United States District Court, E.D. Pennsylvania
BARCLAY SURRICK, J.
before the Court is Plaintiffs' Rudolph and Lois
Johnson's Motion to Remand this matter to the Court of
Common Pleas of Philadelphia County. (ECF No. 20.) For the
reasons that follow, the Motion will be denied.
Complaint alleges that from 1992 to 2005 Plaintiff Rudolph
Johnson worked as a mechanic and seaman on the
USNS STOCKHAM and the USNS ALGOL United States navigation
vessels. (Compl. ¶ 4, Ex. 2 ECF No. 17.) In this role he
repaired engines, cleaned tanks, and performed other
miscellaneous tasks. (Id.) Plaintiffs allege that
during the course of his employment, Johnson, on almost a
daily basis, was “directly and indirectly exposed to .
. . various benzene-containing solvent products . . .
manufactured, refined, designed, produced, processed,
compounded, converted, packaged, sold, distributed, marketed,
re-labeled, supplied and/or otherwise placed into the stream
of commerce by Defendants.” (Id. ¶ 5.)
Plaintiffs further contend that while working on the vessels,
Johnson was also exposed “to the vapors, aerosols,
mists and fogs from said products, by means of inhalation,
ingestion and dermal absorption (from direct dermal contact
with said products, dermal contact with clothes contaminated
by said products and/or dermal contact with benzene vapors in
the air).” (Id. ¶¶ 6, 27.)
September 23, 2013, Johnson was diagnosed with
myelodysplastic syndrome (“MDS”). (Id.
¶ 7.) In 2014, Johnson's MDS mutated into acute
myeloid leukemia (“AML”). (Id.)
Plaintiffs allege that Johnson contracted MDS and AML as a
result of his exposure to benzene. Plaintiffs also contend
that as a result of the MDS/AML that Johnson contracted, he
suffered “multiple side effects, conditions, illnesses
and symptoms . . . and the medical treatments necessitated
thereby, which caused him pain, suffering, disability,
disfigurement, deformity, impairment, mental anguish,
anxiety, humiliation, and increased susceptibility to
infection.” (Id. ¶ 28.) In addition,
Plaintiffs claim that Johnson has suffered substantial
financial damages as a result of his condition. (Id.
asserting negligence claims against
Defendants, Plaintiffs allege that Defendants knew and
foresaw that their benzene-containing solvent products were
used in the manner in which Rudolph Johnson use[d] them, that
benzene and benzene-containing solvents would be released
into the atmosphere while using their benzene-containing
solvent products, and . . . Johnson and others similarly
situated would work with, inhale, ingest, dermally absorb,
handle or directly and indirectly come into contact with,
and/or otherwise be exposed to benzene, which created a
hazardous and unsafe condition and risk to the health of
Rudolph Johnson and others similarly situated.
(Id. ¶ 39.)
argue that Defendant American Overseas Marine Corporation
(“AMSEA”) operated the USNS STOCKHOLM and the USNS
ALGOL pursuant to instructions contained within federal
government contracts. (“Defs.' Resp., ECF No. 24.)
Accordingly, Defendants claim, “AMSEA was in all
respects acting under orders of an officer of the federal
government and entitled to have its rights and defenses
evaluated and considered by a federal, rather than a state
September 23, 2016, Plaintiffs filed this action in the Court
of Common Pleas for Philadelphia County. (Docketed in
September 2016 Term as No. 002700, E-Filing No. 1609050966.)
On October 20, 2016, AMSEA and GDC filed a Notice of Removal
to this Court, pursuant to the “federal officer
removal” statute, 28 U.S.C. §§ 1442(a)(1).
(ECF No. 1.) On November 21, 2016, Plaintiffs filed the
instant Motion to Remand this matter back to the Court of
Common Pleas. (Pls.' Mot., ECF No. 20.) On December 5,
2016, AMSEA and GDC filed a joint Response in Opposition to
Plaintiffs' Motion to Remand to State Court. That same
day Sunoco filed a Response in Opposition to Plaintiffs'
Motion to Remand to State Court. (Sunoco Resp., ECF No. 25.)
28 U.S.C. § 1441(a), any civil action brought in a state
court where a district court has original jurisdiction may be
removed by a defendant to a federal district court. 28 U.S.C.
§ 1441(a). To remove a lawsuit filed in a state court to
a federal district court, a defendant must file a notice of
removal within thirty days of the date a plaintiff serves the
defendant with a copy of the original pleading or complaint.
28 U.S.C. § 1446(b)(1). A case may be remanded to state
court for “(1) lack of district court subject matter
jurisdiction or (2) a defect in the removal process.”
PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir.
1993) (citing 28 U.S.C. § 1447(c));
Robertson-Armstrong v. Robinson Helicopter Co., 18
F.Supp.3d 627, 632 (E.D. Pa. 2014). Since a “motion to
remand shares an essentially identical procedural posture
with a challenge to subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1), it is properly evaluated
under the same analytical approach.” Papp v.
Fore-Kast Sales Co., 842 F.3d 805, 811 (3d Cir. 2016).
noted above, Defendants AMSEA and GDC removed this case from
state court pursuant to the federal officer removal statute,
28 U.S.C. § 1442(a)(1) (“A civil action . . . that
is commenced in a State court . . . 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.”).
The Third Circuit has instructed courts to broadly interpret
the federal officer removal statute. See Papp, 842
F.3d at 809; see also In re Asbestos Litig., No.
14-1190, 2016 WL 3360703, at *2 (D. Del. June 10, 2016)
(“the right of removal is absolute for conduct
performed under color of federal office, and has insisted
that the policy favoring removal should not be frustrated by
a narrow, grudging interpretation of §
1442(a)(1).” (quoting Arizona v. Manypenny,
451 U.S. 232, 242 (1981))); In re Commw.'s Motion to
Appoint Counsel Against or Directed to Def. Ass'n of
Phila., 790 F.3d 457, 466-67 (3d Cir. 2015)
(“Unlike the general removal statute, the federal
officer removal statute is to be ‘broadly