Venue, Removal and Transfer in Asbestos Cases

Decisions in our library in which the court ruled on venue: 496 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

South Carolina

• Nicolas v. Johnson & Johnson (2019). An indemnification agreement between a defendant and a bankrupt non-party does not automatically create 'related to' bankruptcy jurisdiction; where indemnification would require a further lawsuit, it is speculative and insufficient. Bankruptcy Rule 9027's 90-day removal period governs removal under section 1452.
• Bostic v. 3M Company (2018). A removing defendant must show no possibility that the plaintiff could establish a claim against the in-state defendant. A slight possibility of success defeats fraudulent joinder and keeps the in-state defendant in the case, which destroys complete diversity.
• Bradley v. Richland County Landfill, Inc. (2014). A private entity does not act under a federal officer merely by complying with federal regulations that set minimum standards. To show a causal connection, defendants must show federal control prevented them from meeting their state law duties.

Tennessee

• Cashio v. 3M Company (2015). A transfer under 28 U.S.C. § 1406(a) does not require the transferring court to have personal jurisdiction over the defendants or to decide whether they are subject to jurisdiction in the transferee district. The court may transfer to a district where the action could have been brought to avoid an obstacle to adjudication on the merits.
• Cashio v. 3M Company (2015). A district court has broad discretion under 28 U.S.C. § 1404(a) to transfer a case in the interest of justice, and may do so whether or not venue is proper in the transferring court.

Texas

• Gallo v. Air & Liquid Systems Corporation (2023). A court has broad discretion to stay discovery pending preliminary questions, but a magistrate judge may instead consider severing claims against a defendant seeking arbitration so discovery can go forward against the other defendants.
• Wisener v. Revlon Consumer Products Corp. (2022). A removing defendant must affirmatively establish the citizenship of every defendant, including each member of an LLC, and can show improper joinder of in-state defendants only if the plaintiff has no reasonable basis for a claim against them; alleging actual knowledge of the defect with supporting facts suffices under Tex. Civ. Prac. & Rem. Code § 82.003(a)(6).
• Massachusetts Bay Insurance Company v. Adkins (1st District, 2020). A defendant waives its special appearance by filing an answer in a Texas court before challenging personal jurisdiction, and a transfer to the MDL court does not create a new proceeding for that rule. Claimants whose pre-2003 asbestos case was transferred under section 90.010(b) for failing to serve a section 90.003 medical report must serve a compliant report to obtain remand.
• Massachusetts Bay Insurance Company v. Adkins (1st District, 2020). The court ordered the parties to file post-argument briefs on the proof needed to show a malignant mesothelioma or other asbestos-related cancer diagnosis under section 90.010(a)(3), whether the MDL court must make a written finding, and the standard of review; it decided nothing else.
• Bradshaw v. Johnson & Johnson (2019). Federal 'related-to' bankruptcy jurisdiction under 28 U.S.C. § 1334(b) requires that the outcome could conceivably affect the bankruptcy estate; the removing party did not show this through contractual indemnity, shared insurance, or unity of identity.
• Williams v. Avon Products, Inc. (2019). Under Texas CPRC § 82.003(a)(6), a nonmanufacturing seller is liable only if it actually knew of the defect, so allegations that it knew or should have known, without supporting facts, fail Rule 12(b)(6) and show improper joinder of the in-state seller.
• In re Global Sante FE Corporation (2008). The Jones Act does not preempt Chapter 90's expert-report requirements or its MDL pretrial consolidation, which are procedural and general in nature, but it does preempt the minimal-impairment requirement for silicosis claims and any higher causation standard than the federal one.
• Kozak v. Guard-Line, Inc. (2008). A removing defendant must show there is no reasonable basis to predict the plaintiff might recover against the in-state defendant, and ambiguity in state law is resolved for the plaintiff. A removing defendant also cannot add new grounds for improper joinder in opposing remand that were not in its notice of removal.
• N RE General Electric Company (2008). Under Tex. Civ. Prac. & Rem. Code § 71.051(b), the court must consider the listed factors without placing a burden of proof on the movant, and must dismiss when they weigh in favor of an outside forum. Comparative delay in the alternate forum, including a possible federal asbestos MDL transfer, gets little weight unless the forum offers no remedy at all.
• Gilcrease v. Garlock, Inc. (8th District, 2006). A venue determination made before a nonsuit fixes venue for a refiled suit on the same claims against the same party. Family members asserting derivative claims are a single claimant for Chapter 33 settlement credits, Settlement credits under Chapter 33 apply only to actual damages, not to exemplary damages, and the jury's actual damages award still supports the exemplary award even if the credits offset it.
• In re Fluor Enterprises, Inc. (3rd District, 2006). Section 90.010(b) does not create a right to transfer asbestos cases filed after September 1, 2003 to the MDL court independent of the MDL rules, and section 90.010(d) does not require the MDL court to keep cases not transferred under those rules. Even if such a right existed, the defendants waived it by waiting until the eve of trial.
• Madden v. Able Supply Co. (2002). A corporation is a "person" under the federal officer removal statute, and a contractor that acted under Navy direction and raises a colorable military contractor defense may remove; the court may decline supplemental jurisdiction over the remaining state-law claims and remand them.
• Broyles v. US Gypsum Co. (2001). A state-law dispute that is only "related to" a bankruptcy case, could not otherwise have been brought in federal court, and can be timely decided in state court requires mandatory abstention under 28 U.S.C. § 1334(c)(2), even when it was removed. Enforcement of a settlement of a tort suit is a non-core proceeding.
• Waller v. Pittsburgh Corning Corp. (1991). Under Texas choice-of-law rules a foreign statute of repose is substantive law, so the Kansas ten-year repose statute applied. A later Kansas reviver amendment could not retroactively defeat the defendants' vested repose defense.

Utah

• Anderson v. Ford Motor Company (2014). A party may not obtain leave to file a dispositive motion that repeats an argument already rejected by the MDL court and by the transferee court on reconsideration; the court would not revisit that ruling or define Utah law on liability for other makers' asbestos products.
• Anderson v. Asbestos Defendants (In re Asbestos Cases OF Hatch) (2007). A conditional transfer order from the MDL panel does not divest the district court of jurisdiction over pending pretrial motions, but the court may in its discretion defer a remand motion to the MDL court for efficiency, even when the plaintiff is terminally ill.

Virginia

• Brinkman v. General Dynamics Corporation (2016). The government contractor defense is available in failure-to-warn cases, so a district court may not remand a federally removed case for lack of a colorable federal defense based on a practice of denying that defense in failure-to-warn cases.
• Ripley v. Foster Wheeler LLC (2016). The government contractor defense is available in failure-to-warn cases, not only design defect cases, so it can supply the colorable federal defense needed for federal officer removal under 28 U.S.C. § 1442.
• Anderson v. Crown Cork & Seal (2000). A vessel is not itself a federal enclave. Where a Navy seaman's asbestos exposure occurred aboard ship and not in the shipyard, the ship's occasional docking in a federal enclave does not create federal enclave jurisdiction, and doubts about removal are resolved in favor of remand.
• McCormick v. CE Thurston & Sons, Inc. (1997). A Navy vessel is not a federal enclave, and federal officer removal fails without a colorable federal defense; the government contractor defense is not available in failure-to-warn cases in this district.

Washington

• Johnson v. Air & Liquid Systems Corporation (2024). The 30-day removal clock under 28 U.S.C. § 1446(b)(3) starts only when a paper makes the ground for federal officer removal unequivocally clear and certain. Here that was Robert Stubblefield's declaration and deposition, not the earlier pleadings or discovery.
• Monlux v. 3M Company (2024). A defendant removing under the federal officer statute must allege facts linking the plaintiff's asbestos exposure to military equipment or work. The presence of the defendant's Navy-supplied equipment at a shipyard that also served civilian vessels does not show a causal nexus, and counsel's refusal to disclaim exposure on Navy ships does not fill that gap.
• Cockrum v. CH Murphy/clark-Ullman, Inc. (2022). A removing defendant claiming fraudulent joinder must show by clear and convincing evidence that the plaintiff cannot state a claim against the non-diverse defendant on any theory; arguments about the strength of the plaintiff's evidence do not meet that standard.
• Kraemer v. Lone Star Industries (2021). A defendant invoking federal officer removal on the military contractor defense must show its product was military equipment made with the military's special needs in mind; supplying products to the Navy under detailed specifications is not enough where the same product was sold commercially.
• Welch v. Air & Liquid Systems Corporation (2021). Under Washington CR 41(a)(1)(B), a plaintiff's right to voluntary dismissal is absolute and fixed when the motion is filed, so no claims against the defendant remained pending to be removed, and removal without an objectively reasonable basis supports fees under 28 U.S.C. § 1447(c).
• Clayton v. Air & Liquid Systems Corporation (2018). Under Washington law (RCW 23B.14.340), a claim against a dissolved corporation is barred if suit is filed more than three years after dissolution, and equitable remedies, tolling for known claimants, or receivership did not allow a claim against the dissolved corporation itself.
• Barabin v. AstenJOHNSON, Inc. (2017). The court granted the parties' stipulated motion and continued the initial disclosure, Rule 26(f) conference and joint status report deadlines until one month after it rules on Plaintiff's motion to remand.
• Griffin v. CBS Corporation (2016). In a case removed from state court under the federal-officer removal statute, venue is proper in the district where the state action was pending, so transfer is considered under § 1404(a) rather than § 1406(a), even if the case has no connection to that district.
• Barabin v. AstenJOHNSON, Inc. (2014). A non-diverse defendant is fraudulently joined on a limitations ground only if the bar is obvious under settled state law. Under Washington law, it is unsettled whether a wrongful death claim is barred when the decedent's personal injury limitations period ran before death, so that showing was not made.
• McMann v. Air & Liquid Systems Corp. (2014). Under the federal officer removal statute, which is liberally construed, a defendant need only prove by a preponderance of the evidence a colorable government contractor defense and a causal nexus to federal direction. A plaintiff's disclaimer of claims subject to that defense does not defeat removal.
• Jensen v. Metropolitan Life Insurance Company (2013). A non-diverse defendant is fraudulently joined only if the plaintiff obviously fails to state a cause of action against it under state law; the removing defendant bears a high burden, and doubts are resolved in favor of remand.
• McMann v. Air & Liquid Systems Corporation (2013). A defendant removing under the federal officer removal statute must show a causal nexus between its actions under federal direction and the claims, and a colorable federal defense; speculative evidence about Navy control and warnings does not meet that burden.
• Abbay v. Aurora Pump Company (1st Division, 2011). Where a pleading's wording can fairly be read in more than one way, the plaintiff may clarify its meaning in summary judgment briefing, and grammar rules did not require reading the relative clause as limited to its nearest noun.
• Sales v. Weyerhaeuser Company (2008). In a forum non conveniens analysis, a court may and must consider the effect of removal to federal court and transfer to the asbestos MDL on the convenience of the alternative forum, and it may condition dismissal on a stipulation that the defendant will litigate in that forum.
• Sales v. Weyerhaeuser Company (2nd Division, 2007). A trial court has discretion to condition an inconvenient-forum dismissal on the defendant's stipulation to submit to jurisdiction in the alternative forum, and it abuses its discretion by failing to recognize that authority where removal to the asbestos MDL could defeat the alternative forum's adequacy.

West Virginia

• Swiger v. AR Wilfley & Sons, Inc. (2020). A case does not become removable on a tentative, unwritten settlement with the non-diverse defendant when court approval of a wrongful death settlement is required, and a pending summary judgment dispute cannot establish fraudulent joinder under the high Fourth Circuit standard.
• Siders v. 20th Century Glove Corporation OF Texas (2016). A plaintiff's express disclaimer of all claims for asbestos exposure during Navy service removes the basis for a government contractor defense, so a defendant cannot show the colorable federal defense that federal officer removal under 28 U.S.C. § 1442(a)(1) requires.
• Hamrick v. A & I Company (2009). Subject matter jurisdiction is governed by federal law, and tort claims arising from asbestos exposure on federal enclaves such as Air Force bases fall within federal question jurisdiction, so the action was properly removed.
• In re Celotex Corp. (1997). A contribution action against a debtor's contractual indemnitee is "related to" the bankruptcy case under the Pacor test, giving federal subject matter jurisdiction. Stream-of-commerce allegations without conduct purposefully directed at the forum cannot support personal jurisdiction over a successor, and a forfeited error is corrected on civil appeal only if the Olano plain-error requirements are met.

Wisconsin

• Babler v. Soo Line Railroad Company (2022). The one-year limit on diversity removal in § 1446(c)(1) does not displace the 30-day deadline in § 1446(b)(3). A defendant must remove within 30 days of when it can first ascertain removability, and here a co-defendant's summary judgment motion showing no evidence against it started that clock.
• Herr v. Linde LLC (2015). A plaintiff must produce evidence that he inhaled asbestos from the defendant's own product, and unlabeled gloves cannot be tied to a defendant whose gloves were labeled. A Pierringer release of a settling distributor also releases a strict liability claim against a non-settling defendant in the same chain of distribution.