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Kraus v. Alcatel-Lucent

United States District Court, E.D. Pennsylvania

July 26, 2018

ROBERT J. KRAUS and MARGARET M. KRAUS, h/w
v.
ALCATEL-LUCENT, ALLEN-BRADLEY COMPANY, AMETEK, INC., BBC BROWN BOVERI, k/n/a ABB, Inc., BELDEN WIRE & CABLE COMPANY, LLC, CBS CORPORATION, formerly known as Westinghouse Electric Corporation, CLARK CONTROLLER CO., ESPEY MANUFACTURING & ELECTRONICS CORP., FORD MOTOR CO., GENERAL DYNAMICS, GENERAL ELECTRIC COMPANY, GOULD ELECTRONICS, INC., GTE PRODUCTS OF CONNECTICUT CORPORATION, HONEYWELL INTERNATIONAL, HONEYWELL, INC., IMO INDUSTRIES, INC., formerly known as DeLaval Steam Turbine Company, ITT INDUSTRIES, L-3 COMMUNICATIONS, LOCKHEED MARTIN CORPORATION SERVICE COMPANY, METROPOLITAN LIFE INSURANCE CO., MINNESOTA MINING AND MANUFACTURING, MOTOROLA SOLUTIONS, NAVCOM DEFENSE ELECTRONICS, NORTHROP GRUMMAN NORDEN SYSTEMS, NORTHROP GRUMMAN CORPORATION, PHILIPS NORTH AMERICA, LLC, RAYTHEON, ROCKBESTOS CO., ROCKWELL COLLINS, INC., ROGERS CORPORATION, SPACE SYSTEMS/ LORAL, SQUARE D COMPANY, UNISYS and UNITED TECHNOLOGIES

          MEMORANDUM OPINION

          Savage, J.

         Plaintiffs Robert and Margaret Kraus move to remand this asbestos case to the Pennsylvania state court from which it was removed pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1). They argue that because the defendants fail to state a colorable federal defense, we lack subject matter jurisdiction. The removing defendants insist that as federal government contractors, they properly removed the case.

         We conclude that the removing defendants have satisfied the four requirements of the federal officer removal statute. Thus, we shall deny the motion to remand.

         Background

         According to his complaint, Robert Kraus (Kraus)[1] was exposed to asbestos during his service in the Navy aboard the U.S.S. Cambria and later when working at General Electric. From July 1964 through May 1967, Kraus was a seaman on the Cambria as the electronics officer and subsequently the communications officer working in close proximity to asbestos-containing electronic equipment.[2]

         Kraus also contends that he suffered from asbestos exposure while employed by General Electric after his Navy service.[3] While working for General Electric from 1969 to 1981, Kraus worked near asbestos-containing electronic equipment, and he was exposed to asbestos in the office building located at 32nd and Chestnut Streets in Philadelphia.[4]

         The removing defendant contractors manufactured and installed equipment and materials on the Cambria that contained asbestos, including ship service turbine generators, turbines, radar equipment, and radio equipment.[5] The defendants manufactured and designed equipment and materials for the Navy in conformity with the Navy's strict and detailed guidelines, known as military specifications (MilSpecs).

         After being diagnosed with mesothelioma in December 2017, Kraus filed suit in the Court of Common Pleas of Philadelphia County, asserting claims for design defect and failure to warn.[6] He alleges that the defendants negligently processed, manufactured, packaged, distributed, delivered and sold products containing asbestos without warnings. In support of his design defect claim, Kraus contends that the defendants were negligent in manufacturing, selling, or supplying asbestos-containing products, which were defective because they contained asbestos.[7] He also contends that the defendants' design of the products and failure to warn him of the health hazards associated with asbestos exposure were the actual and proximate causes of his mesothelioma.

         The defendants timely removed the case under 28 U.S.C. § 1442(a)(1). Kraus responded by moving for remand, arguing that the defendants have not stated a colorable federal defense to the failure-to-warn claim. Opposing remand, the defendants contend they state a colorable federal defense, supported by several affidavits. They rely on the government contractor defense annunciated in Boyle v. United Techs. Corp., 487 U.S. 500 (1988).

         Analysis

         In the typical case, a federal defense does not give rise to federal question jurisdiction. Jefferson Cty. v. Acker, 527 U.S. 423, 430 (1999) (citing Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908)). The federal officer removal statute, 28 U.S.C. § 1442(a)(1), is an exception to the rule. It allows a defendant to remove a nonfederal action where the defendant has a defense based on federal law. Id. at 430-31.

         A defendant may remove under § 1442(a)(1) only where the facts, viewed in the light most favorable to the defendant, entitle the defendant to a complete defense. Papp v. Fore-Kast Sales Co., 842 F.3d 805, 811 (3d Cir. 2016) (quoting In Re Commonwealth's Motion to Appoint Counsel Against or Directed to Defender Ass'n of Phila., 790 F.3d 457, 466 (3d Cir. 2015), cert. denied, 136 S.Ct. 980 & 994 (2016)). A defendant “need not win his case before he can have it removed.” Id. at 815 (quoting Willingham v. Morgan, 395 U.S. 402, 407 (1969)). At the removal stage, the defendant need only show that the asserted Boyle defense is “colorable, ” that it is legitimate and can “reasonably be asserted, given the facts presented and the current law.” Id. (citation omitted). A court does not “determine credibility, weigh the quantum of evidence or discredit the source of the defense” at this stage. Id. Instead, we only determine whether there are sufficient facts alleged to raise a colorable defense.

         Although the federal officer removal statute originally applied only to federal officers, it was amended to expand its scope to cover “any person acting under that officer.” 28 U.S.C. § 1442(a)(1). The statute now applies if the defendant claims it was acting under the direction of a federal officer or agency. Id.

         The statute provides:

A civil action . . . commenced in a State court and that is against . . . 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. . . .

         Unlike the general removal statute, which is construed against removal, the federal officer removal statute is broadly construed in favor of a federal forum. Papp, 842 F.3d at 811-12 (quoting Defender Ass'n, 790 F.3d at 466-67 (internal citation and quotation marks omitted)).

         An action may be removed under the federal officer removal statute where: (1) the defendant is a “person” within the meaning of the statute; (2) the claims are based upon the defendant's conduct while “acting under” the federal government, its agencies, or its officers; (3) the claims are “for, or relating to” an act under color of federal office; and (4) the defendant raises a colorable federal defense to the plaintiff's claims. Id. at 812 (quoting Defender Ass'n, 790 F.3d at 467). In this case, the removing defendants have satisfied all four requirements.

         The defendants are persons within the meaning of § 1442(a)(1). For purposes of the statute, a person includes corporations and companies. See id.

         The defendants were “acting under” a federal agency pursuant to contracts with the Navy to provide equipment and materials. They produced or supplied equipment or materials to outfit the Cambria that the Navy itself would have had to produce. See Id. (quoting Ruppel v. CBS Corp., 7 ...


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