Marley v. Elliot Turbomachinery Co., Inc.

• Decision Date: 13 March 2008
• Docket Number: No. 07-23042-CIV.,07-23042-CIV.
• Citation: 545 F.Supp.2d 1266
• Parties: David A. MARLEY, et al., Plaintiffs, v. ELLIOT TURBOMACHINERY CO., INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

545 F.Supp.2d 1266

David A. MARLEY, et al., Plaintiffs, v. ELLIOT TURBOMACHINERY CO., INC., et al., Defendants.

No. 07-23042-CIV.

United States District Court, S.D. Florida, Miami Division.

March 13, 2008.

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Case A. Dam, David Aaron Jagolinzer, Ferraro Law Firm, Miami, FL, for Plaintiffs.

Edward Joy Briscoe, Helaine S, Goodner, Fowler White Burnett, Rebecca Carrie Kibbe, Kirkpatrick & Lockhart Preston Gates Ellis LLP, M. Stephen Smith, III, Rumberger Kirk & Caldwell, Frank Joseph Sioli, Jr., Brown Sims, P.C., Lori Anne M. Rovner, Virginia Easley Johnson, Foley & Mansfield, P.L.L.P., Sergio Edward Pagliery, Shook Hardy & Bacon, Miami, FL, Abigail Morrison Cohen, Conroy Simberg Ganon Krevans & Abel, Hollywood, FL, Timothy Clark, Timothy Clark, Plantation, FL, Kathleen Margaret Labarge, Bice Cole Law Firm, Steven A. Edelstein, The Biltmore Hotel, Coral Gables, FL, Evelyn Fletcher, Frances Spinthourakis, Hawkins & Parnell, Atlanta, GA, David M. Hawthorne, Hugh J. Turner, Jr., Akerman Senterfitt & Eidson, Fort Lauderdale, FL, Henry Salas, Cole, Scott, & Kissane P.A., South Miami, FL, for Defendants.

AMENDED ORDER DENYING MOTION TO REMAND

ADALBERTO JORDAN, District Judge.

Elliott Turbomachinery and Viad removed this action to federal court pursuant to 28 U.S.C. § 1442(a)(1). Pending is the plaintiffs' motion to remand, arguing that the defendants had not sufficiently shown a federal colorable defense and a nexus between this action and their official duties. For the reasons stated below, the motion to remand [D.E. 2] is DENIED.

I. FACTUAL BACKGROUND

This action is in essence a dispute about the defendants' ability, under their contract with the Navy, to warn Mr. Marley that unprotected asbestos exposure could cause mesothelioma and other ailments. The defendants were retained by the Navy in the 1940s to manufacture numerous ship parts and devices for the U.S.S. Lake Champlain. The manufactured products contained asbestos but did not have any type of warning about the dangers of unprotected asbestos exposure.

Mr. Marley was a Navy sailor assigned to the Lake Champlain from 1959-1983. During his assignment, he was allegedly exposed to the asbestos contained in the defendants' products. As a result of this exposure, he allegedly developed mesothelioma. This suit is brought by Mr. Marley and his wife.

Elliot and Viad removed this action under § 1442(a)(1), invoking federal officer jurisdiction. In support of removal, Elliot filed the affidavits of retired Admiral Ben J. Lehman and retired Admiral Roger B. Horne.¹

A. ADMIRAL LEHMAN

Admiral Lehman joined the United States Navy in 1942 and remained on active duty until 1946. He served as ship superintendent and dry docking officer at the Brooklyn Navy Yard between 1942 and 1944. In 1950, he was assigned as a ship superintendent at the San Francisco Naval Shipyard. During his Naval service, he was personally responsible for the creation of Navy specifications for the procurement of materials and machinery used on Navy vessels. He is familiar with Navy specifications, equipment manuals, and qualified product lists, which are used in the construction and repair of Navy and commercial ships. See Lehman Aff. at ¶¶ 1-2.

Admiral Lehman states that in the 1940s and 1950s, "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 ... Thus the Navy controlled the decision making with respect to instructions and warnings on every piece of equipment." See id. at ¶ 7. Admiral Lehman further states that the "Navy had specifications as to the nature and content of all written material that was delivered with each piece of equipment ... The Navy determined the nature of hazards to be subject to any precautionary handling and the content of any such labeling." See id. at ¶ 8.

Admiral Lehman's conclusion is (1) that manufacturers and suppliers were prohibited from providing any warning without the consent of the Navy, and (2) that "certain types of warnings would not have been approved by the Navy given the necessary performance needs and capabilities of the shipboard equipment, the ships, and Navy personnel. This would have included, but not been limited to, any potential warnings associated with asbestos including, but not limited to, recommendations regarding respiratory protection and repair and maintenance practices." See id. at ¶ 10. According to Admiral Lehman, prior to the mid 1960s, the Nevy relied on its own occupational health program to provide training and prevent the hazards of asbestos to shipyard workers. See id. at ¶¶ 11,13(c).

B. ADMIRAL HORNE

Admiral Horne is a retired rear admiral of the United States Navy. He began his career in 1956. Throughout his Navy career, he concentrated in the areas of ship design, engineering, construction, overhaul, and inspection. He achieved the rank of chief engineer and deputy commander at the Naval Sea Systems Command for Ship Design and Engineering. See Horne Aff. at ¶ 2.

According to Admiral Horne, it was common for the Navy to send inspectors to the plants of manufacturers to assure conformance with the Navy specifications and requirements. See id. at ¶ 7. He also states that the Navy specifications covered the nature of any communication affixed to products supplied to the Navy by third parties. "Vendors such as Defendants would not have been permitted (either under the specifications or, as a matter of Navy practice) to attach any type of warning or cautionary statement not required and approved by the Navy, including any statements related to asbestos, without prior discussion, approval and acceptance by the Navy." Id. at ¶ 12.

Admiral Horne concludes that any warning affixed by a vendor "would have been rejected as contrary to the Navy protocols for instruction and training relating to use of asbestos materials." See id. "The Navy determined to address the potential hazards of asbestos on Navy ships through training and not through warnings." See id. at ¶ 14.

II. ANALYSIS

I conclude that removal of this action was appropriate under the federal officer removal statute.

A state-court action against any person acting under the direction of an officer of the United States or its agencies can be removed to federal court pursuant to § 1442(a)(1). The purpose of § 1442(a)(1) is to permit the removal of "those actions commenced in state court that expose a federal official to potential civil liability or criminal penalty for an act performed ... under color of office." See Magnin v. Teledyne Cont'l Motors, 91 F.3d 1424, 1427 (11th Cir.1996)(internal citations omitted). The statute reflects Congress' intent "to provide a federal forum for cases where federal officials must raise defenses arising from their official duties." See id. As such, § 1442(a)(1) is an exception to the well-pleaded complaint rule, which generally precludes removal where a federal question is not apparent within the four corners of the complaint. See Mesa V. California, 489 U.S. 121, 136-37, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989).

Removal under § 1442(a)(1) generally depends on the satisfaction of two separate requirements. First, the defendant must "advance a `colorable defense arising out of [his] duty to enforce federal law.'" See Magnin, 91 F.3d at 1427 (internal citations omitted, emphasis added). Second, the defendant must establish that the suit is for acts performed "under the color of office." This requirement is satisfied by showing "`a causal connection' between what the officer has done under asserted official authority and the action against the defendants." See id. See also Jefferson Co. v. Acker, 527 U.S. 423, 431, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999)(internal citations omitted). I find that the defendants have made a sufficient showing on both requirements.

A. A COLORABLE DEFENSE

The defendants have advanced a colorable federal defense to the plaintiffs' claims. A colorable defense is a defense that is "plausible." See Magnin, 91 F.3d at 1427 (citing Mesa, 489 U.S. at 129, 109 S.Ct. 959). In construing the colorable federal defense requirement, the Supreme Court has rejected "a narrow grudging interpretation" of the term, "recognizing that `one of the most important reasons for removal is to have the validity' of the defense of official immunity tried in a federal court." See Jefferson, 527 U.S. at 432, 119 S.Ct. 2069 (internal citations omitted). See also Willingham v. Morgan, 395 U.S. 402, 407, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969) (We ... do not require the officer virtually to "win his case before he can have it removed.") Thus, a defense may be colorable even if the court ultimately rejects it. Indeed, no determination of fact is required at the removal stage. All a removing defendant needs to do is to make a showing that his federal defense "is not without foundation and made in good faith." See Nesbiet v. Gen. Electric, 399 F.Supp.2d 205, 211 n. 44 (S.D.N.Y. 2005) (internal citations omitted).

With this standard in mind, I turn to the federal defense advanced in this case. The defendants have raised a federal contractor defense to the plaintiffs' failure to warn claims. See Not. of Removal [D.E. 1] at ¶ 19. The defendants contend that their "alleged failure to warn of the hazards of asbestos resulted from the Navy's prohibition of such warnings." See id. at 10.

The Supreme Court recognized the federal contractor defense in Boyle v. United Tech., Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). Boyle involved the crash of a United States Marine helicopter in a training exercise off the Virginia coast. The pilot survived the accident impact, but he could not open the helicopter's outward escape hatch and drowned. The pilot's estate sued the manufacturer of the helicopter, alleging that the escape hatch should...