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Gates v. Ao Smith Water Products Co.

United States District Court, N.D. New York

December 30, 2014

KENNETH GATES, JR., as Executor of the Estate of KENNETH GATES AND GLADYSGATES, Plaintiff,
v.
A.O. SMITH WATER PRODUCTS CO.; A.W. CHESTERTON COMPANY; AMERICAN STANDARD, INC.; AVIATION MANUFACTURING CORPORATION, Individually and as successor in interest to SPENCER HEATER; BURNHAM, LLC, as successor to BURNHAM CORPORATION; CERTAIN TEED CORPORATION; CRANE CO.; CROWN BOILER CO., formerly known as Crown Industries Inc.; DANA CORPORATION; DURABLA MANUFACTURING COMPANY; EMPIRE-ACE INSULATION MFG. CORP.; H.B. SMITH COMPANY, INCORPORATED; HOLLINGSWORTH & VOSE, CO.; ITT INDUSTRIES, INC.; ITT INDUSTRIES, INC., as successor to Bell & Gossett Company and as successor to Kennedy Valve Manufacturing Co., Inc., and as successor to Grinnell Valve Co., Inc.; J.H. FRANCE REFRACTORIES COMPANY; KENTILE FLOORS, INC.; MINNESOTA MINING & MANUFACTURING COMPANY; PEERLESS INDUSTRIES, INC.; ROBERT A. KEASBEY COMPANY; UTICA BOILERS, INC., Individually and as successor to UTICA RADIATOR CORPORATION; WEIL-MCLAIN, a division of The Marley Company; and YORK INDUSTRIES CORP., Defendants.

WEITZ, LUXENBERG LAW FIRM KYLE A. SHAMBERG, ESQ., GENNARO SAVASTANO, ESQ. JOHN E. RICHMOND, ESQ., New York, NY, Attorneys for Plaintiff.

MCELROY, DEUTSCH LAW FIRM, JOSEPH P. LASALA, ESQ, Morristown, NJ, Attorneys for Defendant A.O. Smith, Water Products Co.

WILSON, ELSER LAW FIRM, JULIE R. EVANS, ESQ., Attorneys for Defendant Burnham, LLC, New York, NY, K&L GATES LLP ANGELA DIGIGLIO, ESQ., ERIC R.I. COTTLE, ESQ., NICOLE M. KOZIN, ESQ., TARA L. PEHUSH, ESQ., New York, NY, Attorneys for Defendant Crane Co.

MCGUIRE, WOODS LAW FIRM, GENEVIEVE MACSTEEL, ESQ., New York, NY, Attorneys for Defendant ITT Industries, Inc.

LEWIS, BRISBOIS LAW FIRM PHILIP J. O'ROURKE, ESQ., ANNA M. DILONARDO, ESQ., New York, NY, Attorneys for Defendants Peerless, Industries, Inc. and Robert A. Keasbey, Company.

BARRY, MCTIERNAN LAW FIRM SUZANNE M. HALBARDIER, ESQ. WILLIAM A. COONEY, ESQ., New York, NY, Attorneys for Defendant Utica Boilers, Inc.

MACKENZIE, HUGHES LAW FIRM DAVID P. SCHAFFER, ESQ., Syracuse, NY, Attorneys for Defendant Weil-McLain.

HURWITZ, FINE LAW FIRM V. CHRISTOPHER POTENZA, ESQ. Buffalo, NY, Attorneys for Defendant Weil-McLain.

MEMORANDUM-DECISION and ORDER

DAVID N. HURD, District Judge.

I. INTRODUCTION

Kenneth Gates, Sr. ("Mr. Gates" or "decedent") commenced this action in New York State Supreme Court, Broome County, alleging that he had been exposed to, and developed illnesses from, asbestos and asbestos-containing products "mined, manufactured, processed, imported, converted, compounded, installed, or sold" by, inter alia, defendant Crane Co. ("Crane" or "defendant"). Following Mr. Gates's death, Kenneth Gates, Jr., decedent's son and executor of his estate ("plaintiff"), continued to prosecute the action.

On November 18, 2013, after a series of discovery responses alleged Mr. Gates's asbestos exposure occurred in part during his service in the United States Navy, Crane invoked the federal officer removal statute, 28 U.S.C. ยง 1442(a)(1), and removed this action to federal court. Shortly thereafter, plaintiff moved to remand based on a lack of subject matter jurisdiction. Plaintiff's motion was denied in a January 9, 2014 Memorandum-Decision and Order. Gates v. A.O. Smith Water Prods., Co., No. 3:13-CV-1435, 2014 WL 104965 (N.D.N.Y. Jan. 9, 2014) (the "January 9 MDO").

Plaintiff has now moved again to remand this action to state court, renewing his argument that subject matter jurisdiction is lacking in this forum. Crane opposes. The motion was fully briefed and considered ...


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