Bennett v. Mis Corp.

Decision Date04 June 2010
Docket NumberNo. 08-2567.,08-2567.
Citation607 F.3d 1076
PartiesTeresa BENNETT, Richard Bennett, Lewis Bird, Paula Bird, Bernard Campau II, Tammy Campau, Ranald Carlson, Michelle Carlson, Elizabeth Dale, Kimberly Eberhart, Patrick Eberhart, Amelia Haefner, Robert Haefner, Angela Moran, Rob Moran, Jill Pakledinaz, Adam Pakledinaz, Klint Simmel, Tracy Simmel, Vincent Sugent, Jamie Sugent, Richard Wheatley, John Eby, Cookie Eby, Tracy Gillian, Kyle Gillian, Richard Herbert, Marshal Herbert, Gary Klawender, Stephanie Klawender, Ronald Pytlak, Nancy Pytlak, Richard Rodriguez, Daniel Ruehl, Mary Ruehl, David Parker, and Barbara Parker, Plaintiffs-Appellants,v.MIS CORPORATION, Coach's Catastrophic Cleaning & Restoration Services, Inc., TE/OC, Inc., Clayton Environmental Consultants, Bureau Veritas North American, Inc., Jacobs Facilities, Inc., and Safe Technology, Inc., Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit





ARGUED: Gene S. Davis, Fisher Davis PLC, Grosse Pointe, Michigan, for Appellants. Brian H. Phinney, Foley, Baron & Metzger, PLLC, Livonia, Michigan, Donald J. Parthum, Jr., Provizer & Phillips, PC, Bingham Farms, Michigan, Richard B. Poling, Jr., Poling, McGaw & Poling, P.C., Troy, Michigan, Deborah A. Hebert, Collins, Einhorn, Farrell & Ulanoff, P.C., Southfield, Michigan, Ralph C. Chapa, Jr., Kaufman, Payton & Chapa, Farmington Hills, Michigan, Evan A. Burkholder, LeClair Ryan, Dearborn, Michigan, for Appellees. ON BRIEF: Gene S. Davis, Fisher Davis PLC, Grosse Pointe, Michigan, for Appellants. Brian H. Phinney, Foley, Baron & Metzger, PLLC, Livonia, Michigan, Randall E. Phillips, Provizer & Phillips, PC, Bingham Farms, Michigan, Richard B. Poling, Jr., Poling, McGaw & Poling, P.C., Troy, Michigan, Deborah A. Hebert, Collins, Einhorn, Farrell & Ulanoff, P.C., Southfield, Michigan, Ralph C. Chapa, Jr., Lawrence C. Atorthy, Kaufman, Payton & Chapa, Farmington Hills, Michigan, Evan A. Burkholder, LeClair Ryan, Dearborn, Michigan, for Appellees.

Before SILER, MOORE, and GRIFFIN, Circuit Judges.


GRIFFIN, Circuit Judge.

Plaintiffs are air traffic controllers who allege personal injuries based on their exposure to toxic mold at the Detroit Metropolitan Wayne County Airport (DTW). They claim that several mold remediation firms hired by the Federal Aviation Administration (FAA) negligently performed their contracts and exacerbated the building's existing mold contamination. Plaintiffs appeal the district court's order dismissing their complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Because we conclude that all defendants but one were properly dismissed, we affirm the district court's judgment in part and reverse in part.


Plaintiffs are FAA employees who work as air traffic controllers in DTW's air traffic control tower (“tower”).1 In September 2004, the FAA discovered mold in the tower's storage areas and hired MoldQuest International, L.L.C. (“MoldQuest”) to investigate. MoldQuest's testing revealed “significant levels” of mold contamination, including the presence of Stachybotrys, commonly referred to as toxic mold. MoldQuest's report stated that “the presence of Stachybotrys indicated the affected wall materials had been saturated for an extended period of time.”

The FAA hired a private mold remediation firm, defendant MIS Corporation, Inc. (MIS), to treat and remove the mold in the tower's fourth and ninth floors.2 Plaintiffs allege that MIS's remediation, which took place in January 2005, was “disastrous[,] causing toxic mold to spread throughout the tower.3

The FAA hired defendant TE/OC, Inc. (TE/OC), an environmental consulting firm, to evaluate the scope of the cross-contamination and to recommend mitigation strategies. TE/OC recommended that the FAA retain another mold remediation firm to spray the tower's fourth and ninth floors and its elevator shaft with “approved microbiologic biocide.” The FAA thereafter hired Coach's Catastrophic Cleaning & Restoration Services, Inc. (Coach) to perform a second remediation.

On January 22, 2005, defendant Coach sprayed the tower's fourth and ninth floors and elevator shaft using “an unmarked container[.] “Within hours of the spraying, eight air traffic controllers became ill and sought immediate medical treatment[,] resulting in a five-hour tower-wide employee evacuation. According to plaintiffs, Coach's spray contained “1 Octanol, Undecone, 1-Dodecane, Dodecane, and Tridecane[,] which can cause “numerous health hazards [,] including ... lung damage, drowsiness, dizziness, [ ] pulmonary edema, asphyxiation, ... vomiting, [ ] and [ ] death.”

Despite two professional mold remediations, the contamination persisted. The National Air Traffic Controllers Association (plaintiffs' union) hired Wonder Makers Environmental, Inc. (“Wonder Makers”) to evaluate the tower's contamination. Wonder Makers detected various strains of mold on the fourth, ninth, and tenth floors, and toxic mold in “air and dust samples” collected “throughout the building.”

The FAA again contracted with MIS to perform a third remediation. They also hired Safe Technology, Inc. (Safe) to recommend an effective mold remediation plan and to provide air-quality testing. In addition, the FAA retained a Certified Industrial Hygienist (“CIH”) from Clayton Environmental Consultants (“Clayton”) to assist MIS with its remediation efforts.

MIS performed the third mold remediation in May 2005, executing the FAA's specifications according to the consulting reports the FAA received from Clayton and Safe. Plaintiffs assert that Safe's report was flawed because it failed to address several cross-contamination issues. After the third remediation, plaintiffs reported “an increase in the [ ] severity of [their mold-exposure] symptoms.”

In June 2005, the FAA hired defendant Jacobs Facilities, Inc. (Jacobs) to conduct a site survey and to prepare an assessment report. Jacobs's investigation revealed that the tower's elevator shaft “act[ed] as a piston [that] forc[ed] [contaminated mold-spore] air into each level of the building [.] The report characterized the tower's overall contamination as “minor,” but nonetheless recommended a thorough cleaning of the tower's elevator shaft with a “bleach/water solution.”

In May 2006, the FAA hired MIS to perform a fourth remediation, focusing on the tower's elevator shaft. At the direction of the FAA, MIS executed many of Jacobs's recommendations regarding the treatment of mold and other contaminated materials located in the shaft.

Wonder Makers returned in December 2006 to conduct additional testing. Its sampling indicated that the May 2006 remediation failed to “remov[e] all fungal materials.” Wonder Makers recommended to the FAA an invasive sampling of the elevator's interior liner to determine if mold spores were present beneath the liner. The FAA ultimately rejected Wonder Makers's recommendation.

In light of plaintiffs' “contin[uing] complaints of health problems,” the FAA hired Applied Environmental, Inc.4and Safe to investigate whether their multiple remediations had eradicated the mold. In June 2007, Safe recommended that no further mold testing or remediation was required. The FAA adopted Safe's assessment and did not hire MIS to perform a fifth remediation. According to plaintiffs, however, Safe was hired to simply rubber stamp the FAA's decision to cease its mold remediation efforts.


On September 6, 2007, plaintiffs filed a complaint in the Circuit Court of Wayne County, Michigan, claiming that TE/OC, Safe, Jacobs, and Bureau Veritas North American, Inc., Clayton's successor by merger, were negligent in their consultation and evaluation of the tower's mold contamination and that MIS and Coach negligently executed their mold remediation contracts with the FAA.5Plaintiffs sought compensatory and punitive damages in excess of $25,000 resulting from their exposure “to indoor air contamination and ineffective [mold] remediation.”

MIS removed plaintiffs' complaint to the United States District Court for the Eastern District of Michigan pursuant to 28 U.S.C. § 1442(a)(1), the federal officer removal statute, asserting that it was acting under the color of federal office by virtue of its multiple contracts with the FAA.6 MIS argued that it was immune from liability under the government contractor defense because the FAA had closely regulated, monitored, and supervised each mold remediation. Plaintiffs moved to remand the case, which the district court denied after conducting a jurisdictional hearing.

Relying upon Fultz v. Union-Commerce Associates, 470 Mich. 460, 683 N.W.2d 587 (2004), and its progeny, defendants moved to dismiss the complaint on the grounds that Michigan law does not recognize third-party tort actions for alleged negligent breaches of contract. Plaintiffs contested the dismissal and moved the district court for leave to file an amended complaint.

After extensive briefing, the district court granted defendants' motions to dismiss and denied plaintiffs' motion to amend their complaint on futility grounds. Specifically, the district court ruled that the operative complaint and proposed amended complaint failed to allege that defendants owed plaintiffs a duty that was “separate and distinct” from defendants' contractual obligations to the FAA. See Fultz, 683 N.W.2d at 589.

Plaintiffs timely appeal.


Plaintiffs first claim that the district court lacked subject matter jurisdiction based upon the purported inapplicability of the government contractor defense. We disagree. The district court's subject matter jurisdiction was not dependant upon the success of the government contractor defense; rather, MIS needed only to assert a “colorable” federal defense at the time of removal. Mesa...

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