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

• Boudreaux v. Able Supply Co. (3rd Circuit, 2009). Under La. Code Civ. P. art. 123(B), a trial court has discretion to dismiss a case for forum non conveniens when private and public interest factors favor another forum, and it gives less deference to a non-resident plaintiff's choice of forum. It need not first rule on venue, and the alternative forum need not have jurisdiction over every defendant.
• Boudreaux v. Able Supply Co. (3rd Circuit, 2009). The automatic bankruptcy stay under 11 U.S.C. § 362 applies only to the debtors who filed for bankruptcy and does not extend to non-bankrupt co-defendants, so an appeal may proceed against them.
• Richoux v. Csr Limited (2008). A removing defendant bears a heavy burden to show that no reasonable basis exists to predict recovery against in-state defendants; a plaintiff's pre-discovery deposition testimony that he lacks personal knowledge of those defendants' products does not meet that burden, and removal on that basis lacks an objectively reasonable basis supporting fees under § 1447(c).
• Bradley v. Northrop Grumman Systems Corporation (2007). Removal under the federal officer statute requires that defendants acted under a federal officer's direction, with a causal nexus to the claims and a colorable federal defense. Defendants did not show government control over their safety and warning practices, so failure-to-warn claims lacked the required nexus and the federal defenses were not colorable.
• Lerille v. Monsanto Corporation (2007). Under Louisiana law, state-court consolidation of two suits does not merge them unless the record shows intent to do so, so the 30-day removal period for one suit is not restarted by service in the other. The earlier suit's removal was therefore untimely under 28 U.S.C. § 1446(b).
• Hernandez v. Todd Shipyards Corporation (2004). The LHWCA, raised as a defense to state law claims, does not completely preempt them or create federal question jurisdiction, because it lacks a civil enforcement provision creating a federal cause of action and a specific jurisdictional grant to federal courts.
• Re' v. Owens-Corning Fiberglas Corp. (4th Circuit, 1998). Under LSA-C.C.P. art. 123, a court may transfer a case to another parish to avoid inconsistent results and promote judicial economy where it shares common issues of fact and law with a related pending case.
• Ruckstuhl v. Owens Corning Fiberglas Corp. (1st Circuit, 1998). Under the Asahi "stream of commerce plus" approach, a component-part manufacturer that only placed filter material into the stream of commerce, without conduct aimed at Louisiana, lacks the minimum contacts needed for personal jurisdiction there.

Maryland

• Murphy v. Union Carbide Corporation (2021). A defendant removing under the federal officer removal statute bears the burden of showing a connection between the plaintiff's claimed asbestos exposure and the federal authority asserted; speculative or attenuated links, such as possible time waiting aboard a Coast Guard vessel, do not suffice.
• Barrett v. AW Chesterton Co. (2019). A defendant may remove under the federal officer statute once grounds for removal become apparent from the pleading or later papers, and it need only plausibly assert a colorable federal defense. A vague complaint or discovery answers that do not reveal removability do not start the 30-day clock.
• Kerkhof v. Johnson & Johnson (2019). A state-law tort action against a non-debtor is not "related to" a supplier's Chapter 11 case where indemnification or shared insurance is speculative and the debtor is no longer a party. Even if related-to jurisdiction existed, equitable grounds under 28 U.S.C. § 1452(b) favored remand.
• Sawyer v. Union Carbide Corporation (2018). Under 28 U.S.C. § 1446(b)(3), the 30-day removal clock starts when a paper first shows within its four corners the nexus among the decedent, the defendant and Navy work, without inquiry into the defendant's subjective knowledge.
• Dugger v. Air & Liquid Systems Corporation (2017). A defendant may remove under the federal officer removal statute if it plausibly alleges that it acted under a federal officer, that it has a colorable federal defense such as the government contractor defense, and that there is a causal nexus to the charged conduct. It does not have to prove the defense to keep the case in federal court.
• Sawyer v. Foster Wheeler LLC (2017). A government contractor may remove under the federal officer removal statute if it acted under a federal officer, has a colorable government-contractor defense (shown where the government exercised discretion in approving warnings, the contractor gave them, and the government knew the hazards as well as the contractor), and the claims are connected to or relate to the federal act; a strict causal nexus is not required.
• Oliver v. Campbell McCORMICK, Inc. (2016). A federal court may decline supplemental jurisdiction under 28 U.S.C. § 1367(c) and sever and remand state-law claims that substantially predominate over a federal contractor defense raised only by removing third-party defendants, and such a request is not subject to the 30-day limit in § 1447(c).
• Rhodes v. McIC, Inc. (2016). A defendant seeking federal officer removal need only make a plausible, colorable showing of the government contractor defense, which can apply to failure-to-warn claims, and that showing ordinarily satisfies the causal nexus requirement. The court may retain supplemental jurisdiction over the non-federal claims, given the cross-claims and the need for economy and fairness.
• Sawyer v. Union Carbide Corporation (2016). To remove under the federal officer removal statute, a defendant must show a colorable federal defense and a causal nexus to conduct under federal direction; Navy control over warnings on delivered boilers did not extend to warnings for workers in the shipyard boiler shop.
• Citrano v. John Crane-Houdaille, Inc. (2015). A cross-claim against a federal-officer defendant does not create federal subject matter jurisdiction. After all claims with independent federal jurisdiction were dismissed, the court declined supplemental jurisdiction over the state-law claims because economy, fairness and comity favored remand.
• Sherin v. John Crane-Houdaille, Inc. (2015). A cross-claim for contribution does not give rise to independent federal jurisdiction, but a federal court that has federal officer or enclave jurisdiction over some claims may keep supplemental jurisdiction over related state claims when economy, convenience, fairness and comity favor retaining them.
• Sroka v. Union Carbide Corp. (2015). To remove under the federal officer removal statute, a defendant must raise a colorable federal defense and show a causal connection to acts done under federal office. A failure-to-warn contractor defense requires showing that the government approved warnings, that the warnings conformed to specifications, and that the government knew as much as the contractor about the hazard.
• Citrano v. John Crane-Houdaille, Inc. (2014). A defendant can remove under the federal officer removal statute if it has a colorable federal contractor defense and a causal connection to the federal contract. Its 30-day removal period can start when discovery responses name the Navy ship where the plaintiff worked. Claims against non-removing defendants may stay in federal court where severance would prejudice the removing defendant's contribution claims.
• Netzer v. Union Carbide Corp. (2014). The mere passage of a scheduling-order deadline for deposing fact witnesses is not an "other paper" under 28 U.S.C. § 1446(b)(3) that lets a defendant ascertain that a case has become removable.
• Joyner v. AC & R. Insulation Co. (2013). A plaintiff may use a Rule 15(a) amendment to disclaim damages for one product and so avoid federal officer jurisdiction. A defendant that did not raise a federal defense for another product in its notice of removal within thirty days cannot rely on it later, and contribution cross-claims that depend on the plaintiff's recoverable damages do not create federal jurisdiction.
• Joyner v. AC & R. Insulation Co. (2013). A removing government contractor need only plausibly allege that it acted under federal direction, has a colorable government contractor defense, and has a causal nexus to the claims; the court may sever the removed claims and remand the remaining state-law claims by declining supplemental jurisdiction.
• Barlow v. John Crane Houdaille, Inc. (2012). A removing defendant claiming fraudulent joinder must show no possibility of a claim against the in-state defendants; a plaintiff's stated belief about her main exposure source does not eliminate the possibility of other exposures, so joinder was not fraudulent.
• Dilks v. 4520 Corp., Inc. (2012). The 30-day removal period under 28 U.S.C. § 1446(b) runs from when removability is first ascertainable from the pleading or other papers, not from a later paper that makes it uncontestable. Here, discovery responses naming the Navy submarines triggered the clock.
• Jones v. John Crane-Houdaille, Inc. (2012). A notice of removal need only give a short and plain statement of the grounds for removal, judged by the Twombly plausibility standard, so it need not plead the state's consent to exclusive federal jurisdiction to allege that a site is a federal enclave.
• Csr, Limited v. Taylor (2009). Under the Due Process Clause, a foreign defendant must purposefully avail itself of the forum through significant activities there or continuing obligations to residents. Foreseeability that its products will arrive and cause injury, a customer's choice of port, and general trade advertising do not satisfy this.
• National Union Fire Insurance Company OF Pittsburgh v. Porter Hayden Company (2005). Under Maryland law, coverage for asbestos bodily injury claims is triggered on exposure, exposure-in-residence and manifestation, so every policy on the risk in that span is triggered. Allocation among triggered policies is pro rata by time on the risk, and injury occurring after operations were completed is subject to the aggregate limits of policies then in effect, following In re Wallace & Gale, but fact questions remained on when Porter Hayden's operations were completed.
• Sledz v. Flintkote Co. (2002). Under 28 U.S.C. § 1446(b), the one-year limit on diversity removal runs from the filing of the original complaint, which under Maryland law commences the action, not from the date a later-joined defendant was added. The court declined to excuse the limit because the record showed no plaintiff manipulation to avoid removal.
• Pittsburgh Corning Corp. v. James (1999). An order denying a motion to dismiss on the ground of inconvenient forum is not immediately appealable under the collateral order doctrine, because the issue is not completely separate from the merits and is not effectively unreviewable after final judgment.

Massachusetts

• Honor v. Johnson & Johnson (2019). A defendant removing on the basis of a non-party supplier's bankruptcy must show 'related-to' jurisdiction; possible indemnification, shared-insurance and identity-of-interest arguments did not establish it, and equitable considerations also favored remand.
• Mitchell v. Johnson & Johnson (2019). Even where a case is colorably "related to" a bankruptcy proceeding, a court may remand it under 28 U.S.C. § 1452(a) "on any equitable ground."
• Holdren v. Buffalo Pumps, Inc. (2009). To remove a failure-to-warn case under the federal officer removal statute, a government contractor must show reasonably precise government specifications or other evidence that the government exercised discretion over asbestos warnings, creating a genuine conflict with state law, plus a causal link. Government silence on warnings is not enough.
• Hilbert v. McDonnell Douglas Corp. (2008). To remove a failure-to-warn case under the federal officer removal statute, a contractor must make a colorable showing that the government exercised discretion and imposed reasonably precise warning specifications, creating a conflict with state law. Conclusory affidavits that cite no contract or regulation do not meet that burden.
• O'connell v. Foster Wheeler Energy Corp. (2008). To remove under the federal officer removal statute, a defendant need only plausibly show a military contractor defense to a failure-to-warn claim: the government approved reasonably precise warnings, the contractor complied, and the contractor warned the government of hazards the government did not know. A plaintiff's disclaimer of federal claims does not defeat this removal.
• Hilbert v. Aeroquip, Inc. (2007). A defendant removing under the federal officer statute must show a causal nexus between its actions under federal direction and the claims, plus a colorable federal defense. Northrop did not show that the Navy prevented it from giving state-law warnings, so removal failed.
• In re Asbestos Litigation (1998). Under 28 U.S.C. § 1407(a) and Lexecon, cases whose pretrial proceedings have run their course must be remanded, but cases actually terminated are not remanded. The court therefore presumed that "closed" ordinarily means resolved, unless the parties show otherwise.

Michigan

• Kachman v. Standard Fuel Engineering Company (2023). Federal-question jurisdiction depends on a federal issue necessarily raised by the plaintiff's state-law claims; a later motion or paper raising a federal issue, such as Medicare reporting of settlements, does not create removal jurisdiction under 28 U.S.C. § 1446(b)(3).

Minnesota

• McGill v. Conwed Corporation (2017). A corporation's principal place of business is where its officers direct and coordinate its activities, not where its outside litigation counsel sits. A foreign corporation whose Minnesota authority to do business was revoked is not deemed to consent to jurisdiction by having a registered agent, and the court lacked general or specific jurisdiction over it.

Mississippi

• Simpson v. American International Industries (2023). A settling defendant or a misnamed, nonexistent entity is a nominal party whose consent to removal is not needed. Failing to file the full state court record is a curable, non-jurisdictional defect. In-state sellers are improperly joined where the plaintiffs offer only conclusory allegations of knowledge and the sellers' affidavits deny any knowledge, given Mississippi's innocent seller statute.
• Webb v. 3M Company (2022). A defendant that plausibly alleges the elements of federal officer removal need not submit evidence unless the plaintiff contests it, and a colorable government contractor or derivative sovereign immunity defense, acting under the Navy's specifications, and a connection to the alleged asbestos exposure satisfy 28 U.S.C. § 1442(a).
• Illinois Central Railroad Company v. Gregory (2005). Plaintiffs may be joined under Rule 20 only if their claims arise from a distinct litigable event linking them, and asbestos cases are not exempt from this requirement; plaintiffs must also specify who they sue, when and where each was exposed, their injury, and the common event.

Missouri

• Lindsey v. Dow Chemical Company (2021). A defendant with no reasonable basis in fact and law for the claim against it is fraudulently joined, and its citizenship is disregarded for removal. The forum defendant rule does not apply to a forum-state defendant joined only after removal, and a court may deny leave to add a nondiverse defendant when the purpose is to defeat federal jurisdiction.
• Douglas v. Johnson & Johnson Consumer, Inc. (2020). Under 28 U.S.C. § 1404(a), transfer was warranted because witness and party convenience, record location, and the place of exposure favored the plaintiff's home district. Her plaintiff's-choice-of-forum deference was reduced because Missouri was not her residence and not her first choice.
• Douglas v. Imerys Talc America, Inc. (2019). Venue in a removed action is governed by 28 U.S.C. § 1441(a), not § 1391, so a § 1406 motion cannot be used to dismiss or transfer a case removed to the district embracing the place where the state action was pending.
• Douglas v. Imerys Talc America, Inc. (2019). Complete diversity existed regardless of fraudulent joinder, so remand was denied. A sister company is generally not liable for another company's acts absent a pleaded alter ego or agency theory, and general allegations of commonality do not plead alter ego under Delaware law.
• New Hampshire Insurance Company v. Pennington (2018). A federal court with diversity jurisdiction may decline, under its discretion in declaratory judgment actions, to hear an insurer's coverage action when a parallel state workers' compensation proceeding between the same parties can resolve the same coverage issue, and should stay rather than dismiss it.
• Otten v. Liberty Mutual Insurance Company (2018). In a Missouri equitable garnishment action under § 379.200, the insured judgment debtor must be joined as a defendant, so it cannot be realigned as a plaintiff or treated as a nominal party. The action is a direct action, so under 28 U.S.C. § 1332(c)(1) the insurer takes the insured's citizenship.
• Holzer v. Athene Annuity & Life Assurance Co. (2017). Under Eighth Circuit law, fraudulent joinder turns on whether there is a reasonable basis in fact and law for the claim against the non-diverse defendant, not on the plaintiff's intent to prosecute that claim.