REPORT AND RECOMMENDATION

SHERRY R. FALLON, Magistrate Judge.

I. INTRODUCTION

Presently before the court in this asbestos-related personal injury action is Plaintiffs Motion to Remand to State Court ("Motion to Remand") on the grounds that the Notice of Removal filed by Rockwell Automation Inc. ("Rockwell")1 was untimely and does not meet the requirements of the federal officer removal statute. (D.I. 151) For the reasons that follow, I recommend that the court GRANT Plaintiffs Motion to Remand.

II. BACKGROUND

Donnie Lacey Wines ("Mr. Wines") and Vergie Wines filed this action against numerous defendants in the Superior Court of the State of Delaware on August 7, 2014.2 (D.I. 1, Ex. A) The Complaint alleges that Mr. Wines developed mesothelioma as a result of exposure to asbestos-containing products manufactured or supplied by various defendants, including Allen-Bradley and its successor-in-interest, Rockwell. (Id., Ex. A at ¶¶ 22, 30) Specifically, Mr. Wines claims he was wrongfully exposed to asbestos while working as an electrician, instructor, and supervisor for Newport News Shipbuilding in Newport News, Virginia from 1961 to 1977, while working as an electrician for Burlington Industries Carpet Mill in Glasgow, Virginia from 1977 to 2002, and while performing maintenance on his personal vehicle and residences in the 1960's through 1970's.3 (Id., Ex. A at ¶ 30) The Complaint alleges that the defendants

(Id., Ex. A at ¶ 34) It is further alleged that

(Id., Ex. A at ¶ 37)

On August 11, 2014, Plaintiffs decedents electronically filed responses to interrogatories and requests for production of documents, including medical records, a doctor-hospital list, and a work history sheet, (D.I. 32 at 20-31, Ex. 1, Ex. 2 at 1-25) In the work history sheet, Mr. Wines identified a dozen Navy vessels4 that he worked on at the time of his alleged exposure to asbestos. (Id., Ex. 2 at 16-24)

Rockwell contends that it first learned of the Complaint on August 14, 2014 after a routine docket search, even though Rockwell was not formally served until September 3, 2014. (D.I. 53 at 1, Ex. B) In its interrogatory responses, Rockwell admits that it manufactured and sold industrial electrical power products from the 1930's until 1985, which incorporated some asbestos-containing subcomponents molded by Allen-Bradley. (D.1. 32, Ex. 3 at 3)

Based on receipt of the Complaint and preliminary discovery, Rockwell removed the action to this court on September 15, 2014 pursuant to 28 U.S.C. § 1442(a)(1), the federal officer removal statute. (D.I. 1) Rockwell based removal on Plaintiffs decedent's allegations of exposure to asbestos-containing Allen-Bradley electrical equipment, which Rockwell supplied to the Navy in accordance with the Government's design and manufacturing specifications. (Id. at 2)

On October 15, 2014, Plaintiff filed a Motion to Remand, asserting that Rockwell's Notice of Removal was untimely, and that this court lacks federal officer jurisdiction. (D.I. 27) After the deaths of the original plaintiffs, the court entered a stay and denied the Motion to Remand without prejudice pending substitution of the proper party plaintiff. (D.I. 142) Thereafter, the Complaint was amended to add a wrongful death claim and to substitute Neal Wines as Plaintiff and executor of the original plaintiffs' estates. (D.I. 152) Plaintiff subsequently renewed the Motion to Remand on January 20, 2016, and Rockwell renewed its opposition on February 2, 2016. (D.I. 151; D.I. 156)

III. LEGAL STANDARD

A. Removal Jurisdiction

The federal officer removal statute, 28 U.S.C. § 1442(a)(1), provides that a civil action may be removed to the district court when the United States, an agency thereof, or any officer or person acting under that officer is sued for any act under the color of such office. The party removing an action to federal court bears the burden of proving that subject matter jurisdiction exists and that removal is proper. See Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). In the Third Circuit, the provisions of the federal officer removal statute are to be "broadly construed."5 The Supreme Court has explained that "the right of removal is absolute for conduct performed under color of federal office, and has insisted that the policy favoring removal `should not be frustrated by a narrow, grudging interpretation of § 1442(a)(1).'" Arizona v. Manypenny, 451 U.S. 232, 242 (1981) (citation omitted).

To establish federal officer removal jurisdiction under § 1442(a)(1), a defendant must satisfy the following:

Feidt v. Owens Coming Fiberglas Corp., 153 F.3d 124, 127 (3d Cir. 1998) (citing Mesa v. California, 489 U.S. 121, 129 (1989)).

B. Timing of Removal

While § 1442 governs the substantive jurisdictional requirements for federal officer removal, § 1446 dictates the timeliness of removal. Section 1446(b) provides that "the notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." 28 U.S.C. § 1446(b)(1). If the basis for removal is not set forth in the initial pleading, however, a defendant must remove within thirty days after receiving "an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable."6 § 1446(b)(3). Thus, an action must be removed within thirty days of receipt of the initial pleading when grounds for removal arise in the initial pleading. However, if the initial pleading does not give rise to grounds for removal, then the thirty days begins to run after receipt of a subsequent document setting forth grounds that warrant removal.

As with jurisdiction, the defendant bears the burden of showing the timeliness of removal. See Mims; 2013 WL 4775306, at *2 (citing Scearce v. 3M Co., 2013 WL 2156060, at *3 (D.N.J. May 16, 2013)).

IV. DISCUSSION

Plaintiff challenges removal on the basis that it was untimely, and that Rockwell has failed to satisfy the elements for removal jurisdiction. (D.I. 28 at 3-20)

A. Timeliness of Removal

To be timely, Rockwell must have filed the Notice of Removal "within 30 days after the receipt ... of the initial pleading...." 28 U.S.C. § 1446(b)(1). Under § 1446(b)(3), a defendant may rely on the initial pleading, amended pleadings, motions, orders, or other papers to ascertain removability.

Plaintiff argues that the thirty-day removal period was triggered on August 11, 2014, when Plaintiff electronically filed the interrogatory responses. (D.I. 28 at 5) Plaintiff asserts that this filing qualifies as an "other paper" pursuant to § 1446(b)(3) "from which Rockwell could have first ascertained the removability oh his case." (Id.) Rockwell acknowledges that Plaintiffs interrogatory responses supplied sufficient facts for it to have ascertained removability based on the federal contractor defense.7 (D.I. 52 at 5; D.I. 32 at 66-73) However, Rockwell asserts that it did not learn of Plaintiffs interrogatory responses until August 14, 2014, after its defense counsel discovered the action and Complaint while conducting a routine docket search. (D.I. 53 at 1-3)

When § 1446(b)(1) and § 1446(b)(3) are read together, the plain language8 of the statute indicates that subsection (b)(3) does not apply unless a defendant has already received the "initial pleading." See 28 U.S.C. § 1446(b). The statute reads:

§§ 1446(b)(1), (b)(3).

While citing legislative history, the Third Circuit explained that in drafting § 1446(b), Congress intended to "eliminate the situation wherein a defendant who has not received the complaint must decide whether to remove `before he knows what the suit is about.'" Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 222 (3d Cir. 2005) (citing Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 352 (1999)). Therefore, the Third Circuit relied on Supreme Court precedent and held that subsection (b)(3) does not apply if the "other papers" were received before the complaint. Id. at 221-23. In such a case, the complaint constitutes the "initial pleading" under the terms of the removal statute, so the time for removal begins to run upon receipt of the complaint, and not upon receipt of the "other papers."9 Id. Accordingly, for an "other paper" to trigger the thirty-day period in the present action, Rockwell must have received the "other paper" after or at least contemporaneously with the initial pleading.

Rockwell received the initial pleading and the "other paper" on the same date. It acknowledged receipt of both the Complaint and the interrogatory responses on August 14, 2014 through its defense counsel. (D.I. 53 at 5) Therefore, it is unnecessary to consider timeliness under § 1446(b)(3). The thirty-day time period commenced on August 14, 2014, so Rockwell's removal by September 15, 2014 is timely.10 (D.I. 1)

Having determined that the Notice of Removal was timely filed, the court must address whether Rockwell has satisfied the substantive requirements pursuant to the federal officer removal statute.

B. Federal Officer Removal Jurisdiction

To establish removal jurisdiction under § 1442(a)(1), Rockwell must show the following:

Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124, 127 (3d Cir. 1998) (citing Mesa v. California, 489 U.S. 121, 129 (1989)).

1. Whether Rockwell is a "person" within the meaning of § 1442(a)(1)

With respect to the first element of the statute, there is no dispute that Rockwell, as a corporation, is a "person" within the meaning of the statute. See In re Asbestos Litig. (Seitz), 661 F.Supp.2d 451, 454 (D. Del. 2009) (citing Good v. Armstrong World Indus., Inc., 914 F.Supp. 1125, 1128 (E.D. Pa. 1996)); Kirks v. Gen. Elec. Co., 654 F.Supp.2d 220, 223 (D. Del. 2009); Hicks v. Boeing Co., Civil Action No. 13-393-SLR-SRF, 2014 WL 1051748, at *4, (D. Del. Mar. 17, 2014), report and recommendation adopted, 2014 WL 1391104 (D. Del. Apr. 8, 2014). Therefore, the first element of the federal officer removal statute has been met.

2. Whether Plaintiff's claims are based upon Rockwell's conduct "acting under" a federal office

The second factor has been described as "requiring `a showing that the acts forming the basis of the state suit were performed pursuant to an officer's direct orders or comprehensive and detailed regulations.'" In re Asbestos Litig. (Seitz), 661 F. Supp. 2d at 454 (quoting Good, 914 F. Supp. at 1128). Accordingly, Rockwell "must demonstrate that a `federal office' was the source of the specific act for which [it] now faces suit." Id. (citing Holdren v. Buffalo Pumps, Inc., 614 F.Supp.2d 129, 138 (D. Mass. 2009)). "By contrast, if the corporation establishes only that the relevant acts occurred under the general auspices of federal direction then it is not entitled to § 1442(a)(1) removal." Good, 914 F. Supp. at 1128.

Rockwell asserts that the Declaration of Thomas F. McCaffrey11 ("McCaffrey") establishes the "acting under" element of the federal officer removal statute. (D.I. 53 at 10) McCaffrey demonstrates that electrical components utilized on naval vessels were required to meet standards and regulations established by the Navy. (Id.) Plaintiff acknowledges that McCaffrey's statements generally indicate that electrical components would have complied with regulations if used on Navy ships. (D.I. 66 at 4) However, removal is not appropriate because McCaffrey does not establish that Rockwell actually acted under Navy direction in manufacturing the particular Allen-Bradley products to which Plaintiffs decedent alleges exposure. (Id.)

Specifically, McCaffrey states in his Declaration that "Allen-Bradley was not approved to provide electrical motor control products to the Navy with the exception of a variable rheostat intended to be used in cranes aboard surface ships."12 (D.I. 1, Ex. D at ¶ 9) Therefore, Rockwell's argument that it "acted under" the direction of the Navy is internally inconsistent with its denial that it supplied asbestos-containing products to the Navy at the Navy's direction. In other words, McCaffrey's Declaration shows that Rockwell generally did not supply asbestos-containing products to the Navy. However, if it did, Rockwell was acting under direct orders or detailed Navy regulations, even though such products were not approved by the Navy.

McCaffrey states that only equipment listed on the Navy Qualified Products List ("QPL") may be used on Navy vessels. (Id., Ex. D at ¶ 8) He explained that in the 1940's, Allen-Bradley was approved to mold a type of non-asbestos plastic called "CFG" for the Navy. (Id., Ex. D at ¶ 10) However,

(Id., Ex. D at ¶ 13) Accordingly, McCaffrey's Declaration establishes that no asbestos-containing Allen-Bradley product appeared on the Navy QPLs from the 1940's to the 1980's, except for the rheostat used in cranes. (Id., Ex. D at ¶ 9) Mr. Wines only testified to working with Allen-Bradley products while cleaning contactors,13 breakers, and circuit breakers aboard Navy vessels. (D.I. 1, Ex. 3 at 17-19)

McCaffrey's Declaration supports that Rockwell, as a successor-in-interest to Allen-Bradley, did not act under Navy direction in allegedly supplying the asbestos-containing "electrical panels and parts" to which Plaintiffs decedent claims exposure. (Id., Ex. 2 at 4) Therefore, the evidence presented fails to establish the "acting under" requirement under the federal officer removal statute.

3. Whether Rockwell has raised a colorable federal defense14

The third factor requires the removing defendant to demonstrate a colorable defense to a plaintiffs claims. Megill v. Worthington Pump, Inc., No. CIV. A. 98-76-SLR, 1999 WL 191565, at *3 (D. Del. March 26, 1999). In the present action, Rockwell relies on the federal government contractor defense. (D.I. 1) According to the Supreme Court, a federal contractor is not liable for design defects in military equipment15 under state tort laws when:

Boyle, 487 U.S. at 512-13.

Federal courts have tailored the Boyle elements to failure to warn claims as follows:

Hicks v. Boeing Co., Civil Action No. 13-393-SLR-SRF, 2014 WL 1051748, at *5 (D. Del. Mar. 17, 2014), report and recommendation adopted, (D. Del. Apr. 8, 2014) (quoting MacQueen v. Union Carbide Corp., Civil Action No. 13-831-SLR-CJB, 2013 WL 6571808, at *4 (D. Del. Dec. 13, 2013), report and recommendation adopted, 2014 WL 108535 (D. Del. Jan. 9, 2014)).

The Supreme Court in Boyle held that the government contractor defense pre-empts state tort law when "the state-imposed duty of care that is the asserted basis of the contractor's liability ... is precisely contrary to the duty imposed by the government contract." Boyle, 487 U.S. at 509. Thus, in actions such as the present case, involving allegations of failure to warn of the dangers of asbestos, the removing defendant

In re Asbestos Litig. (Seitz), 661 F.Supp.2d 451, 454 (D. Del. 2009) (quoting In re Joint E. & S. Dist. NY Asbestos Litig., 897 F.2d 626, 630 (2d Cir. 1990)).

There is evidence in the record to establish the elements of the federal government contractor defense. With respect to the first and second prongs, Mccaffrey explained that the Navy required all equipment to meet certain specifications, and only items on the Qualified Products List were approved for Navy use. (D.I. 1, Ex. D at ¶ 9) Additionally, Rockwell proffers Declarations from Rear Admiral David P. Sargent, Jr. and Samuel A. Forman, M.D, consistent with declarations previously submitted in other cases, which satisfied the three prongs of the federal government contractor defense under the Boyle analysis. (D.I. 53, Ex. C; D.I. 58) See Evans v. Foster Wheeler Energy Corp., C.A. No. 15-681-SLR-SRF, 2016 WL 452310, at* 8 (D. Del. Feb 5, 2016), report and recommendation adopted, 2016 WL 754122 (D. Del. Feb. 24, 2016) (citing Boyle, 487 U.S. at 512). Rear Admiral Sargent stated that the Navy drafted, approved, and maintained specifications for any equipment intended for use aboard Navy ships. (D.I. 58 at ¶ 27) Manufacturers "would not have been permitted ... to vary or to deviate in any respect from the Navy specifications in supplying equipment, including affixing any type of warning or caution statement to equipment intended for installation in a Navy ship .... (Id. at ¶ 58) With respect to the third prong, Dr. Forman makes clear that the Navy knew about the hazards of asbestos as early as 1922, as exemplified by numerous Navy publications and statements acknowledging and concerning the topic. (D.I. 53, Ex.Cat ¶ 27-31, 36-45, 47-55)

Although the Declarations plausibly support the elements of the federal government contractor defense, for example, that equipment conformed to the Navy's reasonably precise specifications, and that the dangers of asbestos were known to the Navy, the evidence is insufficient to establish all elements under the federal officer removal statute. That the Navy approved reasonably precise specifications does not necessarily mean that Rockwell was acting under or pursuant to those specifications. Accordingly, and for the reasons further detailed in Sections IV(B)(2), supra, and IV(B)(4), infra, Rockwell fails to establish federal officer removal jurisdiction.

4. Whether there is a causal nexus between Plaintiff's claims and Rockwell's conduct performed under color of a federal office

"`A crucial element of both the Boyle decision and the removal requirements is missing if the contractor fails to establish a causal connection between the conduct being supervised by the [federal office] and the conduct deemed offensive in the plaintiffs complaint.'" In re Asbestos Litig. (Seitz), 661 F.Supp.2d 451, 454 (D. Del. 2009) (alteration in original) (quoting Megill v. Worthington Pump, Inc., CIV. A. 98-76-SLR, 1999 WL 191565, at *4 (Mar. 26, 1999)).

In the present action, Plaintiff asserts liability based on the following conduct: 1) failure to substitute other materials for asbestos; 2) failure to warn; 3) failure to adequately research the dangers of asbestos; 4) failure to adequately package, distribute, and use asbestos; and 5) failure to remedy the above failures. The McCaffrey Declaration indicates that the Navy did not approve any asbestos-containing Allen-Bradley product, except for one product not at issue, here. Therefore, there is no causal connection between Plaintiffs decedent's claims and the conduct performed under color of a federal office, as the evidence is insufficient to establish that the claims arose out of the direct orders or detailed regulations of the Navy. As such, removal is not appropriate under the federal officer removal statute, and Plaintiffs Motion to Remand should be GRANTED.

V. CONCLUSION

For the foregoing reasons, I recommend that the court GRANT Plaintiffs Motion to Remand.

This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b)(1), and D. Del. LR 72.1. The parties may serve and file specific written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. Fed. R. Civ. P. 72(b)(2). The objections and responses to the objections are limited to ten (10) pages each. The failure of a party to object to legal conclusions may result in the loss of the right to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 92he 4, 925 n.1 (3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).

The parties are directed to the court's Standing Order For Objections Filed Under Fed. R. Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website, http://www.ded.uscourts.gov.