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In Re: Asbestos Products Liability Litigation (No. Vi v. Various Defendants

March 15, 2011

IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (NO. VI)
GAIL AND JAMES WAYNE BARNES, ET AL., PLAINTIFFS,
v.
VARIOUS DEFENDANTS



The opinion of the court was delivered by: Eduardo C. Robreno, J.

Consolidated Under Transferred from the Central District of California

MEMORANDUM

Before the Court is Plaintiffs Motion to Remand, wherein Plaintiffs assert that Defendant General Electric Company's removal under the federal officer removal statute was improper for three reasons: (1) Defendant General Electric's Notice of Removal was untimely; (2) Plaintiffs have waived all claims for actions taken under the direction and control of a federal officer; (3) Defendant General Electric ("Defendant") has failed to raise a "colorable" federal officer defense.

I. FACTS

Plaintiffs, Gail and James Wayne Barnes (deceased) commenced the instant action on April 21, 2009, in California state court, alleging that James Wayne Barnes's lung cancer was caused by exposure to the asbestos-containing products of multiple defendants. (Pl.'s Mot., doc. no. 22, at 8.) Defendant General Electric filed a notice of removal on February 24, 2010. (Id.) On May 4, 2010, the case was transferred to the Eastern District of Pennsylvania for consolidated pre-trial proceedings as part of In Re: Asbestos, Multidistrict Litigation No. 875.

II. DISCUSSION

A. Timeliness

The timeliness of removal is an issue of federal law. In the context of a Multidistrict Litigation case, issues of federal law are governed by the law of the circuit in which the MDL court sits. In Re Asbestos Prods. Liab. Litig. (Oil Field Cases), 673 F.Supp. 2d 358, 362 (E.D. Pa. 2009)("[I]n cases where jurisdiction is based on federal question, this Court, as the transferee court, will apply federal law as interpreted by the Third Circuit."). Therefore, the Court will apply Third Circuit precedent to determine whether or not Defendant's notice of removal was timely.

The federal officer removal statute provides that a notice of removal must be filed within thirty (30) days of a defendant's receipt of the initial pleading or, "[i]f the case stated by the initial pleading is not removable," within thirty days after defendant's receipt of "an amended pleading, motion, order or other paper from which it may be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1442(a)(1). The first thirty-day window for removal is only triggered when "the four corners of the pleading . . . informs the reader, to a substantial degree of specificity, [that] all the elements of federal jurisdiction are present." Foster v. Mutual Fire Marine & Inland Ins. Co., 986 F.2d 48, 53 (3d Cir. 1993) rev'd on other grounds, Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999). In Foster, the Third Circuit established that the analysis for determining whether the four corners of the pleading is sufficient is an objective one: "the issue is not what the defendant knew, but what the relevant document said." Id.

In the instant case, Defendant invokes the second timeframe, arguing that the case was not removable on the face of Plaintiffs' initial complaint, but that Plaintiffs' Responses to Defendant's Special Interrogatories identified, for the first time, that the claims against Defendant arose from James Clyde Barnes's ("Decedent"'s) work on Defendant's turbines at Naval Shipyards. (Def.'s Resp., doc. no. 26, at 10.) Plaintiffs respond that the four corners of the Complaint put Defendant on notice of the potential removability of the case. (Pl.'s Mot. Remand, doc. no. 22-1, at 10.)

Plaintiffs' Complaint against twenty five (25) named Defendants states that, "Decedent's exposure to asbestos and asbestos-containing products occurred at various locations as set forth in Exhibit 'A'." (Pl.'s Compl., doc. no. 34, at ¶ 9.) Plaintiffs' Exhibit "A" identifies three potential sites of exposure: (1) The Long Beach Naval Shipyard from 1969-1989 (2) Decedent's home from 1989-1993; and (3) Country-Fed Meat in Arkansas, where Decedent was a salesman from 1993-2002. (Id. at p. 31.) The Exhibit identifies various types of asbestos-containing products to which Decedent was allegedly exposed, including "insulation" and "electronic and electronic equipment," inter alia, which could arguably implicate Defendant's turbines. (Id.) However, there is no mention of turbines, specifically, and nothing in the Complaint connects Defendant's product to the Long Beach Naval Shipyard worksite.

Under these circumstances, the four corners of Plaintiffs' Complaint lacked the "substantial degree of specificity" needed to establish the existence of a federal defense. Foster, 986 F.2d at 53. Simply stating that Decedent was employed at the Long Beach Naval Shipyard is insufficient. Defendant did not have a basis for removal until the nexus between Plaintiffs' claims and actions allegedly taken by Defendant under the direction of a federal officer was established. This nexus was not revealed until Plaintiffs' Answers to Special Interrogatories stated that, "Plaintiffs contend that [Defendant] sold, supplied, marketed, and distributed asbestos containing products to which Decedent was exposed while in the U.S. Navy . . . including: . . . Marine Steam Turbines." (Def.'s Resp., doc. no. 26, at 11.) Therefore, Defendant's notice of removal was timely, as it was filed thirty days after Defendant received Plaintiffs' Answers to Special Interrogatories.

B. Plaintiffs' Disclaimer

Plaintiffs further argue that Defendant's removal is improper because Plaintiffs' Complaint expressly disclaims any claims "caused by the acts or omissions of defendants committed at the specific and proven direction of an officer of the United States government acting in his official capacity." (Pl.'s Compl. ¶ 9A(k), doc. no. 34, at 10.) The question of whether Plaintiffs have effectively disclaimed any federal claims is controlled by federal law. See Mesa v. California, 489 U.S. 121 (1989) (holding that under ยง 1442(a), "the raising of a federal question in the officer's removal petition . . . constitutes the federal law under which the action against the federal officer arises for Article III purposes."). In cases arising under the laws of ...


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