Pantalone v. Aurora Pump Co.

• Decision Date: 18 September 2008
• Docket Number: Civil No. 3:07cv1336 (JBA).
• Citation: 576 F.Supp.2d 325
• Court: U.S. District Court — District of Connecticut
• Parties: Margaret PANTALONE, et al., Plaintiffs v. AURORA PUMP CO., et al., Defendants.

576 F.Supp.2d 325

Margaret PANTALONE, et al., Plaintiffs v. AURORA PUMP CO., et al., Defendants.

Civil No. 3:07cv1336 (JBA).

United States District Court, D. Connecticut.

September 18, 2008.

Brian P. Kenney, Christopher Meisenkothen, Lindalea P. Ludwick, Early Ludwick & Sweeney LLC, New Haven, CT, for Plaintiff.

John J. Robinson, McCarter & English-Htfd, Jason Kirk Henderson, Kenneth R. Neal, Danaher, Tedford, Lagnese & Neal, Deborah Etlinger, Gintare Tijunelis Grenier, Wolf Horowitz & Etlinger LLC, John

J. Bogdanski, Howd & Ludorf, Richard M. Dighello, Jr., Updike, Kelly & Spellacy, P.C., William E. Murray, Edwards Angell Palmer & Dodge-Htfd-CT, Hartford, CT, Michael J. Smith, Bonner Kiernan Trebach & Crociata, LLP-MA, Charles K. Mone, Campbell, Campbell, Edwards & Conroy, P.C.-MA, George W. Clark, Matthew Jason Zamaloff, Cetrulo & Capone-Boston, Robert Stuart Ludlum, Pierce, Davis & Perritano, LLP, Bryna Rosen Misiura, Michael D. Simons, The Governo Law Firm LLC, Boston, MA, Charles W. Pieterse, Whitman, Breed, Abbott & Morgan-CT, Greenwich, CT, Robert W. Allen, Tyler, Cooper & Alcorn, LLP-NH, New Haven, CT, Kevin C. McCaffrey Cullen & Dykman, LLP, Brooklyn, NY, Anthony J. Iaconis, Diserio, Martin, O'Connor & Castiglioni, Stamford, CT, Peter J. Ponziani, Marc S. Edrich, Timothy S. Jajliardo, Litchfield Cavo, Avon, CT, James R. Oswald, Mark O. Denehy, Adler, Pollock & Sheehan, Inc., Providence, RI, Geoffrey Lane Squitiero, Maher & Murtha, Bridgeport, CT, for Defendants.

RULING ON PLAINTIFF'S MOTION TO REMAND

JANET BOND ARTERTON, District Judge.

Plaintiff Margaret Pantalone filed this state-law products-liability action in Connecticut Superior Court on July 17, 2003, alleging that her husband Thomas Pantalone ("Pantalone") was injured and ultimately died as a result of his earlier exposure to asbestos materials. Plaintiff's complaint alleges, among other things, that Pantalone developed malignant mesothelioma due to his contact with asbestos-containing products manufactured by Defendant Buffalo Pumps, Inc. ("Buffalo Pumps") while serving in the U.S. Navy between 1951 and 1956. (Compl. [Doc. # 1] ¶ 5.)

On September 4, 2007, Buffalo Pumps removed the case pursuant to the federal-officer-removal statute, 28 U.S.C. § 1442(a)(1). One week later, Plaintiff moved to remand the case to state court, arguing that Buffalo Pumps had not satisfied the requirements for removal under § 1442(a)(1) and that the removal was untimely. Based on the grounds Buffalo Pumps provided in its notice of removal, the Court concludes that the grounds for federal-officer removal as explained in Isaacson v. Dow Chemical Co., 517 F.3d 129, 138 (2d Cir.2008), have been met. However, Buffalo Pumps has failed to carry its additional burden of establishing that it could not have intelligently ascertained the case's removability before August 3, 2007. Consequently, because removal was untimely pursuant to 28 U.S.C. § 1446(b), Plaintiffs Motion to Remand [Doc. # 14] is granted.

I. Relevant Background

Plaintiffs complaint alleges, in pertinent part, that Pantalone "was exposed to various asbestos containing products while in the U.S. Navy, at various jobsites, at various times during the years 1951-1956 and while working in Connecticut as a Maintenance Mechanic at various jobsites, at various times during the years 1956-1987." (Compl. ¶ 5.) Plaintiff further alleges that Pantalone's exposure to asbestos during this time was the result of his contact with products manufactured or supplied by each of the Defendants (including Buffalo Pumps), thus giving rise to their liability under Connecticut law. (Id. ¶¶ 3, 6-11.)

After the case had been pending for more than four years, Plaintiff disclosed the report of its expert, Captain R. Bruce Woodruff, on August 3, 2007. In this report, Captain Woodruff outlined the details of Pantalone's Navy service, including that he worked on the U.S.S. Fulton, on the U.S.S. Dortch, and at the New London submarine base. (Woodruff Rep. at 4-8.) Following this disclosure, Buffalo Pumps then removed the case on the basis of the following assertions:

5. Buffalo Pumps manufactured and supplied pumps for Navy ships pursuant to vessel-specific contracts between it and the United States Navy.

6. Buffalo Pumps is a "person" within the meaning of 28 U.S.C. § 1442(a).

7. As evidenced by the Kraft Affidavit, the Navy issued specifications and other technical documentation identified in applicable contract documents that controlled the pumps' design and construction and specified the materials to be used, including asbestos gaskets. The Navy retained ultimate decision-making authority with respect to the design and final approval of all Buffalo Pumps['s] pumps constructed for Navy vessels. All pumps supplied by Buffalo Pumps to the Navy were manufactured under reasonably precise specifications and other technical documentation dictated by the United States Government and identified in applicable contract documents.

8. The Navy's specifications also covered the nature of any communication affixed to pumps or equipment supplied to the Navy. As such, Buffalo Pumps was required to submit for approval and acceptance by the federal government drafts of any manuals, drawings, or other written materials required to be provided with regard to pumps it manufactured for the Navy. Buffalo Pumps would not have been permitted ... to attach any type of warning or cautionary statement not required and approved by the Navy, including any statements related to asbestos, without prior discussion, approval and acceptance by the Navy.

9. Therefore, Buffalo Pumps was, at all times, acting under the direct and detailed authority and control of an officer of the United States Navy in carrying out its contract for the manufacture of pumps used on United States Naval vessels.

(Not. Removal at 3-4 (citations omitted).) Consequently, Buffalo Pumps contended, it had a colorable basis for asserting the "government contractor" defense recognized in Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988).

To bolster its grounds for removal under § 1442(a)(1), Buffalo Pumps incorporated into its notice the affidavits of Roger B. Horne, Jr., a retired Rear Admiral of the U.S. Navy; Martin K. Kraft, Buffalo Pumps's production manager; and Dr. Samuel A. Forman, a specialist in preventative and occupational medicine, former Navy doctor, and expert in asbestos-related diseases. Admiral Home "attest[ed] to the level of supervision, direction[,] and control exercised by the U.S. Navy over the design and manufacture [of pumps] intended for installation on Navy vessels." (Horne Aff. ¶ 4.) "In sum," Admiral Horne averred, "all equipment, including Buffalo Pumps'[s] pumps, manufactured for use aboard Navy vessels, including the [Dortch and Fulton], were manufactured pursuant to Navy specifications under close supervision by personnel employed by the Navy, and approved for installation aboard these vessels by the Navy and its designated officers." (Id. ¶ 16.) This close relationship between Buffalo Pumps and the Navy was confirmed by Kraft, who in his affidavit described the details of the design and manufacturing process from Buffalo Pumps's perspective. According to Kraft, the Navy's supervision of Buffalo Pumps's contract work was comprehensive: "[a]ll pumps supplied by Buffalo Pumps to the Navy were built in accordance with the Navy specifications or other technical documentation identified in applicable contract documents." (Kraft Aff. ¶ 10.) In the third affidavit, Dr. Forman provided general background on asbestos-related occupational disease and on his research showing that the Navy was aware, at least three decades before Pantalone's service, "that asbestos exposure was a potential health hazard." (Forman Aff. ¶ 9.)

These affidavits, Buffalo Pumps maintains, provide sufficient support for its grounds for removal pursuant to § 1442(a)(1). Plaintiff disagrees in nearly every respect and further argues that removal was untimely under § 1446(b) because Buffalo Pumps filed its notice of removal more than thirty days after the case's removability became apparent. The Court will proceed by first looking to whether Buffalo Pumps has met the prerequisites for federal-officer removal and then determining whether the removal was timely.

II. Removal Pursuant to § 1442(a)(1)

A statute that traces its history to the War of 1812, § 1442(a)(1) "permits a defendant to remove to federal court a state court action brought against 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, sued in an official or individual capacity for any act under color of such office.'" Watson v. Philip Morris Cos., ___ U.S. ___, 127 S.Ct. 2301, 2303-05, 168 L.Ed.2d 42 (2007) (quoting 28 U.S.C. § 1442(a)(1)). With this removal mechanism, the statute serves to protect federal officers acting within their authority from being "arrested and brought to trial in a State court, for an alleged offense against the law of the State, yet warranted by the Federal authority they possess." Willingham v. Morgan, 395 U.S. 402, 405, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969) (quoting Tenn. v. Davis, 100 U.S. 257, 263, 25 L.Ed. 648 (1880)). This removal privilege extends to "persons who, through contractual relationships with the Government, perform jobs that the Government otherwise would have performed." Isaacson, 517 F.3d at 133. Such defendants who seek to remove pursuant to § 1442(a)(1) despite not themselves being federal officers must demonstrate three things:

First, they must show that they are persons within the meaning of the statute who acted under a federal officer. Second, they must show that they performed the actions for which they are being sued under color of federal office. Third, they must raise a colorable federal defense.

Id. at 135 (citations and quotation...