Gates v. A.O. Smith Water Products Co. et al
Filing
89
MEMORANDUM-DECISION and ORDER denying 62 Plaintiff's Second Motion to Remand to State Court. Signed by Judge David N. Hurd on 12/30/2014. (lah)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------KENNETH GATES, JR., as Executor of the
Estate of KENNETH GATES AND GLADYS
GATES,
Plaintiff,
-v-
3:13-CV-1435
A.O. SMITH WATER PRODUCTS CO.;
A.W. CHESTERTON COMPANY;
AMERICAN STANDARD, INC.; AVIATION
MANUFACTURING CORPORATION,
Individually and as successor in interest
to SPENCER HEATER; BURNHAM, LLC,
as successor to BURNHAM
CORPORATION; CERTAIN TEED
CORPORATION; CRANE CO.; CROWN
BOILER CO., formerly known as Crown
Industries Inc.; DANA CORPORATION;
DURABLA MANUFACTURING COMPANY;
EMPIRE-ACE INSULATION MFG. CORP.;
H.B. SMITH COMPANY, INCORPORATED;
HOLLINGSWORTH & VOSE, CO.; ITT
INDUSTRIES, INC.; ITT INDUSTRIES, INC.,
as successor to Bell & Gossett Company
and as successor to Kennedy Valve
Manufacturing Co., Inc., and as successor to
Grinnell Valve Co., Inc.; J.H. FRANCE
REFRACTORIES COMPANY;
KENTILE FLOORS, INC.; MINNESOTA
MINING & MANUFACTURING COMPANY;
PEERLESS INDUSTRIES, INC.; ROBERT A.
KEASBEY COMPANY; UTICA BOILERS, INC.,
Individually and as successor to UTICA
RADIATOR CORPORATION; WEIL-MCLAIN,
a division of The Marley Company; and
YORK INDUSTRIES CORP.,
Defendants.
-----------------------------------
APPEARANCES:
OF COUNSEL:
WEITZ, LUXENBERG LAW FIRM
Attorneys for Plaintiff
700 Broadway
New York, NY 10003
KYLE A. SHAMBERG, ESQ.
GENNARO SAVASTANO, ESQ.
JOHN E. RICHMOND, ESQ.
MCELROY, DEUTSCH LAW FIRM
Attorneys for Defendant A.O. Smith
Water Products Co.
1300 Mount Kemble Avenue
P.O. Box 2075
Morristown, NJ 07692
JOSEPH P. LASALA, ESQ.
WILSON, ELSER LAW FIRM
Attorneys for Defendant Burnham, LLC
150 East 42nd Street
New York, NY 10017
JULIE R. EVANS, ESQ.
K&L GATES LLP
Attorneys for Defendant Crane Co.
599 Lexington Avenue
New York, NY 10020
ANGELA DIGIGLIO, ESQ.
ERIC R.I. COTTLE, ESQ.
NICOLE M. KOZIN, ESQ.
TARA L. PEHUSH, ESQ.
MCGUIRE, WOODS LAW FIRM
Attorneys for Defendant ITT Industries, Inc.
1345 Avenue of the Americas, 7th Floor
New York, NY 10105
GENEVIEVE MACSTEEL, ESQ.
LEWIS, BRISBOIS LAW FIRM
Attorneys for Defendants Peerless
Industries, Inc. and Robert A. Keasbey
Company
77 Water Street, Suite 2100
New York, NY 10005
PHILIP J. O'ROURKE, ESQ.
ANNA M. DILONARDO, ESQ.
BARRY, MCTIERNAN LAW FIRM
Attorneys for Defendant Utica Boilers, Inc.
2 Rector Street
New York, NY 10006
SUZANNE M. HALBARDIER, ESQ.
WILLIAM A. COONEY, ESQ.
MACKENZIE, HUGHES LAW FIRM
Attorneys for Defendant Weil-McLain
101 South Salina Street, Suite 600
Syracuse, NY 13202
DAVID P. SCHAFFER, ESQ.
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HURWITZ, FINE LAW FIRM
Attorneys for Defendant Weil-McLain
1300 Liberty Building
424 Main Street
Buffalo, NY 14202
V. CHRISTOPHER POTENZA, ESQ.
DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
Kenneth Gates, Sr. ("Mr. Gates" or "decedent") commenced this action in New York
State Supreme Court, Broome County, alleging that he had been exposed to, and developed
illnesses from, asbestos and asbestos-containing products "mined, manufactured,
processed, imported, converted, compounded, installed, or sold" by, inter alia, defendant
Crane Co. ("Crane" or "defendant"). Following Mr. Gates's death, Kenneth Gates, Jr.,
decedent's son and executor of his estate ("plaintiff"), continued to prosecute the action.
On November 18, 2013, after a series of discovery responses alleged Mr. Gates's
asbestos exposure occurred in part during his service in the United States Navy, Crane
invoked the federal officer removal statute, 28 U.S.C. § 1442(a)(1), and removed this action
to federal court. Shortly thereafter, plaintiff moved to remand based on a lack of subject
matter jurisdiction. Plaintiff's motion was denied in a January 9, 2014
Memorandum–Decision and Order. Gates v. A.O. Smith Water Prods., Co., No.
3:13-CV-1435, 2014 WL 104965 (N.D.N.Y. Jan. 9, 2014) (the "January 9 MDO").
Plaintiff has now moved again to remand this action to state court, renewing his
argument that subject matter jurisdiction is lacking in this forum. Crane opposes. The
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motion was fully briefed and considered on the basis of the submissions without oral
argument.
II. DISCUSSION1
A. Legal Standard
"[A]ny civil action brought in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the defendant or the defendants, to the
district court of the United States for the district and division embracing the place where such
action is pending." 28 U.S.C. § 1441(a). "When a party files a motion to remand challenging
the removal of an action from state court, 'the burden falls squarely upon the removing party
to establish its right to a federal forum.'" Gates, 2014 WL 104965, at *2 (quoting Hill v. Delta
Int'l Mach. Corp., 386 F. Supp. 2d 427, 429 (S.D.N.Y. 2005)).
B. Plaintiff's Motion
Plaintiff advances two grounds in support of this second motion for remand. First,
plaintiff points to the recent deposition testimony of Howard Bronson, Mr. Gates's erstwhile
co-worker at Bronson Fuel Company in Binghamton, New York from 1960 to 1975. Pl.'s
Mem. 6.2 Plaintiff argues that Mr. Bronson "offered no testimony about [Mr. Gates's]
exposure to asbestos during his years of service in the United States Navy." Id. Of course, it
is completely unsurprising that Mr. Bronson was unable to provide testimony about
decedent's possible exposure to asbestos during his period of naval service. As Crane notes
and plaintiff's own argument reveals, Mr. Bronson did not serve with decedent during his
1
The January 9 MDO contains a thorough recitation of the relevant factual background and it will not
be repeated here.
2
Pagination corresponds to that assigned by CM/ECF.
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1953-1955 term of military service, but rather worked with him during a later period from
1960-1975. Therefore, the presence or absence of asbestos-related testimony from Mr.
Bronson is completely irrelevant to the issue at hand.
Second, and in conjunction with this "development" regarding Mr. Bronson's
testimony, plaintiff asserts that he now "abandon[s] all claims premised upon [Mr. Gates's]
exposure to asbestos while he served in the United States Navy." Pl.'s Mem. 7. Plaintiff
argues that this "abandonment" destroys subject matter jurisdiction and requires the case to
be remanded pursuant to 28 U.S.C. § 1447(c), which provides:
A motion to remand the case on the basis of any defect other than
lack of subject matter jurisdiction must be made within 30 days after
the filing of the notice of removal under section 1446(a). If at any
time before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.
As an initial matter, a plaintiff may not narrow the scope of his pleaded allegations by
simply informally "abandoning" certain claims in a memorandum of law. Roche Diagnostics
GmbH v. Enzo Biochem, Inc., 992 F. Supp. 2d 213, 219 (S.D.N.Y. 2013) ("It is well settled
that a party may not amend its pleadings in its briefing papers." (citations omitted)). More
importantly, plaintiff's reading of § 1447(c)—that narrowing the scope of his claims
completely destroys subject matter jurisdiction and forces a remand—has already been
considered and squarely rejected by at least one other federal district court in this
Circuit. Maguire v. A.C. & S., Inc., 2014 WL 6611748, at *4 (S.D.N.Y. Nov. 21, 2014) ("A
plaintiff's later attempts to narrow the scope of [his] claims, so as to eliminate federal claims
or defenses, do not erase the Court's subject matter jurisdiction." (citations omitted)).
Essentially, plaintiff contends that because "the record is entirely bereft of evidence
substantiating [asbestos] exposure" during the time period of Mr. Gates's naval service,
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Crane's federal contractor defense has been revealed as no longer "colorable." But this
argument neglects the impact of the January 9 MDO, which found that plaintiff's operative
complaint, read in conjunction with interrogatory responses detailing a "Jobsite-Specific
Exposure History" that included Mr. Gates's period of naval service, was fairly read against
defendant as alleging "exposure aboard specific ships, during a specific time period, from
specific asbestos-containing products, including valves, that were manufactured by specific
defendants, including Crane." The January 9 MDO also found that defendant, for its part,
had adduced sufficient evidence to satisfy its burden of showing that it had served as a U.S.
Navy contractor, provided asbestos-related products during that period, and that those
products were provided pursuant to specifications governing federal contractors.
In other words, original jurisdiction in this federal forum was established when the
January 9 MDO concluded that Crane had provided sufficient evidence to demonstrate a
"colorable" federal defense supporting removal. Whether defendant's proffered evidence
(and other evidence in the record) will ultimately suffice to establish a complete defense at
trial—or is even sufficient to raise a fact issue that could survive a round of dispositive motion
practice—is not the question at issue here. Cuomo v. Crane Co., 771 F.3d 113 (2d Cir.
2014) ("[T]he district court's role on a remand motion is not to resolve whether the defendant
has established the federal contractor defense or to resolve factual disputes, but only to
ensure the existence of some competent evidence supporting a 'colorable' federal
defense.").
And as the Maguire Court has noted, even if plaintiff were to formally amend his
operative complaint so as to eliminate federal claims and defenses, leaving only state-law
claims remaining, this would merely raise a question as to whether the continued exercise
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of § 1367 supplemental jurisdiction is proper. See 2014 WL 6611748, at *4 (citations
omitted); accord Dougherty v. A.O. Smith Corp., 2014 WL 4447293, at *1-2 (D. Del. Sept. 8,
2014) (noting that even formal dismissal of claims merely prompts the exercise of discretion
contemplated in § 1367(c)(3)).
Indeed, the continued exercise of supplemental jurisdiction would still be subject to the
district court's careful weighing of "the values of judicial economy, convenience, fairness, and
comity" as well as a consideration of whether the party seeking remand "had engaged in
forum manipulation." Maguire, 2014 WL 6611748 at *5 (citations omitted). In any event,
such discretion would only be properly exercised if the federal contractor defense was also
unavailable to each and every remaining defendant, a fact entirely unclear from the state of
the litigation at this juncture. See Frawley v. Gen. Elec. Co., 2007 WL 656857, at *6
(S.D.N.Y. Mar. 1, 2007) (noting that defendant's removal gave district court original
jurisdiction "over all claims against all government contractors who can assert federal actor
status-not just over the removing defendant" and concluding that "Second Circuit precedent
does not permit this court to remand the case if any claims over which this court has original
jurisdiction remain in suit" (emphasis in original)). Accordingly, plaintiff's motion to remand
will be denied.
III. CONCLUSION
The January 9 MDO determined Crane had provided sufficient evidence to establish a
colorable federal defense and that jurisdiction in this forum was proper. Neither the
additional evidence of Mr. Bronson's irrelevant testimony nor plaintiff's informal
"abandonment" of claims related to Mr. Gates's naval service warrant a reversal of that
decision.
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Therefore, it is
ORDERED that
Plaintiff's second motion to remand is DENIED.
IT IS SO ORDERED.
Dated: December 30, 2014.
Utica, New York.
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