Steven Papp v. Fore-Kast Sales Co Inc

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
Marc S. Gaffrey
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
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
_______________
JORDAN, Circuit Judge.
Steven Papp filed this failure-to-warn product liability
suit against The Boeing Company in the Superior Court of
3
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
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.
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
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
place while the defendant was acting under the direction of a
federal officer or agency. 28 U.S.C. § 1442(a)(1).
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
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
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
6
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
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
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
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
notice in the light most favorable to [Boeing].” Defender
Ass’n, 790 F.3d at 466.
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
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
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
9
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
United States Code, which defines “person” to “include
corporations, companies, associations, firms, partnerships,
societies, and joint stock companies, as well as individuals.”
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
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
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,
11
“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
satisfies the “acting under” requirement of the § 1442(a)(1)
inquiry.
12
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
“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,”
13
(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
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
14
[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-
person meetings occurred between Boeing and government
personnel where warnings were discussed, and that “[t]he
contents, including any warnings, of any technical manuals…
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
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
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.”
7
Examples of that may be found in bulletins,
pamphlets, and technical manuals provided in the record.
16
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
second grounds, it did not deem it necessary to
address the timeliness issue. However, since
17
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
or word limits imposed by the appellate and local rules. See
Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 623-
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
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
Boeing’s role as a federal contractor until the deposition of
Mary Papp, during which Boeing learned for the first time
19
III. CONCLUSION
For the foregoing reasons, we will reverse.
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.
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