The tit-for-tat between an asbestos plaintiff and a defendant on whether a case should proceed in state court or federal court has ended in a ruling from the U.S. Court of Appeals for the Fourth Circuit that the case should move forward in Baltimore City Circuit Court.
Defendant Crane Co. allegedly made valves and gaskets that contained asbestos and were supplied to the U.S. Navy. Plaintiff James Joyce, who died from mesothelioma, alleged his illness was caused by exposure to asbestos while working as an electrician for the U.S. military and then during his private-sector career.
Crane removed the case to federal court by asserting the federal law defense that it had supplied the valves in conformance with military specifications. But Joyner’s counsel amended his complaint to abandon his claims against Crane regarding the valves. The district court remanded the case and the Fourth Circuit upheld that decision.
Crane took the position it had not made gaskets used on Navy ships. When the plaintiff dismissed its claims regarding Crane-made valves, Crane wanted to keep the case in federal court by asserting the same federal-law defense as it was going to use regarding the gaskets.
But the appellate court said it was too late because federal district courts have no discretion to permit new allegations of a jurisdictional basis 30 days after cases are removed to federal court.
“Our litigation system typically operates on a raise-or-waive model: if a litigant fails to raise a claim in a complaint, or a defense in an answer, or to preserve an objection at trial, they are generally out of luck,” Judge Albert Diaz wrote in the opinion in which Judge James A. Wynn Jr. joined. Diaz said “it is thus reasonable to expect that a litigant would raise every ground for removal in his initial filing. Such a rule prevents precisely the incessant back-and-forth controversy we see here.”
Judge Allyson K. Duncan concurred in the judgment only.
Amaris Elliott-Engel contributes to law.com.