Leite v. Crane Co.

• Decision Date: 16 April 2012
• Docket Number: Civil No. 11–00636 JMS/RLP.
• Citation: 868 F.Supp.2d 1023
• Parties: Douglas P. LEITE and Mary Ann K. Leite, Plaintiffs, v. CRANE COMPANY, a Delaware Corporation, et al., Defendants.
• Court: U.S. District Court — District of Hawaii

868 F.Supp.2d 1023

Douglas P. LEITE and Mary Ann K. Leite, Plaintiffs,

v.CRANE COMPANY, a Delaware Corporation, et al., Defendants.

Civil No. 11–00636 JMS/RLP.

United States District Court, D. Hawai‘i.

April 16, 2012.

Diane T. Ono, Gary O. Galiher, Ilana Kananipiliokala Waxman, L. Richard Derobertis, Michael A. Ragsdale, Scott K. Saiki, Todd W. Eddins, Galiher Derobertis Ono, Honolulu, HI, for Plaintiffs.

Joseph F. Kotowski, III, Lee T. Nakamura, Tom Petrus & Miller LLLC, Bradford Chun, Kessner Umebayashi Bain & Matsunaga, Kessner Umebayashi Bain & Matsunaga, Gail M. Kang, Ayabe Chong Nishimoto Sia & Nakamura LLLP, Steven K. Hisaka, Hisaka Stone Goto Yoshida Cosgrove & Ching, Christopher S. Goodwin, Pacific Guardian Center Mauka Tower, Honolulu, HI, for Defendants.

ORDER (1) SUSTAINING OBJECTIONS TO JANUARY 23, 2012 FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFFS' MOTION FOR REMAND; AND (2) DENYING MOTION FOR REMAND

J. MICHAEL SEABRIGHT, District Judge.

I. INTRODUCTION

On September 6, 2011, Plaintiffs Douglas and Mary Leite (“Plaintiffs”) filed this action in the First Circuit Court of the State of Hawaii asserting claims against eighteen Defendants that manufactured, sold and/or supplied various products containing asbestos to the United States Navy. As alleged in the Complaint, Douglas Leite was exposed to asbestos contained in Defendants' products while working as a machinist at the Pearl Harbor Naval Shipyard (“PHNS”) from 1966 to 1972, causing him to develop asbestos-related diseases.

On October 21, 2011, Defendant Crane Company (“Crane”) removed the action to this court pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1), which allows removal where a defendant can establish a colorable federal defense. In response, Plaintiffs filed their Motion to Remand. On January 23, 2012, 2012 WL 1278000, Magistrate Judge Richard L. Puglisi entered his Findings and Recommendation to grant Plaintiffs' Motion for Remand (the “January 23 F & R”), finding that Defendants had not established a colorable federal defense.

Currently before the court are several Defendants' Objections to the January 23 F & R. As explained below, the court finds that removal pursuant to § 1442(a)(1) was proper and therefore SUSTAINS the Objections to the January 23 F & R and DENIES the Motion for Remand.

II. BACKGROUND

A. Plaintiffs' Allegations Against Defendants

The Complaint, filed September 6, 2011 in the First Circuit Court of the State of Hawaii, alleges that Douglas Leite was exposed to asbestos while working as a machinist at the PHNS from 1966 through 1972, causing him to develop pleural plaques and other asbestos-related diseases and injuries, which he first discovered in May 2010. Doc. No. 3–1, Compl. ¶ 6. Plaintiffs bring this action against various companies that manufactured, sold, and/or supplied asbestos products to the PHNS including Crane; Aurora Pump Co. (“Aurora”); Bayer Cropscience, Inc., successor-in-interest to Rhone Poulenc AG Co., fka Amchem Products, Inc. fka Benjamin Foster Products Co. (“Bayer”); Union Carbide Corp.; Air & Liquid Systems Corp., successor-by-merger to Buffalo Pumps, Inc. (“Buffalo Pumps”); Certainteed Corp.; Cleaver–Brooks, Inc. (“Cleaver Brooks”); Goulds Pumps, Inc. (“Goulds”); IMO Industries, Inc. individually and as successor-in interest to Delaval Inc., and Delaval Steam Turbine Co. (“IMO”); Ingersoll Rand Co. (“Ingersoll”); John Crane, Inc.; the Lynch Co.; Metropolitan Life Insurance Co. (“Met Life”); Warren Pumps, Inc. (“Warren”); the William Powell Co. (“Powell”); Velan Valve Corp. (“Velan”); Copes–Vulcan (“Copes”); and Atwood & Morrill (“Atwood”).

The Complaint asserts that Aurora, Buffalo, Cleaver–Brooks, Crane Co., Goulds, IMO, Ingersoll, Met Life, Powell, Warren, Velan, Copes, and Atwood (collectively, “Supplier Defendants”):

sold and supplied certain equipment to the United States Navy and Pearl Harbor Naval Shipyard and other shipyards, which contained asbestos gaskets and/or packing, required asbestos insulation, or required other asbestos containing parts to function properly; and also sold replacement component parts for their equipment, including asbestos gaskets and packing which were identical to their commercial counterparts.

Id. ¶ 5. The Complaint alleges that all other Defendants (“Manufacturer Defendants”) “manufactured, sold and/or supplied certain generically similar asbestos products which were ultimately used by insulators and others, and/or to which they came in contact, while working in their trades and occupations in the State of Hawaii and other locations,” and “manufactured, sold and/or supplied certain generically similar asbestos products to Pearl Harbor Naval Shipyard and other shipyards and ships for use in the general overhaul, building, refitting and maintenance of ships.” Id. Based on these allegations, Plaintiffs assert various claims against Defendants and in particular, claims against Supplier Defendants for negligent and strict liability failure to warn of the dangers of asbestos. See id. ¶¶ 5, 9, 16.

B. Defendants' Removal and Plaintiffs' Motion to Remand

On October 21, 2011, Crane removed the action to this court on the basis of federal officer jurisdiction pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446. IMO, Warren Pumps, and Buffalo Pumps subsequently filed joinders. Doc. Nos. 1, 2, 12. In response, Plaintiffs filed their Motion to Remand on November 10, 2011. Doc. No. 29. Oppositions were filed November 28, 2011, and Replies were filed on December 12, 2011. The January 23, 2012 F & R followed.

On February 6, 2012, Crane, IMO, Warren Pumps and Buffalo Pumps filed Objections to the January 23 F & R.¹

III. STANDARD OF REVIEW

When a party objects to a magistrate judge's findings or recommendations, the district court must review de novo those portions to which the objections are made and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc) (“[T]he district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.”).

Under a de novo standard, this court reviews “the matter anew, the same as if it had not been heard before, and as if no decision previously had been rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir.2006); United States v. Silverman, 861 F.2d 571, 576 (9th Cir.1988). The district court need not hold a de novo hearing; however, it is the court's obligation to arrive at its own independent conclusion about those portions of the magistrate judge's findings or recommendation to which a party objects. United States v. Remsing, 874 F.2d 614, 616 (9th Cir.1989).

IV. ANALYSIS

The federal officer removal statute, 28 U.S.C. § 1442(a)(1), states that a civil action commenced in state court is removable when “any officer (or any person acting under that officer) of the United States or of any agency thereof, [is sued for] any act under color of such office.” “A party seeking removal under section 1442 must demonstrate that (a) it is a ‘person’ within the meaning of the statute; (b) there is a causal nexus between its actions, taken pursuant to a federal officer's directions, and plaintiff's claims; and (c) it can assert a ‘colorable federal defense.’ ” Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir.2006) (quoting Jefferson Cnty. v. Acker, 527 U.S. 423, 431, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999)); see also Mesa v. California, 489 U.S. 121, 124–25, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989).

“Under the federal officer removal statute, suits against federal officers may be removed despite the nonfederal cast of the complaint; the federal-question element is met if the defense depends on federal law.” Acker, 527 U.S. at 431, 119 S.Ct. 2069. The reasoning behind § 1442(a)(1) is that “[i]f the federal government can't guarantee its agents access to a federal forum if they are sued or prosecuted, it may have difficulty finding anyone willing to act on its behalf.” Durham, 445 F.3d at 1253;see also Willingham v. Morgan, 395 U.S. 402, 406–07, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969) (explaining that allowing removal ensures that “where federal officers can raise a colorable defense arising out of their duty to enforce federal law,” they “have such defenses litigated in the federal courts”).

As a result, although removal statutes are generally construed strictly against removal, the Supreme Court has mandated that § 1442(a)(1) be “liberally construed to give full effect to the purposes for which [it was] enacted,” Durham, 445 F.3d at 1252, and “the policy favoring removal ‘should not be frustrated by a narrow, grudging interpretation of § 1442(a)(1).’ ” Arizona v. Manypenny, 451 U.S. 232, 242, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981) (quoting Willingham, 395 U.S. at 407, 89 S.Ct. 1813). Thus, to justify removal, a defendant need not assert a “clearly sustainable defense,” nor does he need to “win his case before he can have it removed.” Willingham, 395 U.S. at 407, 89 S.Ct. 1813;see also Acker, 527 U.S. at 431, 119 S.Ct. 2069. Rather, where a defendant seeks removal pursuant to the federal officer removal statute, “no determination of fact is required but it must fairly appear from the showing made that [the defendant's removal] claim is not without foundation and is made in good faith.” Colorado v. Symes, 286 U.S. 510, 519, 52 S.Ct. 635, 76 L.Ed. 1253 (1932).

The parties dispute whether Defendants have established two elements necessary for federal officer removal—a colorable federal defense, and a causal nexus between Defendants' actions taken pursuant to the Navy's directions and Plaintiffs' failure-to-warn claims.² The arguments and evidence presented by the parties are not novel—defendants in numerous...