Ruffin v. Armco Steel Corp.

• Decision Date: 31 March 1997
• Docket Number: Civ. A. No. H-96-4480.
• Citation: 959 F.Supp. 770
• Parties: Annie Bell RUFFIN, v. ARMCO STEEL CORP., et al.
• Court: U.S. District Court — Southern District of Texas

Page 770

959 F.Supp. 770

Annie Bell RUFFIN, v. ARMCO STEEL CORP., et al.

Civ. A. No. H-96-4480.

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

March 31, 1997.

Peter A. Kraus, Baron & Budd, Dallas, TX, for Annie Bell Ruffin.

David G. Matthiesen, Matthiesen & Associates, Houston, TX, for Armco Steel Corp.

ORDER

GILMORE, District Judge.

Pending before the Court is Plaintiff's Motion to Remand (Instrument No. 5). After careful consideration of the submissions of the parties and applicable authority, the Court has determined that Plaintiff's Motion should be GRANTED.

I.

This action was originally filed in state court by Plaintiff Annie Bell Ruffin, ("Estate"), individually and on behalf of the heirs of the estate of J. Frank Ruffin, Sr. ("Ruffin"), against Defendants Armco Steel Corporation ("Armco"), J.T. Thorpe Company, ("Thorpe"), and Guard-Line, Inc. ("Guard-Line"). Ruffin worked at Armco's steel mill ("Mill") in Houston, Texas, where it is alleged that he was exposed to asbestos and contracted an asbestos-related disease which ultimately caused his death. The Estate seeks recovery for Ruffin's death, claiming it was caused by various acts of gross neglect committed by Defendants. Specifically, the Estate contends that Armco failed to take the precautions necessary to maintain a safe workplace as evidenced by its failure to warn employees of the hazards of asbestos. Armco denies it acted negligently, claiming it was without knowledge that Frank Ruffin was exposed to asbestos while under its employment.

After being served with Ruffin's petition, Armco removed this case based on the federal officer removal statute, 28 U.S.C. § 1442(a)(1), which allows governmental officials and persons acting under their direction to litigate actions based on conduct committed under the color of federal authority in a federal forum. Armco claims that its Houston steel plant was constructed under the control of federal officials, which presumptively provides it with a sufficient basis for removal under § 1442(a)(1). The Estate filed a Motion to Remand (Instrument No. 5), arguing that removal was improper as Armco was unable to produce any evidence to demonstrate its entitlement to federal jurisdiction under 28 U.S.C. § 1442(a). In addition, the Estate argues that Armco removed this case without obtaining consent from the other parties. The Estate also requests sanctions for Armco's improper use of federal-removal procedure. In response, Armco claims that it proffered adequate proof to satisfy the statutory requirements of § 1442(a)(1) and that removal of this action was appropriate even without consent of the other parties.

II.

On a motion to remand, the Court must determine whether the case was properly removed to federal court. See Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194-95 (9th Cir.1988). The party seeking to remove a case to federal court generally bears the burden of establishing federal jurisdiction. Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir.1988), aff'd on other grounds, 503 U.S. 131, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992). If the right to remove is doubtful, the case should be remanded. Lance Int'l, Inc. v. Aetna Cas. & Sur. Co., 264 F.Supp. 349, 356 (S.D.N.Y.1967). Courts, however, should be cautious about dismissal, since a decision to remand is not appealable. Roche v. American Red Cross, 680 F.Supp. 449, 451 (D.Mass.1988).

Armco argues that removal is proper under 28 U.S.C. § 1442(a)(1), which states that an action may be removed by 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). The purpose of the statute is to protect government officials enforcing federal laws. See Mesa v. California, 489 U.S. 121, 126, 109 S.Ct. 959, 963, 103 L.Ed.2d 99 (1989). The motivation for the enactment of § 1442(a)(1) was concern that "state governments hostile to duly enacted federal laws would be able to frustrate the implementation of [federal] laws by bringing (or allowing to be brought) civil or criminal actions in state court against the federal officials responsible for their implementation." Brown & Williamson Tobacco Corp. v. Wigand, 913 F.Supp. 530, 533 (W.D.Ky. 1996). By conferring federal subject matter jurisdiction over properly removed actions Section 1442(a)(1) allows "those whose federal activity may be inhibited by state court actions to remove to the presumably less biased forum of federal court." Ryan v. Dow Chem. Co., 781 F.Supp. 934, 939 (E.D.N.Y. 1992).

To successfully remove a case under 28 U.S.C. § 1442(a)(1), Armco must (1) raise a colorable federal defense to the claims asserted against it; (2) show that it acted under the direction of a federal officer; and (3) demonstrate a causal nexus between the Estate's claims and the acts it performed under color of federal authority. Mesa, 489 U.S. at 124-25, 131-35, 109 S.Ct. at 962, 966-67; see also Winters v. Diamond Shamrock Chem. Co., 901 F.Supp. 1195, 1197 (E.D.Tex. 1995); Fung v. Abex Corp., 816 F.Supp. 569, 571-72 (N.D.Cal.1992). The removing party is not required to obtain the consent of any other defendant before removing a case under § 1442. Ely Valley Mines, Inc. v. Hartford Accident & Indem. Co., 644 F.2d 1310, 1315 (9th Cir.1981).

Before determining whether jurisdiction may be invoked under the federal officer removal statute, the Court must first decide whether a defendant qualifies as a "person" as that term is applied in § 1442(a)(1). In Peterson v. Blue Cross/Blue Shield of Texas, the Fifth Circuit, by allowing corporate defendants to remove a suit under § 1442(a)(1), adopted, at least implicitly, a definition of the term "person" that includes, in addition to natural persons, purely legal persons, such as corporations. 508 F.2d 55, 57-58 (5th Cir.) cert. denied, 422 U.S. 1043, 95 S.Ct. 2657, 45 L.Ed.2d 694 (1975); see also Winters, 901 F.Supp. at 1198 (holding that corporate defendants were considered "persons" under § 1442(a)(1) based on decision in Peterson); Akin v. Big Three Indus., Inc., 851 F.Supp. 819, 822 (E.D.Tex.1994) (same). In approving removal, the court stated that "[i]t is indisputable that each of the defendants was either an `officer of the United States or an agency thereof, or persons acting under him.'" Peterson, 508 F.2d at 57.

Taking into consideration the purpose of § 1442(a)(1), this Court believes an expansive reading of "person" is more consistent with the Act's underlying objectives. It is foreseeable that a corporate entity could be assigned or delegated responsibility to carry out directives of the federal government. In this instance, state court actions against such a corporation could possibly interfere with federal policy, undermining the effect of § 1442(a)(1). See Ryan, 781 F.Supp. at 946. The Court therefore concludes that Armco is entitled to status as a "person" thereby allowing it to seek removal under § 1442(a)(1).

Under the Mesa test, defendants are first required to assert a colorable federal defense to the plaintiff's claims. "The question is not whether a defendant's claimed defense is meritorious, but only whether a colorable claim to such a defense has been made." Ryan, 781 F.Supp. at 944. "`The validity of the defence [sic] authorized to be made is a distinct subject. It involves wholly different inquiries.... It has no connection whatever with the question of jurisdiction.'" Mesa, 489 U.S. at 129, 109 S.Ct. at 964 (quoting The Mayor v. Cooper, 6 Wall. 247, 73 U.S. 247, 254, 18 L.Ed. 851 (1867)).

Armco claims that it is entitled to assert the federal common law government or military contract defense. Under this defense, a defendant who designs or manufactures products under the direction of the government can evade liability under state law for injuries resulting from the use of those products by demonstrating that (1) the United States approved reasonably precise specifications for the contracted-for equipment; (2) the equipment conformed to those specifications; and (3) the equipment supplier warned the United States about possible dangers in the use of the equipment known to the supplier but unknown to the United States. Boyle v. United Tech. Corp., 487 U.S. 500, 512, 108 S.Ct. 2510, 2518, 101 L.Ed.2d 442 (1988). The Supreme Court in Boyle found that without this protection, government contractors facing possible liability from the performance of government contracts would either decline to manufacture equipment according to government specifications or raise their price. Id. at 507, 108 S.Ct. at 2515-16. Either way, the Court held, the United States' interest in the procurement of equipment would be directly affected providing a sufficient condition for the displacement of state law. Id., 487 U.S. at 507, 108 S.Ct. at 2515-16. Use of the government contract defense, however, was limited to only those situations where this federal interest significantly conflicted with the operation of state law. Id., 487 U.S. at 507-09, 108 S.Ct. at 2516.

The Estate claims that this defense is applicable only in cases where the plaintiff claims the injuries resulted from the equipment's or product's defective design and not from the supplier's failure to warn about dangers associated with the product's use. While the test enunciated by the Boyle Court was specifically tailored for use in design defect cases, the Fifth Circuit has held that it could also be applied in failure to warn cases. Garner v. Santoro, 865 F.2d 629, 635 (5th Cir.1989); Bynum v. FMC Corp., 770 F.2d 556, 574 n. 24 (5th Cir.1985). In doing so, however, the court recognized the difficulty a defendant will have under Boyle in "establishing an identifiable federal interest or policy in the existence or method of warning and a significant conflict between that federal interest or policy and the...