Mangialardi v. Harold's Auto Parts, Inc., Civil Action No. 2:02CV121-B-B (N.D. Miss. 11/18/2002)
| Decision Date | 18 November 2002 |
| Docket Number | Civil Action No. 2:02CV121-B-B. |
| Parties | FLOWER MANGIALARDI, et al., PLAINTIFFS, v. HAROLD'S AUTO PARTS, INC., et al., DEFENDANTS. |
| Court | U.S. District Court — Northern District of Mississippi |
This cause comes before the court upon the plaintiffs' motion to remand or, in the alternative, to sever. Upon due consideration of the motion, the responses thereto, and the parties' memoranda and exhibits, the court is ready to rule.
This case involves asbestos-related personal injury claims brought by the plaintiffs against more than one hundred defendants in the Circuit Court of Bolivar County, Mississippi. On June 5, 2002, several defendants removed the plaintiffs' consolidated claims to this Court. The defendants asserted that the claims of at least two of the plaintiffs, John Adamson and Greely Smith, were subject to "federal enclave" jurisdiction because those plaintiffs had been allegedly exposed to asbestos during their employment at such federal enclaves as the United States Postal Service and the Tennessee Valley Authority. The other defendants joined or consented to this removal and some asserted "federal officer" jurisdiction as an additional ground for removal. The plaintiffs filed the present motion on June 20, 2002. The plaintiffs subsequently filed a motion for expedited remand of all "non-federal-question plaintiffs." The court granted the latter motion, and the claims of all but twenty-five plaintiffs were remanded to state court. A conditional transfer order from the Panel on Multi-District Litigation has been entered in this case.
The plaintiffs assert that remand of the claims of all plaintiffs is proper because they have expressly disavowed any and all federal claims in paragraph eight of their original complaint and in each amended complaint filed thereafter. The following disclaimer appears in the original and each amended complaint:
The Federal Courts lack subject matter jurisdiction over this action, as there is no federal question and incomplete diversity of citizenship due to the presence of a Mississippi defendant. Removal is improper. Every claim arising under the Constitution, treaties, or laws of the United States is expressly disclaimed (including any claim arising from an act or omission on a federal enclave, or of any officer of the U.S. or any agency or person acting under him occurring under color of such office). No claim of admiralty or maritime law is raised. Plaintiffs sue no foreign state or agency. Venue is proper in Bolivar County, Rosedale District.
The defendants take issue with the fact that, despite the plaintiffs' waiver, the plaintiffs plead "failure to warn" claims based in whole or in part upon alleged exposures to asbestos which occurred either within the confines of a federal enclave or due to conduct undertaken upon the direction of a federal officer. The defendants assert that such claims are removable. The plaintiffs maintain that removal is improper if the only claim is that of a failure to warn.
The Fifth Circuit has expressly held that failure to warn claims are subject to the "government contractor defense" — the defense which underpins federal officer jurisdiction in this case. See, e.g., Kerstetter v. Pacific Scientific Corp., 210 F.3d 431, 435 (5th Cir. 2000). Upon proof that a manufacturer's purported failure to warn of a product's hazards was the result of government control or direction, a related failure to warn claim is subject to both the government contractor defense and the federal officer removal statute. Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 399-400 (5th Cir. 1998). It is, nevertheless, unnecessary for this court to apply the test for federal officer removal in this case or to determine whether the...
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