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Mims v. 84 Lumber Co.

United States District Court, Third Circuit

September 6, 2013

84 LUMBER COMPANY, et al., Defendants.



This matter arises out of an asbestos personal injury action filed by Plaintiffs Patterson Mims and Vera Mims ("Plaintiffs") against numerous Defendants, including Defendants Foster Wheeler Energy Corporation ("Foster Wheeler") and CBS Corporation, f/k/a Viacom Inc., successor by merger to and f/k/a Westinghouse Electric Corporation ("Westinghouse") in the Superior Court of Delaware, in and for New Castle County ("Superior Court"). (D.I. 46, ex. A (hereinafter, "Complaint")) Foster Wheeler removed the state court action to this Court pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446, (D.I. 1), and Westinghouse joined in Foster Wheeler's Notice of Removal that same day, (D.I. 3). Foster Wheeler and Westinghouse (collectively, "Defendants") argued, as the basis for removal, that any actions they took relating to Plaintiffs' claims came when they were acting under an officer or agency of the United States within the meaning of Section 1442(a)(1). (D.I. 1, 3) Presently pending before the Court is Plaintiffs' motion to remand this action to Delaware state court, on the grounds that Defendants' removal was untimely in light of the requirements of Section 1446(b)(3) (the "motion to remand" or "Motion"). (D.I. 45) For the reasons that follow, I recommend that the motion to remand be GRANTED.


Plaintiffs filed this lawsuit in the Superior Court on July 13, 2012. ( See Complaint) In the Complaint, as is discussed more specifically below, Plaintiffs asserted state law causes of action based on Plaintiff Patterson Mims' alleged exposure to asbestos-containing products while working in three different settings between 1959 and 1994. ( Id. ) Westinghouse and Foster Wheeler were served with Plaintiffs' Summons and Complaint on August 27, 2012 and August 29, 2012, respectively. (D.I. 46, exs. B & E)

On January 8, 2013, Plaintiffs served their responses to all defendants' Standard Set of Interrogatories. (D.I. 46, ex. D (hereinafter, "Responses to Interrogatories" or "Responses")) Foster Wheeler received the Responses to Interrogatories on the same date. (D.I. 66 at 3 & ex. 4) On January 23 and January 24, 2013, Mr. Mims sat for his deposition, during which he testified that between 1967 and 1970, he was present at the Charleston Naval Shipyard while others performed work on approximately three Foster Wheeler boilers. ( Id., ex. 5 at 135-36)

On February 22, 2013, Foster Wheeler filed its notice of removal in this Court, contending that it first ascertained that the state court action was removable under Section 1442(a)(1), the federal officer removal statute, from the content of Mr. Mims' deposition testimony. (D.I. 1) On the same date, Westinghouse filed its notice of joinder with respect to Foster Wheeler's notice of removal. (D.I. 3) On March 12, 2013, this matter was referred to the Court by Judge Sue L. Robinson to "conduct all proceedings... [and] hear and determine all motions[], through and including the pretrial conference." (D.I. 35)

On March 19, 2013, Plaintiffs filed the motion to remand, asserting that the notice of removal was untimely filed. (D.I. 45) Plaintiffs' motion was fully briefed as of April 2, 2013. (D.I. 66)[1]


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 any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to 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: (1) it is a "person" within meaning of the statute; (2) the plaintiff's claims are based upon the defendant's conduct "acting under" a federal office; (3) it raises a colorable federal defense; and (4) there is a causal nexus between the claims and the conduct performed under color of a federal office. Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124, 127 (3d Cir. 1998); Kirks v. Gen. Elec. Co., 654 F.Supp.2d 220, 223 (D. Del. 2009). Unlike the case with 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 construed broadly, 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). Nevertheless, it remains well-settled 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 that a defendant must file a notice of removal within thirty days after the receipt of the initial pleading. 28 U.S.C. § 1446(b). 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[.]" 28 U.S.C. § 1446(b)(3).[2]

In analyzing the timeliness of removal pursuant to Section 1442, 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." Foster v. Mut. 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.[3] If so, receipt of the document triggers the thirty-day clock for removal to run under Section 1446. Foster, 986 F.2d at 53-54. The analysis for determining whether the document at issue sufficiently put the defendant on notice of removability is an objective one: "the issue is not what the defendant knew, but what the relevant document said." Id. (internal quotation marks and citation omitted).[4] As with jurisdiction, the defendant bears the burden of showing the timeliness of removal. Scearce v. 3M Co., Civil No. 12-6676 (RBK/JS), 2013 WL 2156060, at *3 (D.N.J. May 16, 2013) (citing cases).


Foster Wheeler is "a manufacturer of boilers and economizers for the United States Navy, among other equipment." (D.I. 66 at 2) In the design, manufacture and sale of its boilers and auxiliary equipment for the Navy, including all aspects of warnings associated with such products, Foster Wheeler contends that it was acting under the direction of an officer or agency of the United States within the meaning of Section 1442(a)(l), and thus is entitled to a "government contractor immunity'' defense to Plaintiffs' claims. (D.I. 1 at 3; D.I. 66 at 4)

Plaintiffs do not contest that Foster Wheeler has established all four substantive equirements necessary to remove this action pursuant to the federal officer removal statute.[5] Rather, Plaintiffs argue that Foster Wheeler's notice of removal was untimely filed because Foster Wheeler failed to remove within thirty days of receiving Plaintiffs' Summons and Complaint, or, alternatively, Plaintiffs' Responses to Interrogatories. (D.I. 46) In response, Foster Wheeler argues that both the Complaint and Responses to Interrogatories were too "vague and ambiguous" to provide it with a good faith basis for removal; ...

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