Ayotte v. Boeing Co.

• Citation: 316 F.Supp.3d 1066
• Decision Date: 22 June 2018
• Docket Number: No. 18 C 2662,18 C 2662
• Parties: Daniel L. AYOTTE, Plaintiff, v. The BOEING COMPANY, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

316 F.Supp.3d 1066

Daniel L. AYOTTE, Plaintiff,

v.The BOEING COMPANY, et al., Defendants.

No. 18 C 2662

United States District Court, N.D. Illinois, Eastern Division.

Signed June 22, 2018

Charles A. Porretta, Lawrence R. Weisler, Robert John Cooney, Jr., Cooney & Conway, Chicago, IL, for Plaintiff.

Leslie Anne Federer, Maron Marvel Bradley Anderson & Tardy LLC, Brett Michael Mares, Tobin J. Taylor, Heyl Royster Voelker & Allen, Sean Patrick Fergus, O'Connell, Tivin, Griffin & Burn LLC, McRay Judge, II, Richard P. Tauras, Charles Matthew Alva, Drew M. Schilling, Meggie Francine Hogan, Erica S. Longfield, Anthony Joseph Monaco, Timothy S. McGovern, Michael William Drumke, Adam H. Doeringer, Stephanie Rifkind, John Paul Arranz, Swanson, Martin & Bell LLP, Thomas Joseph Burns, Stephen Richard Vedova, Joseph Philip Rejano, Amanda Kay Bagley, Jackie W. Miller, Meredith Suzanne Hudgens, Foley & Mansfield, Daniel Michael Finer, Jessica Noelle Odum, Tucker Ellis LLP, William Alzugaray, Sinars Rollins LLC, Edward J. McCambridge, James L. Svajgl, Patrick Francis Sullivan, III, Jonathan Mark Lively, Laura Jane Henneman, Segal, McCambridge, Singer & Mahoney, Ltd., James T. Rollins, Katherine Courtney Gustin, Sinars Rollins LLC, Jennifer L. Dlugosz, Husch Blackwell LLP, David M. Holmes, Anthony Michael Goldner, Wilson, Elser, Moskowitz, Edelman & Dicker, Heather D. Erickson, Mark Edward Winters, Robert Franklin Kunkel, Renee Ziolkowski, Meghan Domenica White, Sanchez Daniels & Hoffman LLP, Catherine E. Goldhaber, Karen M. Rheingans, Hawkins, Parnell, Thackston & Young, LLP, Eric D. Rosser, Temi F. Oduala, HeplerBroom LLC, Gregory M. McMahon, Brian Thomas Lesiewicz, Maron Marvel Bradley Anderson & Tardy, LLC, Eric Michael Roberts, Mary Marcia Shepro, DLA Piper LLP (US), Jacob D. Sawyer, Lauren Lee Bever, Lewis Brisbois Bisgaard & Smith, LLP, Audrey Denise Mense, Thompson Coburn LLP, Daniel William McGrath, Hinshaw & Culbertson LLP, Rebecca L. Dircks, Zaiba Baig, Benesch Friedlander Coplan & Aronoff LLP, Meghan McKenna Sciortino, Angela Marie Kotsalieff, Johnson & Bell, Ltd., Jiwon Juliana Yhee, Masuda, Funai, Eifert & Mitchell, Ltd., William Alzugaray, Sinars Rollins LLC, Elizabeth Price Mazzocco, Patrick Joseph McMahon, Foley And Lardner, Joy Nicole Johns, Lindsey T. Millman, Quarles & Brady LLP, Chicago, IL, John J. Kurowski, Kurwoski Shultz, LLC, O'Fallon, IL, Steven Gustaf Carlson, von Briesen & Roper, Milwaukee, WI, Jessica Lynn Prosperi, Rasmussen Dickey Moore, LLC, Steven Thomas Walsh, Timothy Peter Tryniecki, Sandberg Phoenix & Von Gontard P.C., St. Louis, MO, Erick E. Vandorn, Erik P. Lewis, Thompson Coburn LLP, Belleville, IL, Gregory T. Henry, Rasmussen Dickey Moore, LLC, Kansas City, MO, John B. Stanis, Masuda, Funai, Eifert & Mitchell, Ltd., Schaumburg, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Chief Judge Rubén CastilloDaniel L. Ayotte ("Plaintiff") filed this action in the Circuit Court of Cook County, Illinois, alleging claims against a host of defendants, including The Boeing Company ("Boeing"), arising from his exposure to asbestos. (R. 1–1, Compl.) Boeing removed the action to this Court. (R. 1, Notice of Removal.) Before the Court is Plaintiff's motion to remand the case to state court. (R. 240, Mot. to Remand.) For the reasons set forth below, the motion is denied.

BACKGROUND

In September 2016, Plaintiff was diagnosed with mesothelioma

, and in September 2017, he filed suit against Boeing and other defendants asserting that his illness was caused by exposure to asbestos. (R. 1–1, Compl.) He alleged that he was "exposed to and inhaled, ingested or otherwise absorbed asbestos fibers emanating from certain products he was working with and around that were manufactured, sold, distributed, marketed or installed by the Defendants[.]" (Id. at 4.) He claimed that his exposure occurred sometime between 1970 and 2004 while he was serving in the U.S. Air Force, working as a commercial airline mechanic, and/or engaging in home remodeling and other activities. (Id. at 4–14.) As to Boeing, he alleged that he was exposed to asbestos in Boeing's products "during the course of his employment, non-occupational work projects (including, but not limited to, home and automotive repairs, maintenance, and remodeling) and/or in other ways[.]" (Id. at 4.)

Boeing was served with the complaint on September 21, 2017, and filed its answer on October 30, 2017. (R. 240–5, Docket at 71; R. 240–3, Answer.) In addition to denying the bulk of the allegations in the complaint, Boeing asserted 23 separate affirmative defenses, including that Boeing "is immune from liability as a government contractor who manufactured the products to which Plaintiff claims to have been exposed pursuant to reasonably precise specifications of the United States government." (R. 240–3, Answer at 10.) In the ensuing months, Plaintiff amended his complaint several times, although the substance of the allegations against Boeing remained the same.¹ (See R. 240–5, Docket at 14, 60, 122, 136; R. 240–6, Fourth Am. Compl.; R. 240–7, Fifth Am. Compl.)

In October 2017, Plaintiff executed an authorization for release of his military records. (R. 1–2, Disc. Resp. at 8–19.) In November 2017, Plaintiff filed a disclosure of expected trial witnesses. (R. 240–4, Disclosure.) As to Boeing, he disclosed that he and several other witnesses intended to testify about his work at three different military bases during the 1970s, as well as his work as a commercial mechanic at three different airports between 1979–2004, during which time he claimed to have been exposed to asbestos in Boeing's products. (Id. )

On March 13, 2018, Boeing gained electronic access to Plaintiff's military records. (R. 1–4, Military Records.) Those records showed that while serving in the U.S. Air Force, Plaintiff worked on various Boeing airplanes, including B–52s and KC–135s, which, according to Boeing, were specifically manufactured by Boeing for the U.S. military. (Id. at 9; R. 1–7, Leatherman Decl. ¶¶ 11–30.) On March 20, 2018, Plaintiff sat for the first day of his discovery deposition, and it was revealed that Plaintiff had worked on DC–3 aircraft during his time as a commercial airline mechanic. (R. 1–5, Pl.'s Dep. Tr. at 12.) According to Boeing, a significant number of DC–3 aircraft were Boeing C–47 and C–54 planes that were originally manufactured for the U.S. military, sold as military surplus after World War II, and converted for commercial use. (R. 1–7, Leatherman Decl. ¶¶ 31–33.)

On April 12, 2018, Boeing removed the case to this Court on the basis of federal officer jurisdiction. (R. 1, Notice of Removal.) Boeing asserts that removal is proper because it is "being sued for asbestos-related injuries arising from or relating to equipment that it manufactured and supplied to the United States government under the government's detailed direction and control[.]" (Id. at 5.) On May 11, 2018, Plaintiff moved to remand the case to state court. (R. 240, Mot. to Remand.) In Plaintiff's view, Boeing's notice of removal was untimely because it was not filed within 30 days of the date Boeing was served with the original complaint. (Id. at 4–5.) Boeing opposes the motion to remand, arguing that its notice of removal was timely because it was filed within 30 days of the date Boeing obtained information providing the basis for its assertion of federal officer jurisdiction. (R. 296, Resp. at 5–12.)

LEGAL STANDARD

"[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States." 28 U.S.C. § 1441(a). A notice of removal must be filed "within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based[.]" 28 U.S.C. § 1446(b)(1). When it is not apparent from the complaint that the case is removable, a notice of removal may be filed "within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one in which is or has become removable." 28 U.S.C. § 1446(b)(3). The party removing the action "bears the burden of establishing federal jurisdiction." Tri–State Water Treatment, Inc. v. Bauer , 845 F.3d 350, 352 (7th Cir. 2017). A removing party meets this burden by submitting evidence demonstrating a "reasonable probability" that jurisdiction exists. Schimmer v. Jaguar Cars, Inc. , 384 F.3d 402, 404 (7th Cir. 2004) (citation omitted).

A case must be remanded to state court if subject-matter jurisdiction is lacking or if the defendant failed to comply with the removal statute. See generally GE Betz, Inc. v. Zee Co. , 718 F.3d 615, 625–26 (7th Cir. 2013). "In considering a motion for remand, the court must examine the plaintiff's complaint at the time of the defendant's removal and assume the truth of all factual allegations contained within the original complaint." Elftmann v. Vill. of Tinley Park , 191 F.Supp.3d 874, 878 (N.D. Ill. 2016) (citation omitted). The Court can also consider "summary judgment-type evidence such as affidavits and deposition testimony," provided that the Court does not use this evidence "to ‘pre-try’ the case[.]" Brokaw v. Boeing Co. , 137 F.Supp.3d 1082, 1092 (N.D. Ill. 2015) (citation omitted).

ANALYSIS

Congress has granted a right of removal to federal officers who face civil or criminal lawsuits in state court based on their official acts. 28 U.S.C. § 1442(a)(1). The removal statute provides in pertinent part:

A civil action or criminal prosecution that is commenced in a State court and that is against or directed to 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: ... The

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