Stone v. Asbestos Corporation Ltd. et al

Filing 102

REPORT AND RECOMMENDATIONS- GRANTING #27 MOTION to Remand. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 4/4/2014. Signed by Judge Sherry R. Fallon on 3/18/2014. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ORALIA STONE, INDIVIDUALLY AND )
AS PERSONAL REPRESENTATIVE OF )
THE ESTATE OF THOMAS 0. STONE, )
)
Plaintiff,
)
)
v.
)
)
ASBESTOS CORPORATION LTD.,
)
et al.,
)
)
Defendants.
)

Civil Action No. 13-470-SLR-SRF

REPORT AND RECOMMENDATION
I.

INTRODUCTION
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 Oralia Stone ("Plaintiff')
and on behalf of decedent Thomas 0. Stone ("Mr. Stone"), on the grounds that the notice of
removal filed by Defendant Foster Wheeler Energy Corporation ("Foster Wheeler") was
untimely in light of the requirements of 28 U.S.C. § 1446(b). (D.I. 27) Foster Wheeler opposes
Plaintiffs Motion. (D.I. 36) For the reasons that follow, I recommend that the Motion to Remand
be GRANTED.

II.

BACKGROUND
A. The Delaware Action
Plaintiff filed this asbestos personal injury action in the Superior Court of Delaware on

April23, 2012. (D.I. 1, Ex. A) In the Complaint, Plaintiff asserts state law causes of action based
on Mr. Stone's alleged exposure to asbestos while working in different settings between 1958
and 1990. (!d., Ex. A) The Complaint provides, in pertinent part:

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a)
PlaintiffS [sic] DECEDENT THOMAS STONE experienced
occupational and bystander exposure to asbestos while working as a mechanic
from 1970 to 1990. THOMAS STONE was exposed to asbestos-containing
products and equipment including, but not limited to, asbestos-containing brakes,
clutches and gaskets.
b)
THOMAS STONE experienced occupational and bystander exposure to
asbestos while Serving as a United States Coast Guard from 1958 to 1964,
THOMAS STONE was exposed to asbestos-containing products and equipment
including, but not limited to, asbestos-containing pumps, valves, joint compound,
packing, gaskets, insulation, boilers, turbines, cooling towers, drywall, pipe, paint,
HV AC equipment.
28.
THOMAS STONE was exposed to asbestos and/or asbestos-containing
products which were mixed, mined, manufactured, distributed, sold, removed,
installed and/or used by the Defendants .....
(!d., Ex.

A~~

27-28) Foster Wheeler was served with the Complaint on July 18, 2012. (D.I. 29,

Ex. E; D.I. 36 at 2)
On February 21, 2013, Foster Wheeler received a copy of Mr. Stone's military records
(the "Military Records"). (D.I. 1, Ex. B; D.I. 36 at 3) The Military Records indicate, in relevant
part, that Mr. Stone served in the United States Coast Guard and aboard the USCGC Chautauqua
between 1962 and 1963. (D.I. 1, Ex. B)
On March 25, 2013, Foster Wheeler filed its notice of removal in this court, contending
that it first ascertained that the state court action was removable under 28 U.S.C. § 1442(a)(1),
the federal officer removal statute, from the content of the Military Records. (D.I. 1 at 1-2; see
also D.I. 36 at 2, 8, 10)

On April 23, 2013, Plaintiff filed the pending Motion to Remand, asserting that Foster
Wheeler's notice of removal was untimely filed. (D.I. 27)
B. The California Action

Prior to initiating the present case, Plaintiff filed a complaint against Foster Wheeler,
among other defendants, in the Superior Court of California on March 1, 2011 (the "California
Action"). (D.I. 29, Ex. A) The complaint in the California Action, like the pending Complaint,

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asserts various causes of action based on Mr. Stone's alleged exposure to asbestos. (Jd., Ex. A)
Plaintiff's pleadings in the California Action included an exhibit that lists locations and dates for
Mr. Stone's alleged exposure to asbestos while he was employed by the U.S. Coast Guard. (ld.,
Ex. A at 30) The exhibit identifies one location of exposure as "CGC CHAUTAUQUA (WPG41)," from 1962-1963. (Jd.)
Foster Wheeler filed a motion to stay the action until it could be refiled, on the grounds of
forum non conveniens. (ld., Ex. C) The Superior Court of California granted Foster Wheeler's
motion on March 15, 2012. (Id.) Plaintiff subsequently voluntarily dismissed the California
Action (see D.I. 36 at 10), and filed the present action in the Superior Court of Delaware on
April23, 2012. (D.I. 1, Ex. A)

III.

LEGALSTANDARDS
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)(l), a defendant must establish the
following:
(1) it is a "person" within meaning of the statute;
(2) the plaintiff's claims are based upon the defendant's conduct "acting under" a
federal office;
(3) it raises a colorable federal defense; and
(4) there is a causal nexus between the claims and the conduct performed under
color of a federal office.

Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124, 127 (3d Cir. 1998) (citing Mesa v.
California, 489 U.S. 121, 129 (1989)). See also Kirks v. Gen. Elec. Co., 654 F. Supp. 2d 220,

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223 (D. Del. 2009). Unlike the general removal statute, 28 U.S.C. § 1441, which courts must
construe strictly in favor of remand, the federal officer removal statute is to be "broadly
construed," in order to effectuate Congress' intent that federal officers have access to a federal
forum in which they can litigate the validity of their defense of official immunity. Sun Buick, Inc.

v. Saab Cars USA, Inc., 26 F.3d 1259, 1262 (3d Cir. 1994); In re Asbestos Prods. Liab. Litig.
(No. VI), 770 F. Supp. 2d 736, 741 (E.D. Pa. 2011). Despite this broad construction, it is wellsettled that the party removing an action to federal court bears the burden of proving that
removal is appropriate. Kirks, 654 F. Supp. 2d at 222 (citing Boyer v. Snap-On Tools Corp., 913
F.2d 108, 111 (3d Cir. 1990)).
While Section 1442 governs the substantive requirements for federal officer removal, the
timeliness of removal is dictated by Section 1446. Section 1446(b) provides: "the notice of
removal of a civil action or proceeding shall be filed within 30 days after the receipt by the
defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim
for relief upon which such action or proceeding is based." 28 U.S.C. §1446(b)(l). If the basis for
removal is not set forth in the initial pleading, however, a defendant must remove within thirty
days after receiving "an amended pleading, motion, order or other paper from which it may first
be ascertained that the case is one which is or has become removable." 1 28 U.S.C. § 1446(b)(3).
In analyzing the timeliness of removal, courts must consider whether the document at

1

The thirty-day removal limitation is meant to
"deprive the defendant of the undeserved tactical advantage that he would have if
he could wait and see how he was faring in state court before deciding whether to
remove the case to another court system; and to prevent the delay and waste of
resources involved in starting a case over in a second court after significant
proceedings, extending over months or even years, may have taken place in the
first court."
Mims v. 84 Lumber Co., 2013 WL 4775306, at *2 n.2 (D. Del. Sept. 6, 2013) (quoting Price v.
Wyeth Holdings Corp., 505 F.3d 624,631 (7th Cir. 2007)).
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issue "informs the reader, to a substantial degree of specificity, [that] all the elements of federal
jurisdiction are present."2 Foster v. Mutual Fire, Marine & Inland Ins. Co., 986 F.2d 48, 53-54
(3d Cir. 1993), overruled on other grounds, Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,
526 U.S. 344 (1999); In re Asbestos Prods. Liab. Litig., 770 F. Supp. 2d at 740. See also Mims v.
84 Lumber Co., 2013 WL 4775306, at *2 (D. Del. Sept. 6, 2013), report and recommendation
adopted sub nom. Mims v. Foster Wheeler Energy Corp., 2013 WL 6571816 (D. Del. Dec. 12,

2013). If so, receipt of the document triggers the thirty-day clock for removal under Section
1446. Foster, 986 F.2d at 53-54. 3
The analysis for determining whether the document at issue provided sufficient notice of
removability is an objective one: "'the issue is not what the defendant knew, but what the
relevant document said."' !d. at 53 (quoting Rowe v. Marder, 750 F. Supp. 718, 721 (W.D. Pa.
1990)). As with jurisdiction, the defendant bears the burden of showing the timeliness of
removal. See Mims v. 84 Lumber Co., 2013 WL 4775306, at *2 (citing Scearce v. 3M Co., 2013
WL 2156060, at *3 (D.N.J. May 16, 2013)).

2

The timeliness of removal is an issue of federal law. In re Asbestos Prods. Liab. Litig., 770 F.
Supp. 2d at 739.

3

In Foster, the Third Circuit held that the thirty-day window for removal is triggered only when
the four comers of the initial pleading informs a defendant that all elements of federal
jurisdiction are present. Foster, 986 F.2d at 53. However, this objective standard was articulated
in the context of the first thirty-day removal period referenced in Section 1446(b)(1 ). The Third
Circuit has not yet had occasion to determine what test applies to assess when the second thirtyday window under Section 1446(b)(3) is triggered. Bouchard v. CBS Corp., 2012 WL 1344388,
at *5 (E.D. Pa. Apr. 17, 2012); see also Scearce v. 3M Co., 2013 WL 2156060, at *3 n.3 (D.N.J.
May 16, 2013). Nevertheless, the Third Circuit in Foster recognized that removal inquiries
should be confined to "court-related documents," and should "not involve courts in arduous
inquiries into [a defendant's] state of mind." Foster, 986 F.2d at 53. Accordingly, the court
assumes that the objective Foster standard applies in evaluating the timeliness of removal under
Section 1446(b)(3 ).

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IV.

DISCUSSION
Foster Wheeler is "a manufacturer of boilers and economizers for the United States Navy,

among other equipment." (D.I. 36 at 1) In support of removal, Foster Wheeler contends that, "in
the manufacture and sale of boilers and auxiliary equipment for the Navy, including all aspects
of warnings associated with those pieces of equipment," it acted under the direction of an officer
or agency of the United States within the meaning of Section 1442(a)(l). (!d. at 3; D.I. 1

~

7)

Thus, Foster Wheeler maintains that it is entitled to a "government contractor immunity" defense
to Plaintiff's claims. (D.I. 1 ~ 9; D.I. 36 at 5)
Plaintiff does not contest Foster Wheeler's assertion that it has met the requirements
necessary to remove this action pursuant to the federal officer removal statute. Rather, Plaintiff
argues that Foster Wheeler's notice of removal was untimely because Foster Wheeler failed to
remove the case within thirty days after receiving the Complaint. (D.I. 28 at 1) According to
Plaintiff, the grounds for removal should have been clear to Foster Wheeler from the
"unambiguous allegations" of the Complaint, which "put Foster Wheeler on notice ... that it was
being sued for exposure to its products used by [Mr. Stone] while in the United States Coast
Guard." (!d. at 4) Plaintiff further argues that Foster Wheeler already was on notice of the
removability of this action based on its receipt of pleadings in connection with the California
Action, which included allegations similar to those in the present case, and disclosed the ships
upon which Mr. Stone served and the relevant dates of such service. (!d.; D.I. 29, Ex. A at 30)
Foster Wheeler counters that the Complaint is too "vague and ambiguous" to provide a
sufficient basis for removal. (D.I. 36 at 2) According to Foster Wheeler, removability was
discemable only after it received the Military Records. (!d.) The Military Records allowed Foster
Wheeler to "discover[] that it manufactured and designed marine boilers pursuant to strict and

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exacting Navy specifications for use on [a vessel upon which Mr. Stone served]. It was this
particular piece of information ... that created a basis for Foster Wheeler's removal." (!d)
Faster Wheeler disputes Plaintiffs argument that it was on notice of the removability of
this action based on the documents it received in connection with the California Action. Foster
Wheeler cites various case authorities for the proposition that, when analyzing whether a "paper"
provides notice of removability under Section 1446(b)(3), the inquiry is confined to documents
generated within the specific state court proceeding that has been removed to federal court. (See
id at 10-12)
The court finds that, while removal would have been inappropriate based only on the
allegations contained in the Complaint, the information added by the Military Records is also
inadequate to justify removal. 4 It is Foster Wheeler's burden to "sufficiently explain why it is
that removability could only be ascertained at the time of removal." Mims v. Foster Wheeler
Energy Corp., 2013 WL 6571816, at *1 (citing Scearce, 2013 WL 2156060, at *5). As discussed
below, Foster Wheeler has failed to meet this burden.
According to Foster Wheeler:
[It] has been involved in asbestos litigation for many years and has
avoided filing frivolous Removals by choosing to be diligent and only removing a
case when it was certain that its boilers or economizers were on a Navy ship at
issue and that plaintiff was alleging exposure to asbestos from such Foster
Wheeler equipment. The allegation in the Complaint was entirely incomplete and
insufficient, and did not end the inquiry as to whether Foster Wheeler's
equipment were present on any ships aboard which Mr. Stone may have served.
There were hundreds, if not thousands, of Navy ships built and repaired at
various shipyards and many did not contain Foster Wheeler boilers. Until Foster
Wheeler knows, at the very least, the identity of the Navy ship(s) at issue, it
cannot, in good faith, make a removal determination. The scant information
provided by plaintiff in the Complaint did not put Foster Wheeler on notice that
4

Because the information included in the Military Records is inadequate to justify removal,
regardless of when it was received, the court need not address whether the pleadings from the
California Action provide notice of removability in connection with the present action.
7

exposure to Foster Wheeler boilers, specified by the Navy, manufactured by
Foster Wheeler in accordance with strict Navy specifications and manufactured at
and under the direction of the Navy, was the source of any alleged exposure in
this action. Accordingly, until plaintiff served Mr. Stone's military records, which
identified the USCGC Chautauqua as a ship on which he served, Foster Wheeler
had no good faith basis to remove this action to this Court.
(D.I. 36 at 9-10 (emphasis added)) Foster Wheeler's argument focuses on a lack of information
in the Complaint concerning the particular ships upon which Mr. Stone was exposed to asbestos,
the specific asbestos-containing products connected to such exposure, and the manufacturers of
such products.
The problem with Foster Wheeler's argument is twofold. First, Foster Wheeler does not
fully explain why it needed to know the above information in order to ascertain removability.
Although Foster Wheeler sufficiently explains why it needed to know the identities of the
particular ships on which Mr. Stone worked, 5 it has failed to establish why it needed to know the
specific Foster Wheeler equipment at issue in order to ascertain removability. For example,
Foster Wheeler has not asserted that it supplied equipment to the United States that would not
have been subject to a federal contractor defense. Foster Wheeler simply argues that Plaintiffs
allegations are too vague. While Foster Wheeler may have provided various products to the
United States, some of which would not have justified federal officer removal, it is Foster
Wheeler's burden to make that showing in order to establish the timeliness of removal.
Second, Foster Wheeler does not adequately explain why the information in the Military
Records provides sufficient notice of its government contractor defense. More specifically, the
Military Records, which Foster Wheeler cites as being sufficient to put it on notice of a federal
5

With respect to the identities of particular ships on which Mr. Stone worked, Foster Wheeler
explains that "[t]here were hundreds, if not thousands, of Navy ships built and repaired at various
shipyards," and while some of those ships contained Foster Wheeler equipment, others did not.
(D.I. 36 at 9) Thus, Foster Wheeler needed to know the identities of the ships at issue in order to
determine whether the particular ships on which Mr. Stone worked actually contained Foster
Wheeler equipment.
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defense, do not provide the missing information Foster Wheeler claims was critical to its ability
to ascertain the availability of the defense. The only new facts included in the Military Records
are the identities of the ships upon which Mr. Stone served and the respective dates of such
service. (D .I. 1, Ex. B) However, the Military Records do not expressly disclose Plaintiffs
contention that Mr. Stone was exposed to asbestos while assigned to those ships, much less link
Mr. Stone's military service to particular products designed, manufactured, or supplied by Foster
Wheeler (or any product or manufacturer, for that matter).
Foster Wheeler has failed to meet its burden of establishing the timeliness of removal.

See Mims v. Foster Wheeler Energy Corp., 2013 WL 6571816, at *1 (citing Scearce, 2013 WL
2156060, at *5). Furthermore, it is not apparent from the record that Mr. Stone worked on any
Foster Wheeler equipment, let alone on such equipment aboard any military ships. Consequently,
Foster Wheeler's removal ofthis action was untimely pursuant to Section 1446(b).
This conclusion is supported by decisions from this court and other districts within the
Third Circuit. For example, in Mims v. 84 Lumber Co., this court granted the plaintiffs' motion
to remand because the removing defendant, Foster Wheeler, failed to meet its burden of
establishing the timeliness of removal. Mims, 2013 WL 4775306, at *7. In support of removal,
Foster Wheeler had offered the following explanation, similar to the one put forward here:
"The allegation[s] in the Complaint and Interrogatory Answers were entirely
incomplete and insufficient, and did not end the inquiry as to whether Foster
Wheeler's boilers were present on any Navy ships aboard which [the plaintif:fJ
worked. There were hundreds, if not thousands, of Navy ships built and repaired
at various shipyards and many did not contain Foster Wheeler boilers. Until
Foster Wheeler knows, at the very least, the identity of the Navy ship(s) at issue, it
cannot, in good faith, make a removal determination . ... Accordingly, until
plaintiff specifically testified to being exposed to asbestos from Foster Wheeler
boilers on surface ships at [Charleston Naval Shipyard}, Foster Wheeler had no
good faith basis to remove this action to this Court."

!d. at *5 (alterations in original) (citation omitted).

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The court observed that Foster Wheeler's argument "appears to center on a lack of
information in those prior documents as to the particular ships on which [the plaintiff] worked at
the Charleston Naval Shipyard, as some of those ships contained 'Foster Wheeler boilers,' while
some 'did not.'" !d. (citation omitted). However, the court explained that "the deposition
testimony excerpt put forward by Foster Wheeler[] . . . does not specifically identify any
particular Navy ship that [the plaintiff] worked on at the Charleston Naval Shipyard." !d. at *6.
Thus, the court held that Foster Wheeler failed to meet its burden of showing the timeliness of
removal because the source that it "cite[d] as being sufficient to put it on notice of a federal
defense [did] not provide the missing information that it [claimed] was essential to its ability to
ascertain the availability ofthe defense." !d.
In the present case, although the Military Records identify the ships upon which Mr.
Stone served and the respective dates of such service, they do not indicate that Mr. Stone was
exposed to asbestos while assigned to those vessels, nor do they link Mr. Stone's service to
particular products or product manufacturers. Foster Wheeler fails to explain how the
identification of a specific vessel goes further than the pleadings to convey that Mr. Stone
performed work on Foster Wheeler naval marine boilers at the direction of a federal officer. 6

6

Notably, in challenging remand in Mims v. Foster Wheeler Energy Corp., Foster Wheeler
acknowledged that it was not necessary to know the specific ship where the alleged asbestos
exposure occurred. Specifically, in its objection to the magistrate judge's recommendation to
remand, Foster Wheeler reasoned:
[P]erhaps unclear in Foster Wheeler's Opposition, a key piece of information
obtained at Mr. Mims's deposition, that was absent from the
Complaint/Responses, was that Mr. Mims was alleging exposures to Foster
Wheeler naval marine boilers, and not some other piece of equipment, or landbased boiler. At that point, at least for purposes of determining proper removal,
the identity ofthe specific ship(s), while helpful, becomes irrelevant.
Mims v. Foster Wheeler Energy Corp., 2013 WL 6571816, at *1 n.5 (D. Del. Dec. 12, 2013).

10

Thus, as in Mims, the source Foster Wheeler "cites as being sufficient to put it on notice
of a federal defense does not provide the missing information that it now claims was essential to
its ability to ascertain the availability of the defense." Mims v. 84 Lumber Co., 2013 WL
4775306, at *5.
Similarly, in Scearce v. 3M Co., the United States District Court for the District of New
Jersey granted the plaintiff's motion to remand, finding that the defendant Raytheon's notice of
removal was untimely under Section 1446(b)(3). Scearce, 2013 WL 2156060, at *5. In support
of removal, Raytheon had argued that it only learned that the case was removable during the
plaintiff's deposition (taken within thirty days of the removal), in which plaintiff revealed that
"'the only specific Raytheon product about which he complains is the AN/TRC-170, a digital
troposcatter radio system."' I d. (citation omitted).
The Scearce court agreed that, given the breadth of its operations, Raytheon could not
have concluded from the amended complaint and an accompanying fact sheet that the AN/TRC170 was its product at issue in the case. Jd. However, the court explained that:
Raytheon has failed to establish why the company needed to know the specific
product in order to ascertain removability. Unlike the defendants in [other
comparable cases], 7 Raytheon has not stated that it supplied other products to the
Air Force that would not have been subject to a federal contractor defense.
Raytheon simply argues that Plaintiffs' allegations were not sufficiently detailed.
The Court recognizes that Raytheon very well could have provided various
products to the Air Force, some of which would not have justified federal officer
7

One of the cases cited in Scearce was Bouchard v. CBS Corp., 2012 WL 1344388 (E.D. Pa.
Apr. 17, 2012). In Bouchard, the defendant removed the case to federal court upon learning in
deposition testimony that the plaintiff's claims against it related to the plaintiff's work on two
particular military ships while at the defendant's work site. Bouchard, 2012 WL 1344388, at *35. The defendant clearly explained to the district court that "like other federal military
contractors, [it] performs activities that are protected by federal contractor immunity, and others
that are not." Id. at *7. Thus, the defendant sufficiently articulated why "[u]ntil deposition
testimony revealed which ships [the plaintiff] had worked on during his employment, [it] could
not assert either that its actions were taken pursuant to a federal officer's directions, or that it had
a colorable federal defense." Id.
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removal. Nevertheless, It IS Raytheon's burden [to make that showing] to
establish that removal was timely and that it could not have ascertained
removability earlier.
!d. (emphasis added). The court found that Raytheon did not meet its burden because it failed to
link the new information, learned through the plaintiffs deposition, to an explanation of the type
of information (not previously provided) that would have allowed it to ascertain the availability
of a federal defense. !d. Consequently, the case was remanded to state court. Id. See also
Pantalone v. Aurora Pump Co., 576 F. Supp. 2d 325, 334 (D. Conn. 2008) (granting the
plaintiffs motion to remand because the defendant's "grounds for removal [were] not traceable
to the information confirmed and described" in an expert's report, such that the defendant's
"claim that the [expert's] report was the event which triggered removability [was] belied by [its]
own submissions"); Green v. A. W Chesterton Co., 366 F. Supp. 2d 149, 154 (D. Me. 2005) ("In
order to assert sufficient facts to support a removal notice that is premised on the government
contractor defense, [the defendant] need[ s] some information tending to establish that the
[plaintiff's} exposure to asbestos related to [the defendant's} product procured by the
government pursuant to a contract that specifically called for the use of asbestos as a
component." (emphasis added)).
V.

CONCLUSION
For the foregoing reasons, I recommend that the Plaintiffs Motion to Remand be

granted.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b)(2). The objections and responses to the objections are limited to ten (10)
pages each. The failure of a party to object to legal conclusions may result in the loss of the right
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to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 924, 925 n.l
(3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website,
http://www.ded. uscourts.gov.

Dated: March _!_1_, 2014

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