As Surviving Father Of Chris Everett v. Arkel Int'l Llc., Civil Action No. 4:08-cv-02709.

• Decision Date: 20 April 2009
• Docket Number: Civil Action No. 4:08-cv-02709.
• Citation: 716 F.Supp.2d 572
• Parties: Larraine McGEE, as Surviving Mother of Chris Everett and on Behalf of the Estate of Chris Everett, and Patrick Everett, as Surviving Father of Chris Everett, Plaintiffs, v. ARKEL INTERNATIONAL, LLC, KBR Technical Services, Inc. and Kellogg, Brown & Root Services, Inc., Defendants.
• Court: U.S. District Court — Southern District of Texas

716 F.Supp.2d 572

Larraine McGEE, as Surviving Mother of Chris Everett and on Behalf of the Estate of Chris Everett, and Patrick Everett, as Surviving Father of Chris Everett, Plaintiffs,

v.ARKEL INTERNATIONAL, LLC, KBR Technical Services, Inc. and Kellogg, Brown & Root Services, Inc., Defendants.

Civil Action No. 4:08-cv-02709.

United States District Court,S.D. Texas,Houston Division.

April 20, 2009.

Jeffrey L. Raizner, Michael P. Doyle, Patrick Mason Dennis, Doyle Raizner LLP, Houston, TX, for Plaintiffs.

MEMORANDUM

KEITH P. ELLISON, District Judge.

The Court has received Plaintiffs' Motion to Remand (Doc. No. 16) and Motion to Dismiss (Doc. No. 10). After considering the Motion and all responses and replies thereto, and the applicable law, as indicated in the Court's recent order, the Court finds that the Motion to Remand should be denied and the Motion to Dismiss should be granted.

I. INTRODUCTION

This case involves Sgt. Chris Everett's fatal electrocution while serving in the U.S. Army in Iraq in September 2005. Sgt. Everett was cleaning a Humvee using a power washer connected to a generator that Plaintiffs claim was improperly grounded. (Pl. Am. Pet. ¶ 4.2). Plaintiffs, Larraine McGee, on behalf of the estate of Chris Everett, and Patrick Everett, Sgt. Everett's parents, claim that Defendants Arkel International, LLC (“Arkel”), Kellogg, Brown, and Root Services, Inc. and KBR Technical Services, Inc. (collectively “KBR”) ¹ and their agents or servants are responsible for Sgt. Everett's death because they failed to repair certain electrical deficiencies in the generator. ( Id.)

Plaintiffs bring claims for personal injuries, negligence, and wrongful death under the Iraqi Civil Code Articles 5, 202-203, and 207. Plaintiffs pray for compensatory and exemplary damages, as well as attorney's fees, costs, and interest. In August 2008, Plaintiffs filed this case in state court in Harris County. KBR timely removed and moved to dismiss, claiming that Plaintiffs' claims are time barred by the Texas statutes of limitations. Plaintiffs have filed a Motion to Dismiss Without Prejudice to pursue a very similar suit in Louisiana that is currently stayed pending disposition of this case. Plaintiffs subsequently filed this Motion to Remand. Because the Court may not act without jurisdiction, it will first decide Plaintiffs' Motion to Remand before addressing Plaintiffs' Motion to Dismiss. ²

II. MOTION TO REMAND

In a case that has been removed, it is the defendant's burden to establish the existence of federal jurisdiction. See Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387, 397 (5th Cir.1998). Normally, the Court looks to the plaintiffs complaint to establish jurisdiction. Aquafaith Shipping, Ltd. v. Jarillas, 963 F.2d 806, 808 (5th Cir.1992). However, under 28 U.S.C. § 1442(a)(1), the defendant may remove based on the existence of a colorable federal defense. Id.

A. Federal Officer Removal Jurisdiction

KBR argues that federal officer removal jurisdiction is proper under 28 U.S.C. § 1442(a)(1) because KBR was acting under the direct and detailed control of federal officers-the Secretaries of the Armed Services and their delegees, including military contracting officers. Plaintiffs deny that the actions giving rise to this lawsuit have a causal nexus with KBR's government-directed activities.

The federal officer removal provision allows removal for actions by the:

United States or any agency therefore or any officer (or any person acting under that officer) of the United States or of any agency therefore, [is] sued in an official or individual capacity for any under the color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

28 U.S.C. § 1442(a)(1). In order to establish federal officer removal jurisdiction, the defendants must establish (1) that they are “persons” within the meaning of the statute; (2) that the defendants acted pursuant to a federal officer's directions and “that a causal nexus exists between the defendant's actions under color of federal office and the plaintiff's claims”; and (3) that a “colorable federal defense” exists. Jefferson County, Ala. v. Acker, 527 U.S. 423, 431, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999); Mesa v. California, 489 U.S. 121, 139, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989) (upholding the requirement of a federal defense); Willingham v. Morgan, 395 U.S. 402, 407-07, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969); Winters v. Diamond Shamrock Chemical Co., 149 F.3d at 398-400. The right of a federal officer to raise a defense arising out of his federal duties “is not to be frustrated by a grudgingly narrow interpretation of the removal statute.” See Arizona v. Manypenny, 451 U.S. 232, 241-42, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981); Winters v. Diamond Shamrock Chemical Co., 149 F.3d at 398 (quoting Willingham, 395 U.S. at 407, 89 S.Ct. 1813).

1. Status as Persons

Corporations are persons under 28 U.S.C. § 1442(a)(1). See, e.g., Winters v. Diamond Shamrock, 149 F.3d at 398. Neither party disputes that KBR meets this criterion.

2. Officer's Directions and Causal Nexus

To establish that a person was “acting under” a federal officer, the defendant must show a causal nexus between the conduct charged in the plaintiffs' claims and the acts performed by the defendant at the direction of federal authority. Willingham v. Morgan, 395 U.S. at 409, 89 S.Ct. 1813; Arness v. Boeing North American, Inc., 997 F.Supp. 1268, 1274 (C.D.Cal.1998). The federal officer must have “direct and detailed control over the defendant” such that “the acts that form the basis for the suit were performed pursuant to an officer's direct orders or to comprehensive and detailed regulations.” Ryan v. Dow Chemical Co., 781 F.Supp. 934, 947 (E.D.N.Y.1992); Arness, 997 F.Supp. at 1273 (quoting Fung v. Abex. Corp., 816 F.Supp. 569, 572 (N.D.Cal.1992)). However, 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 American, Inc., 997 F.Supp. at 1273 (citing Good v. Armstrong World Industries, Inc., 914 F.Supp. 1125, 1128 (E.D.Pa.1996); Fung, at 816 F.Supp. at 569; Ryan v. Dow Chemical Co., 781 F.Supp. at 947).

In Winters, the Fifth Circuit found that the government had exercised sufficient control over the production of Agent Orange to satisfy the “acting under” requirement. 149 F.3d at 398-400. The Department of Defense had specified the precise mixture and the exact labeling of the drums containing Agent Orange. Id. at 399. See also In re “Agent Orange” Product Liability Litig., 304 F.Supp.2d 442, 450 (E.D.N.Y.2004). In McMahon v. Presidential Airways, Inc., the court held that the defendants met the “acting under” prong of the officer removal test because the contract between the Government and the defendant specified crew qualifications and equipment, and the airplane routes at issue were determined during meetings with Department of Defense personnel. 410 F.Sup.2d 1189, 1197, 1199 (M.D.Fla.2006). See also Blackman v. Asbestos Defendants (BHC), 1997 WL 703773 (N.D.Cal.1997) (holding that, because U.S. Air Force officials controlled the design and development of the asbestos-containing rocket motors, the defendants were acting under the control of the USAF). By contrast, the Arness court held that there was no causal nexus between the allegedly illegal disposal and storage of a chemical and the acts performed under federal direction when the government directed the defendant to use a certain chemical, but did not require the defendant to dispose of the chemical in a particular manner. Arness, 997 F.Supp. at 1274. See also Guillory v. Ree's Contract Service, Inc., 872 F.Supp. 344, 347 (S.D.Miss.1994) (holding that the defendant was not “acting under” the control of an officer because the contracts governing the defendant's conduct “expressly allowed the performance of acts that are not directed by ... any government officer” and did not direct the scope of activities at issue in the case).

Here, Plaintiffs contend that “neither the U.S. nor the military provided direct and detailed control of the specific electrical safety procedures or of Defendants' specific maintenance and installation of the generator and power washer at issue.” (Doc. No. 16, Pl. Mot., at 8.) Even if the military provided procedures and ordered the installation and maintenance, Plaintiffs argue that Defendants did not follow these procedures or else the Court would have to conclude that the U.S. government and the military directed KBR to create electrical hazards by installing the generator. (Doc. No. 16, Pl. Mot., at 9.) They cite findings from a Democratic Policy Committee ³ hearing that they claim suggests that the Department of Defense had no oversight of the contractor's electrical work. ⁴ KBR responds that the actions at issue were taken under the direct and detailed control of federal officers because KBR's maintenance and power generation services at Camp Taqaddum were performed pursuant to KBR's contract with the U.S. Army, and Task Orders 59 and 89. Specifically, KBR employees, Mark Ingle, a contracts administrator at Al Taqaddum, and Timothy Yarborough, an operations coordinator at Al Taqaddum, testified via declaration that KBR provided services to the Army in Iraq under a contract with the U.S. Army (“LOGCAP”). (SEALED Doc. No. 33, Ex. 4, ¶ 4; Ex. 5 ¶¶ 2-3.) Ingle and Yarborough aver that, in February 2005, KBR was specifically directed to perform generator operation and maintenance on 16 generators, not including the generator involved in Sgt. Everett's death in September 2005. (Ex. 4 at ¶ 11; Ex. 5 at ¶ 8; Ex. 4-C.) KBR attaches a letter from an administrative contracting officer in the Defense Contract Management Agency, who authorized the work on the 16...