James E. JOYNER,
A.C. & R. INSULATION CO., et al.
CATHERINE C. BLAKE, District Judge.
Plaintiff James Joyner initiated this asbestos products-liability action in the Circuit Court for Baltimore City in June 2012. Two months later defendant Crane Co. removed the case to this court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), on the basis of the government contractor defense. No other defendant joined in Crane Co.'s removal to federal court. Soon thereafter Joyner moved to remand the case-either in toto or in part-to the state court. This court then severed Joyner's claims against Crane Co. from the rest of the suit and remanded the other claims to the Circuit Court for Baltimore City.
The severance and dismissal led to a flurry of motions and filings. Defendants Crane Co. and Owens-Illinois, Inc. moved for reconsideration two weeks later. Without responding to those motions, Joyner filed a "notice of abandonment of claims and request for remand." That putative notice announced that Joyner would no longer seek damages related to Crane Co.'s alleged use of asbestos in valves that it manufactured, distributed, or sold while Joyner worked in the United States Coast Guard-the valves that gave rise to Crane Co.'s invocation of the government contractor defense. But Joyner continues to seek damages from Crane Co. for its alleged use of asbestos in its Cranite gaskets. He therefore asks this court to remand his gasket claim against Crane Co. to the state court, which would end this federal litigation.
Crane Co. and Owens-Illinois voiced procedural and substantive objections to Joyner's attempt to abandon his claim against Crane Co. with respect to its valves. In its opposition, Crane Co. argued that it would be inappropriate to permit Joyner to dismiss or abandon his valve claim because, inter alia, Crane Co. can also assert a federal defense with respect to its Cranite gaskets. Crane Co. therefore contends that this case belongs in federal court, with or without the valve claim. Joyner then filed his reply to the notice of abandonment, asking the court to convert the putative notice to a motion under Rule 15(a) or Rule 41(a)(2). Taking umbrage with Crane Co.'s belated assertion of the federal government contractor defense with respect to its gaskets, though, Joyner also moved to "strike any and all arguments pertaining to Crane Co.'s claim that it is entitled to pursue the federal officer defense in connection with its Cranite gaskets." That precipitated another round of briefing.
These various motions have been fully briefed, and no oral argument is necessary. See Local R. 105.6. For the reasons set forth below, the motion to strike will be denied as invalid. The notice of abandonment will be treated as a motion to amend under Rule 15(a), and it will be granted. The request for remand is converted to a motion for remand and will be granted as well. The motions for reconsideration will be denied. I address each motion in turn.
I. Notice of Abandonment and Request for Remand
Familiarity with the facts of this case is assumed. See generally Joyner v. A.C. & R. Insulation Co., No. 12-2294, 2013 WL 877125 (D. Md. Mar. 7, 2013). Because the disposition of this motion may affect the pending proceedings in the Circuit Court for Baltimore City, however, I begin with some basic background information. Joyner's state-court complaint included four causes of action: strict liability (Count I), breach of warranty (Count II), negligence (Count III), and aiding, abetting, and conspiracy liability (Count IV). The complaint named more than four dozen defendants, but it did not identify the specific products that allegedly caused or contributed to Joyner's mesothelioma, nor did the complaint include specific allegations about the locus or loci of his asbestos exposure.
During his deposition, Joyner identified two Crane Co. products that allegedly caused his mesothelioma: valves and Cranite gaskets. That testimony prompted Crane Co. to remove the case to this court on the basis of the government contractor defense. Crane Co.'s notice of removal discussed only its valves, however, and did not invoke the government contractor defense with respect to its Cranite gaskets. ( See Notice of Removal ¶¶ 10-11, ECF No. 1.)
On March 28, 2013, Joyner filed a "notice of abandonment of claims regarding Crane Co. valves only and request for remand." The cursory filing declared that "all claims and allegations regarding Crane Co. valves are abandoned and are no longer being pursued." (ECF No. 196.) Joyner asked the court to remand his remaining claims against Crane Co. (related only to Crane Co.'s Cranite gaskets) to the state court, which would divest this court of jurisdiction over all aspects of this litigation.
Both Owens-Illinois and Crane Co. have objected to Joyner's notice of abandonment. Noting that the remaining defendants have filed cross-claims against one another for contribution, they contend that Joyner's abandonment of all claims related to Crane Co.'s valves would not affect the defendants' cross-claims with respect to those valves. Because Crane Co.'s government contractor defense is ostensibly a colorable federal defense against those cross-claims, Owens-Illinois and Crane Co. argue that this court would maintain jurisdiction over the cross-claims even if Joyner forfeited his claim with respect to the valves. Owens-Illinois further argues that Joyner's attempt to abandon his valve claim and return to state court amounts to a manipulative tactic whose sole purpose is to evade federal jurisdiction.
Crane Co. raises another objection to Joyner's notice of abandonment: It maintains that there is no procedural vehicle that allows Joyner to abandon his valve claim against Crane Co. According to Crane Co., at this stage of the litigation Joyner can abandon a claim only through Rule 41(a)(2) voluntary dismissal or Rule 15 amendment of the complaint. Crane Co. argues that neither provision allows Joyner to abandon one portion of his claim against Crane Co.; Joyner could dismiss Crane Co. entirely from the suit, but he cannot abandon his claim with respect to Crane Co.'s valves while maintaining his claim with respect to the Cranite gaskets. Crane Co. also contends that Joyner cannot amend his complaint to repudiate the valve claim because neither Crane Co.'s valves nor any other specific product is expressly identified in the complaint. Thus, Crane Co. argues that there is nothing in the complaint that can be amended.
Finally, irrespective of whether the court permits Joyner to abandon his valve claim, Crane Co. also opposes Joyner's request to remand the other claims. In its brief Crane Co. discusses at length the applicability of the government contractor defense to its Cranite gaskets. Although Crane Co.'s notice of removal never mentioned its Cranite gaskets as a basis for removal, Crane Co. submits that "there is no requirement that a defendant remove a lawsuit on every available basis." (Crane Co.'s Opp. to Pl.'s Mot. to Strike at 2, ECF No. 204.) Remand would be improper and futile in Crane Co.'s view because Crane Co. would just remove the case once again.
Rather than filing a reply brief, Joyner opted to embed his reply in a motion to strike. Because Crane Co.'s notice of removal did not invoke the government contractor defense with respect to its Cranite gaskets, and the thirty-day window for removal has expired, Joyner argues that Crane Co. has waived its right to remove on that basis. Joyner thus contends that Crane Co.'s discussion of the merits of that defense should be stricken. Joyner further maintains that cross-defendants cannot remove a case and that cross-claims cannot confer federal jurisdiction. Joyner urges the court not to consider jurisdictional questions associated with the cross-claims until after the merits of Joyner's claims have been adjudicated. Turning to Crane Co.'s objection to the form of his abandonment, Joyner asks the court to convert his notice of abandonment to either a Rule 41(a) motion for voluntary dismissal or a Rule 15(a) motion to amend the complaint. And lastly, in the event the court maintains jurisdiction over part or all of Joyner's claims against Crane Co., Joyner requests a federal trial date before August 15, 2013.
In its opposition to the motion to strike, Crane Co. argued, among other things, that courts universally recognize the right of third-party defendants to remove a case under 28 U.S.C. § 1442(a). Joyner fervently disputed that assertion in his reply brief and again noted that Crane Co. waived its right to remove when it failed to articulate the ...