Magistrate Judge Recommends Remand to State Court; Removal was Timely, but Defendant Failed to Establish Two of Four Elements of Federal Officer Statute U.S. District Court for the District of Delaware, June 10, 2016

The plaintiffs filed this personal injury suit in Delaware after the plaintiff Donnie Wines was diagnosed with mesothelioma. Both plaintiffs died before the suit was completed, and their personal representative was substituted. Defendant Rockwell Automation Inc. removed to federal court. The plaintiff filed a motion to remand, arguing: (1) that the notice of removal was untimely, and (2) Rockwell did not meet the requirements of the federal officer removal statute. The magistrate judge recommended that the court grant the plaintiff’s motion.

The plaintiff claimed exposure from working as an electrician, instructor, and supervisor for Newport News Shipbuilding from 1961-77, and while performing other electrical work and automotive repair. Interrogatory responses identified a dozen Navy vessels the plaintiff worked on during his alleged exposure. Rockwell admitted that it manufactured and sold industrial electrical power products from the 1930s-85, which incorporated some asbestos-containing subcomponents molded by Allen-Bradley. Rockwell removed based on the plaintiffs’ allegations of exposure to Allen-Bradley components supplied to the Navy.

First, removals shall be filed within thirty days after receipt by the defendant, through service or otherwise, a copy of the initial pleading setting forth the claim for relief. If the initial pleading does not set forth a basis for removal, defendants must remove within thirty days after receiving an amended pleading, motion, order or other paper from which it may be ascertained that the case is removable. 28 U.S.C. § 1441(b)(1), § 1441(b)(3). The plaintiffs argued the thirty-day removal period started on August 11, 2014, when they filed the interrogatory responses. Rockwell contended it learned of plaintiffs’ suit during a routine docket search on August 14, 2014, and was served on September 3, 2014. Reading § 1441(b)(1) and (b)(3) together, the plain language indicated that subsection (b)(3) did not apply unless a defendant had already received the initial pleading. For an “other paper” to trigger the thirty-day period, Rockwell must have received the “other paper” after or at least with the initial pleading. Since Rockwell received both the complaint and interrogatories on August 14, its removal by September 15 was timely.

Second, to establish removal jurisdiction under the federal officer statute, 28 U.S.C. § 1442(a)(1), Rockwell must establish: (1) it is a “person” within the meaning of the statute; (2) plaintiffs claims are based upon 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. While evidence established the first and third elements, the second and fourth elements were not established.

Regarding the second element, the declaration of Thomas F. McCaffrey stated that electrical components used on naval vessels were required to meet naval standards. The plaintiffs argued this did not establish that Rockwell acted under Navy direction in making the particular Allen-Bradley products to which they alleged exposure, because McCaffrey also stated that Allen-Bradley was not approved to provide certain products to the navy. The magistrate summarized this evidence as follows: “In other words, McCaffrey’s Declaration shows that Rockwell generally did not supply asbestos-containing 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…the evidence presented fails to establish the ‘acting under’ requirement under the federal officer removal statute.” Therefore Rockwell was not acting under a federal office. Further, the evidence was also insufficient to establish that the claims arose out of the direct orders or detailed regulations of the Navy, and the fourth element was not satisfied. Thus the magistrate recommended the court grant the plaintiffs’ motion to remand.

Read the full decision here.

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