Crosby v. A.O. Smith Water Prods. Co.
| Decision Date | 15 August 2014 |
| Docket Number | 14-cv-348 (AJN) |
| Parties | ROBERT J. CROSBY and SAHARA CROSBY, Plaintiffs, v. A.O. SMITH WATER PRODUCTS CO., et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Before the Court is Plaintiffs' motion to remand this action to state court for lack of subject matter jurisdiction. Dkt. No. 11. For the following reasons, the motion is denied.
Plaintiffs Robert J. Crosby and Sahara Crosby originally filed this action in New York state court against more than thirty Defendants. The substantive allegations in Plaintiffs' complaint occupy a single paragraph stating that Plaintiffs "repeat[] and reallege[]" the allegations in "Weitz & Luxenberg, P.C. Standard Asbestos Complaint for Personal Injury No. 7." Pet. Ex. 1 at 14. As elaborated in interrogatory responses provided to Defendants, Plaintiffs' core allegation is that Robert Crosby contracted lung cancer from his exposure to asbestos during his service in the U.S. Navy between 1960 and 1964, and that Defendants, who manufactured and supplied for the Navy products that contained asbestos, failed to furnish adequate warnings about asbestos's dangers. See Pet. ¶¶ 1-4; Pet. Ex. 2. A number of similar actions have been brought in courts around the country in recent years.
One of the Defendants named in Plaintiffs' complaint is Crane Co. ("Crane"). On January 17, 2014, Crane filed a notice of removal, invoking 28 U.S.C. § 1442(a)(1). Dkt. No. 1. In its removal petition, Crane avers that the products it manufactured and supplied to the Navy,including any warnings that accompanied those products, were subject to strict Navy specifications. Pet. ¶ 6. Under these circumstances, Crane argues, it cannot be liable to Plaintiffs because federal law preempts their state law failure-to-warn claims. Id. ¶ 14.
Plaintiffs filed the instant motion on February 7, 2014, and it was fully submitted as of February 28, 2014.
Plaintiffs raise two arguments in their motion to remand. First, they argue that Crane's removal petition was untimely. Second, they argue that Crane does not have the "colorable federal defense" required by 28 U.S.C. § 1442(a)(1), the removal statute that Crane has invoked. The Court will address these arguments in turn.
As relevant here, "[t]he notice of removal of a civil action or proceeding shall 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). Crane states that it was served with Plaintiffs' state court complaint "[o]n or about December 20, 2013," Pet. ¶ 4, and it filed its notice of removal on January 17, 2014, less than 30 days later. Thus, this action was timely removed.
Plaintiffs do not contest Crane's assertion that it was served on December 20. Instead, they argue that the thirty-day removal period started running on December 12, when Crane received certain interrogatory responses from Plaintiffs "containing the information and allegations giving rise to Crane's purported government contractor defense." Pl. Br. at 6; see Pet. ¶¶ 2-3. It is not entirely clear to the Court why an exchange of interrogatories had already taken place when Crane was served. Plaintiffs filed their summons and complaint in state court onDecember 10, so some Defendants may have been served earlier than Crane was,1 and given that Defendants and Plaintiffs' counsel appear to be repeat players with respect to asbestos litigation, the interrogatories were likely somewhat pro forma. See, e.g., Pet. Ex. 2 at 1 ().
In any event, Plaintiffs' timeliness argument fails. The thirty-day period starts running only when the defendant either is formally served with the complaint simultaneously with the summons or receives the complaint "by service or otherwise" after the summons has already been served. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999); Maddaloni Jewelers, Inc. v. Rolex Watch U.S.A., Inc., No. 02-cv-6438 (SAS), 2002 WL 31509881, at *2-3 (S.D.N.Y. Nov. 6, 2002). Even if that were not true and mere receipt of the complaint were a sufficient substitute for formal service (which it is not), see Mermelstein v. Maki, 830 F. Supp. 180, 182 (S.D.N.Y. 1993), Plaintiffs cite no authority suggesting that the receipt of an interrogatory response, as opposed to the complaint itself, would trigger the thirty-day removal period. The plain text of the statute refers to a "pleading."
It is true that under a different subsection of the removal statute, 28 U.S.C. § 1446(b)(3), the thirty-day removal period may be triggered by the defendant's "receipt" of a "pleading, motion, order, or other paper" that puts the defendant on notice of its federal defense. See Levy v. A.O. Smith Water Prods. Co., No. 12-cv-5152 (SAS), 2012 WL 2878140, at *2-3 (S.D.N.Y. July 13, 2012). But that rule applies only when the case is not removable as "stated in the initialpleading," which no one argues is the case here. 28 U.S.C. § 1446(b)(3). In short, this action was timely removed from state court.
A civil or criminal action originally filed in state court may be removed to federal court if, among other things, the action is directed at "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." 28 U.S.C. § 1442(a)(1). Crane is not a federal officer, but it may invoke this removal statute if it was a "person acting under" a federal officer. To do so, Crane must (1) show that it is a "person" within the meaning of the statute who "act[ed] under" a federal officer, (2) show that it "performed the actions for which [it is] being sued 'under color of [federal] office,'" and (3) raise a "colorable federal defense." Isaacson v. Dow Chem. Co., 517 F.3d 129, 135 (2d Cir. 2008) (). In this case, only the third requirement is at issue: Plaintiffs argue that Crane has not raised a colorable federal defense. Pl. Br. at 7. The Court disagrees.
A colorable federal defense must be "defensive" and "federal," and—where contractors are concerned—it must arise out of the defendant's duties "pursuant to [its] contractual relationship with the Federal Government." Isaacson, 517 F.3d at 139 (quoting Mesa v. California, 489 U.S. 121, 129-30 (1989)) (internal quotation marks omitted). "To be 'colorable,' the defense need not be 'clearly sustainable,' as the purpose of the statute is to secure that the validity of the defense will be tried in federal court." Id. (quoting Willingham v. Morgan, 395 U.S. 402, 407 (1969)).
In its removal petition, Crane asserts the so-called "government contractor" defense. Pet. ¶ 6. This defense was originally developed in a design defect case, Boyle v. United Technologies Corp., 487 U.S. 500 (1988). In Boyle, the Supreme Court held that "[l]iability for design defectsin military equipment cannot be imposed, pursuant to state law, when (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. This holding derived from the general principle that in areas involving "uniquely federal interests," state law is preempted and replaced by federal common law. Id. at 504 (quoting Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981)) (internal quotation marks omitted).
Courts of appeals, including the Second Circuit, have extended Boyle to the failure-to-warn context. See In re Joint E. & S. Dist. N.Y. Asbestos Litig., 897 F.2d 626, 629-30 (2d Cir. 1990). The Second Circuit has prescribed an arguably more demanding standard than some other circuits: the contractor must show that (1) "whatever warnings accompanied a product resulted from a determination of a government official, and thus that the Government itself 'dictated' the content of the warnings meant to accompany the product"; (2) the contractor complied with the Government's directions; and (3) the contractor warned the Government of any dangers "known to it but not to the Government." Id. at 630 & n.4 (citation omitted); cf., e.g., Tate v. Boeing Helicopters, 55 F.3d 1150, 1157 (6th Cir. 1995) ().
Crane's defense is "defensive" and "federal," and it arises out of its contractual duty to manufacture products for the Navy. Isaacson, 517 F.3d at 139. The Court also concludes for the reasons detailed below that Crane's defense, as described in its removal petition, is sufficiently consistent with the Second Circuit's government contractor defense standard in failure-to-warn cases to rank as "colorable." See id. ().
In mounting its federal defense at this stage of the proceeding, Crane asserts that any materials to which Robert Crosby would have been exposed in the Navy were manufactured according to Navy specifications and that warnings on the products also would have had to comply with those specifications. Pet. ¶ 6. According to Crane, "[t]he Navy's specifications governed not only the design and construction of Crane Co.'s products, but also the form and content of any labeling, product literature, or warnings supplied with the products." Id. ¶ 14. The Navy reviewed product literature that accompanied Crane's products and, ...
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