Steven Papp v. Fore-Kast Sales Co Inc ( 2016 )


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  •                                 PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 15-2851
    _____________
    STEVEN PAPP, individually and as Executor and Executor
    as Prosequendum of the Estate of MARY SUE PAPP
    v.
    FORE-KAST SALES CO., INC.;
    HONEYWELL INTERNATIONAL, INC.,
    f/k/a Allied Signal, Inc., as successor-in-interest
    to the Bendix Corporation;
    NEW BRUNSWICK PLATING CO., f/k/a
    New Brunswick Nickel and Chrome Plating;
    UNION CARBIDE CORPORATION; JOHN DOE
    CORPORATIONS 1-50;
    JOHN DOE CORPORATIONS 51-100; GOODRICH
    CORP., f/k/a
    B.F. Goodrich Co.; THE GOODYEAR TIRE & RUBBER
    CO.;
    THE BOEING COMPANY, individually and as successor by
    merger to the McDonnell Douglas Corporation
    The Boeing Company,
    Appellant
    _______________
    On Appeal from the United States District Court
    for the District of New Jersey
    (D.C. No. 3-13-cv-5940)
    District Judge: Honorable Peter G. Sheridan
    _______________
    Argued
    September 9, 2016
    Before: JORDAN, VANASKIE, and KRAUSE, Circuit
    Judges.
    (Filed: November 22, 2016)
    _______________
    Amaryah K. Bocchino
    Jason A. Cincilla
    Bryan P. Smith
    Manion Gaynor & Manning
    1007 N. Orange Street
    Tenth Floor
    Wilmington, DE 19801
    Martin F. Gaynor, III [ARGUED]
    Nicholas D. Stellakis
    Manion Gaynor & Manning
    125 High Street
    Boston, MA 02110
    2
    Brian D. Gross
    Manion Gaynor & Manning
    One Citizens Plaza
    Suite 620
    Providence, RI 02903
    Marc S. Gaffrey
    Hoagland Longo Moran Dunst & Doukas
    40 Paterson Street
    P.O. Box 480, Room 301
    New Brunswick, NJ 08903
    Counsel for Appellant, Boeing Co.
    Jeffrey P. Blumstein [ARGUED]
    Robert E. Lytle
    Robert G. Stevens, Jr.
    Szaferman Lakind Blumstein & Blader
    101 Grovers Mill Road, Suite 200
    Lawrenceville, NJ 08649
    Joseph J. Mandia
    Levy Konigsberg
    800 Third Avenue
    13th Floor
    New York, NY 10022
    Counsel for Appellee
    _______________
    OPINION OF THE COURT
    _______________
    3
    JORDAN, Circuit Judge.
    Steven Papp filed this failure-to-warn product liability
    suit against The Boeing Company in the Superior Court of
    New Jersey, alleging that his late wife, Mary, 1 was made ill
    by exposure to asbestos from a Boeing aircraft. Boeing
    removed Papp’s failure-to-warn suit to the United States
    District Court for the District of New Jersey on the basis of
    the federal officer removal statute, 
    28 U.S.C. § 1442
    (a)(1).
    According to Boeing, it was acting as a government
    contractor when it engaged in the allegedly tortious conduct.
    After removal, Papp filed a motion to remand the case to state
    court, which the District Court granted. The District Court
    ruled that Boeing had failed to meet a “special burden” of
    establishing that a federal officer or agency affirmatively
    prohibited Boeing from warning third parties of the dangers
    of asbestos found in planes manufactured in the mid-
    twentieth century. Because we conclude that the federal
    officer removal statute extends to contractors who possess a
    colorable federal defense, and that Boeing made a sufficient
    showing of such a defense at the time of removal, we will
    reverse.
    I.    BACKGROUND
    Papp, individually and on behalf of Mary’s estate,
    alleges that Mary suffered secondary “take home” asbestos
    exposure while washing the work clothes of her first husband,
    Robert Keck. Keck had several jobs that exposed him to
    1
    For clarity, and intending no disrespect by undue
    familiarity of address, throughout this opinion we refer to
    Mary Papp as “Mary” and to Steven Papp as “Papp.”
    4
    asbestos, including one for the New Brunswick Plating Co.
    (“New Brunswick”) in the late 1970s. While working for
    New Brunswick, Keck sandblasted the landing gear of World
    War II military cargo planes to prepare the gear for repairs.
    Papp contends that that process resulted in Keck having
    airborne asbestos fibers adhere to his clothing so that Mary,
    who handled the clothes, inhaled the asbestos.
    On August 12, 2013, Papp sued a host of companies in
    New Jersey, alleging injuries to Mary from exposure to
    asbestos. He filed his First Amended Complaint (the
    “Complaint”) on August 16, 2013, adding Boeing as a
    defendant, both individually and as successor-by-merger to
    the McDonnell Douglas Corporation. The Complaint did not
    indicate which Boeing or Douglas aircraft was claimed to
    have been the source of Mary’s asbestos exposure. At her
    deposition taken on September 5, 2013, however, Mary
    specified that the landing gear Keck sandblasted was for a
    military cargo plane called the C-47. The C-47 was built by
    the Douglas Aircraft Company, a predecessor company to
    Boeing,2 for the United States Navy and Air Force during
    World War II. Once Boeing learned the identity of the
    aircraft, it promptly removed the case to federal court
    pursuant to the federal officer removal statute, 
    28 U.S.C. § 1442
    (a)(1). That statute permits a defendant to remove a
    case to federal court from the state court where suit was
    originally filed, provided the allegedly culpable behavior took
    2
    For ease of reference, and as the District Court did,
    we refer to the Douglas Aircraft Company, McDonnell
    Douglas Corporation, and The Boeing Company collectively
    as “Boeing,” unless otherwise specified.
    5
    place while the defendant was acting under the direction of a
    federal officer or agency. 
    28 U.S.C. § 1442
    (a)(1).
    The federal officer removal statute requires that the
    defendant possess a colorable federal defense.            In re
    Commonwealth’s Motion to Appoint Counsel Against or
    Directed to Def. Ass’n of Phila., 
    790 F.3d 457
    , 466 (3d Cir.
    2015) (“Defender Ass’n”), cert. denied 
    136 S. Ct. 980
     & 994
    (2016). Boeing asserted that it was entitled to the federal
    defense of government contractor immunity because the C-47
    was produced for, and under the specific supervision of, the
    United States military. More specifically, Boeing argued that
    the government’s oversight extended to labels and warnings
    for all parts of the aircraft, including those parts laden with
    the asbestos to which Keck, and in turn Mary, would later be
    exposed. Boeing also states that, to the extent that the
    dangers of asbestos were known at the time, the government’s
    knowledge of those dangers was superior to that of Boeing.
    As part of its notice of removal, Boeing included the
    declaration of Larry Fogg (the “Fogg Declaration”). Fogg
    was a longtime employee of Douglas, who attested, based on
    his experience and review of the company’s contracts and
    records, to the factual underpinnings of Boeing’s legal
    position.
    Papp moved to remand the case back to state court,
    and, of course, Boeing opposed remand. The District Court
    granted the motion. It held that, because Boeing was a
    contractor and not a federal officer, it had a “special burden”
    to demonstrate that it was acting under the control of the
    federal government. (App. at 6.) The Court said that, to
    prove removal jurisdiction, Boeing was required to show that
    it performed “the complained-of activity at the direction of
    6
    official federal authority.” (App. at 8 (quotation marks and
    citation omitted)). Because the allegedly wrongful behavior
    was the failure to warn third parties of asbestos, the Court
    concluded that Boeing must show “that a federal officer or
    agency directly prohibited Boeing from issuing, or otherwise
    providing, warnings as to the risks associated with exposure
    to asbestos contained in products on which third-parties …
    worked or otherwise provided services.” (App. at 11.) Using
    that standard, the Court decided that Boeing did not meet its
    special burden and that remand to state court was proper.
    Boeing timely appealed.
    II.    DISCUSSION3
    A.     THE FEDERAL OFFICER REMOVAL STATUTE
    “We review de novo whether the District Court had
    subject matter jurisdiction[,]” including a court’s decision to
    remand for a lack of jurisdiction. Defender Ass’n, 790 F.3d at
    465. At the heart of the present jurisdictional dispute is the
    federal officer removal statute, 
    28 U.S.C. § 1442
    (a)(1). As
    with any removal from state court, removal under
    § 1442(a)(1) begins with the filing of a notice “containing a
    short and plain statement of the grounds for removal.” 
    28 U.S.C. § 1446
    (a). Because a motion to remand shares an
    essentially identical procedural posture with a challenge to
    subject matter jurisdiction under Federal Rule of Civil
    3
    The District Court’s jurisdiction is squarely at issue
    in this case, as discussed below. We have jurisdiction to
    review the District Court’s order to remand pursuant to 
    28 U.S.C. §§ 1291
     and 1447(d).
    7
    Procedure 12(b)(1), it is properly evaluated using the same
    analytical approach. Leite v. Crane Co., 
    749 F.3d 1117
    , 1121
    (9th Cir.), cert. denied, 
    135 S. Ct. 361
     (2014); see also
    Defender Ass’n, 790 F.3d at 466 (applying same 12(b)(1)
    framework to challenge of jurisdiction after removal).
    “A challenge to subject matter jurisdiction under Rule
    12(b)(1) may be either a facial or a factual attack.” Davis v.
    Wells Fargo, 
    824 F.3d 333
    , 346 (3d Cir. 2016). A facial
    attack “challenges subject matter jurisdiction without
    disputing the facts alleged in the [notice of removal], and it
    requires the court to consider the allegations … as true.” 
    Id.
    (internal quotation marks and citation omitted). A factual
    attack, in contrast, disputes “the factual allegations underlying
    the [] assertion of jurisdiction,” and involves the presentation
    of competing facts. 4         
    Id.
        Because Papp challenges
    jurisdiction facially, “we construe the facts in the removal
    4
    While a factual attack on jurisdiction after removal is
    permissible, such a challenge should only be considered to
    the extent that the facts presented, if persuasive, would
    directly undermine one of the four elements of Section 1442
    that must be present to confer jurisdiction. See infra at n.5
    and related text. To the extent that such a challenge bleeds
    into the merits of the case, the District Court ought not
    address it in terms of jurisdiction. See Davis, 824 F.3d at
    348; see also Cuomo v. Crane Co., 
    771 F.3d 113
    , 116 (2d Cir.
    2014) (“To the extent that [a plaintiff’s] competing testimony
    challenges the accuracy or reliability of [a defendant’s]
    evidence, it does not undercut [the defendant’s] right to
    removal, but rather raises the very type of factual dispute
    about the validity of the defense that should be submitted to
    the judgment of a federal court.”).
    8
    notice in the light most favorable to [Boeing].” Defender
    Ass’n, 790 F.3d at 466.
    The federal officer removal statute has existed in
    varying forms for some two-hundred years. Its central aim is
    protecting officers of the federal government from
    interference by litigation in state court while those officers are
    trying to carry out their duties. Willingham v. Morgan, 
    395 U.S. 402
    , 405-06 (1969). The statute has been amended over
    the years to permit removal in a broader set of circumstances.
    As currently framed and codified at 
    28 U.S.C. § 1442
    (a)(1), it
    provides, in relevant part:
    A civil action … commenced in a State court
    and that is against … any of the following may
    be removed by them to the district court of the
    United States for the district and division
    embracing the place wherein it is pending: (1)
    The 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 …
    The “or any person acting under that officer” language
    effects an expansion of coverage that is relevant here. But the
    statute itself constitutes a break with tradition. “Section
    1442(a) is an exception to the well-pleaded complaint rule,
    under which (absent diversity) a defendant may not remove a
    case to federal court unless the plaintiff's complaint
    establishes that the case arises under federal law.” Kircher v.
    Putnam Funds Trust, 
    547 U.S. 633
    , 644 n.12 (2006) (internal
    quotation marks and citation omitted). “Unlike the general
    9
    removal statute, the federal officer removal statute is to be
    ‘broadly construed’ in favor of a federal forum.” Defender
    Ass’n, 790 F.3d at 466-67 (quoting Sun Buick, Inc. v. Saab
    Cars USA, Inc., 
    26 F.3d 1259
    , 1262 (3d Cir. 1994)); see also
    Willingham, 
    395 U.S. at 406
     (noting that the scope of the
    federal officer removal statute “is not narrow or limited”).
    We have held that, in order to properly remove a case
    under § 1442(a)(1), a defendant must meet four requirements:
    (1) [the defendant] is a “person” within the
    meaning of the statute; (2) the [plaintiff’s]
    claims are based upon the [defendant’s] conduct
    “acting under” the United States, its agencies,
    or its officers; (3) the [plaintiff’s] claims against
    [the defendant] are “for, or relating to” an act
    under color of federal office; and (4) [the
    defendant] raises a colorable federal defense to
    the [plaintiff’s] claims.
    Defender Ass’n, 790 F.3d at 467 (citation omitted).5       We
    address each requirement in turn.
    1.     Boeing is a “person” within the meaning
    of the statute
    Boeing’s status as a “person” within the meaning of
    the statute is undisputed. Because §1442(a)(1) does not itself
    define the term “person,” we look to § 1 of Title I of the
    5
    Although the District Court’s opinion seemed to elide
    the distinction between the “acting under” and “for or relating
    to” requirements, we address them separately, in keeping with
    the test we announced in Defender Ass’n., 790 F.3d at 467.
    10
    United States Code, which defines “person” to “include
    corporations, companies, associations, firms, partnerships,
    societies, and joint stock companies, as well as individuals.”
    Under this definition, Boeing, a corporation, is in legal fact a
    person.
    2.     Boeing was “acting under” a federal
    officer or agency
    The District Court’s decision to remand this case was
    based on its conclusion that Boeing had failed to demonstrate
    that it was “acting under” a federal officer or agency when it
    did not warn of the dangers associated with asbestos. That
    conclusion was predicated on two errors. First, the Court
    wrongly believed that, because Boeing was a federal
    contractor and not a federal officer, it faced a “special
    burden” to demonstrate that it was acting under the control of
    the federal government. (App. at 6.) Second, the Court
    mistakenly posited that the only way Boeing could show it
    acted under a federal officer was to show “that a federal
    officer or agency directly prohibited Boeing” from warning
    third-parties of asbestos risks. (App. at 11.)
    The “acting under” requirement, like the federal
    removal statute overall, is to be “liberally construe[d]” to
    cover actions that involve “an effort to assist, or to help carry
    out, the federal supervisor’s duties or tasks.” Ruppel v. CBS
    Corp., 
    701 F.3d 1176
    , 1181 (7th Cir. 2012) (quoting Watson
    v. Philip Morris Cos., Inc., 
    551 U.S. 142
    , 152 (2007)); see
    also Defender Ass’n, 790 F.3d at 468 (construing “acting
    under” liberally). The classic case of such assistance as it
    relates to government contractors is when “the private
    contractor acted under a federal officer or agency because the
    11
    contractors ‘help[ed] the Government to produce an item that
    it need[ed].’” Defender Ass’n, 790 F.3d at 468 (quoting
    Watson, 
    551 U.S. at 153
    ). When, as occurred in this instance,
    “the federal government uses a private corporation to achieve
    an end it would have otherwise used its own agents to
    complete,” that contractor is “acting under” the authority of a
    federal officer. Ruppel, 701 F.3d at 1181; see also Defender
    Ass’n, 790 F.3d at 468-70 (discussing different ways in which
    an entity might “act under” a federal officer). Thus, the
    proposition that contractors bear some additional “special
    burden” is inconsistent with both precedent and the
    underlying objectives of the removal statute.
    Further, we have explicitly rejected the notion that a
    defendant could only be “acting under” a federal officer if the
    complained-of conduct was done at the specific behest of the
    federal officer or agency. See Defender Ass’n, 790 F.3d at
    470 (“[W]e disagree that the [defendant] is required to allege
    that the complained-of conduct itself was at the behest of a
    federal agency.”). Instead, we have held that “[i]t is sufficient
    for the ‘acting under’ inquiry that the allegations are directed
    at the relationship between the [defendant] and the [federal
    officer or agency].” Id.
    Considered under the proper standard, it is plain that
    the allegations against Boeing all involve conduct that
    occurred when it was “acting under” the direction of a federal
    officer or agency. In fact, we are presented here with an
    archetypal case. Papp’s allegations are directed at actions
    Boeing took while working under a federal contract to
    produce an item the government needed, to wit, a military
    aircraft, and that the government otherwise would have been
    forced to produce on its own. That being so, Boeing easily
    12
    satisfies the “acting under” requirement of the § 1442(a)(1)
    inquiry.
    3.     The Complaint rests on acts done “for or
    relating to” a federal officer or agency
    The next requirement, often referred to as the “nexus”
    or “causation” requirement, demands that the alleged conduct
    have been undertaken “for or relating to” a federal office.
    Under the prior version of the statute, which required a
    showing that a defendant had been sued “for any act under
    color of [federal] office,” 
    28 U.S.C. § 1442
    (a)(1) (2011), a
    defendant had to “show a nexus, a causal connection between
    the charged conduct and asserted official authority.”
    Jefferson Cty., Ala. v. Acker, 
    527 U.S. 423
    , 431 (1999)
    (quoting Willingham, 
    395 U.S. at 409
     (internal quotation
    marks omitted)). But given the addition of the words “or
    relating to” in the 2011 revision of the statute – a change that
    was intended to “broaden the universe of acts that enable
    Federal officers to remove [suits] to Federal court,” H.R. Rep.
    No. 112-17, pt. 1, at 6 (2011) – we have taken a more
    permissive view of this requirement. Specifically, we have
    held that, in order to meet the “for or relating to” requirement,
    “it is sufficient for there to be a connection or association
    between the act in question and the federal office.” Defender
    Ass’n, 790 F.3d at 471 (internal quotation marks omitted).
    Here, there is indeed a connection or association
    between the acts complained of by Papp and the federal
    government. At the heart of Papp’s claim against Boeing is
    the failure to provide sufficient warning about the dangers of
    asbestos in the landing gear of the C-47 aircraft. In its notice
    of removal, Boeing asserts that the C-47 was manufactured
    13
    “for the United States Armed Forces under the direct
    supervision, control, order, and directive of federal
    government officers acting under the color of federal office,”
    (App. at 39), and that that control extended to “the content of
    written materials and warnings associated with such aircraft,”
    (id. at 41). Those alleged facts alone satisfy the “for or
    relating to” requirement, as they demonstrate a direct
    connection or association between the federal government
    and the failure to warn described by Papp. As a result,
    Boeing has satisfied the third requirement of § 1442(a)(1).
    4.     Boeing raises a colorable federal
    defense
    The fourth and final requirement to demonstrate
    removal jurisdiction under § 1442(a)(1) is that the defendant
    raise a “colorable federal defense.” Defender Ass’n, 790 F.3d
    at 467. Boeing asserted in its notice of removal that it was
    entitled to the “military contractor defense” announced in
    Boyle v. United Techs. Corp., 
    487 U.S. 500
     (1988). Under
    Boyle, a federal contractor cannot be held liable for a state
    tort if, in the context of the work at issue, “(1) the United
    States approved reasonably precise specifications; (2) the
    equipment conformed to those specifications; and (3) the
    supplier warned the United States about the dangers in the use
    of the equipment that were known to the supplier but not to
    the United States.” 
    Id. at 512
    . Because Papp’s claim against
    Boeing is predicated on a failure-to-warn theory, the Boyle
    test could be rephrased to cover Boeing’s actions as follows:
    (1) the government approved specifications for the C-47,
    including certain warnings for the plane; (2) Boeing provided
    the warnings required by the government; and (3) Boeing told
    the government about any asbestos hazards that were then
    14
    known to it but not to the government. See Leite, 749 F.3d at
    1123 (noting that the government contractor defense is
    established by the defendant showing that “(1) the
    [government] exercised its discretion and approved certain
    warnings for [the defendant]’s products, (2) [the defendant]
    provided the warnings required by the [government], and (3)
    [the defendant] warned the [government] about any asbestos
    hazards that were known to [the defendant] but not to the
    [government]”).6
    Taking the undisputed facts from the notice of
    removal, including the Fogg Declaration, as true, Boeing has
    stated sufficient facts to make out a colorable defense. As to
    the first element of the Boyle test, Boeing asserted that the
    government exercised complete control over “any markings
    or labels on [Boeing] aircraft or aircraft components,” that in-
    6
    We are not alone in permitting defendants to raise the
    government contractor defense from Boyle in failure-to-warn
    cases; the Second, Fourth, Fifth, Sixth, Seventh, Ninth, and
    Eleventh Circuits have all allowed the defense in such cases.
    See In re Joint E. & S. Dist. N.Y. Asbestos Litig., 
    897 F.2d 626
    , 629-30 (2d Cir. 1990); Ripley v. Foster Wheeler LLC, __
    F.3d __, No. 15-1918, 
    2016 WL 6441049
    , at *2 (4th Cir.
    Nov. 1, 2016); Perez v. Lockheed Corp. (In re Air Disaster at
    Ramstein Air Base, Germany, on 8/29/90), 
    81 F.3d 570
    , 576
    (5th Cir.), modified on other grounds, 
    88 F.3d 340
     (5th Cir.
    1996) (per curiam); Tate v. Boeing Helicopters (Tate II), 
    140 F.3d 654
    , 656 (6th Cir. 1998); Oliver v. Oshkosh Truck Corp.,
    
    96 F.3d 992
    , 1003-04 (7th Cir. 1996); Snell v. Bell Helicopter
    Textron, Inc., 
    107 F.3d 744
    , 749-50 (9th Cir. 1997); Dorse v.
    Eagle–Picher Indus., Inc., 
    898 F.2d 1487
    , 1489 (11th Cir.
    1990).
    15
    person meetings occurred between Boeing and government
    personnel where warnings were discussed, and that “[t]he
    contents, including any warnings, of any technical manuals…
    were directed, reviewed, and approved by” the government.
    (Opening Br. at 19-20.)
    As to the second element, Boeing’s notice of removal
    and the attached Fogg Declaration are explicit that Boeing
    followed every specification set forth by the government
    when building the C-47 aircraft.
    Finally, as to the third element, the Fogg Declaration
    states that, at the time the C-47 aircraft was being built,
    Boeing was not aware of the health hazards of asbestos.
    Furthermore, some of the documents produced by Boeing
    suggest that the government had a superior understanding of
    the risks of asbestos.7 Because we are bound to accept
    Boeing’s assertion that the risks were not known to it, Boeing
    did not have any superior knowledge that it withheld from the
    government.
    The District Court took issue with several points in the
    Fogg Declaration, in particular Fogg’s assertion that the
    government had oversight of the warnings related to the
    aircraft. The Court seemed especially troubled that Fogg did
    not provide thorough citations to the documents delivered
    with his declaration. Given the posture of the case though,
    that objection is misplaced. A defendant “need not win his
    case before he can have it removed.” Willingham, 
    395 U.S. at 407
    . At the removal stage, Boeing needed only show that its
    7
    Examples of that may be found in bulletins,
    pamphlets, and technical manuals provided in the record.
    16
    asserted Boyle defense was “colorable,” which is to say that
    the defense was “legitimate and [could] reasonably be
    asserted, given the facts presented and the current law.”
    Colorable Claim, BLACK’S LAW DICTIONARY (10th ed.
    2014); see also Hagen v. Benjamin Foster Co., 
    739 F. Supp. 2d 770
    , 782-83 (E.D. Pa. 2010) (“[A] defense is colorable for
    purposes of determining jurisdiction under Section 1442(a)(1)
    if the defendant asserting it identifies facts which, viewed in
    the light most favorable to the defendant, would establish a
    complete defense at trial.”). It has done so and, not
    insignificantly, the facts presented were not contested in the
    District Court. If Boeing is able to prove at trial by a
    preponderance of the evidence the facts alleged in its notice
    of removal, including the facts asserted in the Fogg
    Declaration, it will have established a prima facie defense
    under Boyle and may prevail on the merits. That is sufficient
    to constitute a “colorable” federal defense. Boeing’s notice
    of removal thus met the fourth and final requirement of
    § 1442(a)(1).
    Having satisfied all of § 1442(a)(1)’s requirements,
    Boeing established its entitlement to proceed in federal court,
    but Papp makes one further statement to forestall that result.
    B.     TIMELINESS
    In addition to challenging the merits of Boeing’s
    removal argument, Papp asserts, in the alternative, that
    Boeing did not timely seek removal. That assertion, made in
    a footnote, reads as follows:
    Because the Court below determined that
    remand was jurisdictionally required under the
    17
    second grounds, it did not deem it necessary to
    address the timeliness issue. However, since
    the issue of jurisdiction[8] is de novo before this
    Court, should [the District Court’s] stated
    rationale for remand not be accepted, it is
    respectfully submitted that the issue of
    timeliness, which was fully briefed by both
    parties below, would be an appropriate subject
    for consideration.
    (Ans. Br. at 5 n.4 (internal citations to the record omitted).) It
    is well established that “[f]ederal courts of appeals refuse to
    take cognizance of arguments that are made in passing
    without proper development.” Johnson v. Williams, __ U.S.
    __, 
    133 S. Ct. 1088
    , 1095 (2013); see also Reynolds v.
    Wagner, 
    128 F.3d 166
    , 178 (3d Cir. 1997) (“[A]n argument
    consisting of no more than a conclusory assertion … will be
    deemed waived.”). The footnote, standing alone, does not
    sufficiently present Papp’s argument on the issue of
    timeliness. Indeed, it is not even phrased as an argument, but
    rather simply states that the issue would be “appropriate for
    consideration.” (Ans. Br. at 5 n.4.) The only sense in which
    Papp makes an argument at all is by reference to what he said
    somewhere else, trying to incorporate arguments he made
    before the District Court. To permit parties to present
    arguments in that fashion would effectively nullify the page
    8
    Though not necessary to the resolution of this issue,
    it bears mention that timeliness of removal under the federal
    officer removal statute is not, in fact, a jurisdictional issue.
    See Farina v. Nokia Inc., 
    625 F.3d 97
    , 114 (3d Cir. 2010) (“It
    is well settled that § 1446(b)’s thirty-day time limit for
    removal is a procedural provision, not a jurisdictional one.”).
    18
    or word limits imposed by the appellate and local rules. See
    Gaines-Tabb v. ICI Explosives, USA, Inc., 
    160 F.3d 613
    , 623-
    24 (10th Cir. 1998) (“Allowing litigants to adopt district court
    filings would provide an effective means of circumventing
    the page limitations on briefs set forth in the appellate rules
    ….”). That cannot be permitted, and we join our fellow
    Circuits in declining to do so. See 
    id.
     (collecting cases).9
    Papp has therefore forfeited any argument as to timeliness.10
    9
    As noted by the Tenth Circuit in Gaines-Tabb, the
    First, Fourth, Fifth, Seventh, and Eighth Circuits have already
    endorsed this rule. 
    160 F.3d at 623-24
    . Since the time that
    Gaines-Tabb was decided, the rule has also been adopted by
    the Second, Frank v. United States, 
    78 F.3d 815
    , 833 (2d Cir.
    1996), vacated on other grounds, 
    521 U.S. 1114
     (1997); and
    Sixth Circuits, Northland Ins. Co. v. Stewart Title Guar. Co.,
    
    327 F.3d 448
    , 453 (6th Cir. 2003). Cf. Sandgathe v. Maass,
    
    314 F.3d 371
    , 380 n.8 (9th Cir. 2002) (admonishing counsel
    for incorporating arguments by reference, but rejecting those
    arguments on the merits).
    10
    Even were that issue preserved, it would not change
    our conclusion on the matter. Papp’s principal argument
    relies on the notion that Boeing’s removal was untimely
    because it came 45 days after the filing of the Complaint,
    outside of the 30 day window provided by the statute. The
    statute also provides, however, that, “if the case stated by the
    initial pleading is not removable” the notice of removal may
    be filed within 30 days following receipt of “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.” 
    28 U.S.C. § 1446
    (b)(3). Here, Boeing asserts
    that it was not aware that Papp was making a claim related to
    19
    III.   CONCLUSION
    For the foregoing reasons, we will reverse.
    Boeing’s role as a federal contractor until the deposition of
    Mary Papp, during which Boeing learned for the first time
    that the allegations against it related to its production of the
    C-47 aircraft.
    Papp concedes that answers to deposition questions
    “can constitute ‘other paper’ for purposes of triggering the
    time for removal under 
    28 U.S.C. § 1446
    (b).” (App. at 120).
    He argues, however, that Boeing should have been able to
    ascertain from its own records what specific aircraft Keck
    was working on based on Keck’s place and timing of
    employment, and therefore determine whether there was a
    federal defense available. Setting aside the fact that nothing
    in the record supports the assertion that Boeing could have
    made such a deduction, Boeing simply was not required to do
    so. See In re Asbestos Prod. Liab. Litig. (No. VI), 
    770 F. Supp. 2d 736
    , 740 (E.D. Pa. 2011) (citing Foster v. Mutual
    Fire Marine & Inland Ins. Co., 
    986 F.2d 48
    , 53 (3d
    Cir.1993), rev’d on other grounds, Murphy Bros., Inc. v.
    Michetti Pipe Stringing, Inc., 
    526 U.S. 344
     (1999) (noting
    that we look only to the “four corners of the pleading” to see
    if it “informs the reader, to a substantial degree of specificity,
    that all elements of federal jurisdiction are present,” and ask
    “not what the defendant knew, but what the relevant
    document said.”)). As a result, the relevant date for
    determining the timeliness of Boeing’s motion to remove was
    the September 5, 2013 deposition of Mary Papp, and
    Boeing’s October 4, 2013 filing was therefore timely.
    20
    

Document Info

Docket Number: 15-2851

Filed Date: 11/22/2016

Precedential Status: Precedential

Modified Date: 11/25/2016

Authorities (19)

richard-reynolds-david-borrell-rolando-felix-julio-aracho-robert-santillo , 128 F.3d 166 ( 1997 )

Watson v. Philip Morris Companies, Inc. , 127 S. Ct. 2301 ( 2007 )

Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc. , 119 S. Ct. 1322 ( 1999 )

In Re Asbestos Products Liability Lit.(no. Vi) , 770 F. Supp. 2d 736 ( 2011 )

Hagen v. Benjamin Foster Co. , 739 F. Supp. 2d 770 ( 2010 )

constance-b-foster-insurance-commissioner-of-the-commonwealth-of , 986 F.2d 48 ( 1993 )

Alfred Dorse and Josephine Dorse v. Eagle-Picher Industries,... , 898 F.2d 1487 ( 1990 )

Gaines-Tabb v. ICI Explosives, USA, Inc. , 160 F.3d 613 ( 1998 )

prodliabrep-cch-p-14739-donna-s-oliver-administratrix-of-the-estate , 96 F.3d 992 ( 1996 )

in-re-joint-eastern-and-southern-district-new-york-asbestos-litigation , 897 F.2d 626 ( 1990 )

sun-buick-inc-ta-sun-buick-saab-inc-eugene-j-schlanger-v-saab-cars , 26 F.3d 1259 ( 1994 )

dorothy-snell-corinne-snell-a-minor-and-shannon-snell-a-minor-by-and , 107 F.3d 744 ( 1997 )

Samuel Frank, Plaintiff-Appellee-Cross-Appellant v. United ... , 78 F.3d 815 ( 1996 )

Northland Insurance Company v. Stewart Title Guaranty ... , 327 F.3d 448 ( 2003 )

Johnson v. Williams , 133 S. Ct. 1088 ( 2013 )

Olga Perez, Etc. And David Edward Perez v. Lockheed Corp. ... , 88 F.3d 340 ( 1996 )

Farina v. Nokia, Inc. , 625 F.3d 97 ( 2010 )

Kircher v. Putnam Funds Trust , 126 S. Ct. 2145 ( 2006 )

Boyle v. United Technologies Corp. , 108 S. Ct. 2510 ( 1988 )

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