Madden v. Able Supply Co.

• Decision Date: 27 May 2002
• Docket Number: No. CIV.A.G-02-194.,CIV.A.G-02-194.
• Citation: 205 F.Supp.2d 695
• Parties: Laura MADDEN, Individually and as the Personal Representative of the heirs and estate of Thomas Madden, Jr. Plaintiff, v. ABLE SUPPLY COMPANY, et al. Defendants.
• Court: U.S. District Court — Southern District of Texas

205 F.Supp.2d 695

Laura MADDEN, Individually and as the Personal Representative of the heirs and estate of Thomas Madden, Jr. Plaintiff, v. ABLE SUPPLY COMPANY, et al. Defendants.

No. CIV.A.G-02-194.

United States District Court, S.D. Texas, Galveston Division.

May 27, 2002.

COPYRIGHT MATERIAL OMITTED

Peter A Kraus, Walter & Kraus, Dallas, TX, for Laura Madden, Individually and as Personal Representative of the Heirs and Estate of Thomas Madden, Jr., deceased, Thomas Madden, Jr., Deceased, plaintiffs.

George Jerome Kacal, Jr., Houston, TX, for ACandS, Inc., defendant.

Kenneth M Morris, Houston, TX, for Alcoa, Inc. defendant.

Lewis C Miltenberger, Fort Worth, TX, for A.P. Green Industries, Inc., Harbison-Walker Refractories Co., Div. of Indresco, Inc., Indresco, Inc., defendants.

Mary Lou Mauro, Galloway Johnson et al, Houston, TX, for Combustion Engineering, Inc., defendant.

James M Harris, Jr, Harris Lively et al, Beaumont, TX, for Flintkote Company, defendant.

Shelby A Jordan, Jordan Hyden et al, Corpus Christi, TX, Harlin C Womble, Jr, Corpus Christi, TX, Melissa K Ferrell, Segal McCambridge et al, Austin, TX, for Garlock, Inc., defendant.

Gary D Elliston, Forman Perry et al, Dallas, TX, for Gasket Holding, Inc., Kaiser Aluminum & Chemical Corp., Quigley Co., U.S. Gypsum Co., T&N PLC, Turner & Newell Industries, Turner & Newell Ltd., Armstrong World Industries, Inc., Asbestos Claims Management Corp., defendants.

Mel D Bailey, Bailey Crowe et al, Dallas, TX, for Georgia-Pacific Corp., U.S. Mineral Products Co., defendants.

Robert W Wilkinson, Dogan and Wilkinson PC, Pascagoula, MS, for Guardline, Inc., defendant.

Todd Neil Wade, Brown McCarroll et al, Austin, TX, for Kelly-Moore Paint Company Inc., defendant.

John L Hill, Jr, Locke Liddell et al, Houston, TX, for Metropolitan Life Insurance Company, defendant.

David Michael Taylor, Thompson Coe et al, Dallas, TX, Minnesota Mining & Manufacturing Corporation aka 3M, defendant.

D. Ferguson McNiel, Vinson & Elkins, Houston, TX, for North American Refractories Co., defendant.

Randolph L Burns, Baker & Botts, Dallas, TX, for Owens-Illinois, Inc., defendant.

Thomas F Dougall, Bowers Orr et al, Columbia, SC, for Proko Industries, defendant.

Robert H Bass, Forman Perry et al, Dallas, TX, for Uniroyal Holding Co., defendant.

Josephine Jamison, Godwin White et al, Dallas, TX, for Dresser Industries, Inc., defendant.

Frank G Harmon, Crain Caton et al, Houston, TX, for Crown Cork & Seal Co. Inc., defendant.

Warren R Westberg, Godwin White et al, Dallas, TX, for Brown & Root, Inc., defendant.

Lawrence Alan Lynn, Coats Rose et al, Houston, TX, for Foster Wheeler Energy Corporation, defendant.

Gene M Williams, Mehaffey & Weber, Beaumont, TX, for GAF Building Materials Corporation, GAF Corporation, defendants.

Franklin A Poff, Jr, Crisp Boyd et al, Texarkana, TX, for General Refractories Co., defendant.

David Jonathan Fisher, Fairchild Price et al, Center, TX, for JT thorpe Co., defendant.

Gregory Michael Sullivan, Mayor Day et al, Houston, TX, for WR Grace & Co— Conn, defendant.

Lisa Ann Powell, Jackson Walker LLP, Houston, TX, for Able Supply Co., defendant.

John G Bissell, Strong Pipkin et al, Houston, TX, for Viacom Inc, successor to Westinghouse Electric Corporation, defendant.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO REMAND AND GRANTING PLAINTIFF'S MOTION FOR SEVERANCE

KENT, District Judge.

This is an asbestosis lawsuit brought by Plaintiff Laura Madden, individually and on behalf of the estate of her deceased husband, against over forty Defendants. Plaintiff's claims, which are derived solely from state law, arise out of asbestos-related personal injuries allegedly suffered by her husband, Thomas Madden, Jr. ("Madden"). Plaintiff originally filed her claims in Texas state court almost eighteen months ago. However, Defendant Viacom, Inc., successor to Westinghouse Electric Corporation ("Westinghouse"),¹ recently removed the entire action to this forum pursuant to the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1).² Plaintiff filed a timely Motion to Remand for Lack of Subject Matter Jurisdiction, or alternatively, a Motion for Severance. For the reasons articulated below, Plaintiff's Motion to Remand is hereby GRANTED IN PART and DENIED IN PART and Plaintiff's Motion for Severance is hereby GRANTED.

I.

The following facts are germane to this Order. Madden served in the U.S. Navy for over twenty years. During his military service, he worked on at least one vessel (the USS Wren) that carried turbine generators manufactured by Westinghouse. Plaintiff maintains that those turbines emitted asbestos particles into the surrounding air, causing significant health hazards to persons working nearby. Madden allegedly inhaled a large quantity of this asbestos-laden dust and consequently, contracted mesothelioma. This painful condition, a cancer of the lung lining linked to asbestos exposure, caused Madden's recent death.

Westinghouse does not challenge Plaintiff's assertion that Madden worked in close proximity to its turbines. In fact, Westinghouse candidly admits that it used asbestos-containing thermal insulation in the manufacture of the marine turbines for the USS Wren. However, Westinghouse maintains that the decision to manufacture the turbines using asbestos-laden material was not its own. On the contrary, Westinghouse contends that it designed, manufactured and supplied the turbines in accordance with precise specifications and detailed regulations promulgated by a U.S. Naval Officer.

II.

A party may remove an action from state court to federal court if the action is one over which the federal court possesses subject matter jurisdiction. See 28 U.S.C. § 1441(a). The removing party bears the burden of showing that federal jurisdiction exists and that removal is proper. See Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002); Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365 (5th Cir.1995). When determining the propriety of subject matter jurisdiction in the context of a motion to remand, a district court must consider the claims in the plaintiff's state court petition as they existed at the time of removal.³ See Manguno, 276 F.3d at 723; Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir.1995).

In this case, Westinghouse asserts that federal jurisdiction exists pursuant to the Federal Officer Removal Statute, which provides:

A civil action ... 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).A moving party satisfies the statute if the party: (1) demonstrates that it acted under the direction of a federal officer, (2) raises a federal defense to the plaintiffs' claims, and (3) demonstrates a causal nexus between the plaintiffs' claims and acts the party performed under color of federal office. See Mesa v. California, 489 U.S. 121, 124-25, 134-35, 109 S.Ct. 959, 962, 967, 103 L.Ed.2d 99 (1989). If the moving party satisfies these requirements, that party gains access to a federal forum even if the plaintiff's complaint fails to raise a federal question. See Ryan v. Dow Chem. Co., 781 F.Supp. 934, 939 (E.D.N.Y.1992).

III.

Prior to ascertaining whether Westinghouse properly invoked federal officer removal jurisdiction, the Court queries whether Westinghouse qualifies as a "person" in the context of § 1442(a)(1). The Court in Arnold By and Through Arnold v. Blue Cross & Blue Shield of Texas, 973 F.Supp. 726 (S.D.Tex.1997) held that corporations, such as Westinghouse, are not "persons" acting under a federal officer for purposes of federal officer removal. See id. at 739. In that case, the Court relied on the Supreme Court's decision in Int'l Primate Prot. League v. Adm'rs of Tulane Educ. Fund, 500 U.S. 72, 86, 111 S.Ct. 1700, 1709, 114 L.Ed.2d 134 (1991), which explained that Congress enacted § 1442 to protect individual officers, not federal agencies. See Arnold, 973 F.Supp. at 739. In light of Int'l Primate, the Arnold Court reasoned that corporations, like agencies, do not qualify as "person[s] acting under" an officer for purposes of the statute. See id. The Fifth Circuit's holding in Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387 (5th Cir.1998), cert. denied, 526 U.S. 1034, 119 S.Ct. 1286, 143 L.Ed.2d 378 (1999), however, overrules Arnold. In that case, the Fifth Circuit expressly clarified that "corporate entities qualify as `persons' under § 1442(a)(1)." Id. at 398; see also Guillory v. Ree's Contract Serv., Inc., 872 F.Supp. 344, 346 (S.D.Miss.1994); Faulk v. Owens-Corning Fiberglass Corp., 48 F.Supp.2d 653 (E.D.Tex.1999) (holding by implication that corporate defendants are § 1442(a)(1) defendants). In reaching their conclusion, the Fifth Circuit noted that the Supreme Court's holding in Int'l Primate had been superseded by a 1996 amendment to the statute that expressly allows federal agencies to remove actions against them to federal court. See Winters, 149 F.3d at 397, n. 12. Thus, Westinghouse is indeed a "person" for purposes of the Federal Officer Removal Statute.

The Mesa Test

The Court now turns to the issue of whether Westinghouse satisfies the requisite test for federal officer jurisdiction articulated by the Supreme Court in Mesa. In support of its position, Westinghouse submits the affidavit of James M. Gate, former Manager of Design Verification of the Marine Division of Westinghouse, and a marine engineer for Westinghouse since 1953. Gate avers that the Navy, via its Naval Sea Systems Command ("NAVSEA"), "exclusively...