Heather Isringhausen Gvillo Mar. 5, 2014, 3:40pm

TACOMA, Wash. (Legal Newsline) - A Washington federal court has granted an emergency motion to remand an asbestos lawsuit that was removed from superior court just days before it was set to go to trial.

In the Feb. 18 order, Judge Ronald B. Leighton of the United States District Court for the Western District Washington granted plaintiff Wesley Allen's emergency motion to remand on the grounds that because a settlement agreement reached with the last remaining non-diverse party has not been finalized, the state still maintains jurisdiction over the case.

The suit was remanded to the Pierce County Superior Court in Judge Jerry Costello's courtroom, who rescheduled the estimated 12-day trial for March 10.

Defendant AII removed the case to federal court on Feb. 14, just five days before the trial in Pierce County was scheduled to begin. Its removal was triggered by Allen's settlement with defendant Gensco, which has not been formally dismissed.

Leighton states that AII's removal notice is based on its interpretation of Rule 28 U.S.C. 1446(b), which states a notice of removal must be filed within 30 days after the receipt by the defendant or the service of summons.

It also requested removal claiming "formal dismissal of the non-diverse party is not required, arguing the right to remove is triggered when a defendant learns that 'the plaintiff no longer intends to proceed' against the non-diverse defendant."

However, Allen contends removal to federal court was tactical and improper, and was only done to deprive him of his Feb. 19 trial date.

AII cited several cases supporting its position, beginning with Harris v Bankers Life, which found that removal was timely when filed after the remaining defendant received a letter from a plaintiff's counsel suggesting that he was not proceeding against a resident defendant who had not been served or dismissed.

Leighton wrote that in Harris, the case included a defendant who had never been served rather than a defendant who litigated to the eve of trial and settled.

"It is not possible to say that on the record that Allen's claims have been abandoned - the terms of the settlement, its performance, and the court's continuing jurisdiction over the parties in the event of a dispute are all unknown," he added.

AII then cites Texas case Martineau v ARCO Chemical Co., claiming the court rejected the argument a formal and final dismissal under state law is required. The court instead referred to Texas State Court Rule 11, which "effectively eliminated the non-diverse party for remand purposes."

Leighton responded that Wash. does not have a similar rule to apply to the case at hand and that the terms and enforceability of the settlement are not known. He wrote that Allen cited a better rule.

"A party whose presence in the action would destroy diversity must be dropped formally, as a matter of record, to permit removal to federal court," Leighton stated.

Allen is terminally ill with adenocarcinoma, an asbestos-related disease.

Leighton denied Allen's request for costs and attorneys fees.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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