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Vesper v. 3M Co.

United States District Court, D. New Jersey

July 30, 2015

GEORGE VESPER, Plaintiff,
v.
3M COMPANY, et al., Defendants.

Michael S. Noonan, Esq., THE NOONAN LAW FIRM LLC, Red Bank, NJ, William L. Kuzmin, Esq., COHEN, PLACITELLA & ROTH, P.C., Red Bank, NJ, Attorneys for the Plaintiff.

Christopher J. Keale, Esq., SEDGWICK LLP, Newark, NJ, Attorney for Defendants CBS Corporation, Foster Wheeler, LLC, and General Electric Company.

OPINION

JEROME B. SIMANDLE, Chief District 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 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 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 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
• USS Kitty ...

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