Free Notice of Removal - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE IN RE: ASBESTOS LITIGATION: FREDERICK SEITZ and MARY LOUISE SEITZ, his wife his wife, Plaintiffs, -vs.ADEL WIGGINS GROUP, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

C.A. No.

DEFENDANT NORTHROP GRUMMAN CORPORATION'S NOTICE OF REMOVAL OF ACTION FROM DELAWARE SUPERIOR COURT TO THE JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE Northrop Grumman Corporation ("Northrop Grumman"), pursuant to 28 U.S.C. §§ 1331, 1332, 1442(a)(1), and 1446, hereby removes the above-styled action, which was initially filed in the Superior Court of the State of Delaware In And For New Castle County bearing Case No. 08C-04-247 ASB, to the United States District Court for the District of Delaware. Removal to this Court is appropriate under the federal officer removal statute and on the ground that Plaintiffs' claims involve a federal question. The grounds for removal are more particularly stated as follows: 1. On April 25, 2008, Plaintiffs Frederick Seitz and his wife Mary Louise Seitz filed their Complaint in the Superior Court of Delaware, in and for New Castle County, naming Northrop Grumman as one of the defendants. Northrop Grumman was served with the

Complaint on May 13, 2008, a copy of which is attached hereto as Exhibit "A."

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2. Plaintiffs' Complaint alleges that Frederick Seitz was exposed to asbestos and asbestos-containing products that were mined, manufactured, distributed, sold, licensed, leased, installed, removed and/or used by the thirty (30) defendant corporations. The Complaint

contains vague and general allegations that Mr. Seitz was exposed to asbestos from a variety of aircraft mechanical asbestos containing products between 1944 to 1970 while employed as an electrician apprentice, mechanic, and pilot with various employers, including the United States Marine Corps ("USMC"). 3. The Complaint does not contain the name, type or class of product to which the Plaintiffs were allegedly exposed, or which Northrop Grumman allegedly manufactured, distributed or sold. The Complaint fails to identify where and to which of Northrop Grumman's products Plaintiffs were allegedly exposed, and it fails to state a specific time period when the alleged exposure to a Northrop Grumman product occurred. 4. Plaintiffs' Complaint was unclear as to the extent of Mr. Seitz's work history at the USMC air bases in Cherry Point and New River, North Carolina and responsibilities regarding same, noting only that Mr. Seitz was a "mechanic and pilot" in the USMC. 5. Plaintiffs' Answers to Standard Form Interrogatories and Standard Form Request for Production, filed on June 4, 2008 provided more detailed information as to product identification and exposure history. For instance, the attached work history forms of Mr. Seitz provide details as to the types of aircraft Mr. Seitz worked on while he was in the USMC. A true and correct copy of Plaintiffs' Answers to Standard Form Interrogatory Responses and Referenced Employment and Work Histories are attached hereto as Exhibit "B." 6. Mr. Seitz was deposed on June 10-11, 2008. During his deposition, Mr. Seitz

identified US military aircraft he maintained and flew, including those he maintains were manufactured by Northrop Grumman. He also identified various US military aircraft carriers on

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which he served. (Because Mr. Seitz's deposition was just concluded less than 24 hours before this filing, a transcript is not yet available for attaching to this Notice.) 7. Mr. Seitz testified all maintenance he performed on the military aircraft allegedly manufactured by Northrop Grumman, all flight time on military aircraft allegedly manufactured by Northrop Grumman and all time spent on United States aircraft carriers allegedly manufactured by Northrop Grumman resulted from specific orders of his superiors in the USMC. He also testified that, as a mechanic in the USMC, he followed Erection and Maintenance Instruction Manuals, among others, which provided him specific instructions as to how to maintain the aircraft and specified which replacement parts could be used. These manuals were issued and distributed by the United States Government. See Exhibits DF1, DF2 and DF3 from Mr. Seitz's Deposition, attached hereto as Exhibit "C." 8. For more than a century, Northrop Grumman has designed, built, and repaired a wide variety of aircraft and aircraft carriers for the United States military. These aircraft and aircraft carriers, and each of their parts, are designed and built in accordance with United States military specifications. 9. As such, Plaintiffs' discovery responses served as notice that this is a civil action which may be removed pursuant to 28 U.S.C. § 1442(a)(1), the federal officer removal statute, and § 1441(b), claims involving a federal question. 10. Accordingly, this Notice of Removal is timely pursuant to 28 U.S.C. § 1446(b), which provides that the notice of removal shall be filed within thirty (30) days after receipt by the Defendant, by service or otherwise, of a paper from which it may first be ascertained that the case is one which is or has become removable. 11. This action is one which may be removed to this Court by Northrop Grumman on the grounds of federal officer removal jurisdiction pursuant to 28 U.S.C. § 1442(a)(1).

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12. Northrop Grumman, if it is deemed to be a proper party, is entitled to rely on the federal officer removal statute because: (1) Northrop Grumman was acting under the direction of a federal officer or agency; (2) Northrop Grumman has colorable federal defenses arising out of its duties to the federal government; and (3) Northrop Grumman will demonstrate that there is a causal connection between the acts they performed under color of federal office and Plaintiffs' allegations in the case at bar. See Mesa v. California, 489 U.S. 121, 109 S. Ct. 953, 103 L. Ed.2d 99 (1989). 13. Plaintiffs base their claims against Northrop Grumman on alleged exposure to asbestos by Mr. Seitz while working on products manufactured, sold or distributed by Northrop Grumman. On information and belief, to the extent that the design or manufacture of these products included asbestos-containing parts or components, such inclusion was explicitly and directly required by the United States Government in its detailed and precise specifications through and under the discretion of the Secretaries of the Departments of Defense and the United States Navy. Any decision regarding asbestos in these products was under the full control and discretion of the United States Government. Green v. A.W. Chesterton Co., 366 F. Supp. 2d at 155-157 (citing Freeberg v. Swinerton & Walberg Prop. Servs., 245 F. Supp. 2d 1144 (D. Colo. 2002)). 14. Northrop Grumman, if it is deemed to be a proper party, is entitled to rely on the government contractor defense (also referred to as the military contractor defense), which was developed from the principle of sovereign immunity. This defense has also been described as derivative sovereign immunity. This defense is uniquely federal in nature and thus displaces state law and is governed by federal common law. Boyle v. United Tech. Corp., 487 U.S. 500, 505 and 505 n.1, 108 S. Ct. 2510, 2514-15 and 2515 n.1 (1988) ("Another area that we have found to be of peculiarly federal concern, warranting the displacement of state law, is the civil liability of federal officials for actions taken in the course of their duty. We have held in many contexts that the scope of that liability is controlled by federal law. . . . [T]he liability of

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independent contractors performing work for the Federal Government, like the liability of federal officials, is an area of uniquely federal interest."); Yearsly v. Ross Constr. Co., 309 U.S. 18, 60 S. Ct. 413, 84 L. Ed. 554 (1940). See also Zinck v. ITT Corp., 690 F. Supp. 1331, 1333 (S.D.N.Y. 1988) ("When a contractor acts under the authority and direction of the United States, it shares in the immunity enjoyed by the Government. . . . The application of this principle in a military context is even more sound because the government contractor defense serves not only the historic purpose, but it promotes and protects both the separation of powers and the military procurement process."). 15. The government contractor defense results in preemption of Plaintiffs' claims and shields Northrop Grumman from any liability for injuries arising from any exposure to asbestos while maintaining or piloting USMC aircrafts or serving on the aircraft carriers. See Boyle, 487 U.S. at 505-06, 108 S. Ct. at 2514-15; Yearsly, 309 U.S. at 20-21, 60 S. Ct. at 414 ("[I]t is clear that if [the] authority to carry out the project was validly conferred, that is, if what was done was within the Constitutional power of Congress, there is no liability on the part of the contractor for executing its will."); City of Worcester v. HCA Mgmt Co., 753 F. Supp. 31, 37-38 (D. Mass. 1990) ("The Supreme Court has long held that, pursuant to sovereign immunity, a private company which contracts with the federal government to perform the duties of the government will not be held liable for its actions on behalf of the government."). If it is deemed to be a proper party, Northrop Grumman can prove that it followed detailed instructions and specifications provided by the United States military, including the USMC and/or the United States Navy, and the services it performed conformed to those instructions and specifications. 16. The federal officer removal statute is not narrow or limited, and it should not be frustrated by a narrow interpretation of § 1442(a)(1). Willingham v. Morgan, 395 U.S. 402, 405; 89 S. Ct. 1813, 23 L. Ed. 2d 396 (1960).

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17. Because Northrop Grumman satisfies the requirements for removal under 28 U.S.C. § 1442(a), it is entitled to remove this entire action. 18. Northrop Grumman is not required to notify and obtain consent of any other defendant in the action in order to remove Plaintiffs' action as a whole under 28 U.S.C. § 1442(a)(1) because the statute is jurisdictional in nature. Ely Valley Mines Inc. v. Hartford Accident Indemnity Co., 644 F.2d 1310, 1315 (9th Cir. 1981); National Audubon Society v. Department of Water & Power of the City of Los Angeles, 496 F. Supp. 499, 509 (E.D. Cal. 1980). 19. Northrop Grumman is also entitled to remove this case on the basis of federal question pursuant to § 1331 because Plaintiffs' claims arise under the laws of the United States, as explained in Yearsly and Boyle. 20. Whether Plaintiffs have stated a cause of action under which a military contractor can be liable or whether such claims are preempted is a uniquely federal issue that invokes this Court's jurisdiction pursuant to § 1331. See Boyle, 487 U.S. at 505, 108 S. Ct. at 2514-15. 21. Should Plaintiffs file a Motion to Remand this case, Northrop Grumman respectfully requests an opportunity to respond more fully in writing, including the submission of affidavits and authorities. 22. Northrop Grumman reserves the right to amend or supplement this Notice of Removal. 23. Northrop Grumman reserves all defenses, including, without limitation, the defense of lack of personal jurisdiction.

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24. Pursuant to 28 U.S.C. § 1446(d), a copy of this Notice of Removal is being served on all parties and filed with the Prothonotary of the Superior Court of the State of Delaware, in and for New Castle County. 25. A Notice of Tag-Along Action, identifying the coordinated pre-trial proceedings

in the Eastern District of Pennsylvania (In Re Asbestos Products Liability Litigation, MDL Docket No. 875), to which this case may be transferred, will be filed with this Court. WHEREFORE, PREMISES CONSIDERED, Defendant Northrop Grumman Corporation notes the removal of this action to this Court on the 12th day of June, 2008. ELZUFON AUSTIN REARDON TARLOV & MONDELL, P.A. /s/ Penelope B. O'Connell ____________________________________ Penelope B. O'Connell (DE #4898) 300 Delaware Avenue, Suite 1700 P.O. Box 1630 Wilmington, Delaware 19899 (302) 428-3181

Nancy Shane Rappaport (DE #3428) DLA Piper US LLP 1650 Market Street, Suite 4900 Philadelphia, PA 19103 (215) 656-3357 Attorneys for Defendant Northrop Grumman Corporation Date: June 12, 2008

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