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Smith v. Boeing Aerospace Operations, Inc.

United States District Court, E.D. Missouri, Eastern Division

August 19, 2014

BIRLIE SMITH, Plaintiff,
v.
BOEING AEROSPACE OPERATIONS, INC., et al., Defendants.

MEMORANDUM AND ORDER OF REMAND

CATHERINE D. PERRY, District Judge.

This matter is before me on plaintiff's motion to remand the action to state court. [Doc. # 85]. Plaintiff is the heir of decedent Ronald Smith, Sr., whom she alleges died as a result of exposure to asbestos. Plaintiff argues that the removal of the case by defendant Boeing Company on July 2, 2014, was untimely.[1] I agree, so the motion to remand will be granted.

Background

On March 27, 2013, plaintiff filed a petition in Missouri state court, alleging that during the course of decedent's employment as an assembly worker and inspector at Boeing from 1962-2000, as well as his home remodeling work beginning in the 1950s, decedent was exposed to asbestos fibers manufactured, sold, distributed, supplied, and/or installed by Boeing and numerous other defendants. Plaintiff brings claims of strict liability, negligence, wilful and wanton misconduct, and conspiracy, as well as claims for fraudulent misrepresentation, battery, and negligence against Boeing. Boeing answered the petition on July 12, 2013. [Doc. # 85-2]. In its answer, Boeing pleads the following as its Tenth Affirmative Defense:

This defendant is immune from liability as a government contractor who manufactured the products and/or the products its premises to which plaintiff claims decedent was exposed pursuant to reasonably precise specifications of the United States government. Furthermore, said products conformed to the specifications of the United States government, and this defendant warned the government about any dangers that were known to this defendant but not by the government. Defendant demands trial by jury.

[Doc. # 85-2 at 13]. This affirmative defense is not asserted "based upon information and belief."

Plaintiff amended her petition on February 27, 2014. [Doc. # 22]. In her amended petition, plaintiff alleges that decedent was employed as a sheet metal worker (not assembly worker) and inspector at Boeing. Boeing answered the first amended petition on March 31, 2014. [Doc. # 48]. Boeing again asserted the following as its Tenth Affirmative Defense:

This defendant is immune from liability as a government contractor who manufactured the products and/or the products its premises to which plaintiff claims decedent was exposed pursuant to reasonably precise specifications of the United States government. Furthermore, said products conformed to the specifications of the United States government, and this defendant warned the government about any dangers that were known to this defendant but not by the government. Defendant demands trial by jury.

[Doc. # 48 at 14].

This case was set for trial in the Circuit Court of the City of St. Louis, Missouri on September 2, 2014, as a peremptory setting. [Doc. # 85-3]. Plaintiff served discovery requests on Boeing on July 1, 2013, and the responses to those requests were due on July 31, 2013. Boeing refused to respond to the discovery requests, so plaintiff was eventually forced to file a motion to compel on May 13, 2014. That motion was set for hearing in state court on June 16, 2014. Boeing requested the hearing be moved to July 3, 2014. Plaintiff agreed. On July 2, 2014, Boeing removed the case to this Court.

Boeing removed this case based on the federal officer removal statute, 28 U.S.C. § 1442(a), alleging that "this action involves a person (Boeing) who, in relation to the claims being stated against it, acted under the authority, direction, and control of an officer or agency of the United States and who can state a colorable federal law-based defense to those claims." Boeing argues that it filed its Notice of Removal within 30 days of "receiving notice that this case has become removable." Boeing contends that it first received notice of the removability of this action when it deposed one of decedent's former co-workers, Howard Lalk, on June 3 and June 6, 2014. Mr. Lalk testified that decedent worked as a composite inspector and his job duties included supervising the manufacturing processes for composite components of military aircraft.

Discussion

28 U.S.C. § 1446 governs the procedure for removal of actions to federal court in relevant part as follows:

(b) The notice of removal of a civil action or proceeding shall be filed within thirty 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, or within thirty days after the service of summons upon the defendant if such initial pleading has then ...

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