SCEARCE et al v. 3M COMPANY et al

Filing 48

OPINION FILED. Signed by Judge Robert B. Kugler on 5/16/13. (js)

NOT FOR PUBLICATION

(Doc. No. 20)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
RONALD S. SCEARCE et al.,
:
:
Plaintiffs,
:
Civil No. 12-6676 (RBK/JS)
:
v.
:
OPINION
:
3M COMPANY, et al.
:
:
Defendants.
:
___________________________________ :
KUGLER, United States District Judge:
This matter comes before the Court on the motion of Ronald S. Scearce and Alicia J.
Scearce (“Plaintiffs”) to remand this action to the Superior Court of New Jersey, Middlesex
County pursuant to 28 U.S.C. §1447(c). Plaintiffs contend that Defendant Raytheon
(“Raytheon”) untimely removed this action ninety days after service. Raytheon counters that its
removal was timely because although the company received Plaintiffs’ complaint on July 19,
2012, the complaint did not provide sufficient factual orientation to notify Raytheon that the
action was removable. Instead, Raytheon argues that the company was not aware of federal
jurisdiction until Mr. Scearce’s deposition in September 2012. Raytheon argues that it promptly
filed the notice of removal on October 19, 2012, within 30 days of learning of the basis for
federal jurisdiction. Because the Court finds that Raytheon has not satisfactorily established the
timeliness of removal, Plaintiffs’ motion to remand is GRANTED.
I. BACKGROUND
On July 3, 2012, Plaintiffs filed a complaint in the Superior Court of New Jersey, Law

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Division, Middlesex County. In the complaint, Plaintiffs alleged state law causes of action
against numerous defendants based on Mr. Scearce’s alleged exposure to asbestos-containing
products. Plaintiffs filed a First Amended Complaint on July 19, 2012. Raytheon was served
that same day.
In the First Amended Complaint, through which Plaintiffs brought claims against more
than forty defendants, Plaintiff alleged that “[f]rom approximately 1983 to 2004, Mr. Scearce
was exposed to asbestos-containing products while conducting electric repair work at various Air
Force base sites, including McGuire Air Force Base in New Jersey. Mr. Scearce was
additionally exposed to asbestos from communications equipment being installed and used
during the same time period at that location.” Compl. ¶5. Plaintiffs asserted claims against each
defendant for breach of both express and implied warranties, for marketing and placing an ultrahazardous product into the stream of commerce, for failure to warn, and for conspiracy to
withhold from the public known hazards of asbestos-containing products. Id. at ¶¶ 11-29.
Plaintiffs also asserted a loss of consortium claim on behalf of Mr. Scearce’s wife. Id. at ¶¶3032.
Plaintiffs also attempted to disclaim federal jurisdiction by including a provision that
stated: “Plaintiffs specifically disclaim any federal cause of action or any claim that would give
rise to federal jurisdiction.” Compl. at 12. Plaintiffs further stated that to the extent that the
claims invoke federal jurisdiction, Plaintiffs’ negligence claims were “not based on the theory of
defective design, but rather are based only on the theory of failure to warn.” Id. at 12.
According to Plaintiffs, “[s]ince there is no evidence that the United States Government or any of
its military branches, specifically instructed manufacturers from which it purchased asbestoscontaining products not to warn about the health hazards associated with exposure to asbestos,

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there can be no valid claim to federal jurisdiction pursuant to . . . federal officer of contractor
provisions of the United States Code.” Id.
On October 19, 2012, Raytheon removed the matter to federal court. Raytheon argued
that removal was timely because it only learned that the case was removable during Mr.
Scearce’s deposition, which occurred on September 21, 24 and 25, 2012. In his deposition, Mr.
Scearce revealed that “the only specific Raytheon product about which he complains is the
AN/TRC-170, a digital troposcatter radio system.” Notice of Removal at 1-2. Raytheon argues
that this particular device “was designed and manufactured according to precise specifications
set forth by the U.S. Air Force; Raytheon designed and manufactured this equipment, including
warnings and instructions, under the direction of federal officers.” Notice of Removal at 2.
Accordingly, Raytheon invokes the federal officer removal statute.
On November 19, 2012, Plaintiffs timely filed the instant motion to remand. Plaintiffs
attack Raytheon’s removal on two grounds. Plaintiffs first argue that the Court should remand
this matter because the First Amended Complaint clearly alleged that Mr. Scearce was exposed
to asbestos through Raytheon’s “communications equipment” while he was in the United States
Air Force, thus giving adequate notice of federal jurisdiction. Plaintiffs next argue that the Court
lacks subject matter jurisdiction because Raytheon has not properly pled federal jurisdiction.
Finally, Plaintiffs argue that even if the Court asserts jurisdiction over the claims against
Raytheon, the Court must sever and remand the remaining claims pursuant to 28 U.S.C.
§1441(c). 1

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28 U.S.C. §1441 states in relevant part: “If a civil action includes a claim arising under the Constitution, laws, or
treaties of the United States. . . and a claim not within the original or supplemental jurisdiction of the district court or
a claim that has been made nonremovable by statute,” upon removal, the “district court shall sever from the action
all claims” that are not within its original or supplemental jurisdiction, and “shall remand the severed claims to the
State court from which the action was removed.”

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II. LEGAL STANDARD
Raytheon has removed this matter pursuant to 28 U.S.C. §1442, commonly termed the
federal officer removal statute. The federal officer removal statute permits removal of a state
court action against the “United States or any agency thereof or any officer (or any person acting
under that officer) of the United States 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 the statute, a defendant must show that: 1) it is a “person” within the 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). Unlike other removal statutes which the Court must
construe strictly in favor of remand, the federal officer removal statute must be construed
broadly in order to effectuate Congressional intent that federal officers have access to a federal
forum. See In re Asbestos Products Liab. Litig. (No. VI), 770 F. Supp. 2d 736, 741 (E.D. Pa.
2011). Despite this broad construction, it remains axiomatic that the “party asserting jurisdiction
bears the burden of showing the action is properly before the federal court.” Sikirica v.
Nationwide Ins. Co., 416 F.3d 214, 219 (2005).
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)(1). If the case, as
stated by the initial pleading, does not appear to be removable, “a notice of removal may be filed

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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 which is or has become removable.” 28 U.S.C. §1446(b)(3). 2 In the Third Circuit,
district courts must consider “whether the document informs the reader, to a substantial degree of
specificity, whether all the elements of federal jurisdiction are present” to determine when the 30
days begins to run under Section 1446. 3 Foster v. Mutual Fire, Marine & Inland Ins. Co., 986
F.2d 48 (3d Cir. 1993), rev’d on other grounds, Murphy Bros., Inc. v. Michetti Pipe Stringing,
Inc., 526 U.S. 344 (1999). Although not jurisdictional, the failure to timely file a notice of
removal is grounds for remand. See In re FMC Corporation Packaging Systems Div., 208 F.3d
445 (3d Cir. 2000) (holding that because non-jurisdictional objections to removal may be
waived, a district court may not remand sua sponte for procedural defects in removal such as
untimeliness). As with jurisdiction, the defendant bears the burden of showing the timeliness of

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There is no dispute that a party’s answers to deposition questions can constitute “other paper” for the purposes of
the removal statute. See Pl. Br. at 13. Plaintiffs contend instead that Mr. Scearce’s deposition testimony was not the
triggering event in this particular case. Id.
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In Foster v. Mutual Fire, Marine & Inland Ins. Co., the Third Circuit evaluated whether a summons qualified as an
“initial pleading” under §1446, thus triggering the 30-day removal period. At the time, district courts within the
Circuit had divided into two opposing camps. Some district courts had taken a bright-line approach and held that a
summons could never constitute an “initial pleading,” whereas others had adopted a subjective test that required the
court to delve into both the content of the summons and the defendant’s subjective knowledge and other papers such
as correspondence. In rejecting both approaches, the Third Circuit found that the bright-line approach conflicted
with Congressional intent that removal occur as early as possible. On the other hand, the court found that requiring
a court to “delve into the content of potentially large amounts of correspondence to perform subjective evaluation of
defendant’s knowledge” was similarly inconsistent with the statute. Consequently, the court held that a summons
may serve as notice of removability, but only if it contains sufficient information to trigger 1446(b). In so holding,
the Third Circuit clarified that “the relevant test is not what the defendants purportedly knew, but what these
documents said.” The Third Circuit later recognized that the Foster decision had been abrogated by the Supreme
Court’s decision in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999), and that a summons
alone could not trigger the removal period. See Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 222 (3d Cir. 2005)
Since Foster, some district courts have cited Foster as establishing “that the analysis for determining whether the
four corners of the pleading is sufficient is an objective one.” In re Asbestos Products Liability Litigation (No. VI),
770 F. Supp. at 740. However, as at least one other district court has noted, the Third Circuit has not yet had
occasion to determine the standard for evaluating when the 30-day removal period is triggered under 1446(b)(3).
See Bouchard v. CBS Corp., 2012 WL 1344388, *5 (E.D. Pa. 2012) (“The Third Circuit has not reached the issue of
what test or standard applies to assess when the second thirty-day window is triggered.”). Notwithstanding, the
Court will adopt the Foster standard to evaluate timeliness under §1446(b)(3).

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removal. Entrekin v. Fisher Scientific Inc., 146 F. Supp.2d 594 (D.N.J. 2001); see also Schnable
v. Drexel Univ., Civ. A. No. 95-21, 1995 WL 412415, at *3 (E.D. Pa. July 10, 1995).
III. DISCUSSION
Plaintiffs contend that the First Amended Complaint clearly provided notice to Raytheon
that the case was removable. Consequently, Raytheon untimely removed ninety days after
service. Pl. Br. at 20-21. According to Plaintiffs, the allegations in the Complaint and Initial
Fact Sheet establish that:
1. Ronald Scearce was exposed to asbestos-containing products while in the Air Force from
1983 to 2008;
2. Raytheon was named as one of the manufacturers, suppliers and distributors of asbestoscontaining products that Mr. Scearce was exposed to;
3. Mr. Scearce developed mesothelioma as a direct and proximate result of his exposure to
Raytheon’s asbestos containing products during the 21 years he worked as a “Satellite
Wideband & Telemetry Technician” for the United States Air Force at “Various sites” 4
Id. at 5. Plaintiffs argue that these facts, when coupled with Raytheon’s knowledge that it
produced the AN/TRC-170 Digital Troposcatter Radio for the Air Force, were sufficient notice
to Raytheon that the case was removable. Plaintiffs support their motion by citing to Pantalone
v. Aurora Pump Co., 576 F. Supp.2d 325 (D. Conn. 2008). In that case, the district court
remanded an asbestos case because the defendant failed to establish that removal could not be
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In the complaint, Plaintiffs allege that Mr. Scearce was exposed to asbestos-containing products while “conducting
electric repair work at various Air Force base sites, including McGuire Air Force Base in New Jersey.” Compl. ¶5.
Plaintiffs also allege that “Mr. Scearce was additionally exposed to asbestos from communications equipment being
installed and used during the same time period at that location.” Id. The Court agrees with Raytheon that a fair
reading of the Complaint limits Mr. Scearce’s alleged exposure to communications equipment at McGuire Air Force
Base. However, Raytheon has not demonstrated how this fact is significant. During his deposition, Mr. Scearce
identifies two Air Force bases from which he was deployed between 1992 and 2000. Notice of Removal Ex. C.
When asked if he had identified all the places he worked with TRC-170, Mr. Scearce replied: “Well, there could
have been—like I said, we had deployments all over the U.S. and I mean there were plenty of deployments, so I
can’t tell you every place we went. I mean, we had designated training grounds when I was at Robins, but we also
had other major exercises with other units that we dealt with, so I mean, to go back and try—like I said, I could
review my performance reports. It may have some of that information if you want specific locations and stuff.” Id.
at 477.

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reasonably ascertained earlier. After submitting their brief, Plaintiffs also alerted the court to a
December 2012 decision, in which a district court for the District of Maryland remanded an
asbestos case under similar circumstances. See Dilks v. 4520 Corp., Inc., Civil No. WDQ-122758, 2012 WL 6625867 (N.D. Md. December 18, 2012).
Raytheon opposes Plaintiffs’ request for remand, arguing that neither the allegations of
the Complaint, nor the Initial Fact Sheet, provided adequate notice that the action was
removable. 5 Raytheon notes that “[s]everal communications systems provided by Raytheon
have been utilized by the Air Force. The Air Force has also acquired other Raytheon products,
including a network intrusion detection device and laser detecting-ranging-tracking set.” Opp’n
at 4-5. Additionally, Raytheon emphasizes that the company “has also developed a number of
products for civilian use, including microwaves and radio equipment” as well as “a wide range of
communications systems, including during the period of the 1980’s forward.” Id. at 5. Raytheon
further argues that the job duties encompassed by the title of “Satellite, Wideband & Telemetry
Technician” are “quite broad” and did not assist the company in narrowing the potential products
at issue in Plaintiffs’ claims. Id. at 8-9. Raytheon contends that given the “vast breadth of
Raytheon’s operations, Raytheon could not ‘reasonably and intelligently’ determine from the
vague, general Complaint allegations what type of Raytheon product or products might fall
within those allegations—let alone the level of military involvement, if any, with such
product(s).” Id. at 10.
In support of its argument, Raytheon attempts to distinguish Pantalone and cites to
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Raytheon challenges the appropriateness of considering the Initial Fact Sheet, arguing that the Court is limited to
the “four corners” of the Complaint. Opp’n at 19. Assuming arguendo that the Initial Fact Sheet is deemed “other
paper” under §1446(b)(3), Raytheon argues that the mere reference to Mr. Scearce having worked as a “Satellite,
Wideband & Telemetry Technician” does not significantly narrow the universe of Raytheon products. Id. The
Court will consider the Initial Fact Sheet. Even if the Initial Fact Sheet, which is required in asbestos cases filed in
New Jersey state court, were not deemed part of the Complaint, it would certainly be considered “other paper” under
the statute.

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Beamis v. Buffalo Pumps, Inc., C.A. No. 08-472S, 2009 WL 462543 (D.R.I. Feb. 23, 2009) and
In re Asbestos Product Liability Litigation, 770 F. Supp.2d 736 (E.D. Pa. 2011). In Beamis, the
district court questioned whether the plaintiff’s complaint was sufficiently detailed to provide
notice as to the grounds for federal officer removal and trigger the thirty day removal period.
2009 WL at *2. Guided by the standard that “a plaintiff must provide sufficiently specific facts
or allegations to allow the defendant reasonably to identify the contracts supporting federal
officer removal,” the district court determined that the plaintiff’s complaint did not trigger the 30
day clock. Id. In so holding, the court stated:
The complaint does not specify the dates of Plaintiff’s employment at the shipyard, the
naval ships on which he worked or the specific GE products he alleges as the source of
exposure. Tellingly, Plaintiff argues in his memorandum that ‘given the plaintiff’s
employment at a Navy shipyard, GE was well-positioned to ascertain the potential
applicability of the federal officer theory.’ The standard is not, however, whether a
defendant is ‘well-positioned to ascertain’ grounds for removal. (internal citations
omitted)
Id. The district court also distinguished Pantalone, noting that the Pantalone defendant asserted
that all of the pumps it supplied to the Navy were built to military specifications. In Pantalone,
“[w]hile the removing defendant asserted that it also supplied pumps to private entities, it did not
assert that it supplied other ‘off the shelf’ or generic products to the Government.” Id. at *3. In
contrast, the court noted that the Beamis defendant argued that it sold commercial products such
as electric motors and light bulbs to the Government, which would not justify federal officer
removal. Id.
In In re Asbestos Products Liability Litigation, the district court denied the plaintiff’s
motion for remand, finding that the complaint lacked the “substantial degree of specificity
needed to establish the existence of a federal defense.” 770 F. Supp. 2d at 740. Although the
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complaint identified a Naval Shipyard as a potential site of exposure and listed the range of years
during which the plaintiff had worked at the shipyard, the court found that “[s]imply stating that
Decedent was employed at the Long Beach Naval Shipyard is insufficient.” Id. Instead, the
court stated that “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.” Id. The Court found that “[t]he 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 and Steam Turbines.’” Id.
Acknowledging the conflicting case law, the Court finds that Raytheon’s removal was
untimely under Section 1446(b)(3). In an apparent attempt to align this case with Beamis,
Raytheon states that it has developed a wide range of products and could not have determined the
product upon which Plaintiffs’ claims were based. See Opp’n at 17-18. However, a key
distinction between this case and Beamis is that the Beamis defendant specifically asserted that it
sold “off-the-shelf” products to the Government, which were not custom manufactured to
specification and would not justify federal officer removal. Thus, the details provided in the
plaintiff’s interrogatories were necessary for the defendant to ascertain the grounds for federal
officer removal.
Although not raised by either party, the Court also finds instructive the court’s decision in
Bouchard v. CBS Corp., No. MDL-875, 2012 WL 1344388 (E.D. Pa. April 17, 2012). In that
case, the district court found that removal was timely after the defendant, Lockheed Shipbuilding
Company, removed upon learning that the ships in question were military ships. The district
court noted that “Defendant Lockheed, like other federal military contractors, performs activities

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that are protected by federal contractor immunity, and others that are not. Until deposition
testimony revealed which ships Mr. Berger had worked on during his employment, Defendant
could not assert either that its actions were taken pursuant to a federal officer’s directions, or that
it had a colorable federal defense.” Bouchard, 2012 WL at *7.
Raytheon is correct that the Court must consider “whether the ‘four corners’ of the
Complaint provided a ‘substantial degree of specificity’ on the removability of the action.”
Opp’n at 17. Raytheon is also correct that given the breadth of its operations, it could not have
intelligently concluded that the AN/TRC-170 was the product in question solely from the
allegations of Plaintiffs’ First Amended Complaint and Initial Fact Sheet. However, Raytheon
has failed to establish why the company needed to know the specific product in order to ascertain
removability. Unlike the defendants in Beamis and Bouchard, 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 removal. Nevertheless, it is Raytheon’s
burden to establish that removal was timely and that it could not have ascertained removability
earlier. Raytheon has established that Mr. Scearce’s deposition rendered removability
uncontestable. “[T]he 30-day clock began ticking, however, when removability was first
ascertainable.” Dilks, 2012 WL at *4, n.12. Accordingly, Raytheon has not carried its burden of
demonstrating the timeliness of removal and this matter will be remanded to the Superior Court
of New Jersey, Middlesex County. Because the Court finds that removal was untimely, the
Court need not address the remainder of Plaintiffs’ arguments.

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IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion to Remand is GRANTED. This matter will
be remanded the Superior Court of New Jersey, Middlesex County. An accompanying order
shall issue today.
Dated: 5/16/2013

/s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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