Tucker v. Hunt Constr. Grp., Inc.

• Decision Date: 30 April 2015
• Docket Number: Cause No. 1:15-cv-89-WTL-MJD
• Parties: MARSHALL TUCKER, Plaintiff, v. HUNT CONSTRUCTION GROUP, INC., Defendant.
• Court: U.S. District Court — Southern District of Indiana

MARSHALL TUCKER, Plaintiff, v. HUNT CONSTRUCTION GROUP, INC., Defendant.

Cause No. 1:15-cv-89-WTL-MJD

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

April 30, 2015

ENTRY ON PLAINTIFF'S MOTION TO REMAND

This cause is before the Court on the Plaintiff's motion to remand. Dkt. No. 8. The motion is fully briefed, and the Court, being duly advised, GRANTS the motion for the reasons set forth below.

I. BACKGROUND/PLAINTIFF'S ALLEGATIONS

The Plaintiff, Marshall Tucker, filed suit against the Defendant, Hunt Construction Group, Inc., after he was injured while working on the Operational Readiness Training Complex Project (the "Project") at Camp Atterbury.¹ Tucker, a mason, was working in the course and scope of his employment with Bruns-Gutzwiller, Inc., when he fell from scaffolding allegedly maintained by Hunt. Hunt was the general contractor on the Project, and Bruns-Gutzweiller held a subcontract with Hunt.

Tucker originally filed this lawsuit in the Johnson County, Indiana Superior Court, but on January 23, 2015, Hunt removed the matter to this Court alleging Federal Officer Jurisdiction and Federal Enclave Jurisdiction.

II. DISCUSSION

Tucker now moves the Court to remand this matter back to Johnson County because Hunt (1) "has failed to show that anyone associated with the United States of America gave any specific direction or instruction to Hunt Construction in how to operate the subject scaffolding," and (2) "has failed to show that Mr. Tucker's injury occurred at or on a federal enclave." Tucker's Br., Dkt. No. 9 at 1. The Court agrees that neither Federal Officer Jurisdiction nor Federal Enclave Jurisdiction are present in this case.

A. Federal Officer Jurisdiction

Pursuant to 28 U.S.C. § 1442,

(a) A civil action . . . that is commenced in a State court and that is against or directed to 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, in an official or individual capacity, for or relating to 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.

(emphasis added). The party seeking removal bears the burden of proving the grounds for its motion. Ruppel v. CBS Corp., 701 F.3d 1176, 1180 (7th Cir. 2012) (citing Shah v. Inter-Continental Hotel Chi. Operating Corp., 314 F.3d 278, 280 (7th Cir. 2002); Chase v. Shop 'N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997)). Thus, Hunt has the burden of proving that "it was a (1) 'person' (2) 'acting under' the United States, its agencies, or its officers (3) that has been sued 'for or relating to any act under color of such office,' and (4) has a colorable federal defense to the plaintiff's claim." Id. at 1180-81 (quoting 28 U.S.C. § 1442).

The Supreme Court has held that "[t]he federal officer removal statute is not 'narrow' or 'limited,'" Id. at 1180 (quoting Willingham v. Morgan, 395 U.S. 402, 406 (1969)).

Tucker argues that Hunt is unable to show that it was "'acting under' an officer of the United States." Dkt. No. 9 at 4. Indeed, the contract at issue was between Hunt and the State of Indiana, not the federal government. Hunt, however, points to the following clause in the contract to support its "acting under" argument:

Relationship of the Federal Government: This contract is funded, fully or in part, by the Federal Government. The Federal Government is not a party to this contract. As a condition to receiving and expending Federal funds, there are certain rights of Federal inspection, Federal approval of contract changes and modifications, and Federal approval of settlements or dispute actions that the Federal Government will exercise prior to authorization of Federal funds. Therefore, no inspection or acceptance, change modification, settlement, dispute claim payment or dispute action will be considered binding until the required Federal approval is obtained. The Chief, National Guard Bureau, or his designated representative, is the approval authority. This paragraph does not abrogate any rights conferred on the Federal Government by law or other clause required due to the use of Federal funding.

Dkt. No. 1-1 at 3. Hunt argues that the "acting under" requirement is satisfied because of the federal funding and the federal government's corresponding rights of inspection and approval. Although courts liberally construe the "acting under" term, see Ruppel, 701 F.3d at 1181 (citing Watson v. Philip Morris Cos., 551 U.S. 142, 147 (2007)), the Court does not agree.

In Ruppel, the plaintiff filed suit against CBS Corporation alleging that CBS's predecessor in interest, Westinghouse Corporation, caused his mesothelioma. Westinghouse, a U.S. Navy contractor, included asbestos in the turbines that it supplied to the Navy, and the plaintiff alleged that he was exposed to the asbestos during his Naval service. In analyzing whether CBS "acted under" a federal officer, the Seventh Circuit noted that

"[a]cting under" must involve an effort to assist, or to help carry out, the federal superior's duties or tasks. . . . Cases in which the Supreme Court has approved removal involve defendants working hand-in-hand with the federal government to achieve a task that furthers an end of the federal government.

Id. (citations omitted) (emphasis in original). The Seventh Circuit further noted that the "acting under" requirement "covers situations . . . where the federal government uses a private corporation to achieve an end it would have otherwise used its own agents to complete." Id. The court ultimately concluded that "CBS worked hand-in-hand with the government." Id.

That is not the case here. Although the project was federally funded, which granted the federal government corresponding rights of inspection and approval regarding the finances on the Project, the contract was clearly between Hunt and the State of Indiana. The State, not the federal government, hired Hunt to construct barracks at Camp Atterbury, presumably for the Indiana National Guard. Although a relationship with the federal government exists in this case, the relationship is not one that leads to Federal Officer Jurisdiction. Simply put, Hunt has failed to show that it was working "hand-in-hand" with the federal government. As such, Hunt is unable to establish that it was "acting...