Murphy v. Air Liquid Systems Inc

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

TIMOTHY MURPHY, )

)

Plaintiff, )

)

vs. ) Case No. 21-cv-519-DWD

)

AIR & LIQUID SYSTEMS, INC., et al., )

)

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

On May 28, 2021, Defendant ViacomCBS, Inc.! (“Westinghouse”) removed this

asbestos liability action from the Circuit Court for the Twentieth Judicial Circuit, St. Clair

County, Illinois to this Court asserting “federal officer” jurisdiction under 28 U.S.C. §

1442(a)(1) (Doc. 1). Now before the Court is Plaintiff Timothy Murphy’s Motion for

Remand Pursuant to 28 U.S.C. § 1447 (Doc. 20) to which Defendant Westinghouse

responded (Doc. 34; Doc. 37). For the following reasons, the Court GRANTS the motion.

Background

On February 2, 2021, Plaintiff filed a lawsuit against Westinghouse and thirty-

seven other defendants? in the Circuit Court for the Twentieth Judicial Circuit, St. Clair

1 ViacomCBS Inc., f/k/a CBS Corporation, f/k/a Viacom Inc., successor by merger to CBS Corporation,

f/k/a Westinghouse Electric Corporation

Plaintiff's original complaint named the following Defendants: Air and Liquid Systems, Inc., Alfa Laval,

Inc., A.O. Smith Water Products Company, Armstrong International, Inc., Armstrong Pumps, Inc., Aurora

Pump Company, BW/IP International, Carrier Corporation, CBS Corporation, Crane Co., Electrolux Home

Products, Flowserve US, Inc., as successor-in-interest to Durametallic Corporation, FlowServe US, Inc.,

solely as successor to Rockwell Manufacturing Company Edward Valves, Inc., Nordstrom valves, Inc. and

Vogt Valve Company, FMC Corporation, Foster Wheeler, LLC, Gardner Denver, Inc., General Electric

Company, Goodyear Tire & Rubber Co., Goulds Pump, LLC, Grinnell LLC, Imo Industries, Inc., ITT, LLC,

County, Illinois (Doc. 1-1; Doc. 20-2). Westinghouse was served with the Complaint on

February 22, 2021 (Doc. 20-5). Plaintiff asserts, inter alia, products liability and negligence

claims for injuries that Plaintiff allegedly suffered from exposure to Defendants’ asbestos-

containing products (Doc. 1-1; Doc. 20-2).

In his complaint, Plaintiff specifically alleges that he developed asbestosis on or

about March 20, 2018 (Doc. 1-1, 7). Plaintiff asserts that he served as a machinist’s mate

in the U.S. Navy aboard the U.S.S. Frank E. Evans (DD754) from 1965 to 1968 (Doc. 1-1,

1), and he “was exposed to asbestos while working in the engine room and maintaining,

cleaning, and operating engine room equipment aboard the U.S.S. Frank E. Evans” (Doc.

1-1, ¥ 1). Plaintiff alleges that he “was exposed to and inhaled asbestos fibers emanating

from certain products he was working with and around, which were manufactured, sold,

distributed or installed by the each of the above named Defendants.” (Doc. 1-1, { 2). On

April 15, 2021, Plaintiff filed an amended complaint adding Defendant General Dynamics

Corporation (Doc. 20-6). The amended complaint contained the same allegations as the

original complaint (Doc. 20-6).

On March 18, 2021, Westinghouse filed a Motion to Dismiss asserting a lack of

personal jurisdiction (Doc. 20-3). In its Motion, Westinghouse confirmed that Plaintiff

was asserting liability based on “asbestos exposure he experienced while serving in the

John Crane, Inc., Johnson Controls, Inc., Lamons Gasket Company, Metropolitan Life Insurance Co., Crown

Cork & Seal Co., Inc. Nash Engineering Company, Rockwell Automation, Inc., Ryobi motor Products

Corporation, Spirax Sarco Inc., Strahman Valve Corp, Union Carbide Corporation, Velan Valve Corp.,

ViacomCBS, Inc., Viad Corp, and Warren Pumps, LLC (Doc. 1-1, pp. 1-2).

US Navy from 1965 to 1968 as a machinist mate aboard the USS Frank E. Evans DD-754,

working in the engine room maintaining various equipment” (Doc. 20-3, p. 1).

On April 23, 2021, Plaintiff served Westinghouse discovery responses (Doc. 20-4;

Doc. 34; Doc. 37-2).3 Westinghouse admits that Plaintiff served his discovery responses

on April 23, 2021 but alleges that its attorneys “did not save those responses to its system

until April 26, 2021” (Doc. 34, § 4; Doc. 37, p.2). In his discovery responses, Plaintiff

confirmed that his asbestos allegations were limited to his employment with the United

States Navy, and specifically when he was aboard the U.S.S. Frank E. Evans (DD-764)

from August 13, 1965 to December 11, 1968 (Doc. 20-4, pp. 3-4; Doc. 37, pp. 3-4). Plaintiff

also provided a description of his duties aboard the U.S.S. Frank E. Evans and the

asbestos-containing products he was allegedly exposed to in response to Interrogatory 5:

(e) Plaintiff served as a Machinist Mate from about 1964 - 1968.

Throughout his time in the Navy, he engaged in installation, removal, and

replacement of, and observation of installation, removal and replacement

of, original and replacement asbestos-containing products (ACP), including

but not limited to asbestos block insulation, preformed asbestos pipe

insulation, asbestos jackets, asbestos pads, asbestos cloth, “valve diapers”,

asbestos insulating cement and asbestos finishing cement), asbestos sheet

gasket materials, asbestos ring packing, asbestos rope packing, asbestos

sheet packing materials, asbestos electrical wiring wrap, asbestos cable

wrap, asbestos paper (flash guards), asbestos cement shields, asbestos arc

chutes, asbestos arc quenchers and phenolic asbestos plastic moulding

compounds like Bakelite and Micarta. These duties included but were not

limited to: removal and replacement of pump and drive casing flange

gaskets, pipe and valve flange gaskets, valve stem packing, stuffing box

packing; mechanical seals, impeller wearing rings, labyrinth packing and

shaft sleeves; observation of and assistance in cleaning, maintenance,

removals and repairs of electrical equipment; rewiring, repairing and

Plaintiff and Westinghouse both maintain that these discovery responses were served on April 23, 2021

(Doc. 20-4; Doc. 34; Doc. 37, p. 2). Apart from the parties’ representations, there is no date or certificate of

service on the discovery responses currently in the Court's record. Instead, the only date provided on the

responses is a verification signed by Plaintiff and dated April 13, 2021 (Doc. 20-4, p. 22; Doc. 37-2, p. 21).

cleaning asbestos dust from electric motors, switchgears and switchgear

boxes, distribution panels and panel boxes, circuit breakers and circuit

breaker boxes, ; cleaning, repairing and replacing arc chutes and arc

quenchers; grinding, drilling out, sawing and sanding switchgear boxes

insulated with ACP; relining electrical boxes with flash guards; repairing

and replacing phenolic asbestos plastic compound insulators; cleaning and

removal of asbestos dust and debris from engine rooms and equipment;

standing to watch in engine rooms during and following maintenance and

repairs involving ACP; and working in and standing to watch in the engine

rooms in drydock during rip-outs, renovations and replacements of ACP.

(g) Inhaled asbestos particles which contributed to long-term

development of asbestosis; burn injury at sea aboard Frank E. Evans in

approx. 1967, localized to leg, caused by ruptured line on steam pump; not

hospitalized.

(Doc. 20-4, pp. 3-4; Doc. 37, pp. 3-4).

Further, on Plaintiff's Work History Sheet, he supplied that he used the following

materials while working on the U.S.S. Frank E. Evans: “Insulation, lagging, gaskets,

packing, cement, arc chutes, windings, switchgears, panels, wiring, plug boards,

contactors, motors, heaters, valves, pumps, turbines, generators, coolers, tanks, boilers,

forced draft blowers, regulators, HVAC, refrigeration, distillers, etc. Investigation and

discovery continue.” (Doc. 20-4, p. 20; Doc. 37-2, p. 19).

Discussion

As the removing party, Westinghouse bears the burden of demonstrating removal

is proper. Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004). Removal is

proper “if it is based on statutorily permissible grounds, 28 U.S.C. § 1441, and if it is

timely. 28 U.S.C. § 1446.” Id. Here, the parties only dispute the timeliness of

Westinghouse’s Notice of Removal (Doc. 20-1, p. 4).

A notice of removal must be filed “within 30 days after the receipt by the

defendant, through service or otherwise, of a copy of the initial pleading setting forth the

claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b)(1).

However, if the complaint does not reveal the case is removable, “[t]he 30-day removal

clock is triggered by the defendant's receipt of a pleading or other paper that affirmatively

and unambiguously reveals that the case is or has become removable.” Walker v. Trailer

Transit, Inc., 727 F.3d 819, 821 (7th Cir.2013); 29 U.S.C. § 1446(b)(3); see also Speedy v. 3M

Company, 2015 WL 2265410, at *2 (S.D. Ill. May 12, 2015). Westinghouse’s basis for

removal is the federal officer removal statute under which the removing defendant “must

show it was a (1) ‘person’ (2) ‘acting under’ the United States, its agencies, or its officers

(3) that has been sued ‘for or relating to any act under color of such office,’ and (4) has a

colorable federal defense to the plaintiff's claim.” Ruppel v. CBS Corp., 701 F.3d 1176 (7th

Cir.2012) (quoting 28 U.S.C. § 1442(a) and Mesa v. California, 489 U.S. 121, 132-34 (1989)).4

As such, Westinghouse had to remove this case, if at all, within 30 days of the “receipt of

a pleading or other paper that affirmatively and unambiguously reveals” the case was

removable under the foregoing federal officer removal standard.

Plaintiff contends that service of his Complaint, or in the alternative, his discovery

responses, triggered the 30-day removal period, arguing that the pleadings contained

sufficient information about Plaintiff’s work history, exposure to asbestos, the types of

products he was exposed to, and the manufacturer of those products so that

Plaintiff does not dispute that the elements of the federal officer removal are satisfied (Doc. 20-1, p. 4).

Westinghouse knew that the case was removable. (Doc. 20-1). Westinghouse, however,

argues that it could not determine based on Plaintiff's Complaint or interrogatory

responses whether Plaintiff was asserting liability based on Plaintiff's exposure to

Westinghouse specific products (Doc. 37). In this regard, Westinghouse asserts that it did

not learn of Plaintiff's specific allegations relating to the Westinghouse’s products present

on the U.S.S. Frank E. Evans until Plaintiff's deposition, which was taken on April 28,

2021 (Doc. 37). Westinghouse filed its Notice of Removal on May 28, 2021 (Doc. 1).

Unfortunately for Westinghouse, the removal statute only requires a defendant to

have a “reasonable certainty of federal jurisdiction, not an absolute certainty.” Fields v.

Jay Henges Enterprises, Inc., 2006 WL 1875457, at *6 (S.D. IIL. June 30, 2006); see Betzner v.

Boeing Co., 910 F.3d 1010, 1014-1016 (7th Cir. 2018) (Notice of removal need only contain

“a short and plain statement of the grounds of removal” and the allegations supporting

removal need only be plausible on their face). Accordingly, the 30-day removal period is

triggered when removal becomes “ascertainable,” not when it becomes “uncontestable.”

Addison v. CBS Corp., 2013 WL 6169155, at *3 (S.D. II. 2013) (Nov. 25, 2013); Fields v. Jay

Henges Enterprises, Inc., 2006 WL 1875457, at *3 (S.D. Ill. 2006); Brown v. Amchem Products,

Inc., 2020 WL 1150223, at * 5 (S.D.N.Y. Mar. 10, 2020) (collecting cases).

Numerous courts have found that once a Plaintiff identifies specific worksite

locations, time periods, and asbestos-containing products allegedly manufactured by

defendant companies, nothing further is necessary to ascertain removability under the

federal officer removal statute. See, e.g., Speedy, 2015 WL 2265410, at *3 (Finding that

plaintiffs’ interrogatory answers specifying specific worksites and asbestos-containing

products supplied the “nexus” between asbestos claims and defendant's alleged actions

from which it could conclude the case was removable under the federal officer removal

statute); Addison, 2013 WL 6169155, at *2-*3 (citing cases) (Finding Plaintiff's complaint

and interrogatory responses alleging asbestos exposure to his contact with military

equipment produced by defendant during his service in the Air Force provided sufficient

notice for defendant to ascertain removability); Hilbert v. McDonnel Douglas Corp., 529

F.Supp.2d 187, 195 (D. Mass. 2008) (30-day removal window started once plaintiff

detailed the particular aircraft he worked on and the manufacturer allegedly responsible

for making the asbestos-containing brakes for each aircraft because the document

allowed defendants to reasonably identify which government contracts were at issue);

Beamis v. Buffalo Pumps, Inc., 2009 WL 462543, at *3 (D.R.I. Feb. 23, 2009) (“Plaintiff must

provide sufficiently specific facts or allegations to allow the defendant reasonably to

identify the contracts through which the federal officer defense is being asserted.”)

(internal markings omitted).

Further, defendants may not ignore facts that are readily known to it, such as the

brands they control and the items they manufacture. See, e.g., Domenic Pezzo v. Air &

Liquid Systems, Corp., 2021 WL 2852036, at *2 (S.D.N.Y. Jul. 8, 2021) (A defendant “is

presumed to be familiar with its own business and to understand the case materials in

light of that familiarity); Levy v. A.O. Smith Water Products Co., 2012 WL 2878140 at *3

(S.D.N.Y. Jul. 13, 2012) (Noting that defendant did not require any information from

plaintiff to know that it had been acting under the direction of the Navy in designing,

manufacturing, and selling products to the Navy); Dilks v. 4520 Corp., Inc., 2012 WL

6625867, at *4 n.12 (D. Md. Dec. 18, 2012) (“an asbestos plaintiff is not expected to know

and disclose minute details of exposure that occurred decades earlier”).

Here, after Westinghouse was served with the Plaintiff's complaint on February

22, 2021, and certainly after Plaintiff served his interrogatory responses on April 23, 2021,

nothing further was necessary to ascertain or assess removability of the claim against

Westinghouse. In his Complaint, Plaintiff specifically alleged exposure from his time

aboard the “U.S.S. Frank E. Evans from 1965 to 1968” while “working in the engine room

and maintaining, cleaning, and operating engine equipment”, and from “asbestos fibers

emanating from certain products he was working with and around, which were

manufactured, sold, distributed or installed by” Westinghouse (Doc. 1-1, pp. 1-2, [{ 2-3).

Plaintiff then expounded on this exposure in his discovery responses by specifically

identifying exposure from certain asbestos-containing products and materials (Doc. 20-4,

pp. 3-4; Doc. 37, pp. 3-4, 19) which Westinghouse acknowledges it designed,

manufactured, supplied, or installed aboard the U.S.S. Frank E. Evans prior to 1945 (Doc.

1, 6-8). These allegations provided Westinghouse with sufficient information from

which it could have concluded that Plaintiff's allegations arose while Westinghouse was

acting under the direction of the United States Navy so to ascertain removability.

Westinghouse’s decision to wait until after Plaintiff confirmed his alleged

exposure to Westinghouse’s specific products and materials at his deposition does not

excuse Westinghouse’s delay in removing this action when Plaintiff’s prior disclosures

represented that Plaintiff was exposed to products installed aboard the U.S.S. Frank E.

Evans. See McCoy by Webb v. General Motors Corp., 226 F.Supp.2d 939, 941 (N.D. Ill. 2002)

(“[A] defendant who wishes to remove a case to federal court cannot ‘wait for discovery

responses that simply confirm what was obvious from the face of the complaint; in such

cases, defendants are not insulated from a remand to state court.’”). Because

Westinghouse removed the case more than 30 days after the discovery responses were

served, the removal was untimely under 28 U.S.C. § 1446(b)(3), and this case must be

remanded.

Disposition

Accordingly, the Court GRANTS the Motion to Remand (Doc. 20). It is

ORDERED that this action, pursuant to 28 U.S.C. § 1447(c), be REMANDED to the

Circuit Court for the Twentieth Judicial Circuit, St. Clair County, Illinois.

Defendant did not lack an objectively reasonable basis for seeking removal, so no

fees or costs are awarded. The Clerk of Court is DIRECTED to transmit a certified copy

of this Order to the clerk of the state court, and thereafter to CLOSE this case.

All pending motions are DENIED as MOOT, and all deadlines and hearings are

CANCELLED.

SO ORDERED. “

Dated: August 3, 2021 Jie (Vv J

DAVIDW.DUGAN

United States District Judge