Ellis v. Pneumo Abex Corp.

• Decision Date: 20 June 2011
• Docket Number: Case No.: 11–01128.
• Citation: 798 F.Supp.2d 985
• Parties: Linda ELLIS, Individually and as special administrator of the estate of Walter Tom, deceased, Plaintiff, v. PNEUMO ABEX CORP., Pneumo Abex LLC, Metropolitan Life Insurance Co., Owens–Illinois Inc., Honeywell International Inc., Garlock Sealing Technologies LLC, John Crane Inc., Aurora Pump Co., Buffalo Pumps Inc., Warren Pumps Inc., Tyco Flow Control Inc., Foster Wheeler AG, Westinghouse Electric Company LLC, and Crane Co., Defendants.
• Court: U.S. District Court — Central District of Illinois

798 F.Supp.2d 985

Linda ELLIS, Individually and as special administrator of the estate of Walter Tom, deceased, Plaintiff,

v.PNEUMO ABEX CORP., Pneumo Abex LLC, Metropolitan Life Insurance Co., Owens–Illinois Inc., Honeywell International Inc., Garlock Sealing Technologies LLC, John Crane Inc., Aurora Pump Co., Buffalo Pumps Inc., Warren Pumps Inc., Tyco Flow Control Inc., Foster Wheeler AG, Westinghouse Electric Company LLC, and Crane Co., Defendants.

Case No.: 11–01128.

United States District Court, C.D. Illinois.

June 20, 2011.

James R. Wylder, Andrew J. Kelly, Wylder Corwin Kelly LLP, Bloomington, IL, for Plaintiff.

Robert Westwood Scott, Timothy Whitzel Swain, II, Swain Hartshorn & Scott, Lisa A. Laconte, Mark A. Ludolph, Heyl Royster Voelker & Allen, Peoria, IL, Lise Alexandra Newton, Foley & Mansfield, Luke J. Mangan, Nicole C. Behnen, Polsinelli Shughart PC, St. Louis, MO, Joshua Douglas Lee, Schiff Hardin LLP, John J. Kohnke, Segal McCambridge Singer & Mahoney Ltd., James Paul Kasper, Gunty & McCarthy, Chicago, IL, for Defendants.

ORDER

MICHAEL M. MIHM, District Judge.

This matter is now before the Court on Plaintiff's Motion to Remand [# 8] pursuant to 28 U.S.C. § 1446(c)(4) or alternatively, 28 U.S.C. § 1447(c) and Defendant's Motion to Stay [# 12]. For the reasons set forth below, the Motion to Remand [# 8] is DENIED and the Motion to Stay [# 12] is GRANTED.

BACKGROUND

On February 16, 2010, Plaintiffs Walter Tom, now deceased, and Linda Ellis filed a Complaint [# 1] in state court in McLean County, Illinois, alleging that Walter Tom was exposed to asbestos during his service aboard the USS Voglegsang and USS Sylvania. Plaintiffs allege that this exposure resulted in Walter Tom's contraction of asbestos related lung cancer. After Walter Tom's death, Plaintiff Linda Ellis filed an amendment to her Amended Complaint [# 1] on January 21, 2011, adding CBS Corporation, sued in the present case as Westinghouse Electric Co., LLC (“Westinghouse”), and Crane Company as defendants. On March 29, 2011, Westinghouse filed a notice to remove the case to this Court pursuant to 28 U.S.C. § 1442(a)(1) on grounds of asserting a government contractor defense. Plaintiff now moves to remand the action to state court. Westinghouse has filed a Response to Plaintiff's Motion to Remand [# 13], and Crane Co. has filed an Opposition to Plaintiff's Motion to Remand [# 16]. Defendant Westinghouse moves to stay proceedings pending the transfer of the present case to MDL–875. Plaintiff has filed a Response to CBS Corporation (Westinghouse's) Motion to Stay Pending Transfer to MDL–875 [# 17]. The matters are fully briefed, and this Order follows.

DISCUSSION

I. Plaintiff's Motion to Remand [# 8]

Defendant Westinghouse does not dispute that it is within the discretion of this Court to consider the merits of Plaintiff's Motion to Remand [# 8] but asks that the Court exercise its discretion to stay proceedings pending transfer to MDL–857. The Seventh Circuit Court of Appeals held that a court's first duty in every suit is “to determine the existence of subject matter jurisdiction.” Johnson v. Wattenbarger, 361 F.3d 991, 992 (7th Cir.2004). This Court, therefore, agrees with the courts within the Seventh Circuit which have held that “a court should first give preliminary scrutiny to the merits of the motion to remand” when a case is pending transfer to MDL. Meyers v. Bayer AG, 143 F.Supp.2d 1044, 1053 (E.D.Wis.2001); See also Brooks v. Merck & Co., Inc., 443 F.Supp.2d 994, 997 (S.D.Ill.2006). Accordingly, this Court has considered the merits of the Plaintiff's Motion and, for the reasons discussed below, denies remand to state court.

Title U.S.C. § 1441(a) allows a defendant to remove to federal court any civil action originally brought in state court if the federal court has original jurisdiction over the matter. Under 28 U.S.C. § 1332, such jurisdiction is present in “all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest or costs,” and the parties are of diverse citizenship. 28 U.S.C. § 1332(a). The federal officer removal statute is an exception to the requirement that a federal question appear in the complaint and allows cases to be removed to federal court when “any officer (or any person acting under that officer) of the United States or of any agency thereof, [is] sued in an official or individual capacity for any act under color of such office.” 28 U.S.C. § 1442(a)(1). The statute may be invoked by one defendant acting independent of any co-defendants. See State of Wis. v. Schaffer, 565 F.2d 961, 964 (7th Cir.1977); Bradford v. Harding, 284 F.2d 307, 310 (2d Cir.1960); Ely Valley Mines, Inc. v. Hartford Acci. & Indem. Co., 644 F.2d 1310, 1314–15 (9th Cir.1981).

This case is similar to others involving asbestos exposure in the Navy in that its primary evidentiary support is in the form of affidavits of expert testimony of people either formerly in the Navy or who have worked with the Navy. Some courts have found that such evidence is insufficient to support federal officer removal. Westmiller v. IMO Indus., 2005 WL 2850334, 2005 U.S. Dist. LEXIS 29371 (W.D.Wash. Oct. 20, 2005); Nguyen v. Allied Signal, 1998 WL 690854, 1998 U.S. Dist. LEXIS 15517 (N.D.Cal. Sept. 28, 1998). Others have permitted affidavits to stand as evidence. See Venezia v. Robinson, 16 F.3d 209, 212 (7th Cir.1994); Harris v. Rapid Am. Corp., 532 F.Supp.2d 1001 (N.D.Ill.2007); Machnik v. Buffalo Pumps Inc., 506 F.Supp.2d 99 (D.Conn.2007). Removal statutes are typically subject to strict scrutiny with preference given to remand in the event of doubt. The ultimate purpose, however, of § 1442(a)(1) is to protect officers of the federal government from liability while performing the duties of their office. Therefore, the Supreme Court has rejected a narrow interpretation of the statute and held that the federal officer removal “statute must be ‘liberally construed.’ ” Watson v. Philip Morris Cos., 551 U.S. 142, 147, 127 S.Ct. 2301, 168 L.Ed.2d 42 (U.S.2007) (quoting Colorado v. Symes, 286 U.S. 510, 517, 52 S.Ct. 635, 76 L.Ed. 1253 (1932) (“It scarcely need be said that such measures are to be liberally construed to give full effect to the purposes for which they were enacted.”)). In consideration of the ultimate purpose of the statute, we join with the courts which have held that evidence in the form of affidavits is sufficient to sustain federal officer removal.

To remove a case under § 1442(a)(1), the moving party “must establish that he is a federal official or is ‘acting under’ such an official” and assert a “federal defense to the claim.” Venezia, 16 F.3d at 211–12. The moving party must also show that the claim “depends on the defendant's following the directions issued by that federal officer.” Pollitt v. Health Care Service Corp., 558 F.3d 615, 616 (7th Cir.2009). The United States District Court of the Northern District of Illinois has derived a three-part test from the Seventh Circuit Court of Appeal's guidelines to remove a case under § 1442(a)(1): a defendant must establish that “(1) it is a ‘person’ within the meaning of the statute; (2) it acted under the direction of a federal officer, meaning there is a nexus or causal connections between plaintiff's claims and its actions; and (3) it can assert a colorable federal defense to state-law liability.” Harris v. Rapid Am. Corp., 532 F.Supp.2d 1001, 1003 (N.D.Ill.2007). This Court finds this test instructive for the present case.

A. Person Within Meaning of § 1442(a)(1)

The first element requires a defendant to establish that “it is a person within the meaning of the statute.” Harris, 532 F.Supp.2d at 1003. Here, the moving party, Westinghouse, is a corporation. Plaintiff does not argue that Westinghouse is not a person within the meaning of this statute in her Motion. This Court, however, agrees with the great weight of authority holding that a corporation is a person within the meaning of this statute. See Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 996 (7th Cir.1996) (holding that a corporation successfully asserted a government contractor defense); Alsup v. 3–Day Blinds, Inc., 435 F.Supp.2d 838, 845 (S.D.Ill.2006); Bennett v. MIS Corp., 607 F.3d 1076, 1085 (6th Cir.2010); Camacho v. Autoridad de Telefonos de Puerto Rico, 868 F.2d 482, 486–87 (1st Cir.1989).

B. Acting Under a Federal Official

The federal officer removal statute requires a defendant to show that it acted under a federal official. Venezia, 16 F.3d at 211. The Seventh Circuit Court of Appeals has held that this requirement may be satisfied by a showing that a defendant assisted or helped to carry out “the duties or tasks of the federal superior.” Kelly v. Martin Bayley, Inc., 503 F.3d 584, 587 (7th Cir.2007). Here, Defendant supplied the Navy with equipment for its operations according to the Navy's guidelines. Defendant has submitted evidence in the form of numerous detailed specifications dictated by the Navy to be followed in the manufacturing and labeling of the equipment as well as testing procedures used by the Navy to ensure the products were up to their standards. The Court, therefore, concludes that this requirement is satisfied.

A defendant must then show a causal nexus between the claim and the acts that occurred while the defendant was directed by a federal office. See Pollitt, 558 F.3d at 616; Harris, 532 F.Supp.2d at 1003. Plaintiff's claim alleges a failure to warn of the dangers associated with asbestos. Defendants have submitted evidence in the form of affidavits of former Navy Rear Admirals and technical manuals indicating that labeling, including warning labels, and safety manuals were regulated by the Navy's safety guidelines and subject to a review process. Based on this information, the Court concludes the causal nexus requirement is met.

C. A Colorable Federal Defense

A defendant must assert “a colorable federal defense” to satisfy the...