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Johnson v. Sunoco, Inc.

United States District Court, E.D. Pennsylvania

February 28, 2017

RUDOLPH AND LOIS JOHNSON
v.
SUNOCO, INC. (R&M), ET AL.

          MEMORANDUM

          R. BARCLAY SURRICK, J.

         Presently 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.

         I. BACKGROUND

         A. Factual Background

         Plaintiffs' Complaint alleges that from 1992 to 2005 Plaintiff Rudolph Johnson[1] 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.)

         On 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. ¶ 30.)

         In 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.)

         Defendants argue that Defendant American Overseas Marine Corporation (“AMSEA”)[2] 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 court.” (Id.)

         B. Procedural History

         On 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.)

         II. LEGAL STANDARD

         Under 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).

         As 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 ...


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