Swanstrom v. Teledyne Continental Motors, in.

• Decision Date: 10 January 2008
• Docket Number: Civil Action No. 07-065-KD-C.
• Citation: 531 F.Supp.2d 1325
• Parties: John O. SWANSTROM, individually and as personal representative of the Estate John E. Swanstrom, Jr., deceased, et al., Plaintiffs, v. TELEDYNE CONTINENTAL MOTORS, INC.; et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

531 F.Supp.2d 1325

John O. SWANSTROM, individually and as personal representative of the Estate John E. Swanstrom, Jr., deceased, et al., Plaintiffs, v. TELEDYNE CONTINENTAL MOTORS, INC.; et al., Defendants.

Civil Action No. 07-065-KD-C.

United States District Court, S.D. Alabama, Southern Division.

January 10, 2008.

COPYRIGHT MATERIAL OMITTED

Casey Frances Schaden, Richard Francis Schaden, Brobinfield, CO, Stephen Charles Moore, Moore & Wolfe, P.C., Mobile, AL, for Plaintiffs.

Norman E. Waldrop, Jr., Armbrecht Jackson LLP, Mobile, AL, Jacob. Michael Tubbs, John Banks Sewell, III, Lightfoot, Franklin & White, Birmingham, AL, Patrick Eugene Bradley, Princeton, NJ, for Defendants.

ORDER

KRISTI K. DuBOSE, District Judge.

This matter is before the court on plaintiffs' motion to remand (doe. 11). Upon consideration, and for the reasons set forth herein, the motion to remand is GRANTED

I. Factual Background

On May 28, 2002, John E. Swanstrom died in an airplane crash in Angel Fire New Mexico. He was piloting a Cirrus SR20 aircraft. The engine of the. Cirrus SR20 was manufactured by Teledyne. On March 8, 2004, plaintiff John 0. Swanstrom, individually and as personal representative of the Estate of John E. Swanstrom, Jr., deceased, filed a complaint in the Circuit Court of Mobile County, Alabama. (Doc. 2). On December 24, 2004, the complaint was amended to provide a more definite statement and then on October 4, 2006, the complaint was amended to include the decedent's wife Patricia M. Swanstrom, and his daughters Sally A. and Jennifer Swanstrom.

Plaintiffs seek damages for the wrongful death of Swanstrom and allege that the accident was caused by malfunction or failure of the engine or other aircraft system. They bring claims of negligence, breach of warranty, and product liability. Their claim for negligent misrepresentation has been dismissed by the state circuit court. In their complaint plaintiffs allege that the crash and Swanstrom's death was directly and proximately caused by the acts or omissions of the defendants. Specifically, they allege that the Teledyne. defendants' "negligence and breach of their duty of care ... included, but was not limited to" their "[n]egligent failure to properly" design, manufacture, test, inspect, build, construct, assemble, install, warn and instruct regarding operation and maintenance of the "subject engine and its component parts, specifically including the engine driven fuel pump," and "warn of previous in-flight problems with the engine driven fuel pump". (Doc. 2-2, Exhibit A, complaint; Doc. 2-3, Exhibit B, first amended complaint). As to the Cirrus defendants, plaintiffs allege that their "negligence and breach of their duty ... included but was not limited to" their "[n]egligent failure to properly" design, manufacture, build, construct, assemble, install, test, inspect, a manner to ensure its airworthiness" and warn or instruct regarding the aircraft. (Doc. 2-2, Exhibit A, complaint). In their first amended complaint as to the Cirrus defendants, plaintiffs add the claim of negligent failure to design, manufacture, build, construct and/or assemble the airframe of the subject aircraft. (Doc. 2-3, Exhibit B).

Relevant to the issues before the court, in the Cirrus defendants' answer to the first amended complaint dated January 3, 2005, and the second amended complaint dated October 18, 2005, they raise as a defense that "[t]he subject aircraft was designed in full compliance with applicable federal safety regulations and/or standards". (doc. 11-2, p. 14, p. 41). In the Teledyne defendants' answer to the second amended complaint dated November 14, 2006, and their answer to the third amended complaint dated December 27, 2006, they raised as a defense the doctrine of preemption and assert as follows:

The federal government has, pursuant to Federal Aviation Act of 1958 as amended, adopted a comprehensive set of safety regulations exclusively governing the design and manufacture of airplanes and their component parts, including engines, and has vested the Federal Aviation Administration with exclusive authority to implement and police compliance with those regulations. Pursuant to such authority, the FAA heretofore certified that the design and manufacture of this defendant's product complied with all applicable safety regulations. As a result, state law concerning the design and manufacture of aviation products including the one at issue here has been preempted by "federal law and regulation and the Plaintiffs' state law claims are therefore, barred by the doctrine of federal preemption.

(Doc. 11-2, p. 67, p. 96)

On June 8, 2006, Dennis Sommer, plain., tiffs' expert, testified that he had never participated in the certification procedure for a firewall for an aircraft but had dealt with the federal air regulations for fire-walls in this type aircraft before. Sommer testified that he did not review the firewall regulations for this case because he did not think it was relevant for him to know the federal air regulations on firewalls. (Doc. 23-4, Exhibit C)

On July 18, 2007, the Teledyne defendants' deposed defense expert Douglas Marwill, who testified that he was designated by the Federal Aviation Administration (FAA) as the person to witness the testing of the aircraft on behalf of defendant Cirrus, i.e., a designated engineering representative or DER. He also testified that the testing plan or procedure first had to be approved by the FAA and then the testing would proceed and a report prepared. He testified that after the report was finished, he would read the report and if found in compliance, i.e., the parts passed the test, he would complete a form for the FAA which indicated that defendants had shown compliance, and in the case of the fire protection testing on the firewall in the Cirrus plane, that the material was fireproof. (Doc. 23-3, Exhibit B).

On August 30, 2007, plaintiffs filed their expert rebuttal disclosure regarding Sommer's anticipated testimony wherein plaintiffs assert that. Sommer, among, other statements, will rebut that the engine compartment is in compliance with the Federal Air Regulations. (Doc. 23-2, Exhibit A, p. 3). Defendants allege that in plaintiffs' expert rebuttal disclosures of August 30, 2007, "[f]or the first time in this litigation, Plaintiffs alleged that the engine installation of the accident aircraft did not comply with the applicable Federal Air Regulations, thereby alleging that the aircraft was negligently or improperly certified." (Doc. 2, p. 3). Defendants assert that prior to this time, "Cirrus had no right to remove because Plaintiffs had not asserted a claim which would implicate federal officer jurisdiction." (Doe. 25, p. 4).

On September 17, 2007, defendants removed this action to federal court on the basis of federal officer removal pursuant to 28 U.S.C. § 1442(a)(1), asserting that defendant Cirrus was acting under an officer of the United States. Specifically, defendants state that the Administrator of the Federal Aviation Administration had designated specific persons at Cirrus to represent the FAA in examining, inspecting, testing, and certifying the airworthiness of the aircraft involved in the accident. Defendants also contend that their removal is timely because plaintiffs' expert rebuttal disclosure filed August 30, 2007 constitutes "other paper from which it may first be ascertained that the case is one which is or has become removable", as contemplated by 28 U.S.C. § 1446(b). (Doc. 2). Plaintiffs argue that the case should be remanded because the defendants' notice of removal is untimely and that even should the court find that it is timely filed, defendants cannot meet the requisite elements to establish federal officer removal jurisdiction.

II. Removal under 28 U.S.C. § 1442(a)(1)

Title 28 U.S.C. § 1442(a)(1), captioned "Federal officers or agencies sued or prosecuted" states as follows:

(a) A civil action or criminal prosecution 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 or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

28 U.S.C. § 1442(a)(1). The Court of Appeals for the Eleventh Circuit has explained that the "purpose of section 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'" Magnin v. Teledyne Cont'l Motors, 91 F.3d 1424, 1427 (11th Cir.1996)' quoting Murray v. Murray, 621 F.2d 103, 107 (5th Cir.1980).¹

Even when removal is brought pursuant to 28 U.S.C. § 1442(a)(1), federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). As such, federal courts only have power to hear cases that they have been authorized to hear by the Constitution or by an Act of Congress. Id. at 377, 114 S.Ct. 1673. A removing defendant must establish the propriety of removal under 28 U.S.C. § 1441, and therefore "bears the burden of proving proper federal jurisdiction." Leonard v. Enterprise Rent a Car, 279 F.3d 967, 972 (11th Cir.2002); Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1288 n. 4 (11th Cir. 1998). To do so, the removing defendant must "produc[e] facts supporting the existence of federal subject matter jurisdiction by a preponderance of the evidence." Hobbs v. Blue Cross Blue Shield of Ala., 276 F.3d 1236, 1242 (11th Cir.2001). Generally, removal s...