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McMann v. Air & Liquid Systems Corporation

United States District Court, Ninth Circuit

October 22, 2013

ALAN McMANN and DONNA McMANN, Plaintiffs,
v.
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.

ORDER GRANTING MOTION TO REMAND

BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on Plaintiffs Alan and Donna McMann's ("McManns") motion to remand (Dkt. 46). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.

I. PROCEDURAL HISTORY

On July 16, 2013, the McManns filed a complaint against numerous defendants, including Crane Co. ("Crane"), in Pierce County Superior Court for the State of Washington. Dkt. 1, Exh. 1 ("Comp").

On August 21, 2013, Crane removed the matter to this Court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). Dkt. 1, ¶ 6.

On September 6, 2013, the McManns filed a motion to remand. Dkt. 46. On September 23, 2013, Crane responded. Dkt. 50. On September 27, 2013, the McManns replied. Dkt. 51.

II. FACTUAL BACKGROUND

The McManns allege that Mr. McMann developed mesothelioma by exposure to Crane's as well as other defendants' products that contained asbestos. Comp. at 2-3. In the instant motion, the McManns assert that the " only claims... maintained regarding naval asbestos products that Mr. McMann was exposed to relate to [Crane's] failure to warn about the hazards of asbestos." Dkt. 46 at 6 (emphasis in original).

Crane removed this matter on the basis of a federal officer defense. With regard to the failure to warn claim, Crane contends that

Given the proof of significant Navy control over the warnings in conjunction with the Navy's significant knowledge of asbestos hazards, Crane Co. has established a colorable government contractor defense to [the McManns'] failure-to-warn and design-defect claims.

Dkt. 1, ¶ 13. Crane submitted two declarations in support of its assertion of "proof of significant Navy control." The first declaration is from Rear Admiral David Sargent, Jr. Dkt. 3. Although Mr. Sargnet provides extensive and detailed knowledge of Navy construction and procedures, he fails to identify any specific facts as to Navy specifications or warnings as to Crane's products that Mr. McMann may have been exposed to during his Navy service.

The other declaration is from Dr. Samuel Forman. Dkt. 5. Dr. Forman declares that he was selected to "become part of a team to locate, digest and organize government documents for production in asbestos litigation." Id. ¶ 9. Although he has extensive knowledge of such documents, he fails to cite any specific document relating to Mr. McMann's allegations.

III. DISCUSSION

Crane bears the burden of establishing that removal is proper. Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). A party removing under 28 U.S.C. § 1442(a)(1) must show that (1) it is a "person" within the meaning of the statute, (2) there is a "causal nexus" between its actions, taken pursuant to a federal officer's directions, and plaintiffs' claims, and (3) it can assert a ...


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