RONALD S. SCEARCE et al., Plaintiffs,
3M COMPANY, et al., Defendants.
ROBERT B. KUGLER, 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.
On July 3, 2012, Plaintiffs filed a complaint in the Superior Court of New Jersey, Law 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 §§ 30-32.
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 asbestos-containing products not to warn about the health hazards associated with exposure to asbestos, 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).
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 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). 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. 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 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).
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 ...