Transferred from the Northern District of California
The opinion of the court was delivered by: Eduardo C. Robreno, J.
Before the Court is Plaintiffs' Motion to Remand (doc. no. 4) and removing Defendant, McDonnell Douglas Corporation's, Response (doc. no. 13.)
Plaintiff, Timothy Vest, was diagnosed with mesothelioma in October of 2009. (Pl.'s Mot., doc. no. 4, at 5.) Caroline Vest is Plaintiff Timothy Vest's wife. Together, Timothy Vest and Caroline Vest are referred to as "Plaintiffs."
Plaintiffs filed the instant action in California Superior Court on December 17, 2009. Id. Timothy Vest alleges that various Defendants' asbestos-containing products caused his injuries, which he was exposed to while present at Hangar 110, where his father, Warren Vest, worked from 1973-1983. (Pl.'s Mot., doc. no. 4, at 5.) Timothy Vest asserts that he was present at Hangar 110 often, and additionally, that his father brought home asbestos on his clothing and person, and therefore that he was exposed to asbestos both at the worksite and in the home. (Id. at 7.) Plaintiffs assert that Defendant McDonnell Douglas Corporation ("MDC") manufactured airplanes that contained asbestos, which were present at Hangar 110.
On January 28, 2010, Plaintiffs amended their complaint to add Defendant MDC, alleging that asbestos-containing components on MDC planes were a substantial contributing factor to Mr. Vest's asbestos-related injuries. MDC filed the notice of removal at issue on January 6, 2011, almost a year after being added to the action. The basis of MDC's removal is the federal officer removal statute, 28 U.S.C. § 1442(a)(1), as MDC asserts that it has a "colorable" government contractor defense for any claims related to military aircraft, namely the KC-10 and B-23, that were present at Hangar 110. See Hagen v. Benjamin Foster Co., No. 07-63346, 2010 WL 3745297 at *20 (E.D. Pa. Sept. 24, 2010) (Robreno, J.)(finding that removal is appropriate under Section 1442(a)(1) when "defendant identifies facts which, in the light most favorable to the defendant, entitle him or her to a complete defense.").
Plaintiffs advance two grounds for remand. First, Plaintiffs assert that Defendant's notice of removal was untimely, and alternatively, Plaintiffs now waive any claims for exposure to asbestos on military aircraft, purportedly removing the federal officer basis for federal jurisdiction.
A. Timing for Removal 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 MLD court sits. In Re Asbestos Prods. Liab. Litig. ("Oil Field Cases"), 673 F.Supp. 2d 358, 362 (E.D. Pa. 2009).
The timing for removal is controlled by 28 U.S.C. § 1446. Section 1446 states that an action that is not removable on the face of the pleadings may be removed "within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one in which is or had become removable . . . ." 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 & Island 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).
When removal is based on the federal officer removal statute, the thirty-day window is not triggered until plaintiff provides facts to support all four prongs of the federal officer removal statute.*fn1 Durham v. Lockheed Martin Corp., 445 F.3d 1247 (9th Cir. 2006); see also Barnes v. Various Defendants, 10-67141, 2011 WL 925414 at *2 (E.D. Pa. Mar. 16, 2011)(Robreno, J.)("[d]efendant does not have a basis for removal until the nexus between [p]laintiff's claims and actions allegedly taken by [d]efendant under the direction of a federal officer [is] established").
In Durham, the Ninth Circuit Court of Appeals held that the case was not removable until plaintiff's answers to interrogatories revealed, for the first time, that plaintiff was alleging exposure to the SR-71 Blackbird and C-141 Starlifter, for which defendant asserted a federal officer defense. The court held that:
Until [plaintiff] revealed which aircraft he had worked on during his Air Force career, [defendant] couldn't assert either that its actions were taken pursuant to a federal officer's directions, or that it had a colorable federal defense. Id. at 1251.
Defendant in Durham manufactured various products, some of which were related to government contracts and some of which were purely commercial products. Until the military products were specifically identified, defendant had no basis for removal. Similarly, in Barnes, this Court held that the thirty-day window was not triggered until plaintiff's interrogatories identified that the specific product at issue were defendant's turbines on naval ships; merely naming the defendant, general equipment and identifying the Naval yard worksite in the complaint was insufficient. Barnes, 2011 WL 925414 at *2.
Therefore, in the instant case, the inquiry is when the record revealed that the allegations against MDC satisfied the federal officer removal statute, showing that: (1) MDC was acting under the direction of a federal office with respect to the military planes at issue; (2) MDC has a colorable government contractor defense based on the military specifications for the planes; and (3) there is a causal nexus between Timothy Vest's asbestos-related injuries and MDC's military planes. Once facts supporting these three points were revealed, MDC was obligated to file a notice of removal within thirty days.
Plaintiffs do not contend that the case was removable on the face of the complaint. However, Plaintiffs assert that Mr. Vest's exposure to asbestos on military aircraft was revealed during discovery, "as early as June 2010 and no later than August 2010," and therefore MDC's Defendant was far outside the thirty-day window provided by 28 U.S.C. § 1446. (Pl.'s Mot., doc. no. 4, at 5.) MDC responds that Mr. Vest's exposure to asbestos on military aircraft was not revealed until Plaintiffs' Response to MDC's Motion for Summary Judgment, and that MDC removed within one week of Plaintiffs' Response. (Def.'s Resp., doc. no. 13, at 6.)*fn2
B. MDC's Triggering Event MDC asserts that three witnesses were disclosed in Plaintiffs' Reponse to MDC's Motion for Summary Judgment which, for the first time, revealed the removability of the case. First, the testimony of expert witness John Templin, industrial hygienist, who discussed "re-entrainment," which is the movement of asbestos fibers in the air. (Def.'s Opp., doc. no. 13, at 12 ¶ 14)(citing Declaration of John Templin, doc. no. 8-1)("In sum, the respirable asbestos fibers that are released into the air will remain in the air for some time before they alight on surfaces. Those fibers, once they do come to rest, are then subject to re-entrainment.") Defendant asserts that the theory that all aircraft maintenance at Hangar 110 could have contributed to Mr. Vest's asbestos-related injuries was introduced for the first time by John Templin's "re-entrainment" theory, and that this was the "linchpin for ...