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.

Louisiana

• Leech v. 3M Co. (2017). The forum defendant rule and the rule of unanimity apply only to defendants "properly joined and served," so a non-forum defendant may remove on diversity grounds before any defendant, including a forum defendant, has been served.
• Leech v. 3M Company (2017). Under the plain language of 28 U.S.C. §§ 1441(b)(2) and 1446(b)(2), the forum defendant rule and rule of unanimity apply only to defendants "properly joined and served," so a non-forum defendant may remove before any defendant is served.
• Legendre v. Huntington Ingalls Inc. (2017). Under Fifth Circuit law (Bartel, Savoie, Zeringue), a Louisiana wrongful death claim against a shipyard sounds in negligence, and the government's requirement to use asbestos does not create a causal nexus to the shipyard's discretionary safety decisions, so federal officer removal fails.
• Mayeaux v. Taylor-Seidenbach, Inc. (2017). To remove under the federal officer removal statute, a contractor must show a causal nexus between its acts under color of federal office and the plaintiff's claims. Negligence claims over a shipyard's own safety and warning decisions do not meet that test where the government is not shown to have controlled those decisions.
• Morgan v. Dow Chemical Company (2017). The 30-day removal period under 28 U.S.C. § 1446(b)(3) runs from the date a plaintiff gives deposition testimony revealing removability, not from the date the defendant receives the transcript. Fees are denied where the removing party had an objectively reasonable basis for removal.
• Savoie v. Pennsylvania General Insurance Co. (2017). A removing defendant under the federal officer removal statute need only show a colorable government contractor defense under Boyle, and may supplement its removal notice with affidavits under 28 U.S.C. § 1653 when they clarify grounds already stated in the notice.
• Sheppard v. Liberty Mutual Insurance Company (2017). Federal jurisdiction under OCSLA is judged by the claims as they existed at removal, and a plaintiff cannot defeat it by amending away the allegations that support it. Because all his claims arise out of or in connection with operations on the Outer Continental Shelf, the court did not need supplemental jurisdiction.
• Smith v. Georgia-Pacific, LLC (2017). A non-diverse defendant is improperly joined only if there is no reasonable basis to predict the plaintiff might recover against it; facts are viewed in the plaintiff's favor, and incomplete discovery that leaves a reasonable possibility of connecting the plaintiff to the defendant's asbestos products defeats improper joinder.
• Templet v. Avondale Industries, Inc. (2017). Under the federal officer removal statute, even as amended in 2011, a defendant must show a causal nexus between its acts under federal direction and the claims. Negligence claims for failure to warn or take safety measures lack that nexus when the government did not control the defendant's safety practices.
• Blow v. OneBEACON America Insurance Company (4th Circuit, 2016). The 1989 amendment adding "only" to the Direct Action Statute's venue provision is interpretive and procedural and applies to causes of action arising before it, so venue exceptions do not apply; when venue is improper, transfer rather than dismissal is required unless the plaintiff knowingly filed in the wrong venue.
• Bourke v. Exxon Mobil Corporation (2016). A removing defendant must show there is no reasonable possibility of recovery against the non-diverse defendant. A non-diverse defendant's later bankruptcy stay does not remove its citizenship from the diversity analysis unless the plaintiff dismisses it, and early-stage discovery favors remand.
• Bozeman v. Wyeth Holdings Corporation (2016). A removing defendant claiming improper joinder bears a heavy burden to put forward evidence negating any possibility of recovery against the non-diverse defendant; evidence that the plaintiff and co-workers did not know of the supplier does not meet that burden.
• Davidson v. Georgia-Pacific, LLC (2016). A motion to remand is a dispositive matter on which a magistrate judge may only recommend, subject to de novo district court review. Improper joinder requires the defendant to show no possibility of recovery against the in-state defendant, and a mere absence of plaintiff's evidence does not meet that standard.
• Loupe v. Pennsylvania General Insurance Company (2016). Under 28 U.S.C. § 1446(b)(3), a deposition transcript that is unequivocally clear and certain about facts supporting federal officer removal is "other paper" that starts the 30-day removal clock, and first-hand knowledge by the witness is not required.
• Murphy v. Alcatel-Lucent USA Inc. (2016). A non-diverse defendant is improperly joined if the plaintiff has no reasonable, as opposed to merely theoretical, possibility of recovery against it; filing exceptions in state court and asking for a hearing, without a merits ruling, does not waive the right to remove.
• Sheppard v. Liberty Mutual Insurance Company (2016). Federal jurisdiction under OCSLA exists where a plaintiff's alleged asbestos exposure on the Outer Continental Shelf is an independently sufficient cause of his illness, so strict but-for causation does not defeat jurisdiction even though other exposure elsewhere was also sufficient.
• Sheppard v. Liberty Mutual Insurance Company (2016). A plaintiff may not use Rule 15(a) to amend a removed complaint in a way that would defeat federal jurisdiction. Denial of leave to amend is proper where the amendment is futile and made in bad faith to forum shop, because jurisdiction is judged on the claims as they stood at removal.
• Weis v. Dsm Copolymer, Inc. (2016). A defendant removing under the federal officer removal statute must show a causal nexus between its actions under a federal officer's direction and the plaintiff's claims, and for failure-to-warn and premises claims this requires evidence that the government controlled warnings or required the asbestos use, plus a colorable federal defense.
• Boyd v. Boeing Co. (2015). A government contractor may remove under the federal officer removal statute when it acted under federal direction, there is a causal nexus to the claims, and it has a colorable federal defense such as the government contractor defense. A petition disclaimer of federal-direction claims does not, by itself, require remand.
• Hayden v. 3M Company (2015). Federal officer removal requires a colorable defense to a claim actually pursued. Where plaintiffs expressly disclaimed all claims arising from Navy service, deposition testimony about Navy exposure did not revoke the disclaimer or support removal, and a co-defendant's comparative-fault pleading did not provide a basis for removal.
• Meyers v. Chesterton (2015). A Rule 59(e) motion cannot be used to rehash arguments already decided, and once the clerk mails a certified copy of a remand order under 28 U.S.C. § 1447(c) the federal court is divested of jurisdiction to stay it.
• Meyers v. Chesterton (2015). Plaintiffs' verified, binding disclaimer of strict-liability and design-defect claims was effective, and for failure-to-warn claims a federal officer removal defendant must show direct government control that prevented it from giving warnings, which was not shown.
• Poche v. Eagle, Inc. (2015). A case not removable at the outset becomes removable only when nondiverse defendants are dismissed through the plaintiff's voluntary act; a bankruptcy automatic stay is a temporary suspension, not a certain and voluntary dismissal, so it does not make the case removable.
• Savoie v. Pennsylvania General Insurance Co. (2015). To remove under the federal officer removal statute, a defendant must show a causal nexus between its actions under federal direction and the claims; for failure-to-warn and strict-liability claims, that requires showing the government directly controlled warnings or how asbestos materials were handled, not just that it mandated the materials. A federal defense such as the LHWCA cannot independently support removal.
• Wilde v. Huntington Ingalls Inc. (2015). Under the federal officer removal statute, a contractor must show the government directed or controlled the acts alleged to cause the injury; building vessels to Navy specifications, without government control over warnings or how asbestos was handled, does not satisfy the causal nexus requirement.
• Zeringue v. Allis-Chambers Corp. (2015). A defendant removing under the federal officer removal statute need not prove its federal defense but must still support its jurisdictional facts with competent evidence. Generalized affidavits about Navy practice did not show that the government exercised discretion over the specific design and warnings at issue.
• Bartel v. Alcoa Steamship Co. (2014). Jones Act claims cannot be removed under the general removal statute, and a defendant seeking federal officer removal must show with evidence that a federal officer directed its conduct and that this conduct is causally connected to the plaintiff's claims.
• Bartel v. Alcoa Steamship Company (2014). A properly pleaded Jones Act claim is non-removable under § 1445(a), and without a federal question claim § 1441(c) does not allow removal. Federal officer removal under § 1442(a)(1) requires evidence that a federal officer directed the defendant's actions with a causal nexus to the claims, and a contractor sued for failure to warn of asbestos must show such direction.
• Comardelle v. Pennsylvania General Insurance Company (2014). A contractor may remove under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), if it is a person, acted under a federal officer's direction with a causal nexus to the claims, and raises a colorable federal defense. Removal proper as to one claim makes the whole case removable.
• Genusa v. Asbestos Corp. Ltd. (2014). A third-party claim against unions that depends on interpreting collective bargaining agreements is completely preempted by LMRA Section 301 and supports removal. Claims that are not within original or supplemental jurisdiction must be severed and remanded, and a court may decline supplemental jurisdiction over state-law tort claims.
• Genusa v. Asbestos Corporation Limited (2014). Third-party claims that depend on interpreting collective bargaining agreements are completely preempted by LMRA Section 301 and support removal. The plaintiff's state-law asbestos claims, which did not invoke admiralty or LHWCA jurisdiction, must be severed and remanded, or supplemental jurisdiction declined.
• Humphries v. OneBEACON America Insurance Company (2014). A defendant may remove under the federal officer removal statute if it is a person, acted under a federal officer's direction with a causal nexus to the claims, and raises a colorable federal defense; a colorable government contractor defense need not be proven at the removal stage.
• Humphries v. OneBEACON America Insurance Company (2014). A stay of a remand order pending appeal requires a strong showing of likely success on appeal and favorable equities. Elliott did not show a substantial case on the merits, and the harm a stay would cause to a gravely ill plaintiff weighed strongly against it.
• Landry v. Columbia Casualty Company (2014). A non-diverse defendant is fraudulently joined when the plaintiff cannot establish a cause of action against it, and fraudulently joined defendants need not consent to removal. Letters from defense counsel can be an "other paper" that starts a new removal period, because the voluntary-act rule does not apply to fraudulent joinder.
• Laurent v. City of New Orleans (2014). A defendant may remove under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), if it is a person, acted under a federal officer's direction with a causal nexus to the claims, and has a colorable federal defense; it need not prove the defense at the removal stage.
• Morvant v. Maryland Casualty Company (2014). Colorado River abstention requires parallel state and federal actions with substantially the same parties and issues, and exceptional circumstances; a federal direct-action suit on insurance coverage against insurers who were not parties to the state liability suit is not parallel, and a stay under inherent power cannot bypass that test.
• Radosta v. Lorillard Tobacco Co. (2014). Under 28 U.S.C. § 1446(b)(3), the 30-day removal period runs from receipt of an "other paper" that lets the defendant first ascertain that the case is removable. Deposition transcripts that say nothing about the viability of the claims against the non-diverse defendants do not start that period.
• Rodrigue v. Continental Insurance Company (2014). A defendant removing on improper joinder must show there is no reasonable possibility of recovery against the in-state defendant, resolving factual disputes and ambiguities in the plaintiff's favor. Where the case was removed within two months of filing and little discovery had occurred, the plaintiffs' allegations and evidence were enough to defeat improper joinder.
• Sarradet v. the Dow Chemical Company (2014). A removing party must show improper joinder by clear and convincing evidence that there is no reasonable basis to predict recovery against the in-state defendants; the court may pierce the pleadings to make that determination, and corporate officers are personally liable only if they breached a personal duty under the Canter v. Koehring criteria.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2014). A federal court may keep state-law claims under supplemental jurisdiction after the federal-officer claims are dismissed. Here no novel or complex state-law issue was present, and the case had been pending for years, discovery was closed, and the court had already decided many motions.
• Whatley v. Eagle, Inc. (2014). Under the derivative jurisdiction doctrine, a federal court on removal under § 1442 acquires only the jurisdiction the state court had, and a tort claim against the United States or its agencies may be brought only in federal court, so the court lacked jurisdiction over the claim against the VAMC. When removal jurisdiction is doubtful, remand is appropriate.
• Garrie v. Aiu Insurance Company (2013). A settlement with a non-diverse defendant can make a case removable only if it was binding at the time of removal; under Louisiana law, counsel need express authority to compromise a client's claim, and tentative negotiations without final authority do not create a binding settlement.
• Morvant v. Asbestos Corporation Limited (2013). Under the voluntary-involuntary rule, a case becomes removable on diversity grounds after non-diverse defendants are dismissed only if the plaintiff voluntarily caused the dismissals; involuntary dismissals on summary judgment do not make the case removable.
• Phillips v. Abb Combustion Engineering, Inc. (2013). A Louisiana federal court lacks general jurisdiction over out-of-state defendants whose contacts with Louisiana are only occasional trips and one disaster-relief crew, and lacks specific jurisdiction where the plaintiffs' recruitment theory is contradicted by the record and no defendant directed activity toward Louisiana.
• Pitman v. Crane Co. (2013). A removing defendant must show no reasonable possibility of recovery against the in-state defendant to establish improper joinder. Pointing to the plaintiff's lack of evidence early in discovery is not enough, and limited discovery is proper only to find discrete, undisputed facts that preclude recovery.
• Smith v. Union Carbide Corp. (2013). A defendant waives removal only by proceeding to an adjudication on the merits in state court, and a non-diverse defendant is improperly joined when there is no reasonable possibility the plaintiff can recover against it. Evidence that the plaintiff may have worked at sites where the defendant supplied products at some point is too tenuous.
• Davidson v. Georgia Pacific, LLC (2012). A court deciding improper joinder should pierce the pleadings only for discrete and undisputed facts, not a full summary-judgment-type contest over the merits. Disputed facts are resolved in the plaintiffs' favor, and allegations sufficient to state a claim against the non-diverse defendants defeat removal.
• Landry v. Eagle, Inc. (2012). A case with a nondiverse defendant becomes removable only when that defendant is effectively out of the case, such as through a settlement that is binding and enforceable under state law. The removing defendant must prove this by a preponderance of the evidence, and any doubt is resolved in favor of remand.
• Najolia v. Northrop Grumman Ship Systems, Inc. (2012). A defendant may remove under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), by showing it acted under a federal officer's direction, has a colorable federal defense, and there is a causal nexus between plaintiff's claims and its federal acts; a design-defect claim satisfying this makes the whole action removable.
• Brumley v. Akzona, Inc. (4th Circuit, 2010). Under La. C.C.P. art. 123(B), a trial court has discretion to dismiss for forum non conveniens, and the bias toward a plaintiff's choice of forum applies only to plaintiffs domiciled in Louisiana. The court may rule on forum non conveniens without first deciding venue exceptions.