STONE v. ASBESTOS CORPORATION LTD.

REPORT AND RECOMMENDATION

SHERRY R. FALLON, Magistrate Judge.

I. INTRODUCTION

Presently before the court in this diversity personal injury action is a Motion to Remand to State Court ("Motion to Remand" or "Motion") filed individually by Oralia Stone ("Plaintiff') and on behalf of decedent Thomas 0. Stone ("Mr. Stone"), on the grounds that the notice of removal filed by Defendant Foster Wheeler Energy Corporation ("Foster Wheeler") was untimely in light of the requirements of 28 U.S.C. § 1446(b). (D.I. 27) Foster Wheeler opposes Plaintiffs Motion. (D.I. 36) For the reasons that follow, I recommend that the Motion to Remand be GRANTED.

II. BACKGROUND

A. The Delaware Action

Plaintiff filed this asbestos personal injury action in the Superior Court of Delaware on April 23, 2012. (D.I. 1, Ex. A) In the Complaint, Plaintiff asserts state law causes of action based on Mr. Stone's alleged exposure to asbestos while working in different settings between 1958 and 1990. (Id., Ex. A) The Complaint provides, in pertinent part:

(Id., Ex. A 27-28) Foster Wheeler was served with the Complaint on July 18, 2012. (D.I. 29, Ex. E; D.I. 36 at 2)

On February 21, 2013, Foster Wheeler received a copy of Mr. Stone's military records (the "Military Records"). (D.I. 1, Ex. B; D.I. 36 at 3) The Military Records indicate, in relevant part, that Mr. Stone served in the United States Coast Guard and aboard the USCGC Chautauqua between 1962 and 1963. (D.I. 1, Ex. B)

On March 25, 2013, Foster Wheeler filed its notice of removal in this court, contending that it first ascertained that the state court action was removable under 28 U.S.C. § 1442(a)(1), the federal officer removal statute, from the content of the Military Records. (D.I. 1 at 1-2; see also D.I. 36 at 2, 8, 10)

On April 23, 2013, Plaintiff filed the pending Motion to Remand, asserting that Foster Wheeler's notice of removal was untimely filed. (D.I. 27)

B. The California Action

Prior to initiating the present case, Plaintiff filed a complaint against Foster Wheeler, among other defendants, in the Superior Court of California on March 1, 2011 (the "California Action"). (D.I. 29, Ex. A) The complaint in the California Action, like the pending Complaint, asserts various causes of action based on Mr. Stone's alleged exposure to asbestos. (Id., Ex. A) Plaintiff's pleadings in the California Action included an exhibit that lists locations and dates for Mr. Stone's alleged exposure to asbestos while he was employed by the U.S. Coast Guard. (Id., Ex. A at 30) The exhibit identifies one location of exposure as "CGC CHAUTAUQUA (WPG-41)," from 1962-1963. (Id.)

Foster Wheeler filed a motion to stay the action until it could be refiled, on the grounds of forum non conveniens. (Id., Ex. C) The Superior Court of California granted Foster Wheeler's motion on March 15, 2012. (Id.) Plaintiff subsequently voluntarily dismissed the California Action (see D.I. 36 at 10), and filed the present action in the Superior Court of Delaware on April 23, 2012. (D.I. 1, Ex. A)

III. LEGAL STANDARDS

The federal officer removal statute permits removal of a state court action to federal court when, inter alia, such action is brought against "[t]he United States or an agency thereof of any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office." 28 U.S.C. § 1442(a)(1).

In order to remove pursuant to Section 1442(a)(1), a defendant must establish the following:

Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124, 127 (3d Cir. 1998) (citing Mesa v. California, 489 U.S. 121, 129 (1989)). See also Kirks v. Gen. Elec. Co., 654 F.Supp.2d 220, 223 (D. Del. 2009). Unlike the general removal statute, 28 U.S.C. § 1441, which courts must construe strictly in favor of remand, the federal officer removal statute is to be "broadly construed," in order to effectuate Congress' intent that federal officers have access to a federal forum in which they can litigate the validity of their defense of official immunity. Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1262 (3d Cir. 1994); In re Asbestos Prods. Liab. Litig. (No. VI), 770 F.Supp.2d 736, 741 (E.D. Pa. 2011). Despite this broad construction, it is wellsettled that the party removing an action to federal court bears the burden of proving that removal is appropriate. Kirks, 654 F. Supp. 2d at 222 (citing Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)).

While Section 1442 governs the substantive requirements for federal officer removal, the timeliness of removal is dictated by Section 1446. Section 1446(b) provides: "the notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." 28 U.S.C. §1446(b)(1). If the basis for removal is not set forth in the initial pleading, however, a defendant must remove within thirty days after receiving "an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable."1 28 U.S.C. § 1446(b)(3).

In analyzing the timeliness of removal, courts must consider whether the document at issue "informs the reader, to a substantial degree of specificity, [that] all the elements of federal jurisdiction are present."2 Foster v. Mutual Fire, Marine & Inland Ins. Co., 986 F.2d 48, 53-54 (3d Cir. 1993), overruled on other grounds, Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999); In re Asbestos Prods. Liab. Litig., 770 F. Supp. 2d at 740. See also Mims v. 84 Lumber Co., 2013 WL 4775306, at *2 (D. Del. Sept. 6, 2013), report and recommendation adopted sub nom. Mims v. Foster Wheeler Energy Corp., 2013 WL 6571816 (D. Del. Dec. 12, 2013). If so, receipt of the document triggers the thirty-day clock for removal under Section 1446. Foster, 986 F.2d at 53-54.3

The analysis for determining whether the document at issue provided sufficient notice of removability is an objective one: `the issue is not what the defendant knew, but what the relevant document said.' Id. at 53 (quoting Rowe v. Marder, 750 F.Supp. 718, 721 (W.D. Pa. 1990)). As with jurisdiction, the defendant bears the burden of showing the timeliness of removal. See Mims v. 84 Lumber Co., 2013 WL 4775306, at *2 (citing Scearce v. 3M Co., 2013 WL 2156060, at *3 (D.N.J. May 16, 2013)).

IV. DISCUSSION

Foster Wheeler is "a manufacturer of boilers and economizers for the United States Navy, among other equipment." (D.I. 36 at 1) In support of removal, Foster Wheeler contends that, "in the manufacture and sale of boilers and auxiliary equipment for the Navy, including all aspects of warnings associated with those pieces of equipment," it acted under the direction of an officer or agency of the United States within the meaning of Section 1442(a)(1). (Id. at 3; D.I. 1 ¶ 7) Thus, Foster Wheeler maintains that it is entitled to a "government contractor immunity" defense to Plaintiffs claims. (D.I. 1 ¶ 9; D.I. 36 at 5)

Plaintiff does not contest Foster Wheeler's assertion that it has met the requirements necessary to remove this action pursuant to the federal officer removal statute. Rather, Plaintiff argues that Foster Wheeler's notice of removal was untimely because Foster Wheeler failed to remove the case within thirty days after receiving the Complaint. (D.I. 28 at 1) According to Plaintiff, the grounds for removal should have been clear to Foster Wheeler from the "unambiguous allegations" of the Complaint, which "put Foster Wheeler on notice . . . that it was being sued for exposure to its products used by [Mr. Stone] while in the United States Coast Guard." (Id. at 4) Plaintiff further argues that Foster Wheeler already was on notice of the removability of this action based on its receipt of pleadings in connection with the California Action, which included allegations similar to those in the present case, and disclosed the ships upon which Mr. Stone served and the relevant dates of such service. (Id.; D.I. 29, Ex. A at 30)

Foster Wheeler counters that the Complaint is too "vague and ambiguous" to provide a sufficient basis for removal. (D.I. 36 at 2) According to Foster Wheeler, removability was discernable only after it received the Military Records. (Id.) The Military Records allowed Foster Wheeler to "discover[] that it manufactured and designed marine boilers pursuant to strict and exacting Navy specifications for use on [a vessel upon which Mr. Stone served]. It was this particular piece of information . . . that created a basis for Foster Wheeler's removal." (Id.)

Foster Wheeler disputes Plaintiff's argument that it was on notice of the removability of this action based on the documents it received in connection with the California Action. Foster Wheeler cites various case authorities for the proposition that, when analyzing whether a "paper" provides notice of removability under Section 1446(b)(3), the inquiry is confined to documents generated within the specific state court proceeding that has been removed to federal court. (See id. at 10-12)

The court finds that, while removal would have been inappropriate based only on the allegations contained in the Complaint, the information added by the Military Records is also inadequate to justify removal.4 It is Foster Wheeler's burden to "sufficiently explain why it is that removability could only be ascertained at the time of removal." Mims v. Foster Wheeler Energy Corp., 2013 WL 6571816, at *1 (citing Scearce, 2013 WL 2156060, at *5). As discussed below, Foster Wheeler has failed to meet this burden.

According to Foster Wheeler:

(D.I. 36 at 9-10 (emphasis added)) Foster Wheeler's argument focuses on a lack of information in the Complaint concerning the particular ships upon which Mr. Stone was exposed to asbestos, the specific asbestos-containing products connected to such exposure, and the manufacturers of such products.

The problem with Foster Wheeler's argument is twofold. First, Foster Wheeler does not fully explain why it needed to know the above information in order to ascertain removability. Although Foster Wheeler sufficiently explains why it needed to know the identities of the particular ships on which Mr. Stone worked,5 it has failed to establish why it needed to know the specific Foster Wheeler equipment at issue in order to ascertain removability. For example, Foster Wheeler has not asserted that it supplied equipment to the United States that would not have been subject to a federal contractor defense. Foster Wheeler simply argues that Plaintiff s allegations are too vague. While Foster Wheeler may have provided various products to the United States, some of which would not have justified federal officer removal, it is Foster Wheeler's burden to make that showing in order to establish the timeliness of removal.

Second, Foster Wheeler does not adequately explain why the information in the Military Records provides sufficient notice of its government contractor defense. More specifically, the Military Records, which Foster Wheeler cites as being sufficient to put it on notice of a federal defense, do not provide the missing information Foster Wheeler claims was critical to its ability to ascertain the availability of the defense. The only new facts included in the Military Records are the identities of the ships upon which Mr. Stone served and the respective dates of such service. (D.I. 1, Ex. B) However, the Military Records do not expressly disclose Plaintiff's contention that Mr. Stone was exposed to asbestos while assigned to those ships, much less link Mr. Stone's military service to particular products designed, manufactured, or supplied by Foster Wheeler (or any product or manufacturer, for that matter).

Foster Wheeler has failed to meet its burden of establishing the timeliness of removal. See Mims v. Foster Wheeler Energy Corp., 2013 WL 6571816, at *1 (citing Scearce, 2013 WL 2156060, at *5). Furthermore, it is not apparent from the record that Mr. Stone worked on any Foster Wheeler equipment, let alone on such equipment aboard any military ships. Consequently, Foster Wheeler's removal of this action was untimely pursuant to Section 1446(b).

This conclusion is supported by decisions from this court and other districts within the Third Circuit. For example, in Mims v. 84 Lumber Co., this court granted the plaintiffs' motion to remand because the removing defendant, Foster Wheeler, failed to meet its burden of establishing the timeliness of removal. Mims, 2013 WL 4775306, at *7. In support of removal, Foster Wheeler had offered the following explanation, similar to the one put forward here:

Id. at *5 (alterations in original) (citation omitted).

The court observed that Foster Wheeler's argument "appears to center on a lack of information in those prior documents as to the particular ships on which [the plaintiff] worked at the Charleston Naval Shipyard, as some of those ships contained `Foster Wheeler boilers,' while some `did not.'" Id. (citation omitted). However, the court explained that "the deposition testimony excerpt put forward by Foster Wheeler[] . . . does not specifically identify any particular Navy ship that [the plaintiff] worked on at the Charleston Naval Shipyard." Id. at *6. Thus, the court held that Foster Wheeler failed to meet its burden of showing the timeliness of removal because the source that it "cite[d] as being sufficient to put it on notice of a federal defense [did] not provide the missing information that it [claimed] was essential to its ability to ascertain the availability of the defense." Id.

In the present case, although the Military Records identify the ships upon which Mr. Stone served and the respective dates of such service, they do not indicate that Mr. Stone was exposed to asbestos while assigned to those vessels, nor do they link Mr. Stone's service to particular products or product manufacturers. Foster Wheeler fails to explain how the identification of a specific vessel goes further than the pleadings to convey that Mr. Stone performed work on Foster Wheeler naval marine boilers at the direction of a federal officer.6

Thus, as in Mims, the source Foster Wheeler "cites as being sufficient to put it on notice of a federal defense does not provide the missing information that it now claims was essential to its ability to ascertain the availability of the defense." Mims v. 84 Lumber Co., 2013 WL 4775306, at *5.

Similarly, in Scearce v. 3M Co., the United States District Court for the District of New Jersey granted the plaintiff's motion to remand, finding that the defendant Raytheon's notice of removal was untimely under Section 1446(b)(3). Scearce, 2013 WL 2156060, at *5. In support of removal, Raytheon had argued that it only learned that the case was removable during the plaintiff's deposition (taken within thirty days of the removal), in which plaintiff revealed that "`the only specific Raytheon product about which he complains is the AN/TRC-170, a digital troposcatter radio system.'" Id. (citation omitted).

The Scearce court agreed that, given the breadth of its operations, Raytheon could not have concluded from the amended complaint and an accompanying fact sheet that the AN/TRC-170 was its product at issue in the case. Id. However, the court explained that:

Id. (emphasis added). The court found that Raytheon did not meet its burden because it failed to link the new information, learned through the plaintiff's deposition, to an explanation of the type of information (not previously provided) that would have allowed it to ascertain the availability of a federal defense. Id. Consequently, the case was remanded to state court. Id. See also Pantalone v. Aurora Pump Co., 576 F.Supp.2d 325, 334 (D. Conn. 2008) (granting the plaintiff's motion to remand because the defendant's "grounds for removal [were] not traceable to the information confirmed and described" in an expert's report, such that the defendant's "claim that the [expert's] report was the event which triggered removability [was] belied by [its] own submissions"); Green v. A. W. Chesterton Co., 366 F.Supp.2d 149, 154 (D. Me. 2005) ("In order to assert sufficient facts to support a removal notice that is premised on the government contractor defense, [the defendant] need[s] some information tending to establish that the [plaintiff's] exposure to asbestos related to [the defendant's] product procured by the government pursuant to a contract that specifically called for the use of asbestos as a component." (emphasis added)).

V. CONCLUSION

For the foregoing reasons, I recommend that the Plaintiff's Motion to Remand be granted.

This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b)(1), and D. Del. LR 72.1. The parties may serve and file specific written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. Fed. R. Civ. P. 72(b)(2). The objections and responses to the objections are limited to ten (10) pages each. The failure of a party to object to legal conclusions may result in the loss of the right to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 924, 925 n.1 (3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).

The parties are directed to the court's Standing Order For Objections Filed Under Fed. R. Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website, http://www.ded.uscourts.gov.