Harris v. Rapid American Corp., 07 C 6055.

• Decision Date: 18 December 2007
• Docket Number: No. 07 C 6055.,07 C 6055.
• Citation: 532 F.Supp.2d 1001
• Parties: Mary Ellen HARRIS, Special Administrator of the Estate of Thomas Lee Harris, Deceased, Plaintiff, v. RAPID AMERICAN CORPORATION, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

532 F.Supp.2d 1001

Mary Ellen HARRIS, Special Administrator of the Estate of Thomas Lee Harris, Deceased, Plaintiff, v. RAPID AMERICAN CORPORATION, et al., Defendants.

No. 07 C 6055.

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

December 18, 2007.

COPYRIGHT MATERIAL OMITTED

Katharine Crane Byrne, Michael T. Egan, Jr., Cooney & Conway, Chicago., IL, for Plaintiff.

Robert J. Brummond, Christina E. Dubis, Foley & Mansfield P.L.L.P., St.,Louis, MO, John Mark Mooney, Foley & Mansfield P.L.L.P., Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

JAMES B. MORAN, Senior District Judge.

Thomas Lee Harris died of asbestos-caused lung cancer on September 15, 2007. Plaintiff Mary Ellen Harris, his' widow, brought this action against Viad Corp. and numerous other defendants in Illinois state court. Plaintiffs claims are derived solely from state law. Defendant Viad Corporation, asserting Federal Officer jurisdiction, removed the entire action to this court under 28 U.S.C. § 1442(a)(1). Plaintiff moved for remand to state court. For the reasons stated below, the motion is denied.

BACKGROUND

Thomas Harris enlisted in the Navy in 1957 and was stationed at Great Lakes Naval Training Center. After training to become a machinist mate, he was assigned to the U.S.S. Montrose to work on the ship's evaporators, pumps and compressors. He worked in this capacity until he was discharged in 1960.

Plaintiff alleges that Harris was exposed, without warning, to asbestos-containing evaporators manufactured by defendant Viad's predecessor, Griscom-Russell. Specifically the alleged exposure took place while Harris was in active service and stationed at Great Lakes Naval Training Center and on board the U.S.S. Montrose. Defendant Viad does not challenge plaintiff's assertion that Harris was exposed to asbestos, but Viad contends that the Navy specified all mechanical equipment in question and dictated what warnings were to be provided with the equipment. As such, Viad asserts a military contractor defense that, it contends, allows it to litigate this case in federal court.

Legal Standard

The Federal Officer Removal Statute provides in relevant part:

A civil action or criminal prosecution commenced in a State court against 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; (1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office....

28 U.S.C. § 1442(a)(1). The party seeking removal under "§ 1442 must demonstrate 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 plaintiffs claims and its actions; and (3) it can assert a colorable federal defense to state-law liability. See 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, 129, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989); Arizona v. Manypenny, 451 U.S. 232, 242, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981).

Typically, removal statutes are construed narrowly, with any doubt as to the right of removal resulting in remand to state court. Jefferson County, 527 U.S. at 430-31, 119 S.Ct. 2069. See also Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993). Removal under § 1442 is an exception to that general rule. Jefferson County, 527 U.S. at 431, 119 S.Ct. 2069. Although the burden of proving federal jurisdiction under § 1442 is on the defendant, the Supreme Court has held that "the policy favoring removal should not be frustrated by a narrow, grudging interpretation of § 1442(a)(1)." Manypenny, 451 U.S. at 242, 101 S.Ct. 1657 (internal quotations omitted).

The basic purpose of § 1442(a)(1) is to ensure a federal forum for defenses of official immunity by federal officers. Willingham v. Morgan, 395 U.S. 402, 407, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). Thus, removal under § 1442(a)(1) forgoes the usual "well-pleaded complaint" rule. Even if a plaintiffs complaint does not, on its own, raise a federal question, federal jurisdiction is proper where a defendant meets the three requirements. Jefferson County, 527 U.S. at 430-31, 119 S.Ct. 2069. But the federal defense need only be colorable, not guaranteed to prevail. Mesa, 489 U.S. at 133, 109 S.Ct. 959.

Analysis

Over the last several years, numerous former members of the military have brought suits in state court claiming failure to warn of the dangers of asbestos, only to have the suits removed to federal court by defendants invoking the Federal Officer Removal Statute. These cases often rely on similar facts that took place many years back. In most cases, because the details took place so long ago, the defendants support removal with affidavits concerning past policies and practices of the U.S. Navy. Often times these affidavits come from the same limited pool of experts. This is just such a case.

The federal courts, however, have disagreed on whether these affidavits are sufficient to support Federal Officer, Removal. Some courts have found that the affidavits are not specific enough to support removal and have remanded the cases back to state court. See, e.g., Westmiller v. Imo Industries, Inc., No. C05-945RSM, 2005 WL 2850334 (W.D.Wash. Oct.20, 2005); Schilz v. A.P. Green Industries, Inc., No. C01-4299 MMC, 2002 WL 102608 (N.D.Cal. Jan.15, 2002); Westbrook v. Asbestos Defendants, No. C-01-1661 VRW, 2001 WL 902642 (N.D.CaI. Jul.31, 2001); Nguyen v. Allied Signal, No. C 98-03616 SI, 1998 WL 690854 (N.D.Cal. Sep.29, 1998). Others have held that circumstantial evidence (like the affidavits) is sufficient to at least allow the defendants to proceed in federal court. See, e.g., Contois v. Able Industries, Inc., No. 3:07CV01328(AWT), 2007 WL 3355680 (D.Conn. Nov.13, 2007); Machnik v. Buffalo Pumps, Inc., 506 F.Supp.2d 99 (D.Conn.2007); Ballenger v, Agco Corp., No. C 06-2271 CW, 2007 WL 1813821 (N.D.Cal. June 22, 2007); Ferguson v. Lorillard Tobacco Co., Inc., 475 F.Supp.2d 725 (N.D.Ohio 2007); Nesbiet v. General Electric Co., 399 F.Supp.2d 205 (S.D.N.Y.2005). Because we believe that the latter approach is most in keeping with the goal of § 1442(a)(1), we join those courts that have held that circumstantial evidence is sufficient to remove a case to federal court under § 1442(a)(1). Because plaintiff makes no argument that Viad is not a "person" under the statute, we discuss only the second and third requirements for Federal Officer. Removal.

A. Viad Acted Under the Direction of a Federal. Officer

Plaintiff argues that Viad has not shown that Griscom-Russell acted under the direction of the Navy because it has not produced any contract or directive sent to it by the Navy. Further, plaintiff contends that the evidence Viad did submit, affidavits from Rear Admiral Ben J. Lehamn (retired) and Charles R. Cushing, were not specific enough to demonstrate that Griscom-Russell acted under the direction of the Navy. We disagree.

Admiral Lehman served as ship superintendent and dry docking officer at the Brooklyn Naval Yard between 1942 and 1944, and ship superintendent at the San Francisco Naval Shipyard from 1950 to 1952, In 1952, he was transferred to the Assistant Industrial Manager Office in San Francisco, as a planning officer. In 1954, he entered private industry and joined the Naval Reserves, where he served as commanding officer of the Naval Reserve Engineering Companies. From his tenure in the Navy and Naval Reserves, Admiral Lehman obtained personal knowledge of the Navy's procurement practices regarding ship alterations and equipment overhauls. He explains that "[i]n the 1940s, 1950s, and afterward the Navy had complete control over every aspect of each piece of equipment. Military specifications governed every characteristic of the equipment used on, Navy ships, including the instructions and warnings.... In short, the Navy dictated every aspect of the design, manufacture, installation, overhaul, written documentation and warnings associated with its ships and did not permit deviation by any of its contractors."

Charles Cushing is president of C.R. Cushing & Co., Inc., Naval Architects, Marine `Engineers and Transportation Consultants. His affidavit is based upon his experience, education, and training as a naval architect and marine engineer. He. asserts that the U.S.S. Montrose was built during World War H, and that "the United States Government was intimately involved in the manufacture of any Griscom-Russell equipment used on United States [WWII]-built vessels, as the equipment manufactured for those vessels was designed and built to meet precise and exacting...