United States District Court, District of Delaware
PAULA BALDWIN, AS ADMINISTRATOR OF THE ESTATE OF GEORGE BALDWIN SR., AND PAULA BALDWIN, INDIVIDUALLY Plaintiff,
ACE HARDWARE CORP., et al., Defendants.
REPORT AND RECOMMENDATION
SHERRY R. FALLON, United States Magistrate Judge.
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 Paula Baldwin ("Plaintiff) and on behalf of decedent George Baldwin Sr. ("Mr. Baldwin"), on the grounds that the notice of removal filed by Defendant Crane Company ("Crane") was untimely in light of the requirements of 28 U.S.C. § 1446(b). (D.I. 34) For the reasons that follow, I recommend that the Motion to Remand be GRANTED.
Plaintiff filed this asbestos personal injury action in the Superior Court of Delaware on July 5, 2013. (D.I. 1, Ex. 1) In the Complaint, Plaintiff asserts state law causes of action based on Mr. Baldwin's alleged exposure to asbestos while working in different settings between 1957 and 1997. (Id, Ex. 1 ¶147) The Complaint provides, in relevant part:
a) Plaintiff GEORGE W BALDWIN SR. experienced occupational and bystander exposure to asbestos while he worked as a Maintenance Worker for the U.S. Navy in Long Beach, California from 1957 to 1960 .... Plaintiff GEORGE W BALDWIN SR. was exposed to asbestos containing products and equipment including, but not limited to, . . . HVAC equipment, electrical equipment, insulation, pumps, compressors, valves, siding, shingles, felts, roofing, gaskets, packing, pipe, and tiles manufactured by Defendant... CRANE CO.[ ]... .
(Id.) Crane was served with the Complaint on October 25, 2013. (D.I. 35, Ex. B)
On November 27, 2013, Crane filed its notice of removal in this court, contending that the state court action was removable under 28 U.S.C. § 1442(a)(1), the federal officer removal statute, based on the allegations of the Complaint. (D.I. 1 at 1, 2) In the notice of removal, Crane asserted that it was served with the Complaint on October 28, 2013 and, therefore, removal was timely under 28 U.S.C. § 1446(b). (D.I. 1 at 1)
On December 27, 2013, Plaintiff filed the pending Motion to Remand, asserting that Crane's notice of removal was untimely filed. (D.I. 34)
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:
(1) it is a "person" within meaning of the statute;
(2) the plaintiffs claims are based upon the defendant's conduct "acting ...