Williams v. General Elec. Co.

• Decision Date: 22 August 2005
• Docket Number: No. Civ.A. 1:04-CV-2762.,Civ.A. 1:04-CV-2762.
• Citation: 418 F.Supp.2d 610
• Parties: Harry E. WILLIAMS and Beverly Williams, Plaintiffs v. GENERAL ELECTRIC COMPANY, et al., Defendants
• Court: U.S. District Court — Middle District of Pennsylvania

418 F.Supp.2d 610

Harry E. WILLIAMS and Beverly Williams, Plaintiffs v. GENERAL ELECTRIC COMPANY, et al., Defendants

No. Civ.A. 1:04-CV-2762.

United States District Court, M.D. Pennsylvania.

August 22, 2005.

COPYRIGHT MATERIAL OMITTED

Amy H. Backenstose, Amy H. Backenstose, Law Offices of Peter G. Angelos, P.C., William D. Poland, Jr., Harrisburg, PA, for Plaintiffs.

E. Michael Keating, III, James W. Johnson, Hollstein, Keating, Cattell, Johnson & Goldstein, P.C., Philadelphia, PA, for Defendants.

ORDER

KANE, District Judge.

Before the Court is Plaintiff's motion to remand this asbestos action to the Dauphin County Court of Common Pleas. (Doc. No. 4.) Defendant opposes the motion, claiming that it is entitled to remove this action to federal court pursuant to the Federal Officer Removal statute, 28 U.S.C. § 1442(a)(1). Plaintiff disputes that the Federal Officer Removal statute is applicable to this action. Upon careful consideration of the relevant law, and the pleadings and supporting documents submitted by both Plaintiff and Defendant, the Court finds that Defendant has failed to demonstrate that the Federal Officer Removal statute applies in this case. Accordingly, the Court finds that it lacks subject matter jurisdiction over this action, and the case will be remanded to the Dauphin County Court of Common Pleas.

I. BACKGROUND

A. Plaintiffs' Allegations

On December 1, 2004, Plaintiffs Harry and Beverly Williams sued General Electric Company ("GE") and a number of other defendants in the Dauphin County Court of Common Pleas alleging, among other things, that Harry Williams was exposed to asbestos-containing products while he served in the United States Navy at a number of Naval shipyards, repair stations, and aboard Navy ships between 1948 and 1966, and also during his employment as a steelworker between 1968 and 1990 with the former Bethlehem Steel Corporation at that company's plant in Steelton, Pennsylvania. Plaintiff alleges that in March 2003 he was diagnosed with "an asbestos-related injury" and that he currently suffers from, inter alia, asbestosis.

B. Grounds for Removal

In its notice of removal, GE avers that Plaintiffs complaint identifies "specific General Electric equipment, i.e. turbines, that were specifically designed for use in accordance with the specifications and control of the Secretary of the United States Navy and its officers." (Doc. No. 1, at ¶ 6.) Defendant thus asserts that its basis for removal of this action is that in providing turbines to the United States Navy, GE "acted under the authority of an officer or agency of the United States . ..." (Id., at ¶ 7.) Accordingly, GE asserts that it is entitled to remove this action pursuant to 28 U.S.C.§ 1442(a)(1). (Id.)

In support of its brief opposing Plaintiffs' motion for remand, GE has proffered the affidavit of David Hobson, dated October 27, 1998, more than six years prior to this litigation. (Doc. No. 8, Ex. 1, Affidavit of David Hobson) (hereinafter, "Hobson Aff."). Mr. Hobson attests that he was employed by GE from 1969 to 1996. (Hobson Aff., at ¶ 1.) During his time of employment with GE, Mr. Hobson claims to have had "frequent and extensive business dealings with commissioned officers and civilian employees of the United States Navy in connection with the Navy's design, purchase, and use of marine steam turbines, principally those manufactured by GE." (Id., at ¶ 2.) Hobson attests that the Navy "purchased marine steam turbines from GE for installation aboard Navy ships and submarines by Navy shipbuilders." (Id.) In addition, Hobson notes that he has "studied military specifications and other documents dating back to World War II" regarding marine steam turbines, and has conferred with unnamed "naval officials and others involved in naval shipbuilding" during the course of frequent trips to naval shipyards and his time aboard naval vessels, including submarines. (Id., at ¶ 3.) As a result of this extensive experience, Mr. Hobson claims to "possess thorough knowledge of the historical practices of GE with regard to marine steam turbines that were purchased from GE by the Navy" for installation and use aboard Navy ships and submarines. (Id., at ¶ 4.) Hobson's brief affidavit concludes by explaining how the marine steam turbines GE manufactured and shipped to the Navy did not contain any thermal insulation materials (containing asbestos, or otherwise), and were manufactured and shipped with only a coat of paint over the surface of the metal. According to Hobson, "GE did not manufacture, sell, distribute, or supply marine turbines equipped with thermal insulation, nor did it specify the material to be used to insulate its marine turbines." (Id., at ¶ 5.) Moreover, Hobson attests that any insulation materials that may have been applied to GE turbines after they were shipped from GE manufacturing facilities would have been supplied and installed by entities other than GE. (Id., at ¶ 6.)

II. APPLICABLE LAW

The Federal Officer Removal statute, 28 U.S.C. § 1442(a) provides, in relevant part:

A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district 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 other person acting under that officer) of the United States or of any agency thereof, sued in an official capacity for any act under color of such office.

28 U.S.C. § 1442(a)(1). The statute provides an exception to the well-pleaded complaint rule in that it serves as a method to remove a case brought in state court against a federal officer, or any person acting under a federal officer, even without the existence of a federal cause of action, so long as the removing party asserts a colorable federal defense to the state claims. Mesa v. California, 489 U.S. 121, 136, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989) ("[the federal officer removal statute] 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"). The purpose behind the statute is to prevent state courts from interfering with the implementation of federal law, id. at 126, 109 S.Ct. 959, and this aim is meant to be achieved by allowing those whose federal activity may be inhibited by state courts to remove an action to a federal forum. See Arizona v. Manypenny, 451 U.S. 232, 241-42, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981) ("removal under § 1442(a)(1) and its predecessor statutes was meant to ensure a federal forum in any case where a federal official is entitled to raise a defense arising out of his official duties. The act of removal permits a trial upon the merits of the state-law question free from local interests or prejudice").

A defendant seeking removal bears the burden of demonstrating federal subject matter jurisdiction. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir.1990). In order to establish removal jurisdiction pursuant to 28 U.S.C. § 1442(a), a defendant must establish that (1) it is a "person" within the meaning of the statute; (2) the plaintiff's claims are predicated upon the defendant's conduct "acting under" a federal officer; (3) it has a colorable federal defense to the claims; and (4) there is a causal nexus between the claims and the conduct performed under color of a federal office. Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124, 127 (3d Cir.1998) (citations omitted).

Although federal courts traditionally construe removal statutes narrowly and remand doubtful cases to state court, the Supreme Court has noted that "the federal officer removal statute is not narrow or limited." Willingham v. Morgan, 395 U.S. 402, 406, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969) (quotation marks omitted). Indeed, the Court has also explained that "the policy favoring removal `should not be frustrated by a narrow, grudging interpretation of § 1442(a)(1).'" Manypenny, 451 U.S. at 242, 101 S.Ct. 1657 (quoting Willingham, 395 U.S. at 407, 89 S.Ct. 1813). See also Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1262 (3d Cir.1994) (noting that the provisions of the federal officer removal statute are to be "broadly construed").

Notwithstanding its broad application, because 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 to benefit from its provisions bear a special burden in establishing the official nature of their activities." Freiberg v. Swinerton & Walberg Property Svcs., Inc., 245 F.Supp.2d 1144, 1150 (D.Col.2002) (original emphasis) (citing Ryan v. Dow Chemical Co., 781 F.Supp. 934, 950-51 (E.D.N.Y.1992)). With these considerations in mind, the Court will turn to the elements set forth in Feidt that Defendant must demonstrate to invoke this Court's jurisdiction under 28 U.S.C. § 1442(a)(1).¹

III. DISCUSSION

A. Colorable Federal Defense

Courts are to construe a removing party's assertion of a colorable federal defense liberally. "We ... do not require the officer virtually to `win his case before he can have it removed.'" Jefferson County v. Acker, 527 U.S. 423, 431, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999) (quoting Willingham, 395 U.S. at 407, 89 S.Ct. 1813). Thus, GE need not demonstrate for purposes of removal that its asserted defense is meritorious, but only that it has a colorable claim to invoke such a defense. Mesa, 489 U.S. at 128-29, 109 S.Ct. 959.

In this case, GE has asserted the federal common law government contractor defense, which was enunciated in Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). The defense shields contractors from liability under state tort law for defects in military equipment supplied to the United States...