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Mannix v. CBS Corp.

United States District Court, D. Rhode Island

January 9, 2018

PATRICIA MANNIX, Individually and as Executrix for the Estate of MICHAEL MANNIX, Plaintiff,
v.
CBS Corporation et al., Defendants.

          MEMORANDUM AND ORDER

          WILLIAM E. SMITH, CHIEF JUDGE.

         Before the Court is Plaintiff's Motion to Remand (ECF No. 15), to which Defendant CBS Corporation has objected (ECF No. 16). For the reasons stated below, Plaintiff's Motion is denied.

         I. Factual Background

         Plaintiff Patricia Mannix - executrix of her husband, Michael Mannix's estate - filed suit against twenty-seven defendants, including CBS Corporation[1], for loss of consortium based on the allegation that Mr. Mannix died prematurely from exposure to asbestos which had been manufactured or used by the various defendants. The Complaint alleged the following:

Michael Mannix (“Plaintiff-worker”) was injuriously exposed to asbestos as follows: Michael Mannix was a member of the United States Navy from approximately 1965 to 1969. During this time he served as a machinist mate, second class, on board the USS Saratoga (CVA-60) and was stationed out of the Philadelphia Navy Shipyard in Pennsylvania and the Mayport Navy Yard in Florida. Prior to his enlistment, Mr. Mannix worked at International Paper in Ticonderoga, New York . . . From approximately 1974 until 1978, Mr. Mannix was employed as a welder at Electric Boat in Groton, Connecticut. Finally, Mr. Mannix was employed as a welder at Electric Boat in North Kingstown, Rhode Island from Approximately 1979 until 1987. As a direct result of his exposure to asbestos, he suffered and died from mesothelioma. His wife, Patricia Mannix (“Plaintiff-spouse”) makes a claim for loss of consortium . . . .

(Pl.'s Mot. to Remand, Ex. B ¶ 1, ECF No. 15-3.)

         After the Complaint was filed, a decade of discovery and motion practice ensued, during which time nine of the twenty-seven defendants either settled or were granted summary judgment in state court. (See State Court R. Docket Sheet, ECF No. 7-2.) Importantly, during this time CBS propounded two sets of Interrogatories to Plaintiff. In the Standard Asbestos Interrogatories, Defendant inquired about Mr. Mannix's membership in the armed forces and requested various identifying information including when he served, where he was stationed, and any claims of “injury or physical condition arising out of military service.” (Def.'s Opp'n to Pl.'s Remand Mot. (“Def.'s Opp'n”), Ex. 2, ECF No. 16-2.) Plaintiff supplied her answer on February 27, 2007, in which she reiterated the allegations in the Complaint and did not identify any injury from Mr. Mannix's military service. (Id.) Five years later, in its Supplemental Interrogatories, CBS asked Plaintiff to describe the specific products to which Mr. Mannix claimed exposure, the nature of his claimed exposure, the dates of his claimed exposure, and the names and addresses of all persons having knowledge of such exposure. (Def.'s Opp'n, Ex. 3, ECF No. 16-3.) Plaintiff objected to that interrogatory on May 9, 2012, arguing that the request was premature, overbroad, and unduly burdensome, that discovery was ongoing, and that she reserved her right to supplement her answer at a later date. (Def.'s Opp'n, Ex. 3, ECF No. 16-3.) There is no evidence that Plaintiff ever submitted supplemental answers to any interrogatories.

         On September 10, 2018, Plaintiff's counsel sent CBS a settlement demand letter, which stated, in pertinent part:

As you know, Mr. Mannix died at the age of 61 from mesothelioma. He served from 1965 to 1969 as a machinist mate aboard the USS Saratoga. During his naval career he worked exclusively throughout the entire ship and was exposed heavily to asbestos insulation that covered much of the equipment. Historical records indicate that there was [CBS] equipment including turbines, pumps, condensors and blowers located throughout the ship during Mr. Mannix's service aboard the Saratoga.

(Def.'s Opp'n, Ex. 4, ECF No. 16-4.) CBS promptly filed a Notice of Removal (ECF No. 1) on October 9, 2018, alleging that the letter had, for the first time, revealed a basis for removal under 28 U.S.C. § 1442(a). According to CBS, the settlement demand letter was the first time Plaintiff identified the specific asbestos-containing products to which Mr. Mannix was allegedly exposed (CBS turbines) and contended that this information was essential to establish § 1442 jurisdiction. (Def.'s Notice of Removal ¶ 2, ECF No. 1.)

         On November 8, 2018, Plaintiff moved to remand the case back to state court, arguing that CBS's removal was untimely because more than thirty days had elapsed since CBS received the Complaint. Alternatively, Plaintiff argues that, even if the thirty-day clock started ticking when she answered CBS's interrogatories in 2008 and 2012, CBS missed the deadline by several years. CBS responded that “removability is to be judged by the case as stated on the face of the complaint, ” that the Complaint did not contain sufficient facts to indicate that the case was removable under 28 U.S.C. § 1442, and that, therefore, the first document CBS received from Plaintiff indicating that the case was removable under that statute was the September 10, 2018, letter. (Def.'s Opp'n 13.)

         II. Legal Standard

         28 U.S.C. § 1442(a) permits removal of a case from state court when the action is brought against “[t]he 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 timeliness of removal under § 1442 is governed by 28 U.S.C. § 1446, which specifies two time periods within which a defendant must remove a case to federal court: (1) “If the case as stated by the initial pleading is removable, Section 1446(b)(1) requires the defendant to remove within thirty days of its receipt”; and (2) if the initial pleading does not present grounds for removal, then “[s]ection 1446(b)(3) requires the defendant to remove within thirty days of receiving a subsequent paper from which it may first be ascertained that the . . . action is or has become removable.” Romulus v. CVS Pharmacy, Inc., 770 F.3d 67, 69 (1st Cir. 2014); 28 U.S.C. § 1446(b). In order to remove a case under § 1442, the defendant must prove that “(a) it is a ‘person' within the meaning of the statute; (b) there is a causal nexus between its actions, taken pursuant to a federal officer's directions, and plaintiff's claims; and (c) it can assert a colorable federal defense.” Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006) (quotations omitted); see also Ruppel v. CBS Corp., 701 F.3d 1176, 1180 (7th Cir. 2012).

         Whether a case is removable “is to be judged by the case as stated on the face of the complaint.” Romulus, 770 F.3d at 74-75 (1st Cir. 2014); 28 U.S.C. § 1446(b). Therefore, to trigger the thirty-day clock, the plaintiff's papers must provide the defendant with sufficient facts to support all of the requirements for removal under the applicable statute - here, 28 U.S.C. § 1442. See Contois v. Able Indus. Inc., 523 F.Supp.2d 155, 157-58 (D. Conn. 2007) (“A pleading enables a defendant to intelligently ascertain removability when it provides the necessary facts to support [the] removal petition.” (quotations omitted).) While the defendant must apply “a reasonable amount of intelligence in ascertaining removability, ” it need not “look beyond the initial pleading for facts giving rise to removability.” Id.; see Lovern v. Gen. Motors Corp.,121 F.3d 160, 162-63 (4th Cir.1997) (grounds for removal must be “apparent within the four corners of the initial pleading or subsequent paper”); Beamis v. Buffalo Pumps, Inc., No. CIV.A. 08-472S, 2009 WL 462543, at *2 (D.R.I. Feb. 23, 2009) ...


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