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Cuomo v. Air & Liquid Systems Corp.

United States District Court, Second Circuit

November 1, 2013

SUSAN CUOMO, Individually and as Administratrix for the Estate of JOSEPH CUOMO, Plaintiffs,
AIR & LIQUID SYSTEMS CORP., et al., Defendants.

Kyle A. Shamberg, Esq., Weitz & Luxenberg, P.C., New York, New York, for Plaintiffs.

Eric R.I. Cottle, Esq., K&L Gates LLP, New York, New York, for Defendant.


SHIRA A. SCHEINDLIN, District Judge.


On January 11, 2013, defendant Crane Co. ("Crane") removed this asbestos-related tort action to this Court, invoking the federal officer removal statute, section 1442(a)(1) of Title 28 of the United States Code. Plaintiffs Joseph and Susan Cuomo now move to remand the suit to state court. For the reasons set forth below, the Cuomos' motion is granted.


Susan and Joseph Cuomo, brought this action in New York state court on November 28, 2012.[1] Joseph Cuomo, now deceased, served in the United States Navy aboard the USS Ponce and USS Coontz as a quarter master from 1974 through 1980.[2] On December 30, 2009, Joseph was diagnosed with lung cancer.[3] The Cuomos assert that defendants are liable to them for failing to warn Joseph about the dangers of absestos exposure.[4] In response, Crane asserts a federal contractor defense which - when properly raised - allows removal to federal court.[5] The case was removed to this Court on January 11, 2013 pursuant to the federal officer removal statute.[6]

On August 9, 2013, the Cuomos filed the instant motion to remand, asking that the case be remanded to state court because Crane lacks a colorable federal contractor defense.[7] The Cuomos argue that: (1) there is no evidence that the Navy prohibited Crane from warning about the asbestos in its product, and therefore nothing prevented Crane from complying with both state law warnings requirements and Navy specifications; and (2) Crane did not attempt to warn the Navy of the dangers of asbestos, nor did the Navy possess knowledge of the dangers of asbestos during the time period of Joseph's exposure.[8]

Crane responds that the Navy need not have precluded it from giving warnings in order to raise a colorable federal contractor defense.[9] Alternatively, it argues that the Navy's specifications did in fact preclude Crane from supplying the state law warnings and it should be permitted to prove this at trial.[10] Finally, Crane contends that the declaration of its expert - Dr. Samuel A. Forman - establishes that the Navy was aware of the hazards of asbestos.[11]


A. Federal Officer Removal

The well-pleaded complaint rule dictates that a defendant may remove an action from state court to federal court only if the case could have been filed in federal court in the first instance.[12] Thus federal question jurisdiction may be invoked only "when a federal question is presented on the face of the plaintiff's properly pleaded complaint.'"[13] Suits against federal officers are an exception to this general rule.[14] "Under the federal officer removal statute, suits against federal officers may be removed despite the nonfederal cast of the complaint... if [a] defense depends on federal law."[15]

The federal officer removal statute provides that "[t]he 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, sued in an official or individual capacity for any act under color of such office" may remove to federal court.[16] If the defendant seeking removal is not a federal officer or agency, three conditions must be satisfied for removal to be warranted. First, the defendant must show that it is a "person" as that term is used in section 1442(a)(1).[17] Second, the defendant must offer a colorable federal defense.[18] Third, "it must establish that it was acting under' a federal officer, which subsumes the existence of a causal connection' between the charged conduct and asserted official authority."[19]

While other removal statutes are interpreted narrowly, [20] the Supreme Court has emphasized that "the federal officer removal statute is not narrow or limited."[21] Indeed, "the policy favoring removal should not be frustrated by a narrow, grudging interpretation of ยง 1442(a)(1).'"[22] Nevertheless, the Supreme Court has limited federal officer removal where a defendant claims ...

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