Robert Gitelman, Esq., NAPOLI BERN RIPKA SCHKOLNIK, LLP, New York, NY, Attorney for Plaintiffs Harold Thomasson and Claire Thomasson
Michael A. Tanenbaum, Esq., SEDGWICK LLP, Newark, NJ, Attorney for Defendants CBS Corporation, Foster Wheeler Energy Corporation, General Electric Company.
JEROME B. SIMANDLE, Chief District Judge.
This matter is before the Court on the motion of Plaintiffs Harold Thomasson and Claire Thomasson ("Plaintiffs") to remand this action to New Jersey Superior Court. [Docket Item 14.] Defendants CBS Corporation,  Foster Wheeler Energy Corporation, and General Electric Company (collectively "Defendants") removed this action pursuant to 28 U.S.C. § 1442(a)(1) on the basis that they 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 the Defendants' basis for removal but argue that the notice of removal was untimely filed. The issue before the Court is whether the Defendants removed this action within thirty days of having notice of a basis for federal jurisdiction.
For the reasons discussed below, the Court finds that the Defendants did file their notice of removal in accordance with the thirty-day requirement of 28 U.S.C. § 1446(b). The Court concludes that the Defendants 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.
The instant action arises out of Plaintiff Harold Thomasson's alleged exposure to asbestos from a variety of products manufactured by various corporations including Defendants CBS Corporation, Foster Wheeler Energy Corporation, and General Electric Company from 1957 to 1985. [Docket Item 1, Ex. A, Initial Fact Sheet ¶¶ 5-6.] Plaintiffs filed their complaint in New Jersey Superior Court, Middlesex County, on December 4, 2012, along with an Initial Fact Sheet. (Id.) Defendant CBS Corporation was served with the initial pleadings on January 11, 2013; Foster Wheeler Energy Corporation was served on January 18, 2013; and General Electric Company was also served on January 18, 2013. (Pl.'s Exs. B & C.) The Complaint alleged the following:
Plaintiffs expressly disclaim any cause of action or recovery for any injuries caused by any exposure to asbestos dust that occurred in a federal enclave. Plaintiffs also disclaim any cause of action or recovery for any injuries resulting from exposure to asbestos dust caused by any acts or omissions of a party defendant committed at the direction of an officer of the United States Government. As to defendants FOSTER WHEELER ENERGY CORPORATION, GENERAL ELECTRIC COMPANY and CBS CORPORATION, f/k/a VIACOM, INC., successor by merger to CBS CORPORATION f/k/a WESTINGHOUSE ELECTRIC CORPORATION, Plaintiffs do not allege any claims arising out of Plaintiff HAROLD THOMASSON's work in the United States Navy.
(Compl. ¶ 2.) Plaintiffs' accompanying Initial Fact Sheet alleged that Mr. Thomasson worked in the United States Navy from 1950-1954 as a Metalworker - 3rd Class. (Initial Fact Sheet ¶ 9.) 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 Metalworker - 3rd Class.
Significantly, Plaintiffs also claimed in their Initial Fact Sheet that Mr. Thomasson was first exposed to asbestos in 1957, three years after the end of his service in the Navy. (Initial Fact Sheet ¶¶ 5, 6.) In 1957, Mr. Thomasson was working at "Socony-Vaccum" [sic] as a Pipefitter. (Id. ¶ 9.) Mr. Thomasson continued working as a Pipefitter from 1958-1960 for Dupont and later from 1960-1985 for Monsanto Chemical during the alleged period of asbestos exposure. (Id.)
On February 5, 2013, Plaintiffs served Defendants with a copy of their Answers to Standard Interrogatories. (Def.'s Ex. 4, Interrogatory Responses.) These Interrogatory Responses alleged for the first time that Mr. Thomasson was exposed to asbestos while employed by the U.S. Navy. In particular, Mr. Thomasson alleged that he was exposed to asbestos while aboard the USS Fitch between February 20, 1952 and November 15, 1953. (Id. at 4.) Mr. Thomasson also alleged that he was exposed to asbestos while aboard the USS Macomb from November 15, 1953 through May 22, 1954. Id . Plaintiffs do not dispute that these specific allegations were not contained in either their Complaint or Initial Fact Sheet.
Defendants were then able to research and confirm that GE manufactured the turbines on the USS Macomb, that Westinghouse manufactured the turbines for both the USS Fitch and USS Macomb, and that Foster Wheeler manufactured the economizers on the USS Fitch and USS Macomb. As a result of this new information, Defendants filed their Notice of ...