Pack v. AC AND S, INC., Civ. No. 93-3011 through 93-3510 and 93-3520 through 93-3527.
Decision Date | 17 December 1993 |
Docket Number | Civ. No. 93-3011 through 93-3510 and 93-3520 through 93-3527. |
Citation | 838 F. Supp. 1099 |
Parties | Herbert PACK, et al., v. AC AND S, INC., et al. |
Court | U.S. District Court — District of Maryland |
Peter G. Angelos, R. Bruce McElhone, and Andrew M. Cantor, Baltimore, MD, for plaintiffs.
Thomas L. Crowe, and Morton A. Sacks, Baltimore, MD, for defendant Westinghouse Elec. Corp. Benjamin F. Davis, and Gardner M. Duvall, Baltimore, MD, for defendants AC & S, Inc., Keene Corp., and Porter-Hayden.
Deborah L. Robinson, Towson, MD, for defendant John Crane-Houdaille, Inc.
Thomas F. McDonough, and Keith R. Truffer, Towson, MD, for defendant Durabla Mfg. Co.
John B. Isbister, Baltimore, MD, for defendants Fibreboard Corp., Owens-Illinois Glass Co., and Pittsburgh Corning Corp.
Keith L. Arnold, Baltimore, MD, for defendant Foster Wheeler Corp.
Robert P. Schlenger, Baltimore, MD, for defendants Harbison-Walker Refractories and M.H. Detrick Co.
Robert J. Lynott, Baltimore, MD, for defendant Hopeman Bros., Inc.
Robert D. Klein, Annapolis, MD, for defendants Intern. Minerals and Chemical Corp., Kaiser Aluminum and Chemical Corp.
David F. Albright, Sr., Baltimore, MD, for defendants Koppers Co., Inc. and Universal Refractories.
John J. Nagle, III, Towson, MD, for defendants Lloyd D. Mitchell, Inc. and McCormick Asbestos Co.
R. Karl Aumann, and John P. Sweeney, Baltimore, MD, for defendant Owens-Corning Fiberglas Corp.
James P. Ulwick, and Perry F. Sekus, Baltimore, MD, for defendant Ruberoid Co.
On October 18, 1993, Westinghouse Electric Corporation ("Westinghouse"), one of the defendants in a number of consolidated cases pending in the Circuit Court for Baltimore City, removed 508 personal injury asbestos cases to this Court under 28 U.S.C. § 1442(a)(1). Westinghouse argues that many of the plaintiffs' allegations stem from their employment by Westinghouse in the supply, manufacture and design of turbine generators pursuant to the direction and control of the United States Navy and the United States Maritime Commission and that the government contractor defense applies, making removal appropriate under § 1442(a)(1). Plaintiffs move to remand these cases under 28 U.S.C. § 1447(c) contending that Westinghouse's motion to remove was untimely, that Westinghouse is not a "person" for the purposes of 28 U.S.C. § 1442(a)(1) and that there is no evidence of the government contractor defense.
Westinghouse argues that removal is proper under 28 U.S.C. § 1442(a)(1), which provides that an action may be removed by "any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office." This provision is satisfied if the moving party can (1) demonstrate that it acted under the direction of a federal officer, (2) raise a federal defense to plaintiffs' claims and (3) demonstrate a causal nexus between plaintiffs' claims and acts it performed under color of federal office. Mesa v. California, 489 U.S. 121, 124-25, 129-31, 134-35, 109 S.Ct. 959, 962-63, 965, 967-68, 103 L.Ed.2d 99 (1989).
Plaintiffs first argue that Westinghouse's petition for removal was not filed timely. Defendants have thirty days after receipt of the initial pleading to seek removal. However, if the initial pleading fails to articulate the details of the claims made, the thirty day time period begins on the date the defendant receives "other paper" specifically indicating the nature of the claims and the potential for removal. 28 U.S.C. § 1446(b). The phrase "other paper" refers to "documents generated within the state court litigation." Zbranek v. Hofheinz, 727 F.Supp. 324, 326 (E.D.Tex.1989); see Riggs v. Continental Baking Co., 678 F.Supp. 236, 238 (N.D.Cal. 1988) ( ); Bonnell v. Seaboard A.L.R. Co., 202 F.Supp. 53, 55 (N.D.Fla. 1962); see also Johansen v. Employee Benefit Claims, Inc., 668 F.Supp. 1294, 1296 (D.Minn.1987) ( ).
Plaintiffs added Westinghouse as a defendant on August 24, 1993 by serving it with a Short Form Amended Complaint that incorporated by reference the "Asbestos" Master Complaint. Although these complaints allege the plaintiffs were employed at unspecified worksites and were exposed to asbestos, only a guess by Westinghouse would have indicated the case was removable. See Roberson v. Orkin Exterminating Co., 770 F.Supp. 1324, 1329 (N.D.Ind.1991) ( ); Rollwitz v. Burlington Northern Railroad, 507 F.Supp. 582, 586-87 (D.Mont.1981) (same). Plaintiffs contend that Westinghouse knew its turbine generators caused the plaintiffs' injuries when it responded to plaintiffs' Request for Admissions on September 13, 1993. However, Westinghouse was merely responding to broad discovery requests that were aimed at a typical member of the asbestos industry which Westinghouse is not. The requests did not indicate that certain products caused the injuries and that § 1442 relief was appropriate. See Bonnell, 202 F.Supp. at 54-55 ( ).
On September 17, 1993, the date plaintiffs served Westinghouse with the "Milestone Filing" on product identification, Westinghouse was informed that its steam turbine generators manufactured at the Baltimore Shipyards were the subject of the litigation. This "other paper" provided Westinghouse with sufficient information for it to determine that the turbines were made according to government specifications and that removal was available based on the government contractor defense under 28 U.S.C. § 1442(a)(1). See Riggs, 678 F.Supp. at 238 ( ); Smith v. International Harvester Co., 621 F.Supp. 1005, 1009 (D.Nev. 1985) ( ); Brooks v. Solomon Co., 542 F.Supp. 1229, 1230 (N.D.Ala.1982) ( ). Thus, Westinghouse's petition for removal filed on October 18, 1993, within thirty days of the "Milestone Filing," was timely.
Plaintiffs next argue that Westinghouse is not a "person" within the meaning of 28 U.S.C. § 1442(a)(1). The starting point in interpreting a statute is the plain language. Andrus v. Allard, 444 U.S. 51, 56, 100 S.Ct. 318, 322, 62 L.Ed.2d 210 (1979). Section 1442(a)(1) provides in pertinent part:
28 U.S.C. § 1442(a)(1). Where rules are drafted by a legislative body familiar with traditional legal concepts, one can reasonably assume that the word "person" is intended to indicate more than natural persons. See e.g., 1 U.S.C. § 1 (); 5 U.S.C. § 551(2) ( ); see also Perrin v. United States, 444 U.S. 37, 45, 48-49, 100 S.Ct. 311, 315, 317, 62 L.Ed.2d 199 (1979) ( ).
Although Federal district courts are divided on the question, the best reasoned opinions take a broad approach when defining "person" under § 1442. Ryan v. Dow Chemical Co., 781 F.Supp. 934, 946 (E.D.N.Y.1992) ( ); accord Fung v. Abex Corp., 816 F.Supp. 569, 572 (N.D.Cal. 1992); Bahrs v. Hughes Aircraft Co., 795 F.Supp. 965, 968 (D.Ariz.1992) (same); see Bakalis v. Crossland Sav. Bank, 781 F.Supp. 140, 144 (E.D.N.Y.1991) ( ). Thus, in accordance with the plain language and the purpose of the statute, Westinghouse can be characterized as a person under § 1442(a)(1) as a supplier, manufacturer and designer of turbine generators under the supervision of the Secretary of Navy or the United States Maritime Commission or their agents.
Plaintiffs next argue that Westinghouse has not shown it was "acting under" an officer of the United States by establishing that an official had "direct and detailed control" over its construction of the turbines. Fung, 816 F.Supp. at 572 quoting, Ryan, 781 F.Supp. at 947. "Direct control" is established by showing strong government intervention and the possibility that a defendant will be sued in state court as a result of the federal control. Fung, 816 F.Supp. at 572; see Gulati v. Zuckerman, 723 F.Supp. 353, 358 (E.D.Pa.1989).
Plaintiffs contend that this case is controlled by Ryan, supra. In Ryan, the court denied removal under § 1442(a)(1) of an action involving personal injuries allegedly caused by Agent Orange. The court concluded that the government did not control the designing and manufacturing of the product, and because it "sought only to buy ready-to-order herbicides" the necessary...
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