Varney v. Johns-Manville Corp.

• Decision Date: 13 February 1987
• Docket Number: No. C-86-1830 SAW.,C-86-1830 SAW.
• Citation: 653 F. Supp. 839
• Parties: Carl VARNEY, Plaintiff, v. JOHNS-MANVILLE CORP., et al., Defendants.
• Court: U.S. District Court — Northern District of California

653 F. Supp. 839

Carl VARNEY, Plaintiff, v. JOHNS-MANVILLE CORP., et al., Defendants.

No. C-86-1830 SAW.

United States District Court, N.D. California.

February 13, 1987.

Francis X. Driscoll, Walnut Creek, Cal., George W. Kilbourne, Martinez, Cal., for plaintiff.

George Cumming, Brobeck, Phleger & Harrison, San Francisco, Cal., Mark Arruti, Lea, Balavage & Arruti, Sacramento, Cal., William Schofield, Crosby, Heafey, Roach & May, Oakland, Cal., Capps, Staples, Ward, Hastings & Dodson, Walnut Creek, Cal., William Connell, Gobson, Dunn & Crutcher, San Jose, Cal., for defendants.

ORDER GRANTING MOTION TO REMAND CASE TO STATE COURT

WEIGEL, District Judge.

The Court has considered the briefs, arguments of counsel, and the entire record.

Plaintiff Carl Varney, a citizen of California, originally filed this action on July 20, 1981 in the Superior Court of Alameda County. He named as defendants various asbestos companies and welding companies. Varney complains of health problems caused by exposure to asbestos and welding fumes.

On April 9, 1986, defendant Westinghouse Electric Corp. learned that Western MacArthur Company, the sole remaining California defendant, had been dismissed from the case by plaintiff, creating complete diversity of citizenship. The next day, Westinghouse filed a petition for removal, based on diversity jurisdiction, and served it on those defendants it believed remained in the case. The defendants that were served joined the removal petition in a timely fashion.

Westinghouse did not serve the petition on defendants Pittsburgh Corning or Armstrong World Industries because it incorrectly believed that they had settled with plaintiff. Pittsburgh Corning and Armstrong World Industries did not learn of Western MacArthur's dismissal, or of the removal, until they were served with plaintiff's motion to remand on July 24, 1986. Within thirty days of this service, but more than thirty days after Westinghouse learned of the basis for removal or filed its petition, Pittsburgh Corning and Armstrong World Industries filed a petition for removal and a joinder in the earlier petition for removal.

Plaintiff moves that this court remand the case to the state court on the ground that some defendants did not petition to remove the case in a timely manner.¹

This case falls within the second paragraph of 28 U.S.C. § 1446(b) (1982), which requires a defendant to file a petition to remove within thirty days of first receiving notice that the case is removable. The statute does not deal explicitly with multiple defendants who receive the information indicating removability at different times. The question to be decided here is when the thirty-day period began to run for Pittsburgh Corning and Armstrong World Industries.

This court holds that the thirty-day period began when defendant Westinghouse received notice that the case had become removable. This ruling is consistent with the requirement that the statute be strictly interpreted against permitting removal. Shamrock Oil & Gas v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Libhart v. Santa Monica Dairy Co., 592 F.2d 1062 (9th Cir.1979).

Defendants suggest two alternative interpretations, each of which support removal. The first interpretation is that the petition must be filed within thirty days of the time that the first defendant receives the information, and defendants who receive notice after that thirty-day period can be ignored. See Adams v. Lederle Laboratories, 569 F.Supp. 234, 246 (W.D.Mo.1983). This interpretation is not satisfactory because it may have the consequence of forcing defendants who did not have notice to defend the case in federal court or of forcing the case to be tried in both federal and state courts by splitting it between removing and nonremoving parties.

The second interpretation suggested is that each defendant may file within...