BARNES et al v. FOSTER WHEELER CORP et al

Filing 11

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 6/11/13. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JOHN BARNES, JR. and JEANETTE
BARNES h/w,

HON. JEROME B. SIMANDLE
Civil No. 13-1285 (JBS-JS)

Plaintiffs,
v.

OPINION

FOSTER WHEELER CORP., et al.,
Defendants.

APPEARANCES:
James J. Pettit, Esq.
LOCKS LAW FIRM, LLC
457 Haddonfield Road
Suite 500
Cherry Hill, NJ 08002
Attorney for Plaintiffs John Barnes, Jr. and Jeanette Barnes
Michael A. Tanenbaum, Esq.
SEDGWICK LLP
Three Gateway Center
12th Floor
Newark, NJ 07102
Attorney for Defendant General Electric Company
SIMANDLE, Chief Judge:
I.

INTRODUCTION
This matter is before the Court on the motion of Plaintiffs

John Barnes, Jr., and his wife, Jeanette Barnes ("Plaintiffs"),1

1

Both Plaintiffs are now deceased and the action is being
pursued by Kimberly M. Barnes, the Executrix of the estates.
This is not reflected on our docket but is reflected in the
papers removed from state court, specifically Ex. 4, Plaintiffs'
Answers to Interrogatories. Accordingly, pursuant to Rule 25,
Fed. R. Civ. P., Kimberly M. Barnes, Executrix of the Estates of
John Barnes, Jr. and Jeanette Barnes, Decedents, shall be

to remand this action to New Jersey Superior Court.
6.]

[Docket Item

Defendant General Electric Company ("GE") removed this

action pursuant to 28 U.S.C. § 1442(a)(1) on the basis that it
acted under the authority, direction and control of an officer or
agency of the United States and can state at least a colorable
federal law-based "government contractor" defense to Plaintiffs'
claims.

[Docket Item 1 ¶6.]

The Plaintiffs do not contest GE's basis for removal but
argue that GE's notice of removal was untimely filed.

The issue

before the Court is whether GE removed this action within thirty
days of having notice of a basis for federal jurisdiction.
For the reasons discussed below, the Court finds that GE did
file its notice of removal in accordance with the thirty-day
requirement of 28 U.S.C. § 1446(b).

The Court concludes that GE

did not have notice of a plausible federal contractor defense
until it received Plaintiffs' Answers to Interrogatories.
Accordingly, Plaintiffs' motion to remand will be denied.
II.

BACKGROUND
The instant action arises out of Plaintiff John Barnes,

Jr.'s, alleged exposure to asbestos from a variety of products
manufactured by Defendants GE, Foster Wheeler Corp., Goulds Pump,
Inc., Ingersoll Rand Company Limited, Owens Illinois Incorporated

substituted as the party at interest. Plaintiffs' counsel is
requested to verify this information and to submit an appropriate
Order to amend the caption and pleadings.
2

and John Doe Corporations from 1952 to the mid-1970s.

Plaintiffs

filed their complaint in New Jersey Superior Court, Middlesex
County, on November 4, 2011, along with an Initial Fact Sheet.
[Docket Item 1, Ex. A.]

The Complaint alleged the following:

Plaintiff, JOHN BARNES, JR., was employed as a fireman in
the United States Navy from 1952 until 1954. He also
worked in the Bricklayers Local Union from 1954 until
1996. In the performance of his duties he continually
worked with, used, handled and was caused to come in
contact with the asbestos products of the defendants and
the asbestos dust fibers resulting form the ordinary and
foreseeable use of said asbestos products as more
particularly described herein and in upcoming discovery,
up to the mid-1970's.
(Compl. ¶ 7.)

Plaintiffs' accompanying Initial Fact Sheet

alleged that Mr. Barnes worked in the United States Navy from
1952-1954 as a Fireman.

(Initial Fact Sheet ¶ 9.)

Importantly,

Plaintiff did not allege which ships or shipyards he worked at
while in the Navy, what products he interacted with or what his
responsibilities were as a Fireman.
On January 22, 2013, more than a year after the complaint
was filed, Plaintiffs served Defendant GE with a copy of their
Answers to Standard Interrogatories.
Interrogatory Responses.)

(Def.'s Ex. 4,

These Interrogatory Responses included

more specific allegations regarding Mr. Barnes' exposure to
asbestos while employed by the U.S. Navy.

In particular, Mr.

Barnes alleged that he was exposed to asbestos while aboard the
USS Everglades between May 29, 1950 and April 15, 1952.

Mr.

Barnes also alleged that he was exposed to asbestos from GE
3

turbines, along with other specific products and equipment.

Id.

Plaintiffs do not dispute that these specific allegations were
not contained in either their Complaint or Initial Fact Sheet.
GE was then able to confirm that it manufactured the
turbines on the USS Everglades and all of the turbines were
designed by the Navy and purchased by the Navy for use on that
vessel.

As a result of this new information, GE filed its Notice

of Removal on February 21, 2013, within 30 days of receiving
Plaintiffs' Interrogatory Responses.
III.

DISCUSSION
A.

Standard of Review

GE removed this action pursuant to 28 U.S.C. § 1442, which
is commonly referred to as the federal officer removal statute.
This statute permits removal of a case from state court when the
action is brought against "[t]he United States or any agency
thereof or any officer (or any person acting under that officer)
of the United States or of any agency thereof, in an official or
individual capacity, for or relating to any act under color of
such office."

28 U.S.C. § 1442(a)(1).

In order to remove a case pursuant to this provision, a
defendant must establish: (1) it is a "person" under the statute;
(2) that it acted under the direction of a federal officer or
agency, (3) that is has a colorable federal defense, and (4) that
there is a causal nexus between the federal direction and the

4

conduct at issue.

Feidt v. Owens Corning Fiberglas Corp., 153

F.3d 124, 127 (3d Cir. 1998).
"While removal under 28 U.S.C. § 1441 is to be strictly
construed, with doubts resolved in favor of remand, the federal
officer removal statute, by contrast, is to be broadly construed
in order to liberally grant federal officers access to a federal
forum."

In re Asbestos Products Liab. Litig. (No. VI), 770 F.

Supp. 2d 736, 741 (E.D. Pa. 2011)(citations omitted).
The timeliness of removal under Section 1442 is governed by
28 U.S.C. § 1446 which provides that a defendant must file a
notice of removal within thirty days after the receipt of the
initial pleading.

28 U.S.C. § 1446(b).

If the basis for removal

is not set forth in the initial pleading, then a defendant must
remove within thirty days of receiving "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. § 1446(b)(3).
B. Analysis
Plaintiffs do not contest that GE has established all four
requirements to remove this action pursuant to 28 U.S.C. § 1442.
The Plaintiffs, however, argue that removal was untimely because
GE had notice of a federal contractor defense through the
allegations in the Complaint and Initial Fact Sheet.

In

opposition, GE maintains that the pleadings were insufficient to

5

put it on notice of a federal contractor defense and
consequently, the thirty-day period to remove was not triggered
until GE received Plaintiffs' Answers to Interrogatories.

The

main issue before the court is whether GE had notice of a federal
contractor defense on receipt of the Complaint and Initial Fact
Sheet or whether the federal contractor defense was not apparent
until GE received Plaintiffs' Interrogatory Answers.
In determining whether an initial pleading is sufficient to
trigger a defendant's thirty-day period to remove, a district
court must analyze "whether the document informs the reader, to a
substantial degree of specificity, whether 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).

Importantly, "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.'"

In re

Asbestos, 770 F. Supp. 2d at 740 (citing Foster, 986 F. 2d at
53.)
Therefore, the Court must look at the allegations contained
in the Complaint and the Initial Fact Sheet and determine whether
there were sufficient facts presented for GE to establish the
requisite elements of the federal officer removal statute.

6

As

discussed below, the Court finds the Complaint and Initial Fact
Sheet do not provide sufficient facts to establish a causal nexus
between Plaintiffs' claims and the conduct performed by GE under
the direction of the federal government.
Plaintiffs' Complaint and Initial Fact Sheet allege the
following: (1) Mr. Barnes was employed as a fireman in the Navy
from 1952-1954; (2) during his time in the Navy, Plaintiff came
into contact with GE products that contained asbestos; and (3)
these products caused Mr. Barnes' injuries.
Plaintiffs argue that the sole fact that Mr. Barnes worked
in the Navy as a fireman and was exposed to asbestos while
working in the Navy from 1952 - 1954 was sufficient to put GE on
notice of a federal contractor defense.

Plaintiffs contend that

Mr. Barnes was alleged to work solely for the Navy from 1952-1954
and consequently, any exposure to asbestos would have been from
products created for and under the direction of the Navy.
Plaintiffs contend that this allegation alleviated any doubt that
Mr. Barnes was exposed to asbestos while working on government,
rather than commercial, equipment.

Plaintiffs rely on primarily

on Vedros v. Northrop Grumman Shipbuilding, Inc., No. 2:11-67281,
2012 U.S. Dist. LEXIS 108871 (E.D. Pa. Aug. 2012) and Vest v.
Various Defendants (In re Asbestos Prods. Liab. Litig.), MDL No.
875, 2011 U.S. Dist. LEXIS 57232 (E.D. Pa. May 25, 2011).
In opposition, GE contends that it did not have sufficient

7

notice of a federal contractor defense until it received
Plaintiffs' Interrogatory Answers which alleged that Mr. Barnes
was exposed to asbestos from GE turbines while aboard the USS
Everglades between May 29, 1950 and April 15, 1952.

GE maintains

that until it received this information, it could not verify that
the product which allegedly caused Mr. Barnes' exposure was
manufactured in accordance with Navy specifications.

GE relies

primarily on Snowdon v. A.W. Chesteron Co., 366 F. Supp. 2d 157
(D. Maine 2005).
Vedros, Vest, and Snowdon all involved plaintiffs who worked
for companies who contracted with the military rather than
plaintiffs who worked directly for the military.

Consequently,

all three cases are distinguishable from the instant action where
Mr. Barnes is alleging exposure to asbestos through his work with
the Navy, not his work through a third party company that did a
mix of commercial work and contract work for the government.
However, all three cases reiterate that a pleading or other paper
must contain a sufficient factual basis for a defendant to assert
the requisite elements of a federal contractor defense in order
to trigger the thirty-day removal period.

See Snowdon, 366 F.

Supp. 2d at 163 ("In order to assert sufficient facts to support
a removal notice that is premised on the government contractor
defense, Viacom needed some information tending to establish that
the decedent's exposure to asbestos related to a Westinghouse

8

product procured by the government pursuant to a contract that
specifically called for the use of asbestos as a component.");
Vest, 2011 U.S. Dist. LEXIS 57232, at *9 ("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"); and Vedros, 2012
U.S. Dist. LEXIS 108871, at *16 ("the removal period was not
triggered for Defendants at the time they were served with
Plaintiffs' petition for damages because the causal nexus between
Plaintiffs' claims and actions allegedly taken by Defendants
under the direction of a federal officer had not yet been
alleged").
In this case, Plaintiffs' Complaint and Initial Fact Sheet
do not allege what GE products Mr. Barnes came in contact with,
where he worked when he was employed by the Navy or what his
duties were as a fireman in the Navy.

Indeed, it is even unclear

from the Complaint and Initial Fact sheet whether Plaintiff
worked on a Navy vessel, a Navy base or some other location in

9

the field.

Without this information, GE could not ascertain

which product allegedly caused Plaintiffs' exposure to asbestos,
whether GE in fact manufactured this product and whether this
product was manufactured and designed under the direction of the
federal government.
Significantly, Plaintiff also alleges he was exposed to
asbestos while he worked in the Bricklayers Local Union from 1954
until the mid-1970s.

The Complaint and Initial Fact Sheet do not

specify whether Plaintiff worked with GE products while in the
Navy or while in the Bricklayers Local Union.

Consequently, GE

had no basis to determine whether Plaintiff was alleging exposure
to asbestos from its military products or its non-government,
commercial products.

An objective reading of the initial

pleadings leaves doubt as to whether the GE products which
exposed Mr. Barnes to asbestos were exclusively commercial
products when he was working in the Bricklayers Local Union or
government products when he was working in the Navy or both
government and commercial products.

It was not clear that

Plaintiffs were alleging asbestos exposure from GE turbines used
on Navy vessels until they filed their Answers to
Interrogatories.

As a result, the Court finds that until these

Interrogatory Answers were filed, GE had no factual basis to
remove this action pursuant to 28 U.S.C. § 1442.
Since GE's notice of removal was filed within thirty days of

10

receipt of Plaintiffs' Answers to Interrogatories, removal was
timely pursuant to 28 U.S.C. § 1446.

Therefore, Plaintiffs'

motion to remand will be denied.
IV.

CONCLUSION
For the reasons discussed herein, Plaintiffs' motion to

remand will be denied.

The accompanying Order will be entered.

June 11, 2013
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

11