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Bond v. American Biltrite Co.

United States District Court, D. Delaware

February 20, 2014

STEPHEN BOND and ANN BOND, Plaintiffs,
v.
AMERICAN BILTRITE CO., et al., Defendants.

REPORT AND RECOMMENDATION

CHRISTOPHER J. BURKE, Magistrate Judge.

This matter arises out of an asbestos personal injury action originally filed by Plaintiffs Stephen Bond and Ann Bond ("Plaintiffs") against numerous Defendants, including Defendant Lockheed Martin Corporation ("Lockheed Martin"), in the Superior Court of Delaware, in and for New Castle County ("Superior Court"). (D.I. 1, ex. 1 (hereinafter, "Complaint")) Lockheed Martin removed the state court action to this Court pursuant to 28 U.S.C. §§ 1442(a) and 1446. (D.I. 1) 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) (the "motion to remand" or "Motion"). (D.I. 34) For the reasons that follow, I recommend that the motion to remand be DENIED.

I. BACKGROUND

Plaintiffs filed this lawsuit in the Superior Court on November 7, 2012. ( See Complaint) In the Complaint, Plaintiffs asserted 11 state law causes of action against 30 Defendants, including Lockheed Martin. ( Id. ) These causes of action are based on Mr. Bond's alleged exposure to asbestos-containing products and equipment, while Mr. Bond was working in various settings between 1956 and 1986. ( Id. at ¶¶ 32(b), 33)

The Complaint further set out the following allegations regarding Mr. Bond's work history:

Plaintiff STEPHEN P. BOND experienced occupational and bystander exposure to asbestos while he served in the U.S. Navy from 1968 to 1972, while he worked as a construction worker in various states from 1956 to 2002, while he worked at Varrity Landscaping as a labor[er] in Pennsylvania from 1966 to 1968, Budd Co./Railcar Division as a sheet metal installer in Pennsylvania from 1980 to 1985, and Branch Valley Associates as a construction laborer in Pennsylvania from 1985 to 1990. Plaintiff STEPHEN P. BOND was exposed to asbestos-containing products and equipment including, but not limited to, asbestos-containing pumps, valves, packing, gaskets, insulation, boilers, turbines, cooling towers, pipe, paint, HVAC equipment, and raw asbestos.

(Complaint at ¶ 32(b)) The Complaint does not contain allegations unique to Lockheed Martin or any other Defendant. ( Id. ) As a result, it does not further identify any particular Lockheed Martin product associated with Mr. Bond's asbestos exposure, nor any particular aircraft (manufactured by Lockheed Martin or any other entity) via which Mr. Bond was alleged to have been exposed to asbestos-containing products. ( Id. )

Lockheed Martin is, among other things, an aircraft manufacturer. (D.I. 53 at 2-3) It was served with Plaintiffs' Summons and Complaint on December 26, 2012. (D.I. 1 at ¶ 2)

On February 23, 2013, Plaintiffs served their responses to all Defendants' Standard Set of Interrogatories. (D.I. 36, ex. B (hereinafter, "Responses to Interrogatories" or "Responses")) The Responses provide some additional detail regarding Mr. Bond's service in the United States Navy and his allegations that relate to that period - the time period at issue here. Specifically, the responses indicated that Mr. Bond was alleging asbestos exposure relating to his work with the U.S. Navy: (1) from 1968-1972 on the USS Independence CV-62, based out of Norfolk, Virginia, regarding his work on that aircraft carrier; and (2) from 1971-72 during his work as an "E-5, Equipment Tech, Parachute rigger" in Norfolk. (Responses at 3, 5 & ex. A; D.I. 35 at 2)

On February 26, 2013, Lockheed Martin filed its Answer, and asserted affirmative defenses. (D.I. 36, ex. D) Among those were the federal government contractor defense and the derivative sovereign immunity doctrine. ( Id. at 15)[1]

On June 26, 2013, Mr. Bond sat for his deposition. (D.I. 53 at 3) During it, Mr. Bond testified for the first time that while serving in the U.S. Navy, and specifically while stationed at U.S. Naval bases in Atsugi, Yamoto, Japan and in Da Nang, Vietnam from 1969-71, he was exposed to asbestos-containing products or components that came from certain aircraft that he identified as "the old Connies, Constellations" and "P-3s[.]" (D.I. 1, ex. 3 at 174-205) Although Mr. Bond could not identity at the deposition the manufacturer of these aircraft or their contents, ( see id. at 178-79), it is undisputed here that these were references to the WV-2Q Super Constellation and P-3 Orion military aircraft, which were manufactured by Lockheed Martin, (D.I. 53 at 3).

On July 26, 2013, within 30 days after Mr. Bond's deposition, Lockheed Martin filed its Notice of Removal in this Court. (D.I. 1) Lockheed Martin asserted therein that it manufactured the WV-2Q Super Constellation and P-3 Orion military aircraft referenced in Mr. Bond's deposition pursuant to a validly-conferred government authority, and in conformance with reasonably-precise, government-approved specifications. ( Id. at ¶¶ 3, 10-12) It thus alleged that removal was appropriate due to the two federal defenses it had previously referenced in its state court Answer - the government contractor defense and the defense of derivative sovereign immunity. ( Id. at ¶¶ 11-12)

On August 5, 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. 23) Plaintiffs' Motion was filed on August 23, ...


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