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Thomas-Fish v. Aetna Steel Products Corp.

United States District Court, D. New Jersey, Camden Vicinage

July 31, 2018

HELEN THOMAS-FISH, Individually and as Executrix of the Estate of Robert C. Fish, Plaintiff,
AETNA STEEL PRODUCTS CORP., et al., Defendants.

          LEVY KONIGSBERG, LLP By: Amber Rose Long, Esq. Joseph J. Mandia, Esq. Counsel for Plaintiff

          McGIVNEY, KLUGER & COOK, P.C. By: William D. Sanders, Esq. Counsel for Defendants



         This matter comes before the Court upon the filing of a Motion to Remand by Plaintiff Helen Thomas-Fish (the “Plaintiff”). Plaintiff originally filed this products liability suit against Defendants[1] in the Superior Court of New Jersey, alleging that her deceased husband, Robert Fish (“Fish”), was injuriously exposed to asbestos while working on the construction of a federal marine vessel. Defendants removed this suit to the United States District Court for the District of New Jersey pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1). Having considered the parties' briefs, and for the reasons stated below, the Court will deny the motion to remand.

         I. BACKGROUND

         Plaintiff, individually and as executrix of Fish's estate, alleges that Fish contracted and died from mesothelioma caused by his exposure to asbestos-containing joiner panels during the construction of the N.S. Savannah. (Compl. ¶ 6) Fish's alleged exposure occurred in 1960, while he was employed at the New York Shipbuilding and Dry Dock Company (“NY Ship”) facility in Camden, New Jersey, where the N.S. Savannah was being constructed. (Compl. ¶ 4) The N.S. Savannah was a “prototype nuclear-powered merchant marine vessel” developed under the direction of the United States Maritime Administration (“MARAD”), an agency within the United States Department of Commerce, and the Atomic Energy Commission (“AEC”). (Notice of Removal ¶ 11) During Fish's employment at NY Ship, he allegedly maintained close proximity to the installation of asbestos-containing joiner panels on the N.S. Savannah, which “generated respirable dust in [his] presence and exposed him to asbestos.” (Compl. ¶ 4) Fish died in 2016 from complications related to mesothelioma. (Compl. ¶ 2)

         On September 22, 2017, Plaintiff brought this products liability action against a number of companies believed to be involved in the manufacture, supply, installation or distribution of the asbestos-containing joiner panels. (Compl. ¶ 6) Defendants timely removed the action to this Court, invoking the federal officer removal statute, 28 U.S.C. § 1442(a)(1), which allows a defendant to remove from state court a case that is brought against that defendant for acts committed under the direction of a federal officer or agency. Defendants assert that removal is proper because the joiner panels at issue were installed pursuant to design specifications approved by MARAD, a federal agency, in conjunction with MARAD's contracts for the construction of the non-nuclear components of the N.S. Savannah. (Notice of Removal ¶¶ 21-22) Defendants' Notice of Removal included the report of maritime design expert Dr. Kenneth Fisher (the “Fisher Report”), which states that the use of asbestos-containing joiner panels was contractually required by the federal government for the N.S. Savannah.

         After the parties submitted pre-motion letters in accordance with this Court's Individual Rules and Procedures, Plaintiff timely filed a motion for remand on February 26, 2018, arguing that removal is improper under 28 U.S.C. § 1442(a)(1).


         The federal officer removal statute provides, in relevant part:

(a) A civil action . . . that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office . . .

28 U.S.C. § 1442(a)(1).

         The statute “‘protect[s] officers of the federal government,' and those acting under them, ‘from interference by litigation in state court while those officers [and those under their charge] are trying to carry out their duties.'” Baran v. ASRC Fed. Mission Sols., No. 17-7425 (RMB/JS), 2018 WL 3054677, at *4 (D.N.J. June 29, 2018) (quoting Papp v. Fore-Kast Sales Co., 842 F.3d 805, 811 (3d Cir. 2016)). “Section 1442(a) is an exception to the well-pleaded complaint rule, under which (absent diversity) a defendant may not remove a case to federal court unless the plaintiff's complaint establishes that the case arises under federal law.” Papp, 842 F.3d at 811 (internal quotation marks and citation omitted). “Unlike the general removal statute, the federal officer removal statute is to be ‘broadly construed' in favor of a federal forum.” Id. (quoting In re Commonwealth's Mot. to Appoint Counsel Against or Directed to Def. Ass'n of Phila., 790 F.3d 457, 466-67 (3d Cir. 2015)). This presumption in favor of removal “is necessary to ensure that a federal officer [or a person acting under the officer] does not have to ‘win his case before he can have it removed' and provides for a federal forum to adjudicate the merits of the defense.” In re Asbestos Prods. Liability Litig. (No. VI), 770 F.Supp.2d 736, 741 (E.D. Pa. 2011) (quoting Willingham v. Morgan, 395 U.S. 402, 407 (1969)).

         A motion to remand “is properly evaluated using the same analytical approach” to a challenge to subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Papp, 842 F.3d at 811. “A challenge to subject matter jurisdiction under Rule 12(b)(1) may be either a facial or a factual attack.” Id. (internal quotation marks and citation omitted). Whereas a facial attack “does not dispute the facts alleged” in the notice of removal and “requires the court to consider the allegations . . . as true, ” a factual attack “disputes the factual allegations underlying the [] assertion of jurisdiction and involves the presentation of competing facts.” Id. (internal quotation marks and citation omitted).

         As the parties removing the action to federal court, Defendants bear the burden of proving that subject matter jurisdiction exists and removal is proper. See Baran, 2018 WL 3054677, at *4. Defendants must meet four ...

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