractor defense. AMETEK disputed that the responses were specific enough because they did not identify the Prosperity brand. AMETEK also argued that it had not received the responses before Domenic’s deposition.

Court’s Analysis

The court held that the 30-day period begins when a defendant applying reasonable intelligence could determine from the case materials that the case is removable. A defendant is expected to understand its own business, including the brands it controls and the equipment it manufactured or supplied to the government.

The court found that the interrogatory responses provided enough information. They identified asbestos-containing laundry equipment, a specific Navy ship, and a specific period of service. Combined with AMETEK’s knowledge that it had acquired the Prosperity brand, those facts made the government-contractor defense ascertainable. The court concluded that the removal clock began when AMETEK received the responses; the Pezzos did not need to identify the brand in their answers.

The court also credited the Pezzos’ evidence that their counsel had emailed the discovery responses to counsel at Troutman Pepper on November 4, 2020. Troutman Pepper represented AMETEK and two co-defendants at that time. The court found that AMETEK therefore received the responses more than 30 days before it filed its removal notice.

Disposition

The court held that AMETEK’s removal was untimely and granted the Pezzos’ motion to remand. The Clerk was directed to close the motion, close the federal case, and remand the matter to the Supreme Court of the State of New York, New York County.