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.

Missouri

• Bristol v. Ford Motor Company (2016). Under 28 U.S.C. § 1446(c)(1), a diversity case may not be removed more than one year after commencement unless the plaintiff acted in bad faith to prevent removal. A plaintiff who actively litigated against the removal-spoiling defendant is presumed to have acted in good faith, and the defendant did not rebut that presumption.
• Harrison v. Volkswagen Group OF America, Inc. (2016). A removing defendant must show the plaintiff's claim against the non-diverse defendant has no reasonable basis in fact and law. That defendant's silence in the litigation does not show fraudulent joinder, and a properly joined forum-state defendant bars removal under 28 U.S.C. § 1441(b)(2).
• Hartfield v. 3M Company (2016). A resident defendant is fraudulently joined only if there is no reasonable basis in fact and law for the claim against it; a plaintiff's lack of personal knowledge or litigation conduct early in discovery does not show that. Fees for improper removal are awarded only where the removing party lacked an objectively reasonable basis.
• Hovsepian v. Crane Co. (2016). A contractor may remove under the federal officer statute if it acted under a federal officer, there is a causal connection, and it has a colorable federal contractor defense. A plaintiff's disclaimer of federal claims does not prevent removal.
• Schaffer v. Air & Liquid Systems Corporation (2015). The 2011 amendment to 28 U.S.C. § 1441 does not allow in personam maritime claims seeking common-law remedies to be removed without an independent basis for federal jurisdiction, because of the saving-to-suitors clause.
• Pickard v. Dap, Inc. (2014). A removing defendant claiming fraudulent joinder must show there is no reasonable basis in fact or law for a claim against the resident defendant, with doubts resolved in favor of remand; unclear deposition evidence did not meet that burden.
• Carey v. JP Bushnell Packing Supply Company (2011). Joinder of a non-diverse defendant is not fraudulent if state law might impose liability on it under the facts alleged, and a defendant who only creates a factual dispute does not meet its heavy burden, with doubts resolved in favor of remand.

Montana

• Morey v. BNSF Railway Company (2023). After the federal officer defendant is dismissed, a district court has discretion to remand the remaining state claims, weighing the stage of the case, comity, federalism, judicial economy and fairness. Here remand was appropriate, and the complaint as pleaded did not show the amount in controversy needed for diversity jurisdiction.
• Aarstad v. BNSF Railway Company (2018). A case with 100 or more plaintiffs is a removable "mass action" under CAFA. A federal court must still decline jurisdiction under the local controversy exception if two-thirds of the plaintiffs are citizens of the forum state and a local defendant faces significant relief and conduct that forms a significant basis for the claims. No similar class action may have been filed against the defendants in the prior three years.
• McDowell v. Burlington Northern Santa FE Railway Company (2017). A state is not a citizen for diversity purposes, so a properly joined, non-nominal state defendant defeats complete diversity. The court declined to adopt the 'fraudulent misjoinder' doctrine to sever the state and keep the remaining claims in federal court.
• US v. WR Grace (2005). Prejudice from pretrial publicity is presumed only in an extreme case, such as a barrage of inflammatory publicity just before trial. Publicity that is mostly factual and mostly years old does not meet that standard, and a court should test juror bias through voir dire.

Nevada

• Koot v. Bwdac, Inc. (2024). Under 28 U.S.C. § 1332(c)(1) a corporation is a citizen of its state of incorporation as well as its principal place of business, so a Nevada-incorporated defendant defeats diversity with a Nevada plaintiff even if it is only a name holder for its parent.
• Knutson v. Allis-Chalmers Corp. (2005). A defendant claiming fraudulent joinder bears a heavy burden to show the plaintiff obviously cannot state a claim against the non-diverse defendant under well-settled state law, and doubts or unsettled state law are resolved in favor of remand. A plaintiff's opposition brief that adds no new facts or law does not start a new removal period under 28 U.S.C. § 1446(b).

New Jersey

• Klick v. Asbestos Corporation Ltd. (2022). When the party that removed under the federal officer statute is dismissed, a federal district court may either keep the remaining state-law claims or remand, weighing judicial economy, convenience and fairness. Here the court chose to remand.
• Klick v. Asbestos Corporation, Ltd. (2021). Jurisdictional discovery may be allowed when the existing record is inadequate to support personal jurisdiction and the factual allegations suggest the possible existence of the needed contacts with the forum state with reasonable particularity.
• Klick v. Asbestos Corporation, Ltd. (2021). A defendant's purchase of asbestos-containing parts from vendors in the forum state does not, without more, establish specific personal jurisdiction over tort claims arising from a plaintiff's exposure elsewhere, because but-for causation alone does not satisfy the relatedness requirement.
• Kirkwood v. Brenntag North America, Inc. (2020). A court may allow jurisdictional discovery where a plaintiff's allegations suggest with reasonable particularity that the defendant has contacts with the forum, including through successor theories. A § 1404(a) transfer requires that the transferee court could command jurisdiction over all defendants, and the movant bears the burden of showing this.
• Manz v. Brenntag NA (2019). Under 28 U.S.C. § 1441(b)(2) and Third Circuit precedent (Encompass), the forum defendant rule bars removal only when a forum defendant has been properly joined and served; a forum defendant not yet served when removal is completed does not block removal.
• McClung v. 3M Company (2019). A plaintiff must show with sworn affidavits or other competent evidence, not conclusory pleadings or briefs, that the claims arise out of or relate to the defendant's own forum contacts. A defendant's purchases from a forum vendor, or the vendor's unilateral activity, do not establish specific jurisdiction. Arguments not raised before the magistrate judge are waived.
• Rebbeck v. Honeywell International, Inc. (2019). A trial court does not abuse its discretion in dismissing a foreign plaintiff's asbestos claims on forum non conveniens grounds where the U.K. is an adequate alternative forum and the public interest factors favor trial there. Perceived disadvantages in the foreign forum's tort, damages and cost rules do not make it inadequate.
• Grimes v. AT&T Corp. (2018). When the federal defendant that supported removal under the federal officer removal statute drops out, the district court keeps discretion to decide whether to retain or remand the remaining state-law claims, and may decline supplemental jurisdiction under 28 U.S.C. § 1367(c) in favor of remand.
• Thomas-Fish v. Aetna Steel Products Corp. (2018). A contractor building a government vessel under agency contracts satisfies the 'acting under,' 'for or relating to,' and colorable federal defense requirements of 28 U.S.C. § 1442(a)(1) without showing detailed federal control or a specific federal directive on warnings. A facial challenge accepts the removal notice's allegations as true.
• Grimes v. AT&T Corp. (2017). A plaintiff facing a personal jurisdiction challenge should be allowed jurisdictional discovery unless the claim is clearly frivolous. Prior rulings against the defendants did not by themselves supply the facts needed to establish jurisdiction.
• McClung v. 3M Company (2017). Under 28 U.S.C. § 1404(a) and Rule 21, a court may sever claims against one defendant and transfer them when the balance of private and public interest factors favors transfer and the events giving rise to the claim did not occur in the forum.
• Hernandez v. Brenntag North America, Inc. (2016). Under the forum-defendant rule, removal is barred unless forum-state defendants were fraudulently joined, which requires claims against them to be wholly insubstantial and frivolous, without a reasonable basis in fact or colorable ground; the court may not reach the merits of the claims.
• Hammell v. Air & Liquid Systems Corporation (2014). A defendant removing under the federal officer removal statute need only identify facts which, viewed favorably to it, would establish a colorable government contractor defense; the court does not weigh credibility or the quantum of evidence at the removal stage.
• Papp v. Fore-Kast Sales Co., Inc. (2014). A private defendant seeking federal officer removal must show it acted under direct and detailed federal control over the challenged conduct; where the claim is only failure to warn, military control over design and manufacture is not enough without evidence the government barred warnings.
• Robinson v. Air & Liquid Systems Corporation (2014). Under 28 U.S.C. § 1404(a) and the Jumara private and public interest factors, transfer is proper where the claims arose, the parties and witnesses are located, and the local interest lies in another district, and the plaintiff's chosen forum has little connection to the dispute.
• Scearce v. 3M Company (2013). A removing defendant bears the burden of showing its removal was timely, and the 30-day clock under § 1446(b) runs from when removability was first ascertainable from the pleading or other paper, not from when it became uncontestable. Raytheon did not show why it needed to know the specific product to ascertain removability.
• Lewis v. Asbestos Corporation, Ltd. (2012). Under the federal officer removal statute, one defendant that satisfies the Feidt factors can remove the entire case without the other defendants joining, and the court may keep the related state-law claims under supplemental jurisdiction.
• Brust v. Acf Industries, LLC (2011). Under the well-pleaded complaint rule, a state common-law premises liability claim against a bi-state entity does not raise a federal question merely because the entity may assert a defense that requires interpreting its interstate compact.
• Fusco v. Asbestos Corporation (2011). A U.S. citizen domiciled abroad is stateless for diversity purposes and, even if also a foreign citizen, only her American citizenship counts, so neither diversity nor alienage jurisdiction exists under 28 U.S.C. § 1332.
• Feidt v. Owens Corning Fiberglas Corp. (1998). Under 28 U.S.C. § 1447(d), a remand order based on the district court's finding that removal jurisdiction was lacking under the federal officer removal statute is not reviewable on appeal, even if the court was wrong, and certification under § 1292(b) does not avoid that bar.

New York

• Wagner v. Aerco Intl., Inc. (2022). A defendant seeking forum non conveniens dismissal bears the burden of showing private or public interest factors against New York; where part of the exposure occurred in New York and no witness hardship is shown, the existence of an alternative forum does not meet that burden.
• Graham v. Bristol-Myers Squibb Company (2021). Under Rule 41(a)(2), a court should grant voluntary dismissal without prejudice absent a showing of substantial legal prejudice to defendants, assessed under the Zagano factors; starting litigation over again is not legal prejudice.
• Paroni EX rel. Estate OF Paroni v. General Electric UK Holdings Ltd. (2021). A New York federal court lacks specific jurisdiction under C.P.L.R. 302(a)(1) or due process where asbestos injuries from 1960s-80s California exposure do not arise from a 2015 corporate acquisition, and a parent's contacts are not imputed to a subsidiary absent alter-ego control. Under 28 U.S.C. § 1406(a), a court may transfer rather than dismiss to cure lack of personal jurisdiction.
• Paroni v. General Electric UK Holdings Ltd. (2021). Under 28 U.S.C. § 1406(a), a court may transfer a case in the interest of justice to cure a lack of personal jurisdiction, considering whether transfer alleviates a procedural obstacle, enables personal jurisdiction, would severely prejudice the defendant, and whether the case is clearly doomed.
• Castro v. Colgate-Palmolive Company (2020). Under Gibbons v. Bristol-Myers Squibb, the forum defendant rule in 28 U.S.C. § 1441(b)(2) applies only once a home-state defendant has been properly joined and served, so a defendant may remove before any defendant is served.
• DeKlerk v. Estée Lauder (In re New York City Asbestos Litigation) (2020). A forum non conveniens dismissal requires the movant to meet a heavy burden. It is not warranted where the action has a substantial nexus to New York beyond the defendant's corporate presence and no adequate alternative forum is available. Unreasonable delay in moving can also waive the ground.
• Dohse v. Avon Prods. (In re New York City Asbestos Litigation) (2020). A forum non conveniens movant bears a heavy burden, and dismissal is not warranted where the balance of factors, including the defendant's New York incorporation, headquarters, facilities, witnesses and documents, is not strong enough to overcome the plaintiffs' choice of forum.
• Peterson v. Vanderbilt Mineral (In re New York City Asbestos Litigation) (2020). A court may grant renewal in the interest of justice to allow expert reports in proper form where the failure to submit them earlier was inadvertent and the other side shows no prejudice. Conflicting expert reports on general and specific causation raise fact issues that bar summary judgment, and a venue change motion served long after the answer is untimely.
• Conaway v. ABB (In re New York City Asbestos Litigation) (2020). A defendant that waits many months after the note of issue and long after discovery to seek forum non conveniens dismissal waives that relief, and the motion is untimely under the NYCAL 45-day rule for dispositive motions.
• Peterson v. Vanderbilt Minerals (In re New York City Asbestos Litigation) (2020). In asbestos cases under New York toxic tort law, plaintiffs must offer admissible expert evidence of exposure sufficient to cause the disease. Unsworn or improperly affirmed expert reports cannot defeat summary judgment, and reports filed after the motion was submitted will not be considered.
• Fletcher v. Clinique Laboratories (Matter of New York City Asbestos Litigation) (2020). A defendant seeking forum non conveniens dismissal bears a heavy burden, and dismissal is not warranted where the action has a substantial New York nexus beyond the defendant's New York base and where plaintiffs show no adequate alternative forum.
• McDaniel v. Revlon, Inc. (2020). A court should grant a Rule 41(a)(2) dismissal without prejudice absent a showing of substantial legal prejudice to defendants, assessed under the five Zagano factors; having to start the litigation over is not legal prejudice.
• English v. Colgate Palmolive Co. (In re New York City Asbestos Litigation) (2019). Under the NYCAL case management order, a case belongs on the accelerated (In-Extremis) docket if the plaintiff is terminally ill from an asbestos-related disease with under a year to live or has a mesothelioma diagnosis.
• LaFLAIR v. Johnson & Johnson (2019). A removing defendant must show by clear and convincing evidence that there is no possibility the plaintiff can state a claim against the non-diverse defendant in state court, applying New York's lenient pleading standard. An affirmative defense such as the contract-specification defense that turns on unresolved facts does not meet that burden.
• Shanahan v. Kolmar Laboratories, Inc. (2019). A removing defendant must show by clear and convincing evidence, with ambiguities resolved for the plaintiff, that there is no possibility of a claim against the non-diverse defendant in state court; under New York's lenient pleading standard, general allegations of manufacture and a disputed contract-specifications defense did not meet that burden.
• Brewer v. Avon Prods., Inc. (2018). New York courts may exercise specific jurisdiction under CPLR 302(a)(1) over a non-domiciliary that continuously shipped asbestos-contaminated talc into New York for use in the product alleged to have caused the injury, since there is an articulable nexus between that business and the claim. A forum non conveniens movant bears a heavy burden, even against a non-resident plaintiff, and a substantial nexus to New York weighs against dismissal.
• Black v. Imerys Talc America (In re New York City Asbestos Litigation) (2018). New York courts may exercise specific jurisdiction under CPLR 302(a)(1) over a non-domiciliary talc supplier that sold and shipped asbestos-contaminated talc into New York for use in a product that allegedly caused the plaintiff's injury. Dismissal for forum non conveniens is not warranted where there is a substantial nexus to New York and the movant does not meet its heavy burden.