Hessler v. Armstrong World Industries, Inc., Civ. A. No. 88-139.

• Decision Date: 07 April 1988
• Docket Number: Civ. A. No. 88-139.
• Parties: Saskia HESSLER, Individually and as Executrix of the Estate of Paul Hessler, deceased, Plaintiff, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants.
• Court: U.S. District Court — District of Delaware

684 F. Supp. 393

Saskia HESSLER, Individually and as Executrix of the Estate of Paul Hessler, deceased, Plaintiff, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants.

Civ. A. No. 88-139.

United States District Court, D. Delaware.

April 7, 1988.

Robert Jacobs of Jacobs & Crumplar, P.A., Wilmington, Del., for plaintiff.

C. Scott Reese of Cooch & Taylor, Wilmington, Del., for defendant Raymark Industries, Inc.

Michael Weiss of Kimmel, Spiller, & Weiss, Wilmington, Del., for defendant Metropolitan Life Ins. Co.

MEMORANDUM OPINION

ROTH, District Judge.

This is an asbestos action, originally filed in Delaware Superior Court by Paul Hessler, now deceased, and his wife to recover damages incurred by Mr. Hessler having been stricken with asbestosis. The Hesslers are citizens of Delaware. When the action was first filed, some of the defendants were citizens of Delaware. Now, however, all but two defendants, Raymark Industries, Inc. (Raymark) and Metropolitan Life Insurance Company (Metropolitan), have settled. These two remaining defendants are foreign corporations. On March 8, 1988, Raymark and Metropolitan filed a petition for removal to this Court on the ground that diversity of citizenship now exists.

Plaintiffs have filed a motion for remand on the basis that defendants' removal petition was not timely filed under 28 U.S.C. § 1446(b) second paragraph. This subsection provides:

If a case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after the receipt by the defendants, through service or otherwise, of a copy of the amended pleading, motion order or other paper from which it may be first ascertained that the case is one which is or has become removable.

(emphasis added).

The debate here is whether and when defendants received an "other paper" which notified them that the non-diverse defendants had settled and that the case had become removable.

Defendants in the original action, other than Raymark and Metropolitan, were known as the "Wellington" defendants or the "Asbestos Claims Facility" defendants. The Wellington group, as noted above, included non-diverse defendants. Plaintiffs represent that the Wellington group settled on October 21, 1987. On the very date of settlement, as plaintiffs point out, a letter was mailed from Robert Anderson, attorney for the Asbestos Claims Facility defendants, to all defense counsel. This letter stated in relevant part: "The Asbestos Claims Facility Defendants have settled the five malignancy claims on for trial in January, 1988.... The remaining defendants in these cases should quickly select a medical coordinator and I will transfer all medical materials to him or her." Anderson references the Hessler case in the heading of this letter.

The next day, October 22, 1987, there was a general asbestos scheduling conference in the Delaware Superior Court before Judge Clarence W. Taylor. The attorneys for the various defendants in all the Superior Court asbestos cases attended. This included the attorneys for Raymark and Metropolitan. At that meeting the scheduling of trials in the various asbestos cases was discussed. Robert Jacobs, attorney for the asbestos plaintiffs, including the Hesslers, stated to the court at that conference: "It appears now that Wellington — and we have settled more than one Wellington out, more than just the George case. They are out in the Clark, Johnson, Davis, Hubert sic and Hessler cases as well."¹ Later, during that same conference, Robert B. Anderson, attorney for the Wellington/Asbestos Claims Facility defendants, stated: "In January we had set five cases for trial that the Wellington Companies have settled: That's Huber, Kessler sic, Clark, Jacob Johnson, and Harry B. Davis." To this statement, Jacobs immediately replied: "Right."²

On December 3, 1987, there was a further letter from Anderson to the other asbestos defense counsel, in which he wrote:

The Asbestos Claims Facility defendants have settled the claims in these cases. The following firms will act as medical coordinators:

Cooch & Taylor Charles Clark Charles Huber Goldfein & Joseph Jacob Johnson Harry B. Davis Kimmel, Spiller & Weiss Paul Hessler

It is clear from these letters and from the statements of Jacobs and Anderson before Judge Taylor that the non-diverse defendants had settled, that counsel for Raymark and Metropolitan were aware of this, and that Jacobs had acknowledged to the Court that plaintiffs had settled with the non-diverse defendants. All of this occurred more than three months before the Petition to Remove was filed on March 8, 1988.

Defendants counter that notice of the Wellington settlement did not occur for purposes of 1446(b) until February 25, 1988 when counsel for the plaintiff wrote to Judge Taylor regarding the Wellington settlement. The letter to Judge Taylor begins: "As you were formally told on Tuesday, February...