Wines et al v. ABB Inc. et al
Filing
207
REPORT AND RECOMMENDATIONS- granting 151 Second MOTION to Remand to State Court. 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) p ages) 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 6/27/2016. Signed by Judge Sherry R. Fallon on 6/10/2016. (lih)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE ASBESTOS LITIGATION:
NEAL WINES, Individually and as
Executor of the Estate of DONNIE
LACEY WINES, and on behalf of all
Wrongful Death beneficiaries,
Plaintiff,
v.
ABB, INC., et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 14-11'90-GMS-SRF
REPORT AND RECOMMENDATION
I.
INTRODUCTION
Presently before the court in this asbestos-related personal injury action is Plaintiffs
Motion to Remand to State Court ("Motion to Remand") on the grounds that the Notice of
Removal filed by Rockwell Automation Inc. ("Rockwell") 1 was untimely and does not meet the
requirements of the federal officer removal statute. (D.I. 151) For the reasons that follow, I
recommend that the court GRANT Plaintiffs Motion to Remand.
II.
BACKGROUND
Donnie Lacey Wines ("Mr. Wines") and Vergie Wines filed this action against numerous
defendants in the Superior Court of the State of Delaware on August 7, 2014. 2 (D.I. 1, Ex. A)
The Complaint alleges that Mr. Wines developed mesothelioma as a result of exposure to
1
Rockwell was formerly known as Rockwell International Corporation. The defendant is sued
individually and as a successor-in-interest to Allen-Bradley Co. (D.I. 1 at 1)
2
Mr. Wines and Vergie Wines both passed away following the initiation of this suit. The
Complaint has since been amended to substitute Neal Wines ("Plaintiff') as the personal
representative of the decedents' estates. (D.I. 152)
asbestos-containing products manufactured or supplied by various defendants, including AllenBradley and its successor-in-interest, Rockwell. (Id., Ex. A at ifif 22, 30) Specifically, Mr. Wines
claims he was wrongfully exposed to asbestos while working as an electrician, instructor, and
supervisor for Newport News Shipbuilding in Newport News, Virginia from 1961 to 1977, while
working as an electrician for Burlington Industries Carpet Mill in Glasgow, Virginia from 1977
to 2002, and while performing maintenance on his personal vehicle and residences in the 1960' s
through 1970's. 3 (Id., Ex. A at if 30) The Complaint alleges that the defendants
were at all times pertinent directly or indirectly engaged in the mining,
manufacturing, distribution, sales, licensing, leasing, installation, removal and/or
use of asbestos, asbestos-containing products and/or products designed for use
with asbestos or asbestos-containing products. They were also engaged in the
development, manufacture, distribution, sales, licensing or leasing of equipment,
procedures and/or technology necessary to mine, manufacture, sell, distribute,
install, remove and use asbestos and asbestos-containing products.
(Id., Ex. A at if 34) It is further alleged that
[t]he Defendants were negligent in conducting the above activities and/or in the
safety conditions at their plants and facilities despite the fact that the Defendants
knew or should have known that asbestos exposure could result in serious injury,
disease and/or death, Defendants:
Faile~
to substitute, suggest, promote or require the substitution of materials
other than asbestos;
(b) Failed to adequately warn all potential victims of asbestos, including Plaintiff
DONNIE LACY WINES, as well as other users, bystanders, household
members and members of the general public of the risks of asbestos;
(c) Failed to adequately test, research, or investigate asbestos and/or its effects
prior to sale, use, and/or exposure of Plaintiff DONNIE LACEY WINES and
others similarly situated;
(d) Failed to adequately package, distribute and/or use asbestos in a manner which
would minimize the escape of asbestos fibers therefore adding to the exposure
of Plaintiff DONNIE LACEY WINES and others similarly situated; and
(e) Failed to take adequate steps to remedy the above failures, including but not
limited to recall of asbestos, abatement of asbestos on their property, recall of
asbestos products, conduct research as to how to cure or minimize asbestos
(a)
3
Vergie Wines asserted a loss of consortium claim derivative of Mr. Wines' claims. (Id., Ex. A
at~ 32)
2
injuries, distribute asbestos so as to render it safe or safely remove the
asbestos now in place.
(Id., Ex. A at if 37)
On August 11, 2014, Plaintiffs decedents electronically filed responses to interrogatories
and requests for production of documents, including medical records, a doctor-hospital list, and a
work history sheet, (D.I. 32 at 20-31, Ex. 1, Ex. 2 at 1-25) In the work history sheet, Mr. Wines
identified a dozen Navy vessels 4 that he worked on at the time of his alleged exposure to
asbestos. (Id., Ex. 2 at 16-24)
Rockwell contends that it first learned of the Complaint on August 14, 2014 after a
routine docket search, even though Rockwell was not formally served until September 3, 2014.
(D.I. 53 at 1, Ex. B) In its interrogatory responses, Rockwell admits that it manufactured and
sold industrial electrical power products from the 1930's until 1985, which incorporated some
asbestos-containing subcomponents molded by Allen-Bradley. (D.1. 32, Ex. 3 at 3)
Based on receipt of the Complaint and preliminary discovery, Rockwell removed the
action to this court on September 15, 2014 pursuant to 28 U.S.C. § 1442(a)(l), the federal officer
removal statute. (D.I. 1) Rockwell based removal on Plaintiffs decedent's allegations of
exposure to asbestos-containing Allen-Bradley electrical equipment, which Rockwell supplied to
the Navy in accordance with the Government's design and manufacturing specifications. (Id. at
2)
On October 15, 2014, Plaintiff filed a Motion to Remand, asserting that Rockwell's
Notice of Removal was untimely, and that this court lacks federal officer jurisdiction. {D.I. 27)
4
Mr. Wines recalled performing repair work on the USS Shark and USS Robert E. Lee. (Id., Ex.
2 at 17) He recalled working on new construction onboard the USS James Monroe, USS James
Madison, USS John C. Calhoun, USS Von Steuben, USS Sam Rayburn, USS Simon Bolivar,
USS America, USS John F. Kennedy, USS Nimitz, and USS California. (Id.)
3
After the deaths of the original plaintiffs, the court entered a stay and denied the
Motion to Remand without prejudice pending substitution of the proper party plaintiff.
(D.I. 142) Thereafter, the Complaint was amended to add a wrongful death claim and
to substitute Neal Wines as Plaintiff and executor of the original plaintiffs' estates.
(D.I. 152) Plaintiff subsequently renewed the Motion to Remand on January 20, 2016,
and Rockwell renewed its opposition on February 2, 2016. (D.I. 151; D.I. 156)
III.
LEGAL STANDARD .
A. Removal Jurisdiction
The federal officer removal statute, 28 U.S.C. § 1442(a)(l), provides that a civil action
may be removed to the district court when the United States, an agency thereof, or any officer or
person acting under that officer is sued for any act under the color of such office. The party
removing an action to federal court bears the burden of proving that subject matter jurisdiction
exists and that removal is proper. See Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir.
1990). In the Third Circuit, the provisions of the federal officer removal statute are to be
''broadly construed."5 The Supreme Court has explained that "the right of removal is absolute
for conduct performed under color of federal office, and has insisted that the policy favoring
removal 'should not be frustrated by a narrow, grudging interpretation of§ 1442(a)(l)."'
5
The Third Circuit draws a distinction between the removal provisions of § 1441, which "are to
be strictly construed against removal," Steel Valley Auth. v. Union Switch & Signal Div., 809
F.2d 1006, 1010 (3d Cir. 1987), and the provisions of the federal officer removal statute, which
are to be "broadly construed." Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1262 (3d
Cir. 1994); Megill v. Worthington Pump, Inc., No. CIV. A. 98-76-SLR, 1999 WL 191565, at *2
(D. Del. Mar. 26, 1999); Walkup v. Air & Liquid Sys. Corp., Civil Action No. 12-1635-SLRSRF, 2013 WL 5448623, at *1-2 (D. Del. Sept. 26, 2013), report and recommendation adopted,
2013 WL 5798701 (D. Del. Oct. 24, 2013). See also Deuley v. Dyncorp Int'!, Inc., 588 F. Supp.
2d 539, 542 (D. Del. 2008) ("It is recognized that this provision[§ 1442(a)(l)] is not to be
construed narrowly."); Parlin v. pyncorp Int'!, Inc., 579 F. Supp. 2d 629, 634 (D. Del. 2008)
(explaining that§ 1442(a) is "liberally construed").
4
Arizona v. Manypenny, 451 U.S. 232, 242 (1981) (citation omitted).
To establish federal officer removal jurisdiction under § 1442(a)(l ), a defendant must
satisfy the following:
(1) it is a "person" within the meaning of the statute;
(2) the plaintiffs 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 Coming Fiberglas Corp., 153 F.3d 124, 127 (3d Cir. 1998) (citing Mesa v.
California, 489 U.S. 121, 129 (1989)).
B. Timing of Removal
While § 1442 governs the substantive jurisdictional requirements for federal officer
removal, § 1446 dictates the timeliness of removal. Section 1446(b) provides that "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." 6 § 1446(b)(3).
Thus, an action must be removed within thirty days of receipt of the initial pleading when
grounds for removal arise in the initial pleading. However, ifthe initial pleading does not give
6
The thirty-day removal limitation is meant to deter a defendant from waiting to see how they
would fair in state court before choosing whether to remove the case to district court, "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., Civil Action No. 13-298-SLR-CJB, 2013 WL 4775306, at *2 n.
2 (D. Del. Sept. 6, 2013), report and recommendation adopted, 2013 WL 6571816 (D. Del. 12,
2013) (quoting Price v. Wyeth Holdings Corp., 505 F.3d 624, 631 (7th Cir. 2007)).
5
rise to grounds for removal, then the thirty days begins to run after receipt of a subsequent
document setting forth grounds that warrant removal.
As with jurisdiction, the defendant bears the burden of showing the timeliness of
removal. See Mims; 2013 WL 4775306, at *2 (citing Scearce v. 3M Co., 2013 WL 2156060, at
*3 (D.N.J. May 16, 2013)).
IV.
DISCUSSION
Plaintiff challenges removal on the basis that it was untimely, and that Rockwell has
failed to satisfy the elements for removal jurisdiction. (D.I. 28 at 3-20)
A. Timeliness of Removal
To be timely, Rockwell must have filed the Notice of Removal "within 30 days after the
receipt ... of the initial pleading .... " 28 U.S.C. § 1446(b)(l). Under§ 1446(b)(3), a defendant
may rely on the initial pleading, amended pleadings, motions, orders, or other papers to ascertain
removability.
Plaintiff argues that the thirty-day removal period was triggered on August 11, 2014,
when Plaintiff electronically filed the interrogatory responses. (D.I. 28 at 5) Plaintiff asserts that
this filing qualifies as an "other paper" pursuant to § 1446(b)(3) "from which Rockwell could
have first ascertained the removability ohhis case." (Id.) Rockwell acknowledges that
Plaintiffs interrogatory responses supplied sufficient facts for it to have ascertained removability
based on the federal contractor defense. 7 (D.I. 52 at 5; D.I. 32 at 66-73) However, Rockwell
asserts that it did not learn of Plaintiffs interrogatory responses until August 14, 2014, after its
defense counsel discovered the action and Complaint while conducting a routine docket search.
7
The interrogatory responses include a work history sheet, which lists the Navy vessels upon
which Mr. Wines worked at the time of his alleged asbestos exposure. (D.I. 52 at 5; D.I. 32 at
66-73)
6
(D.I. 53 at 1-3)
When§ 1446(b)(l) and§ 1446(b)(3) are read together, the plain language 8 of the statute
indicates that subsection (b )(3) does not apply unless a defendant has already received the "initial
pleading." See 28 U.S.C. § 1446(b). The statute reads:
(1) The notice of removal ... 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, or within
3 0 days after the service of summons upon the defendant if such initial pleading
has then been filed in court and is not required to be served on the defendant,
whichever period is shorter....
(3) Except as provided in subsection (c), if the case stated by the initial pleading is
not removable, a notice of removal may be filed within 30 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 which is or has become removable.
§§ 1446(b)(l), (b)(3).
. While citing legislative history, the Third Circuit explained that in drafting § 1446(b),
Congress intended to "eliminate the situation wherein a defendant who has not received the
complaint must decide whether to remove 'before he knows what the suit is about."' Sikirica v.
Nationwide Ins. Co., 416 F.3d 214, 222 (3d Cir. 2005) (citing Murphy Bros., Inc. v. Michetti
Pipe Stringing, Inc., 526 U.S. 344, 352 (1999)). Therefore, the Third Circuit relied on Supreme
Court precedent and held that subsection (b)(3) does not apply ifthe "other papers" were
received before the complaint. Id. at 221-23. In such a case, the complaint constitutes the
"initial pleading" under the terms of the removal statute, so the time for removal begins to run
8
"[W]here ... the statute's language is plain, 'the sole function of the courts is to enforce it
according to its terms."' United States v. Ron Pair Enters., 489 U.S. 235, 241 (1989) (quoting
Caminetti v. United States, 242 U.S. 470, 485 (1917)).
7
upon receipt of the complaint, and not upon receipt of the "other papers."9 Id. Accordingly, for
an "other paper" to trigger the thirty-day period in the present action, Rockwell must have
received the "other paper" after or at least contemporaneously with the initial pleading.
Rockwell received the initial pleading and the "other paper" on the same date.
It
acknowledged receipt of both the Complaint and the interrogatory responses on August 14, 2014
through its defense counsel. (D.I. 53 at 5) Therefore, it is unnecessary to consider timeliness.under
§ 1446(b)(3). The thirty-daytime period commenced on August 14, 2014, so Rockwell's removal
by September 15, 2014 is timely. 10 (D.I. 1)
Having determined that the Notice of Removal was timely filed, the court must address
whether Rockwell has satisfied the substantive requirements pursuant to the federal officer
removal statute.
B. Federal Officer Removal Jurisdiction
To establish removal jurisdiction under§ 1442(a)(l), Rockwell must show the following:
(1) it is a "person" within the meaning of the statute;
(2) the plaintiffs 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.
Feidtv. Owens Corning Fiberglas Corp., 153 F.3d 124, 127 (3d Cir. 1998) (citing Mesa v.
California, 489 U.S. 121, 129 (1989)).
1. Whether Rockwell is a "person" within the meaning of§ 1442(a)(l)
9
The Sikirica case interprets § 1446 prior to amendments which separated the paragraphs of §
1446(b) into separate subsections. The substance of the subsections, although now separated into
§ 1446(b)(l) and§ 1446(b)(3), remains the same as when the Sikirica court interpreted the
language of the statute.
10
Thirty days from August 14, 2014 falls on September 13, 2014. As September 13, 2014 was a
Saturday, the deadline to file for removal was extended to September 15, 2014. See Fed. R. Civ.
P. 6(a)(c).
8
With respect to the first element of the statute, there is no dispute that Rockwell, as a
corporation, is a "person" within the meaning of the statute. See In re Asbestos Litig. (Seitz), 661
F. Supp. 2d 451, 454 (D. Del. 2009) (citing Good v. Armstrong World Indus., Inc., 914 F. Supp.
1125, 1128 (E.D. Pa. 1996)); Kirks v. Gen. Elec. Co., 654 F. Supp. 2d 220, 223 (D. Del. 2009);
Hicks v. Boeing Co., Civil Action No. 13-393-SLR-SRF, 2014 WL 1051748, at *4, (D. Del. Mar.
17, 2014), report and recommendation adopted, 2014 WL 1391104 (D. Del. Apr. 8, 2014).
Therefore, the first element of the federal officer removal statute has been met.
2. Whether Plaintiff's claims are based upon Rockwell's conduct "acting
under" a federal office
The second factor has been described as "requiring 'a showing that the acts forming the
basis of the state suit were performed pursuant to an officer's direct orders or comprehensive and
detailed regulations."' In re Asbestos Litig. (Seitz), 661 F. Supp. 2d at 454 (quoting Good, 914 F.
Supp. at 1128). Accordingly, Rockwell "must demonstrate that a 'federal office' was the source
of the specific act for which [it] now faces suit." Id. (citing Holdren v. Buffalo Pumps, Inc., 614
F. Supp. 2d 129, 138 (D. Mass. 2009)). "By contrast, if the corporation establishes only that the
relevant acts occurred under the general auspices of federal direction then it is not entitled to §
1442(a)(l) removal." Good, 914 F. Supp. at 1128.
Rockwell asserts that the Declaration of Thomas F. McCaffrey 11 ("McCaffrey")
establishes the "acting under" element of the federal officer removal statute. (D.I. 53 at 10)
McCaffrey demonstrates that electrical components utilized on naval vessels were required to
meet standards and regulations established by the Navy. (Id.) Plaintiff acknowledges that
11
McCaffrey is a Retired Commander of the U.S. Navy and member of the Society of Naval
Architects and Marine Designers. (D.I. 1, Ex. D at~ 4)
9
McCaffrey' s statements generally indicate that electrical components would have complied with
regulations if used on Navy ships. (D.I. 66 at 4) However, removal is not appropriate because
McCaffrey does not establish that Rockwell actually acted under Navy direction in
manufacturing the particular Allen-Bradley products to which Plaintiffs decedent alleges
exposure. (Id.)
Specifically, McCaffrey states in his Declaration that "Allen-Bradley was not approved to
provide electrical motor control products to the Navy with the exception of a variable rheostat
intended to be used in cranes aboard surface ships." 12 (D.I. 1, Ex. D at if 9) Therefore,
Rockwell's argument that it "acted under" the direction of the Navy is internally inconsistent
with its denial that it supplied asbestos-containing products to the Navy at the Navy's direction.
In other words, McCaffrey' s Declaration shows that Rockwell generally did not supply asbestoscontaining products to the Navy. However, if it did, Rockwell was acting under direct orders or
detailed Navy regulations, even though such products were not approved by the Navy.
McCaffrey states that only equipment listed on the Navy Qualified Products List ("QPL")
may be used on Navy vessels. (Id., Ex. D at if 8) He explained that in the 1940's, Allen-Bradley
was approved to mold a type of non-asbestos plastic called "CFG" for the Navy. (Id., Ex. D at if
10) However,
no Allen-Bradley or Rockwell product was approved on any relevant Navy QPL
for use under specification MIL-M-14, MIL-M-21556, or any other specification
for molded plastic materials calling for a plastic material identified as type
"MFG," "MFI," of any other type that identifies a thermosetting plastic which
used asbestos.
(Id., Ex. D at if 13) Accordingly, McCaffrey's Declaration establishes that no asbestos-containing
12
The McCaffrey Declaration was previously submitted in an unrelated asbestos matter in an
outside jurisdiction. The Declaration recites general background facts concerning the use of
Allen-Bradley electrical motor control products on Navy vessels.
10
Allen-Bradley product appeared on the Navy QPLs from the 1940's to the 1980's, except for the
rheostat used in cranes. (Id., Ex. D at if 9) Mr. Wines only testified to working with AllenBradley products while cleaning contactors, 13 breakers, and circuit breakers aboard Navy vessels.
(D.I. 1, Ex. 3 at 17-19)
McCaffrey's Declaration supports that Rockwell, as a successor-in-interest to AllenBradley, did not act under Navy direction in allegedly supplying the asbestos-containing
"electrical panels and parts" to which Plaintiffs decedent claims exposure. (Id., Ex. 2 at 4)
Therefore, the evidence presented fails to establish the "acting under" requirement under the
federal officer removal statute.
3. Whether Rockwell has raised a colorable federal defense 14
The third factor requires the removing defendant to demonstrate a colorable defense to a
plaintiffs claims. Megill v. Worthington Pump, Inc., No. CIV. A. 98-76-SLR, 1999 WL 191565,
at *3 (D. Del. March 26, 1999). In the present action, Rockwell relies on the federal government
contractor defense. (D.I. 1) According to the Supreme Court, a federal contractor is not liable for
design defects in military equipment 15 under state tort laws when:
(1) the United States approved reasonably precise specifications;
(2) the equipment conformed to those specifications; and
(3) the supplier warned the United States about the dangers in the use of the
equipment that were known to the supplier but not to the United States. 16
13
Contactors are also referred to as motor starters. (D.I. 1, Ex. 3 at 17)
For completeness, the remaining requirements of the federal officer removal statute. ar~
addressed in this Report and Recommendation.
15
In the Third Circuit, the government contractor defense is "available to all contractors who are
'compelled by a contract to perform an obligation for the United States,' even where a
nonmilitary product is at issue." Megill, 1999 WL 191565, at *3 n. 1 (quoting Carley v. Wheeled
Coach, 991 F.2d 1117, 1120 (3d Cir. 1993)).
16
According to the Boyle court:
The first two of these conditions assure that ... the design feature in question was
considered by a Government officer, and not merely by the contractor itself. The
third condition is necessary because, in its absence, the displacement of state tort
14
11
Boyle, 487 U.S. at 512-13.
Federal courts have tailored the Boyle elements to failure to warn claims as follows:
(1) the United States exercised its discretion and approved the warnings, if any;
(2) the contractor provided warnings that conformed to the approved warnings; and
(3) the contractor warned the United States of the dangers in the equipment's use
about which the contractor knew, but the United States did not.
Hicks v. Boeing Co., Civil Action No. 13-393-SLR-SRF, 2014 WL 1051748, at *5 (D. Del. Mar.
17, 2014), report and recommendation adopted, (D. Del. Apr. 8, 2014) (quoting MacQueen v.
Union Carbide Corp., Civil Action No. 13-831-SLR-CJB, 2013 WL 6571808, at *4 (D. Del.
Dec. 13, 2013), report and recommendation adopted, 2014 WL 108535 (D. Del. Jan. 9, 2014)).
The Supreme Court in Boyle held that the government contractor defense pre-empts state
tort law when "the state-imposed duty of care that is the asserted basis of the contractor's
liability ... is precisely contrary to the duty imposed by the government contract." Boyle, 487
U.S. at 509. Thus, in actions such as the present case, involving allegations of failure to warn of
the dangers of asbestos, the removing defendant
must show that the applicable federal contract includes warning requirements that
significantly conflict with those that might be imposed by state law. Moreover, it
seems clear to us [] that Boyle 's requirement of government approval of
"reasonably precise specifications" mandates that the federal duties be imposed
upon the contractor. The contractor must show that whatever warning
accompanied a product resulted from a determination of a government
official, ... and thus that the government itself "dictated" the content of the
warnings meant to accompany the product.
In re Asbestos Litig. (Seitz), 661 F. Supp. 2d 451, 454 (D. Del. 2009) (quoting In re Joint E. & S.
Dist. NY Asbestos Litig., 897 F.2d 626, 630 (2d Cir. 1990)).
There is evidence in the record to establish the elements of the federal government
law would create some incentive for the manufacturer to withhold knowledge of
risks, since conveying that knowledge might disrupt the contract but withholding it
would produce no liability.
Boyle v. United Techs Corp., 487 U.S. 500, 512-13 (1988).
12
contractor defense. With respect to the first and second prongs, Mccaffrey explained that the
Navy required all equipment to meet certain specifications, and only items on the Qualified
Products List were approved for Navy use. (D.I. 1, Ex. D at if 9) Additionally, Rockwell proffers
Declarations from Rear Admiral David P. Sargent, Jr. and Samuel A. Forman, M.D, consistent
with declarations previously submitted in other cases, which satisfied the three prongs of the
federal government contractor defense under the Boyle analysis. (D.I. 53, Ex. C; D.I. 58) See
Evans v. Foster Wheeler Energy Corp., C.A. No. 15-681-SLR-SRF, 2016 WL 452310, at* 8 (D.
Del. Feb 5, 2016), report and recommendation adopted, 2016 WL 754122 (D. Del. Feb. 24,
2016) (citing Boyle, 487 U.S. at 512). Rear Admiral Sargent stated that the Navy drafted,
approved, and maintained specifications for any equipment intended for use aboard Navy ships.
(D.I. 58 at if 27) Manufacturers "would not have been permitted ... to vary or to deviate in any
respect from the Navy specifications in supplying equipment, including affixing any type of
warning or caution statement to equipment intended for installation in a Navy ship .... (Id. at if
58) With respect to the third prong, Dr. Forman makes clear that the Navy knew about the
hazards of asbestos as early as 1922, as exemplified by numerous Navy publications and
statements acknowledging and concerning the topic. (D.I. 53, Ex.Cat ifif 27-31, 36-45, 47-55)
Although the Declarations plausibly support the elements of the federal government
contractor defense, for example, that equipment conformed to the Navy's reasonably precise
specifications, and that the dangers of asbestos were known to the Navy, the evidence is
insufficient to establish all elements under the federal officer removal statute. That the Navy
approved reasonably precise specifications does not necessarily mean that Rockwell was acting
under or pursuant to those specifications. Accordingly, and for the reasons further detailed in
Sections IV(B)(2), supra, and IV(B)(4), infra, Rockwell fails to establish federal officer removal
13
jurisdiction.
4. Whether there is a causal nexus between Plaintiff's claims and Rockwell's
conduct performed under color of a federal office
'"A crucial element of both the Boyle decision and the removal requirements is missing if
the contractor fails to establish a causal connection between the conduct being supervised by the
[federal office] and the conduct deemed offensive in the plaintiffs complaint.'" In re Asbestos
Litig. (Seitz), 661 F. Supp. 2d 451, 454 (D. Del. 2009) (alteration in original) (quoting Megill v.
Worthington Pump, Inc., CIV. A. 98-76-SLR, 1999 WL 191565, at *4 (Mar. 26, 1999)).
In the present action, Plaintiff asserts liability based on the following conduct: 1) failure
to substitute other materials for asbestos; 2) failure to warn; 3) failure to adequately research the
dangers of asbestos; 4) failure to adequately package, distribute, and use asbestos; and 5) failure
to remedy the above failures. The McCaffrey Declaration indicates that the Navy did not
approve any asbestos-containing Allen-Bradley product, except for one product not at issue,
here. Therefore, there is no causal connection between Plaintiffs decedent's claims and the
conduct performed under color of a federal office, as the evidence is insufficient to establish that
the claims arose out of the direct orders or detailed regulations of the Navy. As such, removal is
not appropriate under the federal officer removal statute, and Plaintiffs Motion to Remand
should be GRANTED.
V.
CONCLUSION
For the foregoing reasons, I recommend that the court GRANT Plaintiffs Motion to
Remand.
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
14
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 to de
novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 92he 4, 925 n.1 (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: June J_Q__, 2016
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?