VESPER v. 3M COMPANY et al

Filing 58

OPINION. Signed by Chief Judge Jerome B. Simandle on 7/30/2015. (tf, )

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

GEORGE VESPER,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action No.
1:15-cv-01322 (JBS/AMD)

v.
3M COMPANY, et al.,

OPINION

Defendants.

APPEARANCES:
Michael S. Noonan, Esq.
THE NOONAN LAW FIRM LLC
127 Maple Avenue
Red Bank, NJ 07701
William L. Kuzmin, Esq.
COHEN, PLACITELLA & ROTH, P.C.
127 Maple Avenue
Red Bank, NJ 07701
Attorneys for the Plaintiff
Christopher J. Keale, Esq.
SEDGWICK LLP
One Newark Center
1085 Raymond Boulevard
16th Floor
Newark, NJ 07102
Attorney for Defendants CBS Corporation, Foster Wheeler,
LLC, and General Electric Company
SIMANDLE, Chief Judge:
This matter comes before the Court on Plaintiff George
Vesper’s (hereinafter “Plaintiff” or “Vesper”) motion to remand
this action to Superior Court of New Jersey. [Docket 13.] On

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August 14, 2014, Plaintiff filed a complaint in New Jersey
Superior Court against 31 named defendants, alleging that he was
exposed to defendants’ asbestos products at various worksites
where Plaintiff worked as machinist, pipe fitter, and
electrician during the 1950s, 1960s, and 1970s. Three
defendants, CBS Corporation, individually and as successor to
Westinghouse (“Westinghouse”), Foster Wheeler Energy Corporation
(“Foster Wheeler”), and General Electric Company (“GE”)
(collectively “Defendants”), removed this action on February 20,
2015, pursuant to 28 U.S.C. § 1442(a)(1), asserting that this
Court has federal jurisdiction over Plaintiff’s claims because
there is a colorable federal law-based “government contractor”
defense to Plaintiff's claims. [Docket Item 1.]
Plaintiff argues in his motion to remand that notice of
removal was untimely filed because it was not filed within
thirty days of the initial Complaint, as required by 28 U.S.C. §
1446(b). Defendants contend that removal was proper because the
basis for federal jurisdiction was not apparent on the face of
the Complaint. They argue that Plaintiff’s Answers to
Interrogatories on February 3, 2015, in which Plaintiff stated
that Vesper was exposed to asbestos from working aboard four
Navy ships containing Defendants’ equipment, first created the
basis for removal. Thus, the issue before the Court is whether

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the Complaint contained enough allegations to suggest the
existence of a federal question.
For the reasons discussed below, the Court finds that it
did not, and that Defendants did not have notice of a plausible
federal contractor defense until it received Plaintiff’s Answers
to Interrogatories. Thus, Defendants’ notice of removal was
timely filed and Plaintiffs’ motion to remand will be denied.
I. BACKGROUND
The instant action arises out of Plaintiff George Vesper’s
alleged exposure to asbestos from a variety of products mined,
milled, manufactured, sold, supplied, purchased, marketed,
installed and/or removed by various corporations, including
Defendants Westinghouse, Foster Wheeler, and GE. (Compl. [Docket
Item 1-2] ¶¶ 1–6.) Plaintiff filed the Complaint in New Jersey
Superior Court, Middlesex County, on August 14, 2014, naming 31
defendants.1 (Id.) Defendant CBS Corporation was served with the

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Plaintiff named as defendants 3M Company; Alcatel-Lucent, USA,
Inc.; American Premier Underwriters, Inc.; Bayer Cropscience,
Inc.; Borg Warner Corporation; Buffalo Pumps, Inc.; CBS
Corporation; Certaineed Corporation; Coltec Industries;
Consolidated Rail Corporation, Inc.; Copes-Vulcan, Inc.; Crane
Pumps & Systems, Inc.; DAP Inc.; Durametallic Corporation; Duro
Dyne Corporation; Fairbanks Morse Engine and Enpro Industries,
Inc.; Foster Wheeler, LLC; General Electric Company; GeorgiaPacific, LLC; Gould Pumps, Inc.; Honeywell International Inc.;
IMO Industries Inc.; Ingersoll-Rand Company; Marley Wylain
Company; Motion Control Industries; Notte Safety Appliance
Company; Owens-Illinois, Inc.; Sid Harvey Industries, Inc.;
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initial pleadings on August 29, 2014; Foster Wheeler and GE were
served on August 27, 2014. (Exs. B, C & D to Mot. to Remand
[Docket Item 13].)
In the Complaint, Plaintiff alleged that he worked as a
machinist, pipe fitter and electrician during the 1950s, 1960s,
and 1970s, and was exposed to and came in contact with asbestos
products “at various worksites including The New York Ship
Building Company [in Camden, New Jersey], the Rail Yards of the
Pennsylvania Railroad located in New Jersey as well as other
sites throughout the State of New Jersey during the 1950’s,
1960’s, and 1970’s.” (Complaint ¶ 1.) Plaintiff alleged that
Defendants manufactured or supplied the asbestos-containing
products to which he was exposed, and that he developed
asbestosis in 2013 as a result of the exposure. (Id. ¶ 4.)
On February 3, 2015, Plaintiff served Defendants with a
copy of their Answers to Standard Interrogatories. (Interrog.
Resp., Ex. 4 to Defs. Opp’n [Docket Item 20-5].) In response to
a question concerning his on-the-job exposure to asbestos,
Plaintiff wrote,
I believe I was exposed to asbestos from the 1950’s to
1970’s at the following worksites:
New York Ship Building Company – Camden, NJ


USS Savannah

Union Carbide Corporation; Warren Pumps; and Weil-McLain
Company. (See Complaint [Docket Item 1-2], at 1-3.)
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



USS Kitty Hawk
USS Bonefish
USS Little Rock

(Id. I.6.) Vesper also stated his belief that he was exposed to
asbestos-containing products in the form of Foster Wheeler
boilers; GE boiler propulsions, motors, and turbines; and
Westinghouse electrical cabinets, generators, and turbines.
(Id.)
On February 20, 2015, 17 days after Defendants were served
with Plaintiff’s response and approximately six months after
Plaintiff served his Complaint upon GE, Westinghouse, and Foster
Wheeler, Defendants Foster Wheeler, GE, and Westinghouse removed
the case to this Court pursuant to 28 U.S.C. § 1442(a) under a
theory that Plaintiff’s interrogatory answers raised a colorable
federal defense. Specifically, because Defendants manufactured
equipment for use on Navy ships pursuant to contracts executed
with the U.S. Navy, the basis for removal was the federal
contractor defense – that Defendants “acted under the authority,
direction and control of an officer or agency of the United
States for purposes of 28 U.S.C. § 1442(a)(1).” (Notice of
Removal [Docket Item 1] at 3.) The instant motion to remand
followed.
Ordinarily, a defendant must remove an action to federal
court within 30 days of receiving an initial pleading. 28 U.S.C.

5

§ 1446(b). However, if the initial pleading is not removable, §
1446(b) permits a defendant to remove a case within 30 days of
receiving a “pleading, motion, order, or other paper” which
states a basis for federal jurisdiction.
In his motion to remand, Plaintiff argued that removal was
untimely under § 1446(b) because the initial Complaint gave
Defendants notice of federal jurisdiction and started the clock
for removal. In particular, Plaintiff argues that the Complaint,
which alleged that Plaintiff suffered injuries due to asbestos
exposure while working at the New York Ship Building Company,
provided adequate notice for a plausible federal contractor
defense, because Defendants have been active in asbestos
litigation for decades and “have knowledge that their products
were used at the New York Ship [B]uilding Company throughout the
1950’s on Naval ships.” (Mot. to Remand at 3-4.)
In opposition, Defendants argued that the initial pleading
did not provide sufficient information for Defendants to
determine whether the case was removable, and the thirty-day
limit was not triggered until Defendants received Plaintiff’s
Interrogatory Answers. (Id. at 10.) Accordingly, removal was
timely since it occurred February 20, 2015, which was within
thirty days of receipt of “other papers.” (Defs. Opp’n at 9-10.)

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The sole question to be answered by this Court is whether
Defendants’ removal was timely. Specifically, the Court must
decide whether Plaintiff’s Complaint, which alleged that
Plaintiff was exposed to asbestos while working at the New York
Ship Building Company in the 1950s, 1960s, and 1970s, gave
Defendants sufficient notice of the possible application of a
federal contractor defense, which provides the basis for federal
jurisdiction.
II.

STANDARD OF REVIEW
Defendants removed this case pursuant to 28 U.S.C. §

1442(a)(1), the federal officer removal statute, which permits a
federal officer, or person acting under such an officer, to
remove to federal court any action brought against him in state
court for conduct performed under federal direction. Feidt v.
Owens Corning Fiberglas Corp., 153 F.3d 124, 127 (3d Cir. 1998);
New Jersey Dep't of Envtl. Prot. v. Exxon Mobil Corp., 381 F.
Supp. 2d 398, 401 (D.N.J. 2005). When an action is removed to
federal court under 28 U.S.C. § 1442, the federal officer
removal statute should be “broadly construed in order to
liberally grant federal officers access to a federal forum.”
Thomasson v. Air & Liquid Syst. Corp., Civ. No. 13-1034, 2013 WL
3071304, at *2 (D.N.J. June 17, 2013).

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To successfully remove a suit to federal court under §
1442(a)(1), a defendant must establish 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, 153 F.3d at 127. In
order to demonstrate a colorable federal contractor defense, the
Supreme Court has prescribed a three-part test:
Liability for design defects in military equipment
cannot be imposed, pursuant to state law, 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.
Boyle v. United Tech. Corp., 487 U.S. 500, 512 (1988).2
As noted above, 28 U.S.C. § 1446(b) provides the procedure
for removal, and states that removal will be timely if the
defendant files a notice of removal within 30 days after being
served a copy of the initial pleading. Section 1446(b) also
allows for later removal of an action if the basis for removal
is not set forth in the initial pleading. In that case, removal
will be timely as long as the defendant files a notice of

2

 Whether Defendants had a proper basis for removal under §
1442(a)(1) is not in dispute here. 

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removal within 30 days of the date on which the defendant first
ascertained that the case was removable based upon “a copy of an
amended pleading, motion, order or other paper.” 28 U.S.C. §
1446(b)(3); Costa v. Verizon New Jersey, Inc., 936 F. Supp. 2d
455, 465 (D.N.J. 2013).3
When determining whether an initial pleading provides
sufficient notice to trigger a defendant's 30-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); Thomasson v.
Air & Liquid Syst. Corp., Civ. No. 13-1034, 2013 WL 3071304, at
*3 (D.N.J. June 17, 2013) (following Foster); Entrekin v. Fisher
Scientific Inc., 146 F. Supp. 2d 594, 606-07 (D.N.J. 2001)
(same). The inquiry for determining whether the pleading is
sufficient is an objective one. Foster, 986 F.2d at 53; In re
Asbestos Products Liab. Litig. (No. VI), 770 F. Supp. 2d 736,
740 (E.D. Pa. 2011). “‘[T]he issue is not what the defendant
knew, but what the relevant document said.’” Foster, 986 F.2d at

3

The phrase “other paper” refers to “documents generated within
the state court litigation.” Pack v. AC and S, Inc., et al., 838
F. Supp. 1099, 1101 (D. Md. 1993).
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53 (quoting Rowe v. Marder, 750 F. Supp. 718, 721 (W.D. Pa.
1990)). The Court must therefore look at the allegations
contained in the Complaint to determine whether sufficient facts
were presented for Defendants to establish the requisite
elements of the federal officer removal statute. Thomasson, 2013
WL 3071304, at *3.
III. ANALYSIS
In this case, the initial pleading contained little
information to enable Defendants to establish whether all the
elements of federal jurisdiction are present. The Complaint
merely states that Plaintiff worked as a machinist, pipe fitter
and electrician at various sites throughout New Jersey, one
being the New York Ship Building Company, and that he came into
contact with Defendants’ asbestos-containing products at one of
those worksites at some point during the three decades he worked
at those sites. (Compl. ¶¶ 1–6.) Plaintiff does not state which
shipyards he worked at while working for the New York Ship
Building Company, or whether he worked exclusively on the
shipyard’s grounds or worked on the ships themselves. His
Complaint fails to note whether any of his jobs were aboard U.S.
Navy ships or with equipment made for the U.S. Navy. Nor does it
state with any detail what work Plaintiff did at the New York
Ship Building Company – it does not specify, for example, what
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asbestos-containing products or machinery Plaintiff interacted
with, or how his duties exposed him to Defendants’ products.
The Complaint also gives a broad range of time for when
Plaintiff was possibly exposed to the asbestos-containing
products. Plaintiff alleges only that he worked at The New York
Ship Building Company at some point during the 1950s, 1960s, and
1970s, but provides no further detail about when he began
working there or how long he worked there. (Id. at ¶ 1.) The
three-decade long time frame provided by Plaintiff did not help
narrow down the projects that Plaintiff might have been assigned
to, and would not have alerted Defendants to the fact that
Plaintiff was claiming to have worked on U.S. Navy ships
containing Defendants’ asbestos-related products.
In short, the Complaint provides no allegation that
Plaintiff may have been exposed to asbestos-containing products
linked to U.S. Navy or U.S. military equipment. The bare
allegations that Plaintiff worked at a ship yard at some point
do not suggest that the asbestos-containing products Plaintiff
used were made under federal contract with government
specifications, much less that there is a causal nexus between
the products made under federal direction and Plaintiff’s
injury. The Court finds that the Complaint does not include any
information “to a substantial degree of specificity” that would

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provide notice that all the elements of federal jurisdiction are
present. Cf. Winters v. Diamond Shamrock Chem. Co., 149 F. 3d
387, 398 (5th Cir. 1998) (removing defendant must demonstrate
that government specified the composition of the offending
product at issue so that there is a “causal nexus between the
federal officer’s directions and the plaintiff’s claims.”).
The Court is not convinced by Plaintiff’s argument that
notice was satisfied because the Complaint identified the New
York Ship Building Company as a site for exposure, and
Defendants had previously engaged in asbestos litigation and
thus knew that their products were used at the New York Ship
Building Company. (Mot. to Remand at 3-4.) Plaintiff essentially
argues that Defendants should have known, based on past
litigation experience, that Plaintiff’s work at the New York
Ship Building Company required him to come into contact with
products made for U.S. Navy ships. However, as Plaintiff himself
acknowledges, the “relevant test is not what the defendants
purportedly knew, but what the[] documents [providing the basis
for removal] said.” (Id. at 3) (quoting Foster, 986 F.2d at 54);
see also Rowe, 750 F. Supp. at 721 (noting that 28 U.S.C. §
1446(b) “focuses on what the document ‘set[] forth’ rather than
on what a defendant actually learned from its receipt.”). As
discussed above, the Complaint does not mention that Plaintiff

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worked on a Navy ship, much less which ships he worked on and
what equipment he was exposed to. As the Complaint itself
contained no allegations to suggest that Plaintiff worked on
equipment that was commissioned by a United States government
entity, Plaintiff cannot argue that Defendants nevertheless knew
that the action was removable.
The case Snowden v. A.W. Chesterton Co., 366 F. Supp. 2d
157, 162 (D. Me. 2005) contains similar facts and is
particularly instructive. In that case, the plaintiff argued
that the complaint provided notice of a federal contractor
defense where it stated only that the plaintiff’s deceased
husband was exposed to asbestos-containing products while
working at Bath Iron Works. Similar to the complaint in this
case, the complaint in Snowden did not specify the products to
which the decedent was exposed or the equipment on which he
worked, nor did it allege that the he had worked on particular
Navy ships as part of his job at Bath Iron Works. 366 F. Supp.
2d at 160. It was not until supplemental interrogatory responses
were filed that it was revealed that the plaintiff’s husband had
worked on particular Navy ships with turbines and related
components that were manufactured by the defendant. Id. The
Court held that even though the defendant had asserted the
federal contractor defense in its answer, the allegations in the

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complaint were insufficient to trigger removal under the federal
officer removal state. Id. at 162 (holding that the allegations
contained in the complaint were “far too general and sweeping to
provide a basis for [Defendant] to reasonably conclude that the
deceased was exposed to a product” procured by the government
pursuant to a government contract). The supplemental
interrogatory response was the first “paper” from which it could
be ascertained that the case was removable, and removal, which
came 28 days after receipt of the interrogatory responses, was
timely under 28 U.S.C. § 1446. Id.
Likewise, in this case, the Court holds that the Complaint
provided insufficient notice of a federal contractor defense,
and the 30-day time limit for removal was not triggered until
Defendants received Plaintiff’s Interrogatory Answers on
February 3, 2015. For the first time, Plaintiff stated that he
performed work on specific U.S. Navy ships while employed at the
New York Ship Building Company, and identified the equipment he
used that he believed contained asbestos. Specifically, he
stated that he worked on the USS Savannah, USS Kitty Hawk, USS
Bonefish, and USS Little Rock, and used Foster Wheeler boilers;
GE boiler propulsions, motors, and turbines; and Westinghouse
electrical cabinets, generators, and turbines. (Interrog. Resp.,
at I.6.) Plaintiff’s Interrogatory Answers gave the first

14

indication of a federal contractor defense because his work on
U.S. Navy ships gave notice to Defendants that the asbestoscontaining products he encountered may have been commissioned by
the U.S. Navy. The Court therefore finds that the 30-day clock
for removal began running on February 3, 2015. Because
Defendants removed the action on February 20, 2015, 17 days
after receipt of the Interrogatory Responses, the removal was
well within the time limit specified under § 1446(b) and was
timely.
IV.

CONCLUSION
For the reasons discussed herein, Plaintiffs' motion to

remand will be denied. The accompanying Order will be entered.

July 30, 2015
Date

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

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