United States District Court, N.D. New York
MICHAEL COHAN, ESQ., KARDON A. STOLZMAN, ESQ., NAPOLI BERN RIPKA SHKOLNIK & ASSOCIATES LLP, New York, New York, Attorneys for Plaintiffs.
ANGELA DIGIGLIO, ESQ., ERIC R.I. COTTLE. ESQ., NICOLE M. KOZIN, ESQ., K & L GATES LLP, New York, New York Attorneys for Defendant Crane Co.
MEMORANDUM-DECISION AND ORDER
FREDERICK J. SCULLIN, Jr., Chief District Judge.
On May 21, 2012, Plaintiffs filed a complaint in New York Supreme Court, Jefferson County. See Dkt. No. 55 at 6; Dkt. No. 1 at Exhibit 2. On November 13, 2012, Defendant Crane Co. filed a notice of removal based on federal officer jurisdiction under 28 U.S.C. § 1442(a)(1). See Dkt. No. 1. On February 13, 2014, Plaintiffs filed the pending motion to remand on the ground that the Court lacked subject matter jurisdiction over this action. See Dkt. No. 52.
Plaintiffs allege that Plaintiff Dwight Crews (hereinafter "Plaintiff") acquired cancer as a result of asbestos exposure while serving in the United States Navy from 1965 to 1971. See Dkt. No. 55, Plaintiffs' Remand Memorandum of Law, at 6; Dkt. No. 1 at ¶ 5. Plaintiffs assert six causes of action. See Dkt. No. 1 at Exhibit 2. The first cause of action sounds in negligence, part of which is based on negligent design, see id. at ¶ 58, and failure to warn, id. at ¶¶ 64-65, against all Defendants. Their second cause of action alleges breaches of implied and express warranties and is "against all Defendants, except for those asbestos exposures which are alleged to have occurred aboard any military vessel or vehicle, on or at any shipyard or on or at any governmental facility or location." See id. at ¶¶ 77-82. Their third cause of action asserts a failure to warn claim "against all Defendants except no claims alleging a manufacture or design defect other than failure to warn are made for any asbestos exposures, which are alleged to have occurred aboard any military vessel or vehicle on or at any shipyard or on or at any governmental facility or location." See id. at ¶¶ 83-92. Their fourth cause of action asserts a claim based on fungible products and is asserted "against all Defendants except no claims alleging a manufacture or design defect other than failure-to-warn are made for asbestos exposures, which are alleged to have occurred aboard any military vessel or vehicle, on or at any shipyard on or at any governmental location." See id. at ¶¶ 93-103. Their fifth cause of action is based on a claim of unsafe workplace and is asserted against all Defendants. See id. at ¶¶ 104-122. Their sixth cause of action is for loss of consortium. See id. at ¶¶ 123-126.
Defendant Crane Co. (hereinafter "Defendant") is a small sub-manufacturer that produced valves and gaskets for the Navy during Plaintiff's time in service. See Dkt. No. 1 at ¶ 5; Exhibit 2, at Response No. 22 and Chart A. Plaintiff alleges that he was exposed to products that Defendant manufactured and supplied while working aboard the USS Wright and USS Bainbridge. See id.
A. Standard for removal under 28 U.S.C. § 1442(a)
Generally, removal of an action from state court to federal court is only permissible if the action could have been brought initially in federal court. See Hagen v. Benjamin Foster Co., 739 F.Supp.2d 770, 775 (E.D. Pa. 2010) (citing 28 U.S.C. § 1441). Furthermore, a defendant usually may not remove a suit to federal court on the basis of a federal defense. See id. at 776 (citation omitted). However, the federal officer removal statute, 28 U.S.C. § 1442(a)(1),  which confers jurisdiction over cases in which a federal officer is a defendant, explicitly allows defendants to remove such actions and, thus, is an exception to this general rule. See id. (citations omitted).
To establish subject matter jurisdiction under § 1442(a)(1), a defendant must demonstrate that
"(1) it is a person' within the meaning of the statute; (2) the plaintiff's claims are based upon the defendant's conduct acting under' a federal office; (3) it raises a colorable federal defense; and (4) there is a causal nexus between the claims and the conduct performed under color of a federal office."
Id. (quoting Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124, 127 (3d Cir. 1998)).
In this case, Defendant raises the government contractor defense "which, based on principles of preemption, cloaks government contractors like Defendant from ordinary statelaw liability." Id.
In situations such as this one, in which "the government contractor defense is the basis for invoking this Court's jurisdiction... against [a] non-government entit[y] who furnished equipment to the military, resolution of Plaintiff's motion to remand effectively turns on how colorable Defendant['s] federal defense really is." Id. Furthermore, as the court noted in Hagen, "unlike the analysis undertaken with respect to other removal statutes, ... the Court must broadly construe Defendant['s] ability to remove under Section 1442(a)(1) as to avoid frustrating its policy objective of hav[ing] the validity of the defense of official immunity tried in a federal court' by applying a narrow, ...