LOS ANGELES (Legal Newsline) - California federal judge Christina A. Snyder has remanded an asbestos lawsuit to state court on the grounds that the defendants "gambled" their chances for summary judgment in state court before falling back on removal to federal court.

Plaintiff Ted E. Newman of California filed his complaint on April 30, 2013, through Dan Newman, his brother and guardian ad litem, in the Los Angeles County Superior Court, alleging he developed mesothelioma as a result of various asbestos exposures.

On Feb. 19, the plaintiff filed an amended case report which no longer included the defendants that were citizens of California.

Then on March 21, defendant Ford Motor Company removed the case to U.S. District Court for the Central District of California, asserting that court maintained diversity jurisdiction.

Ford alleges that when the case was originally filed, there was no diversity because the plaintiff and several defendants are citizens of California.

Ford stated that this amended case report was the first indication that the California defendants had been dismissed from action, which therefore created complete diversity between Newman and the remaining defendants.

It further contended that according to Rule 28, removal is allowed within 30 days after receiving a copy of the amended pleading "from which it may first be ascertained that the case is one which is or has become removable."

The plaintiff then responded on March 26 requesting an ex parte application to remand the case back to the Los Angeles County Superior Court.

In his application to remand, Newman argued that the defendants received notice that the California defendants were dismissed from the case prior to Feb. 10 when he filed his request of dismissal of defendant The Pep Boys, Manny Moe & Jack of California.

He further alleges that Rule 28 gave defendants until March 12 to remove the case, making their notice for removal filed on March 21 untimely.

Also, because defendants National Automotive Parts Association, Pneumo Abex and Honeywell International all filed summary judgment motions in the Superior Court, which were denied on March 21, the defendants' right to removal was waived.

"Plaintiff contends that, by waiting for the Superior Court to adjudicate their motions for summary judgment, defendants demonstrated an intent to adjudicate this matter in state court, and thus waived their right to remove," Snyder wrote.

In Snyder's March 28 order, she agreed that the defendants waived their right for removal by waiting for the Superior Court to rule on their motions for summary judgment, which alluded to their intent to have the case tried there.

Lastly, Newman argues that due to his mesothelioma diagnosis and the possibility that he may die within the next several months, he was granted a preferential trial date, which was supposed to begin on April 1 with Judge Emilie Elias presiding.

According to his motion to remand, Dr. Myles Yanta declared on Oct. 23 that it was his opinion that there was substantial medical doubt whether Newman would survive four to six months beyond that date.

However, he added that removal to federal court "aims to disrupt that trial date and perhaps delay the trial until after plaintiff has died."

Snyder wrote that even if the court accepted Ford's argument that the defendants were not notified until Feb. 19 of the new list of defendants, it still failed to remove the case immediately upon discovery, waiting 30 days "until after they received an unfavorable result on the three motions for summary judgment."

"[I]t appears that defendants gambled on obtaining a favorable result in Superior Court, and only removed once their gamble failed," Snyder stated.

"Courts have frequently considered it important to discourage gamemaship in the choice of judicial forum," she added.

Snyder also awarded Newman $3,200 in attorney's fees, finding that the defendants lacked an "objectively reasonable basis" for seeking removal.

According to the Los Angeles County Superior Court's case summaries, Newman's trial was scheduled to begin April 11 but was continued to April 16.

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

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