73 F. Supp. 3d 323
S.D.N.Y.2014Background
- Marie Maguire (individually and as executrix of Thomas Maguire) sued multiple defendants in NY State Supreme Court for asbestos-related injuries; Crane Co. was added in an earlier amended complaint.
- The FAC and SAC did not allege asbestos exposure during Thomas Maguire’s Navy service; later interrogatory responses (served Aug 19, 2014) did state exposure aboard USS Hornet and USS Kitty Hawk (1962–1963).
- Crane removed to federal court under the federal-officer/federal-contractor removal statute, 28 U.S.C. § 1442(a)(1), asserting a colorable federal-contractor defense.
- Maguire moved to remand, arguing removal was untimely (because an Initial Fact Sheet filed in the county clerk’s office earlier disclosed naval service) and that she would abandon any claims based on naval service so federal jurisdiction disappeared.
- The court treated the FAC/SAC allegations as true, considered the interrogatory responses and Crane’s declarations, and evaluated timeliness and subject-matter-jurisdiction under controlling Second Circuit and Supreme Court precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of removal under 28 U.S.C. § 1446(b)(3) | Maguire: Crane had constructive notice from the Initial Fact Sheet filed in the county clerk’s office, so the 30‑day removal window passed. | Crane: Removal was within 30 days of service of interrogatory responses (Aug 19, 2014) that first revealed Navy exposure; the IFS was not served on Crane. | Held: Removal timely. Filing an IFS in the clerk’s office without service does not trigger the § 1446(b) 30‑day clock. |
| Existence of federal-question jurisdiction via federal‑contractor/federal‑officer removal | Maguire: She will abandon any claims premised on Navy exposure, so no basis for federal‑officer removal now. | Crane: SAC (and interrogatory responses) alleges exposure during the Navy period; Crane proffers evidence it acted as a government contractor then, making a colorable federal defense. | Held: Federal jurisdiction exists based on the pleadings at time of removal; unilateral statement in brief does not eliminate jurisdiction—remand denied. |
| Effect of plaintiff’s post‑removal disclaimer of federal claims | Maguire: The disclaimer eliminates the federal basis for federal jurisdiction and requires remand. | Crane: Jurisdiction is assessed on the face of the complaint at removal; plaintiff must amend complaint to actually narrow claims. | Held: Court rejects informal narrowing in briefing; a formal amended complaint is required. |
| Whether court will remand if plaintiff amends to remove federal claims | Maguire: Seeks immediate remand if federal claims are abandoned. | Crane: Implicitly opposes automatic remand; court should consider supplemental jurisdiction factors. | Held: Court grants leave to amend; after an amended complaint removing federal‑contractor exposure, plaintiff may move to remand and the court will then consider whether to decline supplemental jurisdiction under Carnegie‑Mellon factors. |
Key Cases Cited
- Whitaker v. Am. Telecasting, Inc., 261 F.3d 196 (2d Cir. 2001) (§ 1446(b) removal period is triggered by formal service, not mere receipt)
- Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999) (service of process is the trigger for responsive deadlines)
- Moltner v. Starbucks Coffee Co., 624 F.3d 34 (2d Cir. 2010) (defendant need not look beyond the initial pleading for removability)
- Cutrone v. Mortgage Elec. Registration Sys., Inc., 749 F.3d 137 (2d Cir. 2014) (no independent duty on defendant to investigate removability)
- In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 488 F.3d 112 (2d Cir. 2007) (elements for removal by a private party under § 1442(a)(1))
- Cuomo v. Crane Co., 771 F.3d 113 (2d Cir. 2014) (government‑contractor defense can support removal in asbestos cases)
- City of Chicago v. Int’l College of Surgeons, 522 U.S. 156 (1997) (well‑pleaded complaint rule governs federal‑question jurisdiction)
- Jefferson County v. Acker, 527 U.S. 423 (1999) (federal officer removal permits removal when defense depends on federal law)
- Carnegie‑Mellon Univ. v. Cohill, 484 U.S. 343 (1988) (district courts may decline supplemental jurisdiction when federal claims are eliminated early)
- Hazel Bishop, Inc. v. Perfemme, Inc., 314 F.2d 399 (2d Cir. 1963) (jurisdiction assessed at time of removal; later plaintiff amendments do not negate original jurisdiction)