Riggs v. Hecker

Decision Date16 July 2018
Docket NumberCase No. 2:18-CV-912 JCM (GWF)
Citation325 F.Supp.3d 1110
Parties Mary RIGGS, et al., Plaintiff(s), v. Matthew HECKER, et al., Defendant(s).
CourtU.S. District Court — District of Nevada

Anita Porte Robb, Gary Charles Robb, Robb & Robb LLC, Kansas City, MO, Lawrence J. Smith, Bertoldo Baker Carter & Smith, Las Vegas, NV, for Plaintiff(s).

James J. Pisanelli, Todd L. Bice, Pisanelli Bice PLLC, Mark C. Severino, Wilson Elser Moskowitz Edelman & Dicker LLP, Las Vegas, NV, Robert S. Velevis, Yvette Ostolaza, Sidley Austin LLP, Dallas, TX, Christina A.Katt, Corey Wright, William J. Katt, Wilson Elser Moskowitz Edelman & Dicker LLP, Milwaukee, WI, Kathryn A. Grace, Wilson Elser Moskowitz Edelman & Dicker LLP, McLean, VA, Patrick Joesph Kearns, Pro Hac Vice, Wilson Elser Moskowitz Edelman & Dicker, San Diego, CA, for Defendant(s).

ORDER

James C. Mahan, UNITED STATES DISTRICT JUDGE

Presently before the court is plaintiff Mary Riggs as personal representative of the estate of Jonathan Neil Udall and Philip and Marlene Udall's motion to remand. (ECF No. 15 ). Specially-appearing defendant Airbus Helicopters, Inc. ("AHI") filed a response (ECF No. 28 ), to which Riggs replied (ECF No. 37 ).

Also before the court is defendants Matthew Hecker, Daniel Friedman, Brenda Halvorson, Geoffrey Edlund, Elling Halvorson, John Becker, Elling Kent Halvorson, Lon A. Halvorson, Papillon Airways, Inc., d/b/a Papillon Grand Canyon Helicopters, Xebec LLC, and Scott Booth's (collectively, "the Papillon defendants") motion to remand. (ECF No. 19 ). AHI filed a response (ECF No. 28 ), to which the Papillon defendants replied (ECF No. 38 ).

I. Facts

The present action involves a dispute surrounding a helicopter accident.

On March 2, 2018, Riggs commenced an action in the Eighth Judicial District Court of Clark County, Nevada, against several individual and entity defendants stemming from a February 10, 2018, helicopter crash. (ECF No. 1, Ex. 2). In her claims against AHI, Riggs alleges that the subject helicopter was defectively designed in that the fuel system was not crash-resistant. Id.

On May 18, 2018, AHI filed a petition for removal to this court. Id. On June 8, 2018, Riggs filed a motion to remand. (ECF No. 15 ). On June 15, 2018, the Papillon defendants filed a motion to remand. (ECF No. 19 ). On July 9, 2018, AHI filed a motion to dismiss Riggs's complaint for lack of personal jurisdiction.1 (ECF No. 36 ). Riggs subsequently filed a motion to defer briefing on the motion to dismiss (ECF No. 39 ), and a motion to shorten time (ECF No. 40 ).

II. Legal Standard

Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. Kroger , 437 U.S. 365, 374, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). Pursuant to 28 U.S.C. § 1441(a), "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a).

Procedurally, a defendant has thirty (30) days upon notice of removability to remove a case to federal court. Durham v. Lockheed Martin Corp. , 445 F.3d 1247, 1250 (9th Cir. 2006) (citing 28 U.S.C. § 1446(b)(2) ). Defendants are not charged with notice of removability "until they've received a paper that gives them enough information to remove." Id. at 1251.

Specifically, "the ‘thirty day time period [for removal] ... starts to run from defendant's receipt of the initial pleading only when that pleading affirmatively reveals on its face’ the facts necessary for federal court jurisdiction." Id. at 1250 (quoting Harris v. Bankers Life & Casualty Co. , 425 F.3d 689, 690-91 (9th Cir. 2005) (alterations in original) ). "Otherwise, the thirty-day clock doesn't begin ticking until a defendant receives ‘a copy of an amended pleading, motion, order or other paper’ from which it can determine that the case is removable." Id. (quoting 28 U.S.C. § 1446(b)(3) ).

A plaintiff may challenge removal by timely filing a motion to remand. 28 U.S.C. § 1447(c). Remand to state court is proper if the district court lacks jurisdiction. Id. "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock West, Inc. v. Confederated Tribes of Colville Reservation , 873 F.2d 1221, 1225 (9th Cir. 1989). Thus, federal subject matter jurisdiction must exist at the time an action is commenced. Mallard Auto. Grp., Ltd. v. United States , 343 F.Supp.2d 949, 952 (D. Nev. 2004) (citing Morongo Band of Mission Indians v. Cal. State Bd. of Equalization , 858 F.2d 1376, 1380 (9th Cir.1988) ).

On a motion to remand, the removing defendant faces a strong presumption against removal, and bears the burden of establishing that removal is proper. Sanchez v. Monumental Life Ins. Co. , 102 F.3d 398, 403-04 (9th Cir. 1996) ; Gaus v. Miles, Inc. , 980 F.2d 564, 566-67 (9th Cir. 1992).

III. Discussion

a. Federal officer removal statute

In the notice of removal, AHI argues that this action is removable because this court has subject matter jurisdiction pursuant to 28 U.S.C. § 1442. See (ECF No. 1 ). AHI contends that this action is removable "because the action involves a person that acted under the authority of an officer or agency of the United States." Id. at 3.

28 U.S.C. § 1442(a)(1), known as the federal officer removal statute, offers a federal forum to "[t]he 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, in an official or individual capacity, for or relating to any act under color of such office."

A party seeking removal under § 1442(a)(1) 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 direction, 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). Here, the parties dispute whether AHI satisfies § 1442(a)(1)'s "acting under" requirement.2

i. Whether AHI satisfies § 1442(a)(1)'s "acting under" requirement

The federal officer removal statute extends removal authority only to persons acting under an officer of the United States. See 28 U.S.C. § 1442(a)(1). A private person must assist or help carry out the duties or tasks of a federal supervisor in order to qualify as a person "acting under" a federal officer. See Watson v. Philip Morris Cos. , 551 U.S. 142, 152, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007).

In Watson , the Supreme Court clarified the scope of § 1442(a)(1) as applied to private actors in highly regulated industries. Watson , 551 U.S. at 145, 127 S.Ct. 2301. Plaintiff Lisa Watson filed a class action lawsuit against defendant Philip Morris, claiming that the company violated Arkansas law by misrepresenting the amount of tar and nicotine in cigarettes branded as "light." Id. at 146, 127 S.Ct. 2301. The defendant removed the case to federal court, contending that it was "acting under" the direct control of regulations promulgated by the Federal Trade Commission, thereby triggering the application of § 1442(a)(1). Id. The district court denied plaintiff's motion to remand and the Eighth Circuit affirmed. Id. at 147, 127 S.Ct. 2301.

In reversing the Eighth Circuit, the Court acknowledged the statutory requirement to broadly construe § 1442(a)(1), but stated that such construction is not without boundaries. Id. "Broad language is not limitless. And a liberal construction nonetheless can find limits in a text's language, context, history, and purposes." Id. In limiting the scope of § 1442(a)(1), the Court warned against granting manufacturers access to federal courts merely because of their participation in highly regulated industries:

In our view the help of assistance necessary to bring a private person within the scope of the statute does not include simply complying with the law. The upshot is that a highly regulated firm cannot find a statutory basis for removal in the fact of federal regulation alone. A private firm's compliance (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase "acting under" a federal "official."

Id. at 152-53. The Court held that a company does not act under a federal officer merely by complying with federal law and regulations in a heavily regulated industry. See id. at 153, 157, 127 S.Ct. 2301.

The Ninth Circuit has not directly addressed § 1442(a)(1) removal based on an FAA designation. However, the Seventh Circuit recently applied Watson to a § 1442(a)(1) removal claim by an aircraft manufacturer in Lu Junhong v. Boeing Co , 792 F.3d 805, 806 (7th. Cir. 2015). In Lu Junhong , Boeing argued that it was acting under the FAA because: "(1) the FAA has granted Boeing authority to use FAA-approved procedures to conduct analysis and testing for the issuance of type, production, and airworthiness certifications for aircraft under Federal Aviation Regulations; and (2) FAA Order 8100.9A authorizes and requires it to analyze the adequacy of its autopilot and autothrottle systems and certify that they meet the regulatory requirements of 14 C.F.R. § 25.1309." Id.

The Seventh Circuit rejected Boeing's argument that it was entitled to removal under § 1442(a)(1). Id. at 808. The court held that "certifications just demonstrate a person's awareness of the governing requirements and evince a belief in compliance." Id. Moreover, a "figure of speech [referring to certifications] does not make someone a federal officer or person ‘acting under’ one." Id. at 808-09. Instead, the Seventh Circuit held that "we know from Watson v. Phillip Morris Cos. , 551 U.S. 142, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007), that being regulated, even when a federal agency ‘directs, supervises and monitors a company's activities in...

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