Free Motion to Remand - District Court of Delaware - Delaware

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 1 of 30

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

C.A. No. 08-CV-0351 GMS C.A. No. 08-CV-0353 GMS

PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION TO REMAND

LAW OFFICE OF JOSEPH J. RHOADES 1225 King Street, 12th Floor Wilmington, Delaware 19801 302-427-9500 -andLEVY PHILLIPS & KONIGSBERG, LLP 800 Third Avenue, 13th Floor New York, New York 10022 Phone: (212) 605-6200 Fax: (212) 605-6290 Attorneys for Plaintiffs

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 2 of 30

TABLE OF CONTENTS TABLE OF AUTHORITIES..................................................................................ii INTRODUCTION.............................................................................................1 FACTS...........................................................................................................3 A. B. Military Specifications................................................................................3 Dr. Barry I. Castleman................................................................................5

ARGUMENT...................................................................................................6 A. B. C. Requirements for Jurisdiction Under 28 U.S.C. § 1442(a)(1).................................6 There Is A Strong Presumption Against Removal Jurisdiction..................................7 Northrop Grumman and Bell Were Not Acting Under a Federal Officer..................9 I. II. D. The Government Did Not Specify Asbestos Components........................10 The Products at Issue Were Not Specifically Designed for the U.S. Military.....12

Neither Northrop Grumman Nor Bell Can Establish a "Causal Connection" Between Their Failure to Provide Asbestos Warnings and Any Military Order or Specification............................................................................13 Neither Northrop Grumman Nor Bell Has Raised a "Colorable" Federal Defense to Plaintiffs' State Law Failure to Warn Claim......................................17 The Interests of Justice Support Prompt Remand To State Court..........................19

E. F.

CONCLUSION...............................................................................................20

i

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 3 of 30

TABLE OF AUTHORITIES Cases Arness v. Boeing North America, Inc., 997 F. Supp. 1268 (C.D. Ca. 1998)..............................9 Batoff v. State Farm Ins. Co., 977 F.2d 848 (3rd Cir. 1992)..............................................7, 8 Boyer v. Snap-On Tools Corp., 913 F.2d 108 (3rd Cir. 1990)...............................................7 Boyle v. United Technologies Corp., 478 U.S. 500 (1988)..........................................2, 12, 17 Desenberger v. United Technologies Corp., 297 F.3d 66 (2nd Cir. 2002)................................18 Duncan v. Stuetzle, 76 F. 3d 1480 (9th Cir. 1996)...........................................................7 Faulk v. Owens-Corning Fiberglass Corp., 48 F. Supp.2d 653 (E.D.Tex. 1999)...............15, 18, 19 Fortier v. Ampco-Pittsburgh Corp. et al., 3:07-cv-00005 (D.Conn. Mar. 5, 2007).....................15 Freiberg v. Swinerton & Walberg Prop. Servs, Inc., 245 F. Supp. 2d 1144 (D.Colo. 2002).........8, 14 Gaus v. Miles, Inc., 980 F. 2d 564 (9th Cir. 1992)...........................................................7 Good v. Armstrong World Industries, Inc., 914 F. Supp. 1125 (E.D. Pa. 1996)..............8, 9, 10, 11 Green v. A.W. Chesterton, 366 F. Supp.2d 149 (D.Me. 2005).......................................10, 11 Grispo v. Eagle-Pitcher Industries, Inc., 897 F.2d 626 (1990)............................................18 In Re: Hawaii Federal Asbestos Cases, 960 F.2d 806 (9th Cir. 1992)..................................12, 18 Hilbert v. McDonnell Douglas Corp., 529 F. Supp.2d 187 (D. Mass. 2008).........................passim Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974)..................................................9 In Re Joint E. & S. Dist. New York Asbestos Lit., 897 F.2d 626 (2nd Cir. 1990)........................17 Laughlin v. Kmart Corp., 50 F.3d 871 (10th Cir. 1995)......................................................7 In re Maine Asbestos Cases, 44 F. Supp.2d 368 (D.Me. 1999)....................................3, 19, 20 Megill v. Worthington Pump, Inc., 1999 U.S.Dist. LEXIS 4433 (D. Del. Mar. 26, 1999).....13, 15, 17 Mesa v. California, 489 U.S. 121 (1989)...............................................................6, 7, 19

ii

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 4 of 30

In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation v. Atlantic Richfield Company, 488 F.3d 112 (2d Cir. 2007)................................................13 N.J. Dep't of Envtl. Prot. v. Exxon Mobil Corp., 381 F. Supp. 2d 398 (D.N.J. 2005)...............8, 13 Nguyen v. Allied Signal, Inc., 1998 U.S. Dist. LEXIS 15517 (N.D. Cal. Sept. 28, 1998)..........15, 16 Overly v. Raybestos-Manhattan, 1996 U.S. Dist. LEXIS 13535 (N.D. Cal. Sept. 6, 1996)............19 In Re Related Asbestos Cases, 453 F. Supp. 1142 (N.D.Cal. 1982).......................................12 Rendell-Baker v Kohn, 457 U.S. 830 (1942)................................................................10 Ryan v. Dow Chemical Co., 781 F. Supp. 934 (E.D.N.Y. 1992)........................................8, 9 Sales v. Weyerhaeuser Co., 138 Wash.App. 222 (2007)...................................................20 Screws v. United States, 325 U.S. 91 (1945)..................................................................8 Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006 (3d Cir. 1987)......................7 St. Francis Hospital and Medical Center v. Blue Cross & Blue Shield of Connecticut, Inc., 776 F. Supp. 659 (D. Conn. 1991).....................................................7-8 Vanouwerkerk v. Owens-Corning Fiberglass Corp., 1999 WL 335960 (E.D.Tex. May 26, 1999)......................................................................................15 Weese v. Union Carbide Corporation, 2007 U.S. Dist. LEXIS 73970 (S.D.Ill. Oct. 3, 2007)...................................................................................14, 15, 19 Westmiller v. IMO Industries, Inc., 2005 U.S. Dist. LEXIS 29371 (W.D.Wash Oct. 20, 2005)...............................................................................14, 19 Williams v. General Electric Co., 418 F. Supp.2d 610 (M.D. Pa. 2005).................................7, 8

Statutes and Regulations 28 U.S.C. § 1441(a).............................................................................................8 28 U.S.C. § 1442(a)(1)....................................................................................passim 28 U.S.C. § 1447(c).............................................................................................8

iii

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 5 of 30

INTRODUCTION Plaintiffs Frederick and Mary Louise Seitz filed this asbestos lawsuit on April 25, 2008 in the Superior Court of the State of Delaware for New Castle County. [See Complaint attached as Exhibit A to the Declaration of Jerome H. Block ("Block Decl.")]. Mr. Seitz is dying of malignant mesothelioma, a fatal cancer caused by asbestos exposure. [See Correspondence from Dr. Timothy Bresnahan attached as Exhibit B to the Block Decl.] Mr. Seitz was exposed to asbestos while serving as a mechanic and pilot in the United States Marine Corp from 1946 through 1967. [See Plaintiffs' Responses to Standard Interrogatories and all exhibits thereto, attached as Exhibit C to the Block Decl.] Defendant Northrop Grumman ("Northrop Grumman") and Defendant Bell Helicopter Textron, Inc. ("Bell") manufactured and supplied aircraft that Mr. Seitz both maintained and piloted during his service in the Marines. Northrop Grumman's and Bell's aircraft had asbestos-containing components and utilized asbestos insulation. Plaintiffs' sole claim against Northrop Grumman and Bell is that the companies failed to warn Mr. Seitz and his fellow servicemen about the hazards of asbestos 1 Bell removed this case on June 11, 2008. Grumman removed this case on June 12, 2008. Both defendants alleged federal officer removal grounds. Northrop Grumman's and Bell's Notices of Removal assert, in general terms, that the any inclusion of asbestos-containing components in the manufacture of their aircraft were required by the United States military. Neither Notice of Removal identifies any discretionary decision by a federal officer which caused decedent to be exposed to asbestos. Neither Northrop Grumman nor Bell has provided copies of any government contracts, aircraft specifications or like information in support of its Removal. It has provided no affidavit or other evidence to establish this alleged federal control, or to explain how it was exercised. Indeed,
1

Although Plaintiffs' Complaint sets forth various theories of design defect and manufacturing defect, Plaintiffs filed a Withdrawal of Claims on July 2, 2008, limiting the scope of its case to a state law failure to warn claim.

1

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 6 of 30

neither Defendant even identifies which federal officer was supposedly giving it directions. In summary, Northrop Grumman's and Bell's Notices of Removal contain only very general recitals concerning federal control. This case should be remanded because (1) neither Northrop Grumman nor Bell has established that they were acting under a federal officer; (2) neither Northrop Grumman nor Bell has satisfied their burden of establishing the causal connection require by the federal officer removal statute, 28 U.S.C. § 1442(a)(1), i.e. that a federal officer caused defendants' failure to warn; and (3) neither Northrop Grumman nor Bell demonstrated that is has even a colorable claim to its sole alleged federal defense ­ the government contractor defense pursuant to Boyle v. United Technologies Corp., 478 U.S. 500 (1988). Indeed, Northrop Grumman's and Bell's Notices of Removal contain absolutely no evidence to substantiate their claim that their failure to warn Mr. Seitz and other servicemen about the hazards of asbestos was compelled by direction of the United States Military. The following facts are undisputed and compel remand: · There is no evidence that the United States military required that Northrop Grumman and Bell use asbestos in their products · There is no evidence that Northrop Grumman or Bell ever made any effort to warn military servicemen, such as Mr. Seitz, about the hazards of asbestos and asbestoscontaining components associated with their aircraft · There is no evidence that the United States military had any involvement in the decision by Northrop Grumman or Bell (or any other company) to not issue warnings about asbestos.

2

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 7 of 30

·

The relevant military specifications required manufacturers to issue warnings in technical manuals about the hazards associated with the use of their aircraft, with no exemption for asbestos-related hazards

Mr. Seitz is a very sick man. His case has already been set for trial in Delaware State Court. If this case is not promptly remanded, it will be transferred to the federal asbestos MDL ("MDL875"), and will encounter significant delay. In re Maine Asbestos Cases, 44 F. Supp.2d 368 (D.Me. 1999) ("If these claims return to state court, they will proceed to resolution. If they remain in federal court, they will encounter significant delay upon their transfer through the Panel on Multidistrict Litigation to the Eastern District of Pennsylvania"). Based on the evidence set forth below, Plaintiffs respectfully request that the Court remand this case to state court and grant Plaintiffs all other relief deemed just and proper. FACTS A. Military Specifications

The United States military did not prohibit manufacturers from placing warnings on products. For example, attached as Exhibit D to the Block Decl. is the Military Specification for Aircraft Wheel and Brake Assemblies (MIL-W-5013D). Nowhere in this specification does it say that the brake linings are to contain asbestos. Likewise, nowhere in the specification does it instruct a manufacturer not to warn about asbestos or any other hazard. In fact, section 2.1 lists the specifications and standards that form a part of MIL-W-5013D. One of those standards is MILSTD-129 "Marking for Shipment or Storage," which is attached as Exhibit E to the Block Decl. MIL-STD-129 states, at section 5.5.15.1 on page 35, that "[s]pecial handling instructions, marking, and warnings shall be shown as required..." It goes on to list a number of statutes and regulations, and ends with a reference to "by statute" in general. This clearly shows the military's intent to make sure that warnings that were required by law were included. 3 Thus, not only did Northrop

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 8 of 30

Grumman's and Bell's contracts with the military not prohibit them from warning about asbestos, they specifically required them to include any warnings required by statute, such as state law imposing liability for failure to warn. Furthermore, MIL-STD-129 incorporates, at section 2.2, "Manual L-1, Guide to Precautionary Labeling of Hazardous Chemicals." [Exhibit E, page 4]. According to Manual L-1, attached hereto as Exhibit F: Individual statutes, regulations or ordinances may require that particular information be included on a label or that a specific label be affixed to a container. In each case, the requirements of these laws should also be studied. The warning labels suggested in the Manual should be used in addition to, or in combination with, any label required by law. [Exhibit F, page 1 (emphasis original)]. Manual L-1 also specifically provides that exposures to "harmful dust" should be warned by affixing a caution label stating in pertinent part: "CAUTION! HARMFUL DUST. Avoid repeated breathing or skin contact. . . ." [Manual L-1, Exhibit F, p. 7, ¶ VI]. Manual L-1 also states in pertinent part: The education of employees regarding chemical hazards is, and must remain, the direct responsibility of their employers. However, such hazards are not confined to employees alone, and information concerning them should, as far as practical, reach every person using, transporting, or storing chemicals. The most practical means for the seller to disseminate this information appears to be by labels affixed to containers of hazardous chemicals, bearing appropriate precautionary statements and instructions stated as simply and as briefly as circumstances permit. [Manual L-1, Exhibit F, p. 1, ¶ 2 (emphasis added)]. Manual L-1 also provides that warnings provided on commercial products should be given. [Manual L-1, Schedule 4 (last page of Exhibit F) ("1. Sample of a product already on the market should carry the same warning label as a commercial shipment.")].

4

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 9 of 30

Finally, the Secretary of the Navy, in an Instruction to the heads of the Navy's departments, including the Chief of the Bureau of Aeronautics, has specifically acknowledged that state law warnings should be issued by manufacturers: 2. Scope. This Instruction applies to the labeling of all hazardous materials throughout the Naval Establishment wherever distribution of hazardous chemicals and materials is made to the actual consumer (shop, office, or unit). It applies to materials received from any supply source, provided that the material is intended for ultimate use at the local activity. In this regard it refers to labeling of the original container, as well as any other container to which the material may subsequently be transferred. This Instruction is not intended to govern: a. The type of labels to be affixed by the manufacturer. (These are governed by State and Federal Laws and regulations depending on the nature of the material...) [SECNAV Instruction 5160.8, attached as Exhibit G to the Block Decl. (emphasis in original)]. Therefore, contrary to Northrop Grumman's and Bell's assertion, the military did not prevent manufacturers from warning about asbestos hazards, but it instead specifically required that state law warnings regarding hazardous materials be included. B. Dr. Barry I. Castleman

Plaintiffs have submitted the Declaration of Dr. Barry I. Castleman, an expert on the history of the hazards of asbestos and corporate conduct relating to the same. [See Declaration of Barry I. Castleman, attached as Exhibit H to Block Decl.]. Dr. Castleman has examined files, unpublished information available from the U.S. government archives, the archives of scientists and the archives of institutions that had worked for and with asbestos companies. [Exhibit H, ¶ 5]. In addition he

is familiar with unpublished information obtained in legal discovery, including trade association minutes, corporate documents, and testimony of corporate officials who were associated with asbestos hazards over the years - doctors, plant managers, executives, and other people who were aware of events that transpired. [Id.].

5

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 10 of 30

Dr. Castleman's doctoral thesis was, "Asbestos: An Historical Case Study of Corporate Response to an Industrial Health Hazard", and is largely identical to a book published in 1984 by Prentice Hall Law and Business called Asbestos: Medical and Legal Aspects (now in its 5th Edition, 2005). [Exhibit H, ¶ 4]. Dr. Castleman's textbook contains a section on 38 companies and/or

industry groups that were involved with the manufacture, sale or use of asbestos-containing materials. He has reviewed industry documents and testimony regarding all of these entities as well as many additional companies involved in the asbestos industry. [Id., ¶ 7]. In his extensive research of the above described source materials, Dr. Castleman has never seen any document that discusses or suggests that the United States military prohibited any manufacturer or seller from warning about asbestos or that the United States military interfered, in any way, with a company's decision regarding whether to issue such warnings. [Id.]. Dr. Castleman has also studied and written about the historical use of asbestos warnings on products and in product manuals. [Exhibit H, ¶ 8]. Once companies began to issue asbestos warnings to product users, there is no evidence that the United States military required the removal or alteration of such warnings for products sold to the military. [Id.]. ARGUMENT A. Requirements for Jurisdiction Under 28 U.S.C. § 1442(a)(1).

The Supreme Court of the United States has stated that section 1442(a) is "a pure jurisdictional statute, seeking to do nothing more than grant district court jurisdiction over cases in which a federal officer is a defendant. Section 1442(a), therefore, cannot independently support Art. III `arising under' jurisdiction." Mesa v. California, 489 U.S. 121, 136 (1989). For this Court to have subject matter jurisdiction over this action pursuant to §1442(a)(1) (often referred to as "federal officer removal), Northrop Grumman and Bell have the burden to establish the following: "1) the removing defendant must be a federal officer or a `person' acting under a federal officer; 2) the 6

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 11 of 30

removing defendant was acting at the direction of an officer of the United States and that a causal nexus exists between the defendant's actions under color of federal office and the plaintiffs' claims; and 3) the removing defendant asserts a colorable federal defense." Id. at 129. In this case, as will be shown, neither Northrop Grumman nor Bell has met its burden as they have provided no evidence that they were acting under the direction of an officer of the United States, no evidence that a causal nexus exists between its actions and the plaintiffs' claims, and no evidence of a colorable federal defense. B. There Is A Strong Presumption Against Removal Jurisdiction

When a case is removed to federal court, there is a "strong presumption" against federal court removal jurisdiction. Gaus v. Miles, Inc., 980 F. 2d 564, 566 (9th Cir. 1992). The defendant, who was the removing party, bears the burden of proving the propriety of removal, including jurisdiction. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3rd Cir. 1990); Gaus, 980 F.2d at 566-67; Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995); Williams v. General Electric Co., 418 F. Supp.2d 610, 614 (M.D. Pa. 2005). "The removal statutes `are to be strictly construed against removal and all doubts should be resolved in favor of remand.'" Boyer, 913 F.2d at 111 (quoting Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987); see also Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3rd Cir. 1992) ("[R]emoval statutes `are to be strictly construed against removal . . .'") (quoting Steel Valley Author., 809 F.2d at 1010); Gaus, 980 F. 2d at 566; Duncan v. Stuetzle, 76 F. 3d 1480, 1485 (9th Cir. 1996). Federal jurisdiction "must be rejected if there is any doubt as to the right of removal in the first instance." Duncan, 76 F. 3d at 1485 (emphasis added). In determining whether to remand a removed civil action due to lack of subject matter jurisdiction, "any doubt should be resolved in favor of remand." St. Francis Hospital and Medical Center v. Blue Cross & Blue Shield of Connecticut, Inc., 776 F. Supp. 659, 661 (D. Conn.

7

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 12 of 30

1991); see also 28 U.S.C. §§1441(a), 1447(c); Batoff, 977 F.2d at 851; Ryan v. Dow Chemical Co., 781 F. Supp. 934 (E.D.N.Y. 1992). The purpose of §1442 is to prevent state courts from interfering with the implementation of federal law. Freiberg v. Swinerton & Walberg Prop. Servs, Inc., 245 F. Supp. 2d 1144, 1150 (D.Colo. 2002). "[B]ecause the federal officer removal statute is predicated `on the protection of federal activity and an anachronistic mistrust of state courts' ability to protect and enforce federal interests and immunities from suit, private actors seeking the benefit from its provisions bear a special burden of establishing the official nature of their activities.'" Williams, 418 F. Supp.2d at 614 (quoting Freiberg, 245 F. Supp.2d at 1150) (emphasis in original); see also N.J. Dep't of Envtl. Prot. v. Exxon Mobil Corp., 381 F. Supp. 2d 398, 403 (D.N.J. 2005). Thus, a private company such as Northrop Grumman or Bell faces an even tougher standard for removal than would a government employee or entity. "[T]he government contract defense by a corporation raises straightforward common law issues that state courts are as adept at handling as the federal judiciary." Good v. Armstrong World Industries, Inc., 914 F. Supp. 1125, 1130 (E.D. Pa. 1996). Not to be taken lightly, removal under §1442 is "an exceptional procedure which wrests from state courts the power to try [cases under] their own laws. Thus the requirements of the showing necessary for removal are strict." Screws v. United States, 325 U.S. 91, 111-112 (1945). The rationale behind a strict interpretation of §1442(a)(1) removal was explained in Good: The Supreme Court fashioned the government contract defense to displace state law because there exists a unique federal interest in civil liability arising out of the performance of federal procurement contracts. [citation omitted] I question whether that federal interest exists in this case. The impact of this personal injury action on the federal interest in protecting future defense procurement ­ the fundamental point of the government contract defense -- is speculative. It is common knowledge that asbestos is no longer used in the design and manufacture of equipment, so that this lawsuit cannot interfere with a federal program involving products that contain asbestos. Therefore, the adjudication of this personal injury action in state court does not threaten the enforcement of a federal policy sufficient to warrant removal.

8

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 13 of 30

Even assuming that the federal interest underlying the government contractor defense is present, simply noting the presence of a federal interest does not provide a sufficient or necessary basis to allow removal. . . . When enacting the federal officer removal statute, Congress sought to distinguish lawsuits on the basis of their susceptibility to state court manipulation. The government contractor defense is not subject to such manipulation. Unlike a federal officer's defense of immunity, the government contract defense by a corporation raises straightforward common law issues that state courts are as adept at handling as the federal judiciary. Good, 914 F. Supp. at 1131. C. Northrop Grumman and Bell Were Not Acting Under a Federal Officer

Northrop Grumman and Bell have not demonstrated that they were acting at the direction of an officer of the United States. Establishing this element requires more than merely alleging that the acts in question were generally carried-out under federal auspices. See Ryan, 781 F. Supp. at 947 ("a person or corporation establishing only that the relevant acts occurred under the general auspices of a federal office or officer is not entitled to section 1442(a)(1) removal"); see also Good, 914 F. Supp. at 1129 ("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"); Arness v. Boeing North America, Inc., 997 F. Supp. 1268, 1273 (C.D. Ca. 1998). Rather, "removal must be predicated upon a showing that the acts that form the basis for the state [civil suit] were performed pursuant to [a federal] officer's direct orders or to comprehensive and detailed regulations." Ryan, 781 F. Supp. at 947; see also Good, 914 F. Supp. at 1129 ("removal must be predicated upon a showing that the acts forming the basis of the state suit were performed pursuant to an officers direct orders or comprehensive and detailed regulations"). A civilian person or company acts under color of federal law only when its action "may be fairly treated as that of the [government] itself." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974). The fact that a corporation is performing under government contracts whose specifications it must meet does not automatically transform that corporation's conduct into government action. "Many private corporations[`]...business depends primarily on contracts to build roads, bridges, dams, ships, or submarines for the government. Acts 9

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 14 of 30

of such private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts." Rendell-Baker v Kohn, 457 U.S. 830, 841 (1942). Northrop Grumman and Bell's Notices of Removal, in this case, are clearly insufficient in this regard. They do not allege (much less establish) that any federal officer expressly required them to use asbestos-containing brake, clamp or gasket materials in manufacturing military aircraft. See Good, 914 F. Supp. at 1129 ("[defendant] must set forth evidence showing that it did, in fact, act under a federal officer, a burden that [defendant] has not satisfied"). They do not identify any contract, agreements, regulations or specifications requiring that asbestos be used. It merely makes the unsupported allegation that its aircraft were built under the direction of several government entities. This is not sufficient to meet the first prong of the Mesa test. I. The Government Did Not Specify Asbestos Components.

In order to demonstrate "acting under," the defendant is required to show that the government specifications specifically required the use of asbestos itself, rather than merely specifying a performance specification that would require the use of asbestos. Green v. A.W. Chesterton, 366 F. Supp.2d 149, 157 (D.Me. 2005). This distinction is important. A performance specification may require that a brake lining have a certain size, dimension, stopping power, fade resistance, and the like. This is entirely different than a specification that says that asbestos must be used as an ingredient. Even if a manufacturer concludes that a performance specification could only be met by the use of an asbestos-containing brake lining, it does not satisfy the requirement. The government officer must have specified that asbestos be used. Id. In Green, the Plaintiff filed a suit alleging state law claims stemming from the death of her husband from asbestos exposure. In that case, one of the defendants, Viacom (formerly Westinghouse), removed the case to federal court on the basis of the government contractor 10

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 15 of 30

defense, claiming that the asbestos-containing turbines to which the plaintiff's decedent were exposed were constructed and supplied to the United States Navy in accordance with United States government regulations and specifications (much like the allegations here). Green, 366 F. Supp.2d at 152. Judge Kravchuk, for the United States District Court for the District of Maine, held that Viacom failed to meet its burden of proving that it was "acting under" a federal officer or agency when it incorporated asbestos into its products. Id. at 157. Viacom provided two affidavits in order to attempt to prove the high degree of control the Navy exercised over the construction of all military vessels. Judge Kravchuk, in reviewing the affidavits, determined that although the affidavits conveyed the "...high degree of control and oversight that the US Navy exercises over the construction and maintenance of all military vessels," the documents were not enough to meet the burden of "acting under" since they did not show conclusively that the Navy specified the use of asbestos in the turbines. Id. Similarly, in Good, (a case involving exposure from turbine generators on Naval vessels), the court remanded the case because the defendant had failed to "prove that it constructed the [item in question] according to the direct and detailed control of an officer of the United States, rather than at the general direction of an agency or other governmental department." 914 F. Supp. at 1129. As the Good court explained: Acting under the direction of the Navy...is not the same as acting under the direct and detailed control of the federal officer...[¶] Westinghouse's poor showing of the causal connection between the allegations of plaintiffs and the conduct taken under direction of a federal officer is also evidence by its failure to set forth the substance of the regulations and specifications. The complaint alleges personal injury based upon exposure to asbestos. Neither the notice nor the affidavit establishes that the Secretary of the Navy specified the use of asbestos in the design and manufacture of the turbine generators. Id. at 1129-1130. In this case, Defendants Northrop Grumman and Bell have submitted no evidence to support their contentions that the government controlled their decisions to use asbestos in their products. 11

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 16 of 30

II.

The Products at Issue Were Not Specifically Designed for the U.S. Military.

Even if some federal agency did require Northrop Grumman and Bell to incorporate asbestos containing components into their aircraft, the components themselves were nothing more than standard, stock equipment (brake linings, hose clamps, and gaskets). See Boyle v. United Tech. Corp, 487 U.S. 500, 509 (government contractor defense does not apply to injury caused by "stock" item or "standard equipment"); see also In Re Related Asbestos Cases, 453 F. Supp. 1142, 11511152 (N.D.Cal. 1982) (government contractor defense may not be applicable if defendants merely supplied Navy with same products supplied for non-military use and had not specifically manufactured asbestos products pursuant to government specifications); In Re: Hawaii Federal Asbestos Cases, 960 F.2d 806, 812 (9th Cir. 1992) (government contractor defense not applicable when the product is a stock item that was not ". . . manufactured with the special needs of the military in mind"). The mere selection of such standard components by the government does not provide the supplier or contractor with a basis for removal. These products were general items that were used on civilian aircraft as well as military aircraft. They were not specially designed or manufactured for a military use or purpose. The mere selection of such stock components by the government does not cloak the supplier or contractor with immunity from suit. As the Court explained in Boyle: If, for example, the United States contracts for the purchase and installation of an air conditioning-unit, specifying the cooling capacity but not the precise manner of construction, a state law imposing upon the manufacturer of such units a duty of care to include a certain safety feature would not be a duty identical to anything promised the Government, but neither would it be contrary. 487 U.S. at 509. The asbestos materials that caused Mr. Seitz's injury would have been the same standard asbestos products available in the private sector market. They were made of the same materials from 12

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 17 of 30

which automobile brake linings and gaskets were made. There was nothing special or unique about them. By supplying the government with aircraft that contained the same asbestos containing components as were being used in non-military aircraft, Northrop Grumman and Bell were not acting at the direction of an officer of the United States. Defendants have failed this prong of the Mesa test. D. Neither Northrop Grumman Nor Bell Can Establish a "Causal Connection" Between Their Failure to Provide Asbestos Warnings and Any Military Order or Specification.

A corporation, such as Northrop Grumman or Bell, that removes a case under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), must establish, inter alia, "that it was `acting under' a federal officer, which subsumes the existence of a `causal connection' between the charged conduct [here, failure to warn] and asserted official authority." In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation v. Atlantic Richfield Company, 488 F.3d 112, 124 (2d Cir. 2007) (reversing district court's decision permitting federal officer removal, and concluding that defendants failed to demonstrate that the federal government compelled them to use MTBE in gasoline; or that federal regulatory scheme made it "impossible for them to use other less, polluting additives"); see also Exxon Mobil, 381 F. Supp. 2d at 403, n.7 (noting that many courts combine the analysis of whether the removing party was acting under the direction of a federal officer and whether there is a causal connection between the actions under the federal officer and the plaintiffs' claims, and opting to do the same). In the context of an asbestos lawsuit based on a failure to warn claim, the defendant must show either that asbestos warnings were prohibited by the military or that the military directly interfered with the defendant's ability to fulfill its state law obligation to warn. See, e.g., Megill v. Worthington Pump, Inc., 1999 U.S.Dist. LEXIS 4433, *8 (D. Del. Mar. 26, 1999) ("[T]here is no evidence of record that the U.S. Navy prohibited defendant from, or otherwise directed defendant 13

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 18 of 30

in, issuing warnings or researching and effecting product safety. Under these circumstances, the court concludes that there is no causal connection between plaintiffs' claims and the conduct performed under color of a federal office. . ."); Weese v. Union Carbide Corporation, 2007 U.S. Dist. LEXIS 73970, *19 (S.D.Ill. Oct. 3, 2007) ("defendant must show that the government prevented it from issuing adequate warnings regarding exposure to asbestos"); Westmiller v. IMO Industries, Inc., 2005 U.S. Dist. LEXIS 29371, *7 (W.D.Wash Oct. 20, 2005) ("requires a showing by defendant that the government specifically prohibited it from placing warnings on its products"); Freiberg v. Swinterton & Walberg Property Services, Inc. et al., 245 F. Supp.2d 1144, 1155 (D.Colo. 2002) (defendants "must establish [that the government's] direction and control of their activities directly interfered with their ability to fulfill their state law obligation to warn"). Moreover, if the defendants could have "simultaneously complied with the [Navy] contractual obligations and the state law duty to warn", then "the plaintiff's harms were not caused by the defendants' contractual responsibilities." Hilbert v. McDonnell Douglas Corp., 529 F. Supp.2d 187, 203 (D. Mass. 2008) (emphasis added). The factual record presented to this Court is one-sided. Northrop Grumman and Bell fail to present a scintilla of evidence of any order or regulation that prohibited asbestos warnings or interfered with their ability to issue such warnings. See, supra, FACTS §§A-B. Plaintiffs, on the other hand, present substantial proof that no such order or regulation was ever in existence. Id. Plaintiffs also present substantial proof that the applicable military specification not only did not prohibit asbestos warnings but generally required equipment manufacturers to warn about safety hazards, with no exemption for asbestos. Id., §A. Northrop Grumman and Bell have not ­ and cannot ­ demonstrate that the military prohibited or directly interfered with their state law obligation to warn. Therefore, the "causal connection" required by 28 U.S.C. §1442(a)(1) has not been established and this case must be 14

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 19 of 30

remanded. Accord, Megill, 1999 U.S.Dist. LEXIS 4433, *8 (case remanded; "there is no casual connection between plaintiffs' claims and the conduct performed under color of a federal office."); Hilbert, 529 F. Supp.2d at 203 (case remanded; "defendants failed to show causal nexus between their contractual obligations and the plaintiffs' alleged injury"); Weese, 2007 U.S. Dist. LEXIS 73970 at *23 (case remanded; defendant "adduced no evidence that a federal officer prevented it from furnishing adequate warnings about the dangers of exposure to asbestos"); Fortier v. AmpcoPittsburgh Corp. et al., 3:07-cv-00005 (D.Conn. Mar. 5, 2007) (Exhibit I) (case remanded; "Defendants... were free to include warning not dictated by the Navy"); Faulk v. Owens-Corning Fiberglass Corp., 48 F. Supp.2d 653, 663 (E.D.Tex. 1999) (case remanded; "The federal officer remained completely silent as whether to warn about the use of asbestos; this silence is fatal to the `causal nexus' necessary for the second prong") (emphasis in original); Vanouwerkerk v. OwensCorning Fiberglass Corp., 1999 WL 335960, *7 (E.D.Tex. May 26, 1999) (case remanded; "the federal government provided no direction or control on warnings when using asbestos"). In the Nguyen case, the removing Defendants failed to show such a causal connection in circumstances very similar to the case at hand. Nguyen v. Allied Signal, Inc., 1998 U.S. Dist. LEXIS 15517 (N.D. Cal. Sept. 28, 1998). In Nguyen, the Plaintiff pursued a failure to warn case against Defendants after being exposed to asbestos while working on an Air Force base in Vietnam and subsequently developing mesothelioma. Nguyen, 1998 U.S. Dist. LEXIS 15517 at *1, *4. The Nguyen court explained: Here, defendants have produced no evidence that their contracts with the United States government contained contractual obligations specifically prohibiting them from placing warnings on their products. Instead, they produce evidence regarding government control of the specification for manufacturing the aircraft, not specifications regarding warnings. They also rely upon the affidavit of Alvin F. Meyer, which indicates only that the government approved all warnings placed in technical manuals for United States Air Force aircraft. Meyer Decl. P 26. They offer no evidence that they attempted to include such warnings, or that the government specifications and contractual provisions explicitly directed them not to place warnings on their products. Therefore, the Ninth Circuit's holding in Hawaii Federal 15

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 20 of 30

controls, and the government contractor defense cannot be the basis for federal jurisdiction in the failure to warn case here. * * * The third prong of the Mesa test requires a causal nexus between the rules imposed by United States on the federal contractor and the liability asserted by the plaintiff. [citation omitted]. Although defendants include evidence regarding the control of the federal government over the manufacture of its products, again, this evidence does not demonstrate that the federal government directed defendants not to place warnings on their products. Therefore, there is no causal connection between the control exercised by the United States over defendants and plaintiffs' legal theory of failure to warn consumers of the hazards of asbestos. Id. at *5-8. Similarly, Northrop Grumman and other aircraft and aircraft part manufacturing defendants recently failed in their attempts to remove the Hilbert case in Massachusetts under similar facts. Hilbert v. McDonnell Douglas Corp., 529 F. Supp. 2d 187 (D.Mass. 2008). After discussing the affidavits and other proofs offered by Defendants in support of remand, the Court held: On review of the evidence, there is simply no basis upon which the Court can conclude that a conflict existed between the federal contracts and the defendants' state-law duty to warn. The defendants do not submit any non-testimonial evidence, i.e. citations to regulations or contracts, of the government's alleged control over the warnings. Indeed, despite the affiants' claim to have "reviewed numerous . . . government contracts during the time period of 1955 through the present," [citations omitted], the defendants fail to cite any- contractual or regulatory language supporting their position, or to provide any military specifications bearing on the substance of the warnings to be provided. [citation omitted]. Although they claim that the government dictated the text of non-asbestos warnings, they do not offer proof of that process. * * * Nor do the defendants rebut the obvious inference: that they never tried to warn about asbestos at all. Their argument thus boils down to a bald, unsupported assertion that if they had attempted to warn about the hazards of asbestos, the government would have exercised its discretion to bar the warning. At least on this record, that sort of speculation is not remotely adequate. It does not come close to demonstrating -- even colorably -- that the government exercised its discretion to issue "reasonably precise specification" as to health and safety warnings. * * * 16

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 21 of 30

Thus, having concluded that the defendants have not shown reasonably precise specifications as to the warnings, the Court also finds that the defendants have not shown a causal nexus between their contractual obligations and the plaintiffs' alleged injury. Hilbert, 529 F. Supp. 2d at 202-203. Northrop Grumman and Bell suffer from the same lack of proof that was fatal to the Nguyen and Hilbert defendants' attempt to utilize the government contractor defense: they have offered no evidence that they attempted to include warnings on their products nor that the government in any way directed them not to place warnings on their products. Rather, as Plaintiffs have shown, the U.S. Military specifically directed suppliers to include on their products the necessary warnings required by law. [Facts §A]. Northrop Grumman and Bell's failure to establish the requisite "causal connection" element for federal officer removal, in and of itself, mandates that this case be remanded. E. Neither Northrop Grumman Nor Bell Has Raised a "Colorable" Federal Defense to Plaintiffs' State Law Failure to Warn Claim.

The government contractor defense was first articulated in a state law design defect case, Boyle v. United Technologies Corp., 478 U.S. 500, 108 S.Ct. 2510 (1988). A Delaware District Court has articulated the way in which Boyle applies in failure to warn cases "[I]n order to establish that Boyle displaces any state law duty to warn, defendant `must show that the applicable federal contract includes warning requirements that significantly conflict with those that might be imposed by state law. . . The contractor must show that whatever warnings accompanied a product resulted from a determination of a government official, . . . and thus that the Government itself `dictated' the content of the warnings meant to accompany the product.'" Megill v. Worthington Pump, Inc., 1999 U.S.Dist. LEXIS 4433, *10 (D. Del. Mar. 26, 1999) (quoting In Re Joint E. & S. Dist. New York Asbestos Lit., 897 F.2d 626, 630 (2nd Cir. 1990)).

17

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 22 of 30

Similar to the Megill court, in the Desenberger case, the Second Circuit Court of Appeals explained, "[t]he affirmative defense applies only if the government exercised significant control over the relevant actions of the contractor. In failure to warn cases, this means that the ultimate product users cannot sue the contractor for failure to warn if the government controlled which warnings the contractor was allowed to provide to those users and thereby precluded the warnings at issue from being given." Desenberger v. United Technologies Corp., 297 F.3d 66, 75 (2nd Cir. 2002) (emphasis added) (citing Grispo v. Eagle-Pitcher Industries, Inc., 897 F.2d 626, 630-631 (1990). Further, the Ninth Circuit Court of Appeals, in the Hawaii Federal Asbestos case, held: "[S]tripped to its essentials, the military contractor's defense under Boyle is to claim, `The Government made me do it.' Boyle displaces state law only when the Government, making a discretionary, safety-related military procurement decision contrary to the requirements of state law, incorporates this decision into a military contractor's contractual obligations, thereby limiting the contractor's ability to accommodate safety in a different fashion." Here, the Government did not require Fibreboard or Owens-Illinois to do anything with respect to the placement of warnings on their products. Nothing in Boyle suggests preemption of a state law duty to warn under such circumstances. In re Hawaii Federal Asbestos Cases, 960 F.2d 806, 813 (9th Cir. 1992). In light of the complete failure of Northrop Grumman and Bell to offer any proof that the military precluded or interfered with the effort they (or any other company) made to provide asbestos warnings, and in light of the proofs offered by Plaintiffs that unequivocally establish that there was no such prohibition or interference (and indeed that the U.S. Military required equipment manufacturers to warn about product hazards), Defendants have failed to raise a federal defense that is colorable. While no precise meaning has apparently been given to the term "colorable", Faulk v. Owens-Corning

"Defendants must do more than simply plead a federal defense".

Fiberglass Corp., 48 F. Supp.2d at 664-665 (emphasis added). Where, as here, no admissible evidence is submitted, the federal defense has merely been plead and the defense is not "colorable". Id., at 665-666. 18

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 23 of 30

Based on the foregoing, Northrop Grumman and Bell have not asserted a "colorable" federal defense as required pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1). Accord, Hilbert, 529 F. Supp.2d at 202-203; Weese, 2007 U.S. Dist. LEXIS 73970 at *31 (no colorable federal defense; defendant "failed to point to any government action either mandating a warning or prohibiting a warning that deprived [defendant] of the power to determine an appropriate warning"); Westmiller, 2005 U.S. Dist. LEXIS 29371 at *10 ("While it is true that Mesa11 requires only a `colorable' federal defense. [Defendant] has not produced any evidence that would meet even that minimum standard."); Faulk v. Owens-Corning Fiberglass Corp., 48 F. Supp.2d at 664-665; Overly v. Raybestos-Manhattan, 1996 U.S. Dist. LEXIS 13535, *11-12 (N.D. Cal. Sept. 6, 1996). F. The Interests of Justice Support Prompt Remand To State Court.

Mr. Seitz is in the advanced stage of an incurable cancer. Mr. Seitz's case has already been scheduled for trial in the Superior Court of the State of Delaware in and for New Castle County and pretrial discovery and motion practice is scheduled to be carried out over the next several months. [See Delaware Asbestos Litigation Master Trial Scheduling Order and Table of Trial Schedule Abstracts (Amended on June 26, 2008) attached as Exhibit J to Block Decl.]. In addition, if this case is not remanded, it will be transferred to MDL-875, and will encounter significant delay. In re Maine Asbestos Cases, 44 F. Supp.2d 368, 374 n.2 (D.Me. 1999) ("If these claims return to state court, they will proceed to resolution. If they remain in federal court, they will encounter significant delay upon their transfer through the Panel on Multidistrict Litigation to the Eastern District of Pennsylvania"); see also Hilbert, 529 F. Supp.2d 187, 190 (D.Mass. 2008) (noting that if removal was upheld and the case was transferred to the MDL, "the matter will likely be substantially delayed."). The delays inherent in MDL-875 are well documented:
11

The full cite is: Mesa v. California, 489 U.S. 121, 109 S.Ct. 959 (1989)].

19

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 24 of 30

In 2002, the Rand Institute for Civil Justice issued a study on the current status of asbestos litigation in the United States. The Rand study stated that, as of 2002, approximately 73,000 of the 95,994 asbestos suits transferred to the Eastern District of Pennsylvania had been closed. But the study showed that of those 95,994 cases, the MDL panel remanded only 265 to their filing district for trial. Sales v. Weyerhaeuser Co., 138 Wash.App. 222, 233 (2007). Thus, according to the Rand study, less than 1% of all asbestos cases transferred to MDL-875 will be remanded to the transferor district court for a trial date. It is, therefore, not surprising that Northrop Grumman and Bell removed this case from its scheduled trial setting in the Delaware state court in the hopes that the case will ultimately be transferred to MDL-875. See In re Maine Asbestos Cases, 44 F. Supp.2d 368, 374 n.2 (D.Me. 1999) ("This delay [in MDL-875] is of economic benefit to the defendants and imposes costs on the plaintiffs. In all likelihood, this economic reality is driving the behavior of the parties in this matter."). In light of the complete lack of admissible evidence to support Northrop Grumman and Bell's removal of this case, Plaintiffs respectfully request that this case be remanded promptly so that Plaintiffs may continue this case in state court without delay. CONCLUSION For the reasons set forth above, Plaintiffs Frederick and Mary Louise Seitz respectfully requests that the Court remand this case to State Court (Superior Court of Delaware, New Castle County) and grant Plaintiffs all other relief deemed just and proper.

[SIGNATURE ON NEXT PAGE]

20

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 25 of 30

Respectfully submitted, LAW OFFICE OF JOSEPH J. RHOADES /s/__A. Dale Bowers__________________ Joseph J. Rhoades, Esquire (I.D. 2064) A. Dale Bowers, Esquire (I.D. 3932) 1225 King Street, 12th Floor Wilmington, Delaware 19801 302-427-9500 Attorneys for Plaintiffs -andLEVY PHILLIPS & KONIGSBERG, LLP Jerome H. Block, Esq. (NY Id. No. 3997245) Sharon J. Zinns, Esq. (CA Id. No. 241476) Amber R. Long, Esq. (NY Id. No. 4397188) 800 Third Avenue, 13th Floor New York, New York 10022 Phone: (212) 605-6200 Fax: (212) 605-6290 Dated: July 29, 2008

21

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 26 of 30

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

C.A. No. 08-CV-0351 GMS C.A. No. 08-CV-0353 GMS

AFFIDAVIT OF JEROME H. BLOCK SUBMITTED IN SUPPORT OF PLAINTIFFS' MOTION FOR REMAND JEROME H. BLOCK, being duly sworn, deposes and says: 1. I am counsel for Plaintiffs and I submit this Affidavit in Support of Plaintiffs'

Motion fro Remand. The purpose of this Affidavit is to identify the following annexed exhibits, each of which is a true and accurate copy of original exhibits to which reference will be made in Plaintiffs' moving papers. 2. 3. Attached as Exhibit A is Plaintiffs' Complaint in the instant action. Attached as Exhibit B is the letter of Capt. Timothy Bresnahan to Sharon Zinns,

dated June 27, 2008. 4. Attached as Exhibit C are Plaintiffs' Answers to Interrogatories Directed to Plaintiffs

by all Defendants and Response to Request for Production, and Exhibits attached thereto, served in the instant action. 5. Attached as Exhibit D is the Military Specification for Aircraft Wheel and Brake

Assemblies (MIL-W-5013D).

{00121675.DOC}

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 27 of 30

6.

Attached as Exhibit E is the military standard, Marking for Shipment or Storage

(MIL-STD-129). 7. Chemicals. 8. Attached as Exhibit G is Instruction 5160.8 from the Department of the Navy, Attached as Exhibit F is Manual L-1, Guide to Precautionary Labeling of Hazardous

Office of the Secretary. 9. 10. Attached as Exhibit H is the Declaration of Barry I. Castleman, dated July 18, 2008. Attached as Exhibit I is a copy of Fortier v. Ampco-Pittsburgh Corp. et al., 3:07-cv-

00005 (D.Conn. Mar. 5, 2007). 11. Attached as Exhibit J is Delaware Asbestos Litigation Master Trial Scheduling Order

and Table of Trial Schedule Abstracts (Amended on June 26, 2008).

/s/ Jerome H. Block JEROME H. BLOCK Dated: July 29, 2008

_

{00121675.DOC}

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 28 of 30

CERTIFICATE OF SERVICE I hereby certify that on July 29, 2008, I caused service of a copy of the foregoing Plaintiffs' Motion for Remand on the following counsel of record and parties in the corresponding state court action, by U.S. Mail and/or e-file: Christian J. Singewald, Esquire (E-FILE) White & Williams 824 Market Street, Suite 902 Wilmington, Delaware 19801-4938 Beth Valocchi, Esquire (U.S. MAIL) Swartz Campbell LLC 300 Delaware Avenue, Suite 1130 Wilmington, Delaware 19801 Loreto P. Rufo, Esquire (U.S. MAIL) Rufo Associates, P.A. 7217 Lancaster Pike, Suite 4 Hockessin, Delaware 19701 Gary H. Kaplan, Esquire (E-FILE) Armand J. Della Porta, Esquire Ana Marina McCann, Esquire Marshall Dennehey Warner Coleman & Goggin 1220 North Market Street, 5th Floor Post Office Box 8888 Wilmington, Delaware 19899-8888 Lynne M. Parker, Esquire (E-FILE) Holistein, Keating, Cattell, Johnson & Goldstein One Commerce Center, Suite 730 1201 North Orange Street Wilmington, Delaware 19801 Daniel M. Silver, Esquire (E-FILE) Noriss E. Cosgrove, Esquire McCarter & English, LLP 405 North King Street, 8th Floor Post Office Box 111 Wilmington, Delaware 19899

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 29 of 30

J. Michael Johnson, Esquire (U.S. MAIL) Rawle & Henderson LLP 300 Delaware Avenue, Suite 1015 Post Office Box 588 Wilmington, Delaware 19899-0588 Jeffrey S. Marlin, Esquire (E-FILE) Megan T. Mantzavinos, Esquire Marks O'Neill O'Brien & Courtney, P.C. 913 North Market Street, Suite 800 Wilmington, Delaware 19801 Penelope B. O'Connell, Esquire (E-FILE) Elzufon Austin Reardon Tarlov & Mondell, P.A. 300 Delaware Avenue, Suite 1700 Post Office Box 1630 Wilmington, Delaware 19899-1630 Robert K. Beste, III, Esquire (E-FILE) Smith, Katzenstein & Furlow P.O. Box 410 Wilmington, DE 19899 Air Cooled Motors (U.S. MAIL) 94 Hale Dr. Walterboro, SC 29488 CURTIS-Wright Corporation (U.S. MAIL) c/o The Corporation Trust Company 1209 Orange Street Wilmington, Delaware 19801 Goodrich Corporation. (U.S. MAIL) c/o Corporation Service Company 2711 Centerville Road, Suite Wilmington, Delaware 19808 Paul A. Bradley, Esquire (E-FILE) Maron Marvel Bradley & Anderson, P.A. 1201 North Market Street, Suite 900 Post Office Box 288 Wilmington, Delaware 19899 Adel Wiggins Group (U.S. MAIL)

Case 1:08-cv-00353-GMS

Document 17

Filed 07/29/2008

Page 30 of 30

Attn: Officer/Agent 5000 Triggs Street Los Angeles, California 90022 Aerojet General Corporation (U.S. MAIL) c/o The Corporation Trust Company 1209 Orange Street Wilmington, Delaware 19801 Fletch Air, Inc. (U.S. MAIL) 118 FM 1621 Comfort, TX 78013-3425 Franklin Aircraft Engines, Inc. (U.S. MAIL) 136 Racquette Dr. Ft. Collis, CO 80524 Rolls Royce North America, Inc. (U.S. MAIL) c/o Corporation Service Co. 2711 Centerville Rd., Suite 400 Wilmington, DE 19808 /s/A. Dale Bowers _________________________________________ Joseph J. Rhoades, Esquire (Bar ID No. 2064) A. Dale Bowers, Esquire (Bar ID No. 3932) 1225 King Street, 12th Flr. P.O. Box 874 Wilmington, DE 19899 302-427-9500 Attorneys for Plaintiff LEVY PHILLIPS & KONIGSBERG, LLP Jerome H. Block, Esquire (NY ID No. 3997246) Sharon J. Zinns, Esquire (CA ID No. 241476) Amber R. Long, Esquire (NY ID No. 4397188) 800 Third Ave., 13th Flr. New York, NY 10022

Case 1:08-cv-00353-GMS

Document 17-2

Filed 07/29/2008

Page 1 of 2

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

C.A. No. 08-CV-0351 GMS C.A. No. 08-CV-0353 GMS

NOTICE OF MOTION TO REMAND PLEASE TAKE NOTICE that based upon, and for the reasons set forth in, Plaintiff's Memorandum of Law in Support of Plaintiffs' Motion to Remand, and the Declarations of Jerome H. Block, and the Exhibits thereto, all of which are filed simultaneously herewith and adopted and incorporated herein, Plaintiffs Frederick and Mary Louise Seitz hereby moves this Court, pursuant to 28 U.S.C. § 1447 (c) for an Order remanding this case to State court (Supreme Court of New Castle County, Delaware) and for all other relief deemed just and proper. Respectfully submitted, LAW OFFICE OF JOSEPH J. RHOADES /s/__A. Dale Bowers__________________ Joseph J. Rhoades, Esquire (I.D. 2064) A. Dale Bowers, Esquire (I.D. 3932) 1225 King Street, 12th Floor Wilmington, Delaware 19801 302-427-9500 Attorneys for Plaintiffs -and-

{00121675.DOC}

Case 1:08-cv-00353-GMS

Document 17-2

Filed 07/29/2008

Page 2 of 2

LEVY PHILLIPS & KONIGSBERG, LLP Jerome H. Block, Esq. (NY Id. No. 3997245) Sharon J. Zinns, Esq. (CA Id. No. 241476) Amber R. Long, Esq. (NY Id. No. 4397188) 800 Third Avenue, 13th Floor New York, New York 10022 Phone: (212) 605-6200 Fax: (212) 605-6290 Dated: July 29, 2008

{00121675.DOC}

Case 1:08-cv-00353-GMS

Filed 07/29/2008 Page 1 of 17 EFiled: Apr 25 2008 4:06PM EDT Transaction ID 19576189 Case No. 08C-04-247 ASB IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

Document 17-3

-------------------------------X IN RE: ASBESTOS LITIGATION: : : FREDERICK SEITZ and : MARY LOUISE SEITZ, his wife : : Plaintiffs, : : v. : : ADEL WIGGINS GROUP; : : AEROJET-GENERAL CORPORATION; : : AIR COOLED MOTORS; : : BELL HELICOPTER TEXTRON INC.; : : THE BOEING COMPANY; : : CBS CORPORATION (f/k/a Viacom Inc., : successor by merger to CBS Corporation, : f/k/a Westinghouse Electric Corporation); : : CESSNA AIRCRAFT RHODE ISLAND : INC.; : : CURTISS-WRIGHT CORPORATION; : : FLETCHAIR, INC.; : : FRANKLIN AIRCRAFT ENGINES, INC.; : : GARLOCK SEALING TECHNOLOGIES : LLC (successor by merger to Garlock, Inc.); : : GENERAL ELECTRIC COMPANY; : : GENERAL MOTORS CORPORATION; : : GOODRICH CORPORATION, A NEW : YORK CORPORATION (f/k/a B.F. : Goodrich Company); : : THE GOODYEAR TIRE & RUBBER :
{00115286.DOC}

C.A. No. COMPLAINT ASBESTOS JURY TRIAL DEMANDED

Case 1:08-cv-00353-GMS

Document 17-3

Filed 07/29/2008

Page 2 of 17

COMPANY; HAWKER BEECHCRAFT, INC. (f/k/a Raytheon Aircraft Company);

:

: : : HONEYWELL INTERNATIONAL INC. : (f/k/a Alliedsignal, Inc., as successor-in: interest to The Bendix Corporation); : : IMO INDUSTRIES INC.; : : LYCOMING ENGINES; : : NORTHROP GRUMMAN : CORPORATION; : : PARKER-HANNIFIN CORPORATION; : : PRATT & WHITNEY : ROCKETDYNE, INC. (f/k/a Pratt & : Whitney Aircraft Company); : : RAYTHEON COMPANY; : : ROLLS-ROYCE NORTH AMERICA INC; : : SIKORSKY AIRCRAFT CORPORATION; : : TELEDYNE CONTINENTAL MOTORS, : INC., : : TEXTRON INC.; : : UNION CARBIDE CORPORATION; : : UNITED TECHNOLOGIES : CORPORATION; : : VOUGHT AIRCRAFT : INDUSTRIES, INC.; : : Defendants. : -----------------------------X

{00115286.DOC}

Case 1:08-cv-00353-GMS

Document 17-3

Filed 07/29/2008

Page 3 of 17

COMPLAINT Come now Plaintiffs, FREDERICK SEITZ and MARY LOUISE SEITZ, by and through their attorneys, THE LAW OFFICE OF JOSEPH J. RHOADES and LEVY PHILLIPS & KONIGSBERG LLP, and in support of their claims against the Defendants, state as follows: 1. was born on 2. Plaintiff FREDERICK SEITZ's full name is FREDERICK HENRY SEITZ. He and his Social Security number is Plaintiff FREDERICK SEITZ and his wife MARY LOUISE SEITZ have resided

at 2815 Sage Street, Colorado Springs, Colorado 80907 since approximately 1985. FREDERICK SEITZ's former residences include but are not limited to: 15190 E. Coachman, Colorado Springs, Colorado from approximately 1977 to 1985; in or around Fargo, North Dakota in approximately 1975; in or around Jamestown, North Dakota from approximately 1974 to 1975; 306 Lake Shore Drive, Lakeville, Minnesota from approximately 1969 to 1974; in or around Kansas City, Missouri from approximately 1967 to 1969; Palo Circle, Arbutus, Maryland from approximately 1966 to 1967; Marine Corps Air Base, New River, North Carolina in approximately 1965; Marine Corps Air Base, Cherry Point, North Carolina from approximately 1961 to 1964; in or around Quantico, Virginia in approximately 1961; Wellham Avenue, Glen Burnie, Maryland from approximately 1960 to 1961; Marine Corps Air Base, New River, North Carolina from approximately 1957 to 1959; Ellyson Field, Florida in approximately 1957; Marine Corps Air Base, Cherry Point, North Carolina from approximately 1955 to 1957; in or around Pensacola, Florida from approximately 1952 to 1955; 239 Meadow Road, Baltimore, Maryland from approximately 1951 to 1952; Marine Corps Air Base, Cherry Point, North Carolina from approximately 1950 to 1951; in or around Pensacola, Florida from approximately 1949 to 1950; Marine Corps Air Base, Cherry Point, North Carolina from approximately 1947 to

{00115286.DOC}

Case 1:08-cv-00353-GMS

Document 17-3

Filed 07/29/2008

Page 4 of 17

1948; in or around Woodbridge, Virginia from approximately 1946 to 1947; in or around Paris Island, South Carolina in approximately 1946; 317 Edison Street, Brooklyn Park, Maryland from approximately 1936 to 1946; in or around Brooklyn, Maryland from approximately 1934 to 1936; East of Patterson Park, Baltimore, Maryland from approximately 1931 to 1934; and Bradley Alley, Baltimore, Maryland from approximately 1929 to 1931. Additionally, FREDERICK SEITZ was deployed to various locations overseas during the Korean and Vietnam wars. 3. FREDERICK SEITZ was employed at Central Arizona Aviation, located at

Falcon Field, Mesa, Arizona, as a Supervisor and Manager from approximately 1986 to 1988; at IDS, located at 2345 N. Academy, Colorado Springs, Colorado, as an Investment Advisor from approximately 1977 to 1981; at Dakota Bake and Serve, located in Jamestown, North Dakota, as an Executive Staff Chief Pilot, Aircraft Maintenance and Support from approximately 1974 to 1976; at Imperial Airways, located in St. Paul, Minnesota as an Executive Vice President from approximately 1969 to 1973; at Bell Helicopter, located in Kansas City, Missouri as a Commercial Regional Marketing Manager, from approximately 1967 to 1969; in the United States Marine Corps, at the various previously listed locations, as a Mechanic and Pilot, from approximately 1946 to 1967; and in the United States Coast Guard, located at the Curtis Bay Coast Gua