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GOOD v. ARMSTRONG WORLD INDUS.

January 18, 1996

CHARLES GOOD AND CAROLYN GOOD, Plaintiffs,
v.
ARMSTRONG WORLD INDUSTRIES, INC., ET AL., Defendants.



The opinion of the court was delivered by: REED

 Reed, J.

 January 18, 1996

 Plaintiffs Charles Good and Carolyn Good ("Plaintiffs") filed a personal injury action on July 7, 1993 in the Court of Common Pleas of Philadelphia County seeking damages for injuries caused to Charles Good, which resulted from exposure to asbestos. Westinghouse Electric Corporation ("Westinghouse"), one of the named defendants, filed a notice of removal in the United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1442(a)(1) on September 27, 1995.

 Pending before this Court is the motion of plaintiffs to remand the case to state court (Document No. 4). Upon consideration of the motion of plaintiffs and the response of Westinghouse thereto, and for the following reasons, the motion of plaintiffs will be granted.

 I. FACTUAL BACKGROUND

 Charles Good ("Good") worked as a boilmaker and boiler tender for the United States Navy for more than 20 years. During his Navy service, Good worked on several vessels containing turbine generators manufactured by Westinghouse, which allegedly emitted asbestos and caused his personal injuries. Westinghouse contends that it designed and manufactured the turbine generators in accordance with specifications and regulations mandated by the Navy and is thereby entitled to remove the case to federal court pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1). Plaintiffs have filed a motion for remand, arguing that (1) Westinghouse filed untimely the notice of removal and (2) Westinghouse does not meet the statutory requirements for removal.

 II. DISCUSSION

 Pursuant to the federal officer removal statute, an action may be removed by "any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office." 28 U.S.C. § 1442(a)(1). The federal officer removal statute allows executive branch officials and persons acting under them to remove to a federal court civil and criminal actions brought against them in a state court for their official acts. A defendant bears the burden of establishing federal jurisdiction over a suit initiated in state court. Ryan v. Dow Chemical Co., 781 F. Supp. 934, 939 (E.D.N.Y. 1992). To satisfy the statute, Westinghouse must (1) show that it acted under the direction of a federal officer, thereby demonstrating a causal nexus between plaintiffs' claims and the acts Westinghouse performed under color of federal office and (2) raise a federal defense to plaintiffs' claims. See Mesa v. California, 489 U.S. 121, 124-25, 129-31, 134-35, 103 L. Ed. 2d 99, 109 S. Ct. 959 (1989).

 A. Timeliness

 The terms of the federal officer removal statue require defendants to seek removal within 30 days after receipt of the initial pleading. If the initial pleading fails to articulate the details of the claims made, then the thirty-day time period begins on the date the defendant receives "other paper" specifically indicating the nature of the claims and the potential for removal. 28 U.S.C. § 1446(b). Plaintiffs served Westinghouse with a copy of the complaint on July 7, 1993. Neither party contends that the complaint provided sufficient notice for defendant to remove. The timeliness dispute focuses on the plaintiffs' answers to defendants' interrogatories ("Answers"), which Westinghouse received on March 2, 1995. Although the Answers did not specifically identify a Westinghouse product, they listed several navy vessels on which Good's alleged exposure to asbestos had occurred. Plaintiffs contend that upon receipt of the Answers, Westinghouse had notice of its ability to remove because it knew that it had designed and manufactured the turbine generators for those particular ships named by plaintiffs in the Answers. On the other hand, Westinghouse asserts that it did not have appropriate notice of a basis for removal until September 5, 1995, when it received the affidavit signed by Good, which specifically stated that he had been exposed to asbestos in generators manufactured by Westinghouse.

 I suspect that as soon as plaintiffs named in the Answers the specific navy vessels on which the alleged asbestos-producing turbine generators were located, Westinghouse had notice that its liability for asbestos injuries could result from its involvement with the design and manufacture of the turbines on the named ships. However, the record before the Court does not support my suspicions. Therefore, I will accept the contention of Westinghouse that it filed its notice in a timely manner and proceed to the merits of this motion.

 B. Definition of Person

 Section 1442(a)(1) ...


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