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McMann v. Air & Liquid Systems Corp.

United States District Court, W.D. Washington, Seattle

May 6, 2014

DALE McMANN and JANICE MCMANN, husband and wife, Plaintiffs,
AIR & LIQUID SYSTEMS CORP., et al., Defendants.


RICARDO S. MARTINEZ, District Judge.

This matter comes before the Court on Motion for Expedited Remand by Plaintiffs Dale and Janice McMann. Dkt. # 37. Having considered the pleadings filed in support of and in opposition to the Motion and remainder of the record, the Court denies the Motion to Remand for the reasons stated herein.


Plaintiffs Dale and Janice McMann ("the McManns") filed the instant complaint against various Defendants for damages in King County Superior Court for the State of Washington on January 21, 2014. Compl., Dkt. # 2, Ex. 1. Plaintiffs allege that Dale McMann developed malignant mesothelioma as a result of his exposure to asbestos and asbestoscontaining products mined, manufactured, and produced by Defendants. Id. at p. 2. These exposures allegedly occurred between 1969 and 1979 while Mr. McMann served as a U.S. Navy machinist repairman aboard the USS Jason, the USS Southerland, and at the Puget Sound Naval Shipyard. Id. Plaintiffs claim liability on various state law grounds, including product liability (RCW 7.72 et seq. ), negligence, conspiracy, spoliation, strict product liability, and premises liability. They have also included in their complaint a disclaimer of any claims subject to a government contractor defense under Boyle v. United Technologies Corp., 487 U.S. 500 (1988).

Defendant CBS Corporation ("Westinghouse") timely removed the matter to this Court on February 26, 2014, under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). See Dkt. # 1. The following day, Defendant Crane Co. ("Crane") filed a Joinder in Notice of Removal, supported by Affidavits of Crane Vice-President Anthony D. Pantaleoni, Rear Admiral David P. Sargent, Jr., and occupational medicine specialist Samuel A. Forman, MD. See Dkt. # 3, Ex's. 2-32.

Both Westinghouse and Crane assert that Plaintiffs' allegations that Mr. McMann was exposed to asbestos-containing products while working in the Navy give rise to the federal defense of government contractor immunity. Westinghouse contends that it "manufactured various equipment for use on Navy ships pursuant to contracts and specifications executed and controlled by the U.S. Navy...." Dkt. # 2-2, ¶ 2. Crane similarly asserts that the Navy's specifications governed the design and construction of its products and the form and content of any labeling and warnings. Dkt. # 3, p. 5; Id. at Ex. 2 (Pantaleoni Decl.), ¶¶ 4-6; Ex. 5 (Sargent Decl.), ¶¶ 23-32. Removing Defendants contend that in the manufacture and sale of products and equipment for and to the U.S. Navy, they were thereby acting under an officer or agency of the United States within the meaning of 28 U.S.C. § 1442(a)(1), and that removal to a federal forum is therefore appropriate. See Dkt. # 2-2, ¶ 4; Dkt. # 3, pp. 2-3.

On March 28, 2014, Plaintiffs moved to remand the case to Superior Court on the grounds that Westinghouse and Crane have failed to produce evidence giving rise to federal jurisdiction. Dkt. # 37. Plaintiffs also premise remand on their Complaint's disclaimer of any claims subject to a government contractor defense under Boyle. Id. at p. 6. Plaintiffs attached and incorporated by reference the arguments and evidence produced in McMann v. Air & Liquid Systems Corp., No. 3:13-cv-05721 BHS (W.D. Wash. 2013), a similar case brought by Mr. McMann's brother and remanded to Superior Court. See Id. at p. 5. Westinghouse and Crane have both filed briefs in opposition to remand. See Dkt. ## 49, 50. With its Response, Westinghouse substantiated its allegations with extensive testimonial and documentary evidence, including affidavits from three individuals: James M. Gate, a former Westinghouse employee, testifying about Navy control of the design and warnings on Westinghouse's products (Dkt. # 50, Ex. A); United States Navy Rear Admiral Roger B. Horne, Jr., also testifying that Westinghouse turbines were built according to Navy specifications and plans, with warnings subject to the Navy's control (Dkt. # 50, Ex. B, ¶¶ 16-18, 20-22, 29, 34, 37(b)); and Samuel A. Forman, M.D., testifying to the Navy's evolving awareness of asbestos risks (Dkt. # 50, Ex. F). Plaintiffs have not filed a reply.


A party seeking to remove an action from state to federal court may do so only if the action is one over which the federal court possesses jurisdiction. 28 U.S.C. § 1441(a). A defendant seeking to remove an action bears the burden of establishing that removal is proper. Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). The federal officer removal statute, 28 U.S.C. § 1442(a)(1), provides for removal of civil actions commenced in State court against a person acting under the authority of an officer of the United States "for any act under color of such office." A party seeking removal pursuant to 28 U.S.C. § 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 directions, 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). See also Mesa v. California, 489 U.S. 121, 124-25 (1989).

As an initial matter, Plaintiffs' attempt to disclaim federal removal jurisdiction over this action must fail because federal jurisdiction under § 1442(a)(1) depends on Defendants' defenses, not Plaintiffs' subjective characterization of the Complaint. Section 1442 is an exception to the "well-pleaded complaint rule, " under which, absent diversity, a defendant must demonstrate that the case "arises under" federal law in order to remove it to federal court. Kircher v. Putnam Funds Trust, 574 U.S. 633, 644 n. 12 (2006). Rather, "[u]nder the federal officer removal statute, suits against federal officers may be removed despite the nonfederal cast of the complaint; the federal-question element is met if the defense depends on federal law." Jefferson Cnty. v. Acker, 527 U.S. 423, 431 (1999). In this way, the statute "promotes litigating federal defenses in a federal forum so that the operations of the general government [are not] arrested at the will of one of [the states]." Ruppel v. CBS Corp., 701 F.3d 1176, 1180 (11th Cir. 2012)(quoting Tennessee v. Davis, 100 U.S. 257, 263 (1879))(alterations in original); see also Willingham v. Morgan, 395 U.S. 402, 406-07 (1969)(explaining that a "primary purpose" of the removal statute was to ensure that "where federal officers can raise a colorable defense arising out of their duty to enforce federal law, " they "have such defenses litigated in the federal courts"). The Court accordingly declines to give effect to the Complaints' waiver of claims subject to a government contractor defense; if Defendants satisfy their burden of proving the propriety of removal under § 1442(a)(1), Congress has assured them the right to have their federal defenses tried in a federal forum.

The Court similarly disagrees with the rigorous standard of review urged by Plaintiffs. Plaintiffs erroneously contend that the applicable removal statute must be construed strictly with any jurisdictional doubts resolved in favor of remand. See Dkt. # 37, pp. 7, 9. Unlike removals under 28 U.S.C. § 1441, the Supreme Court has mandated that § 1442(a)(1) is to be given a "generous interpretation" and to be "liberally construed to give full effect to the purposes for which [it was] enacted." Durham, 445 F.3d at 1252 (internal citation and quotation omitted); see also Leite v. Crane Co., 2014 WL 1646924, *5 (9th Cir. 2014)(recognizing "that defendants enjoy much broader removal rights under the federal officer removal statute than they do under the general removal statute"). Thus, to successfully invoke § 1442(a)(1), a defendant "need not win his case before he can have it removed." Willingham, 395 U.S. at 407. Rather, where a motion for remand attacks the removing defendant's jurisdictional allegations, the defendant must merely "prove by a preponderance of the evidence" that its federal defense is "colorable." Leite, 2014 WL 1646924, at *5 (quoting Acker, 527 U.S. at 431).

In the instant matter, neither party contests that Defendants Westinghouse and Crane, as corporate entities, qualify as "persons" within the meaning of the statute. See, e.g., Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398 (5th Cir. 1998), cert. denied, 526 U.S. 1034 (1999)(holding that corporate entities are "persons" under § 1442(a)(1)); Ruppel v. CBS Corp., 701 F.3d 1176, 1181 (11th Cir. 2012). Rather, the parties dispute whether Defendants have established the second two elements necessary for federal officer removal: a colorable federal defense, and a casual nexus between Plaintiffs' claims and Defendants' actions taken pursuant to the Navy's directions.

A. Admissibility of Evidence

In support of remand, Plaintiffs also contend that Westinghouse was required to submit evidence establishing jurisdiction with its removal notice and that, having failed to do so, it is precluded from submitting evidence in opposition to Plaintiffs' motion for remand. Dkt. # 37, p. 3. The Court disagrees. The statute governing removal of civil actions does not require a defendant to attach jurisdictional evidence to its removal notice. See 28 U.S.C. § 1446. Rather, it tracks the language of Rule 8(a)(1), requiring the defendant to provide a short and plain statement of the grounds for removal.'" Leite, 2014 WL 1646924, at *3 (quoting 28 U.S.C. § 1446(a)). Accordingly, Plaintiffs' contention that Westinghouse's Notice of Removal was deficient because it was not accompanied by affidavits is meritless. See, e.g., Jarvis v. Roberts, 489 F.Supp. 924, 926 (W.D. Tex. 1980)("Since Title 28 U.S.C. s. 1446 does not require affidavits by each defendant, this contention is frivolous."). In addition, courts routinely consider evidence submitted by defendants in opposition to a motion to remand. See, e.g., id.; Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 949 (11th Cir. 2000)(holding that the "district court when necessary [may] consider post-removal evidence in assessing removal jurisdiction"); Pretka v. Kolter City Plaza II, 608 F.3d 744, 772 (11th Cir. 2010)(reversing district court's decision to exclude evidence merely because it was submitted in response to remand motion). Indeed, the Ninth Circuit ...

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