HUGH B. SCOTT, Magistrate Judge.
This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(C) (Docket No. 9). The instant matter before the Court is plaintiffs' motion to remand this case (Docket No. 21). Responses to this motion were due by October 18, 2013, any reply was due by October 31, 2013, and the motion was deemed submitted (without oral argument) on October 31, 2013 (Docket No. 56).
Dispositive Nature of Motion to Remand
The United States Court of Appeals for the Second Circuit held that motions to remand are dispositive under 28 U.S.C. § 636(b)(1)(A) for Magistrate Judge jurisdictional purposes. The Second Circuit held that these motions are not "pretrial matters" under that provision and that Magistrate Judge can only render a Report & Recommendation on such motions, reversing precedent in this Court, Williams v. Beemiller, Inc. , 527 F.3d 259 (2d Cir. 2008), rev'g, Williams v. Beemiller, Inc., No. 05CV836, 2006 U.S. Dist. LEXIS 69024, at *3 (W.D.N.Y. Sept. 26, 2006), see Mick v. Glaxosmithkline PLC, No. 08CV386, Docket No. 23 (W.D.N.Y. Aug. 12, 2008) (Scott, Mag. J.) (Report & Rec. at 4), adopted, id., Docket No. 24 (W.D.N.Y. Sept. 2, 2008) (Arcara, J.). Thus, this Report & Recommendation will be issued on plaintiffs' motion to remand here.
This is a personal injury action removed to this Court by defendant Crane Co. (Docket No. 1, Crane Co. Notice of Removal). Plaintiffs filed this action in New York State Supreme Court, suing 42 defendants for injuries plaintiff Edward Clayton suffered from exposure to asbestos during his work life and military service (Docket No. 1). Crane Co.'s Removal
In discovery responding to defendants' interrogatories, they allege that plaintiff Edward Clayton was exposed to asbestos working on defendant Crane Co. products while serving in the U.S. Navy Reserve aboard the U.S.S. Rizzi from 1953 to 1957 and in the U.S. Marine Corps aboard the U.S.S. Breckinridge from 1957 to 1959. Asserting federal officer removal statute, 28 U.S.C. § 1442(a)(1), Crane Co. removed this case to Federal Court for Crane Co. following contractual orders by the Navy (id.).
Federal officer removal requires a defendant to establish that it is a "person" under § 1442, the defendant acted under the direction of a federal officer when engaged in the alleged tortious conduct, there is a causal nexus between plaintiff's claim and defendant's actions under federal direction, and the defendant raised a colorable defense based upon federal law (Docket No. 1, Crane Co. Notice of Removal ¶ 8), Mesa v. California , 489 U.S. 121, 124-25, 129-31, 134-35 (1989). Crane Co. contends that it showed all four elements based upon a federal contractor defense (id. ¶¶ 9-13).
Some of the defendants answered after removal (Docket Nos. 7, Bird Incorporated; 29, McCord Corporation; 33, Amchem Products, Inc.; 34, Dana Companies, LLC, Air & Liquid Systems Corporation; 48, BW/IP, Inc.), while counsel for other defendants appeared. The parties stipulated to dismiss General Electric Co. as a party (Docket Nos. 59 (stipulation), 60 (Order)). Plaintiffs' Motion to Remand
Plaintiffs argue that removal statutes are to strictly construed (Docket No. 22, Pls. Memo. at 3, citing Fyke Trading U.S.A., Inc. v. New England Motor Freight, No. 07CV581, 2008 WL 4443222, at *4 (W.D.N.Y. Sept. 28, 2008) (Skrenty, J.) (diversity jurisdiction alleged); Lopez v. Wells, No. 07 Civ. 10707, 2008 WL 2662018, at *2 (S.D.N.Y. July 7, 2008)). While stating in their discovery responses that Edward Clayton was exposed to asbestos products manufactured by Crane Co. as a millwright, auto mechanic, and electrician in the United States Navy and Marine Corps, they claim that their "responses did not include any further allegations regarding when, where, or how Mr. Clayton was exposed to those products while serving either in the Navy or the Marines" (id. at 1). First, in a subsequent affidavit, Edward Clayton now claims that he was not exposed to any Crane products during his military service but solely as a civilian millwright in Niagara Falls and Buffalo, New York, from 1955 to 1979, thus Crane Co. has no federal government contractor defense and no basis to remove (id. at 2, 3, Ex. 1, Pl. Edward Clayton Aff. of Aug. 26, 2013, ¶¶ 1-3, 5). Edward Clayton claims that he replaced asbestos packing inside Crane Co. valves without a mask or respirator (id., Ex. 1, Edward Clayton Aff. ¶¶ 3-4). Second, plaintiffs deny that Crane Co. has a colorable government contractor defense and that there is no evidence that the Navy would have prohibited Crane Co. from warning about the "ultra-hazardous component part like asbestos" (Docket No. 22, Pls. Memo. at 2). Plaintiffs also point to the judge presiding over the multidistrict litigation pending for asbestos claims holding that similar allegations did not provide federal subject matter jurisdiction (id. at 3-4, Ex. 2, Macknin v. Air & Liquid Sys. Corp., No. 2:12-cv-60169 (E.D. Pa. Nov. 30, 2012), at 1 n.1), rejecting claims that plaintiff was exposed to Crane Co. products while working on a Navy vessel (id. at 4-5). Plaintiffs argue that Crane Co. does not have a defense to plaintiffs' failureto-warn claim by showing that Navy's specifications or contract terms made it impossible for a contractor simultaneously to comply with those specifications and state law warning requirements to establish a colorable federal defense (id. at 5).
Crane Co. responds that there is a strong presumption in favor of removals under 28 U.S.C. § 1442(a)(1) (Docket No. 61, Crane Co. Response Memo. at 1) and the cases cited by plaintiffs arise from diversity jurisdiction rather than based upon federal party being sued (see id. at 2). Crane Co. terms plaintiff Edward Clayton's affidavit as a post-removal event which cannot divest this Court of removal jurisdiction (id.) and concludes that plaintiffs cannot claim exposures on Navy ships but later deny exposure (and point to later, civilian exposure) (id. at 4). Crane Co. concludes that it established the elements of a government contractor defense (id. at 9-10; Crane Co. Atty. Aff., Ex. B, Holliday v. Crane Co., No. 12-cv-7615, at 2-4 (S.D.N.Y. Aug. 9, 2013)).
Plaintiffs reply that Crane Co. failed to provide sufficient evidence of a colorable federal defense, or that it acted upon the direction of federal officer to form the basis of removal (Docket No. 64, Pls. Reply). They argue that the case was not removable when Crane Co. moved, since plaintiffs' Interrogatory answer did not state that Edward Clayton was exposed to Crane Co. products on Naval vessels (id. at 2-3). That answer (Docket No. 1, Notice of Removal, Ex. 2, Ans. 17) lists various products and manufacturers (valves and pumps by Crane Co., for example) and attached a schedule (id., Ex. A) of employers Edward Clayton worked at over time.
A. Removal, Remand, and Federal Officer Removal Statute
The parties differ on the which of them bears the burden of showing that this case is properly before this Court rather than in state court. Within that fundamental dispute, the parties further disagree on the amount of proof Crane Co. needs to assert for its government contractor defense to justify this removal, ...