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.

New York

• Lindsey v. Colgate-Palmolive Co. (In re New York City Asbestos Litigation) (2018). Where the only connection to New York is that the corporate defendant has its principal place of business there, the action may be dismissed on forum non conveniens grounds; an eight-month delay after obtaining sufficient discovery did not waive the motion.
• Black v. Colgate-Palmolive Co. (In re New York City Asbestos Litigation) (2018). A defendant seeking forum non conveniens dismissal bears a heavy burden, and where the only New York link is the defendant's headquarters, dismissal is generally proper. Here, the risk of splintering the plaintiffs' claims against other New York-based defendants into separate forums outweighed that.
• Chen v. Volkswagen Group of America (In re New York City Asbestos Litigation) (2018). A New York court may exercise long-arm jurisdiction under CPLR 302(a)(3) over out-of-state car makers where the plaintiff raises a fact issue that their asbestos-containing parts injured him in New York and due process is met. Defendants did not carry the heavy burden of showing the balance of factors strongly favored dismissal for forum non conveniens.
• Matter of Crozier v. Avon Prods., Inc. (2018). New York may exercise specific long-arm jurisdiction under CPLR 302(a)(1) over out-of-state talc suppliers that shipped allegedly asbestos-contaminated talc into New York for a powder maker, because the claim has an articulable nexus to that business. Dismissal for forum non conveniens requires the movant to meet a heavy burden, which was not met here.
• Pyle v. Pfizer Inc. (2018). A forum non conveniens dismissal requires the movant to carry a heavy burden; it is denied where the case has a substantial nexus to New York beyond the defendants' corporate offices and where plaintiffs show no adequate alternative forum.
• Donohue v. CBS Corporation (2017). A defendant seeking federal officer removal under 28 U.S.C. § 1442(a)(1) need only make a colorable showing that it acted under a federal officer, has a colorable federal defense, and has a causal nexus to the federal directive, without proving the defense on the merits. Removal by one such defendant brings the whole case, including non-removing co-defendants, into federal court.
• Matter of New York City Asbestos Litig. (2017). The Coordinating Judge issued a case management order setting procedures for all NYCAL asbestos personal injury and wrongful death cases, superseding earlier orders effective July 20, 2017; no party won or lost.
• Trumbull v. American Biltrite (Matter of New York City Asbestos Litig.) (2017). New York's long-arm statute (CPLR 302(a)(1)-(3)) did not reach an out-of-state manufacturer whose product exposure occurred wholly in Missouri and which had no current presence or substantial revenue in New York. A California mass-tort jurisdiction decision (Bristol-Myers) and Licci did not change that result.
• Matter of Crist v. Amchem Prods., Inc. (Erie, 2015). Under CPLR 327(a), a New York court may dismiss on forum non conveniens grounds where the defendants carry their heavy burden of showing little connection between New York and the case, here because the plaintiff's residence, exposure, employment, records and witnesses were all in Michigan.
• Quinlan v. Marine Transport Lines (Matter of New York City Asbestos Litig.) (2015). Equitable tolling applies only where the plaintiff timely filed in the wrong forum, the defendant actively misled the plaintiff, or the plaintiff was extraordinarily prevented from filing; the diligence standard applies to counsel as well, and plaintiffs showed neither active misleading nor extraordinary prevention.
• Viera v. BASF Catalysts LLC (2015). A case may be transferred under 28 U.S.C. § 1404(a) if it could have been brought in the transferee district, meaning that court would have had personal jurisdiction and venue at filing, and the convenience and interest-of-justice factors favor transfer. Here, Florida jurisdiction over a distributor of the product was supported by its Florida sales, and the factors favored Florida.
• Cuomo v. Crane Co. (2014). To remove under the federal officer removal statute, a defendant need only offer some competent evidence of a colorable federal contractor defense; the court does not resolve the merits or factual disputes. For failure-to-warn claims, the government need not have dictated the literal text of a warning, only approved reasonably precise specifications and controlled the nature and content of the warnings.
• Gates v. Smith Water Products Co. (2014). A private contractor can remove under the federal officer removal statute if it acted under a federal officer, acted under color of federal office, and has a colorable federal defense. A defense is colorable if the facts, viewed favorably to the defendant, would establish a complete defense at trial.
• Horvath v. Acf Indus., LLC (2014). A forum non conveniens movant bears a heavy burden of showing the plaintiff's chosen forum is inappropriate, and that burden was not met where there were many defendants, some based in New York, and the plaintiff testified to months of asbestos exposure in New York City.
• McKim v. AO Smith Water Prod. Co. (2014). Where a plaintiff cannot produce admissible evidence of a substantial connection to New York, such as asbestos exposure in the state, and the plaintiffs do not live there, dismissal for forum non conveniens under CPLR 327(a) is warranted.
• Osterhout v. Air & Liquid Systems Corporation (2014). To remove under the federal officer removal statute, a defendant need only show a colorable federal defense, meaning facts which, viewed favorably to the defendant, would establish a complete defense at trial; it need not prove the defense.
• Bailen v. Air & Liquid Sys. Corp. (2013). A defendant seeking forum non conveniens dismissal bears a heavy burden even when the plaintiff is a nonresident, and the 'special circumstances' rule applies only to transitory motor vehicle cases. Evidence of asbestos exposure in New York supports keeping the case there.
• Stitt v. Burham Corp. (2013). A NYCAL plaintiff must show a nexus between the asbestos exposure and New York City to receive a place on the In-Extremis trial-preference calendar; this is a calendar-management matter separate from venue.
• Tycz v. Asbeka Industries OF New York, Inc. (2012). A removing defendant claiming fraudulent joinder must show by clear and convincing evidence that there is no possibility of stating a claim against the non-diverse defendant. That burden is heavier than the summary judgment standard, and a plaintiff's failure to identify a defendant's product in discovery does not meet it.
• Defazio v. AW Chesterton (2011). A forum non conveniens dismissal under CPLR 327 may be precluded by laches and inexcusable delay where the defendant waited years, through discovery and the filing of a note of issue, before moving.
• Curry v. American Standard, Inc. (2009). A defendant removing under the federal officer removal statute need only show it acted under a federal officer, that the claims relate to those acts, and that it has a colorable federal defense, not a clearly sustainable one. The government contractor defense may be asserted against state-law failure-to-warn claims.
• Nesbiet v. General Electric Co. (2005). A defendant seeking federal officer removal under 28 U.S.C. § 1442(a)(1) must show a colorable federal defense, that it acted under federal direction, and a causal nexus; circumstantial evidence that the Navy controlled warnings on equipment can satisfy these without direct proof that the Navy forbade an asbestos warning.
• Vasura v. Acands (2000). Removal jurisdiction is judged as of the time of removal, so later dismissal of a non-diverse defendant does not validate an improper diversity removal. A defendant's foreign-state status under the FSIA did not apply where its government ownership (1980-1989) did not overlap with the 1969 exposure or the 1999 filing.
• Hamilton v. Atlas Turner, Inc. (1999). A defendant that preserves a personal jurisdiction defense in its answer can still forfeit it by participating in extensive pretrial proceedings and forgoing clear opportunities to move to dismiss; forfeiture is governed by federal procedural law.
• Penny v. United Fruit Co. (1994). New York's long-arm statute, CPLR 302(a)(3)(ii), requires that the defendant expect or reasonably expect its act to have consequences in New York. British shipowners could not foresee a British crewman later moving to New York and developing mesothelioma there. A parent is liable as employer under the Jones Act only if the subsidiary is its mere instrumentality, which requires actual domination.

North Carolina

• In re Ltl Management LLC (2021). A bankruptcy court may transfer a case under 28 U.S.C. § 1412 for the convenience of the parties and in the interest of justice even where venue is proper. A debtor's creation of a venue connection on the eve of filing may be weighed in that analysis.
• In re Bestwall LLC (2019). In the Fourth Circuit, a Chapter 11 case may be dismissed as a bad faith filing only if it is both objectively futile and filed in subjective bad faith. A properly venued case is transferred only if the movant shows by a preponderance of the evidence that the interests of justice or the convenience of the parties require it.
• Zurich American Ins. Co. v. Covil Corporation EX rel. Protopapas (2019). Under Rule 19, a receiver acting for the insured and underlying asbestos claimants in another state were not necessary parties to the insurers' declaratory judgment action. Colorado River abstention applies only to parallel federal and state suits, not to a parallel suit in another federal court.
• Garlock Sealing Technologies, LLC v. Simon Greenstone Panatier Bartlett (2015). A party seeking transfer under 28 U.S.C. § 1412 must show that the interest of justice or the convenience of the parties favors it, and a court should presume in favor of exercising jurisdiction, so discretionary abstention under § 1334(c)(1) is warranted only in rare cases and the movant bears the burden.
• Legal Newsline v. Garlock Sealing Technologies LLC (2014). A court may not seal proceedings or judicial records merely because of protective orders or counsel's confidentiality designations. It must determine the source of the right of access, give public notice, consider less drastic alternatives, and state specific findings supporting any sealing.
• Taylor v. Alcatel-Lucent USA, Inc. (2014). Colorado River abstention applies only where federal and state suits are parallel, meaning substantially the same parties and issues. Suits based on distinct factual allegations of asbestos exposure are not parallel, and filing related suits in different forums was not abuse of process or sanctionable.

Ohio

• Keiser v. Donald Mckay Smith, Inc. (2023). A removing defendant shows fraudulent joinder only if there is no colorable basis for recovery against the in-state defendants; an argument that would defeat the claims against all defendants equally does not establish fraudulent joinder.
• Kallsen v. AW Chesterton Company (2021). Under 28 U.S.C. § 1446(b)(3), the 30-day removal period runs from receipt of a paper from which removability can first be clearly ascertained. Here that was the product identification disclosure and deposition, not the vague complaint and complaint brochure.
• Case v. Clark Indus. Insulation (8th Appellate District, 2018). Under Ohio Civ.R. 12(H)(1) and Gliozzo, a personal jurisdiction defense is waived only by omitting it from a responsive pleading or certain pre-pleading motions, not by active participation in the case. A notice of appearance under the Cuyahoga asbestos docket rules preserved all affirmative defenses.
• Ellis v. Bridgestone Americas, Inc. (2018). Under Rule 45(f), a court where compliance is required may transfer a motion to quash to the issuing court if the subpoenaed person consents. A late reply brief may be allowed in the court's discretion when the opposing party shows no prejudice.
• Shonkwiler v. AW Chesterton Company (2017). After the defendants able to invoke the federal officer statute were dismissed, only state law claims remained, and a federal court ordinarily declines supplemental jurisdiction and remands them to state court when the case is at an early stage.
• French v. AW Chesterton Company (2016). Contractors who build Navy equipment under close Navy direction can remove under the federal officer removal statute if they show a colorable government contractor defense. The 30-day removal clock starts when the plaintiff serves a paper showing the case is removable, and a defendant need not search its own records first.

Oklahoma

• In re Imerys Talc America, Inc. (2019). Bankruptcy 'related to' jurisdiction over a suit between non-debtors does not arise from indemnification or insurance agreements with the debtor when the defendant has not shown they apply and a separate later lawsuit would be needed to enforce them. The court also stated it would remand on equitable grounds under 28 U.S.C. § 1452(b).

Oregon

• Long v. Foster Wheeler Energy Corporation (2025). Federal officer removal requires a causal nexus between federally directed conduct and the plaintiff's claims, which is absent where the plaintiff disclaims exposure on Navy vessels. The saving to suitors clause bars a federal court from keeping a case removed from state court on admiralty jurisdiction alone.
• Long v. 3M Company (2024). Federal officer removal requires a causal nexus between the plaintiff's claims and the defendant's actions under federal direction, and a plaintiff's waiver of all claims from Navy and government-commissioned vessels removes that nexus. Admiralty jurisdiction over claims filed in state court does not by itself support removal.
• Chatfield v. Brenntag North America, Inc. (2023). Removal based on diversity is improper where a properly joined and served in-forum defendant exists. Fraudulent joinder requires showing the plaintiff cannot possibly state a claim against that defendant, and sworn denials or evidentiary disputes that require a searching merits inquiry do not meet that burden.
• Sheldon v. Cleaver-Brooks, Inc. (2021). For diversity purposes, a decedent's legal representative is deemed a citizen of the decedent's state, and a non-party beneficiary's citizenship does not count, because only the personal representative may bring an Oregon wrongful death action.
• Levin v. Johnson & Johnson (2019). Under 28 U.S.C. § 1452(b), a court may remand removed claims on any equitable ground, and it can do so without deciding whether the claims are "related to" a bankruptcy case. Here the factors (state-law predominance, non-core claims, jury demand, comity, avoiding split proceedings) favored remand.
• Levin v. Johnson & Johnson (2019). The court corrected a clerk's error by remanding the claims against all non-J&J defendants to Multnomah County Circuit Court and denied those defendants' motions to dismiss as moot; the claims against J&J stayed in federal court.
• Coury v. Air & Liquid Systems Corporation (2018). A settlement-related email from a plaintiff's side can be an "other paper" under 28 U.S.C. § 1446(b)(3) that restarts the removal clock, and a plaintiff who has regained remand through a waiver of Navy-ship claims and then signals an intent to pursue them can be removed again under the federal officer removal statute.
• Laux v. Akebono Brake Industry Co., Ltd. (2015). The voluntary-involuntary rule, under which a case not removable when filed can become removable only through the plaintiff's voluntary act, applies to removals under both 28 U.S.C. § 1446(b)(1) and § 1446(b)(3). The involuntary dismissal of the non-diverse defendant did not make the case removable.

Other federal courts

• Susino EX rel. Estate OF Decedent Susino v. Air & Liquid Systems Corporation (2023). A remand motion is not a prohibited continuation of an action under the bankruptcy automatic stay. Maritime claims brought under the saving to suitors clause are removable only with an independent basis for federal jurisdiction, and a new ground for removal raised after the 30-day removal period is untimely.
• Pace v. Air & Liquid Systems Corporation (2016). Under South Carolina law, a plaintiff must show exposure to a specific product with frequency, regularity and proximity to where she actually worked, and circumstantial evidence that is speculative or shows only that a product was present at the workplace does not meet that test.
• Savoie v. Huntington Ingalls, Incorporated (2016). Under the federal officer removal statute, negligence claims about safety measures the government did not control show no causal nexus, but pre-1996 Louisiana strict liability claims based on the mere use of asbestos required by government contract specifications do show one, and removal of the whole case is proper if a single claim qualifies.
• Wilde v. Huntington Ingalls, Incorporated (2015). To remove under the federal officer removal statute, a contractor must show a causal nexus between its actions under federal direction and the plaintiff's claims, and a colorable federal defense. Without evidence the exposed worker was around the federally directed work, or details of the claimed government specifications, the contractor cannot show a likelihood of success.