Opinion
3:20-cv-264-JR
05-22-2020
MELISSA COURY, PERSONAL REPRESENTATIVE OF THE ESTATE OF RAYMOND COURY, Plaintiff, v. AIR & LIQUID SYSTEMS CORPORATION, A PENNSYLVANIA CORPORATION, SUED INDIVIDUALLY AND AS SUCCESSOR BY MERGER TO BUFFALO PUMPS, INC., ET AL., Defendants.
FINDINGS & RECOMMENDATION :
BACKGROUND
Plaintiff initiated this action on February 26, 2016, as the personal representative of the estate of Raymond Coury in the Circuit Court of the State of Oregon for Multnomah. Plaintiff alleged that Raymond Coury died as a result of exposure to asbestos from various equipment while working at Northwest Marine & Iron Works Shipyard and Albina Engine & Machine Works Shipyard located in Portland, Oregon. Both shipyards serviced military and civilian vessels, but the initial and amended complaint in Multnomah County did not provide any specific ship information.
During litigation in Multnomah County, plaintiff provided then defendants General Electric Company ("GE") and CBS Corporation ("CBS") with a ship list Coury worked on that included U.S. Navy Vessels. In September 2016, after receiving the ship list, GE and CBS removed the litigation to federal court based on the federal officer removal statute, 28 U.S.C. § 1442(a)(1). Plaintiff moved to remand the action back to state court. Judge Beckerman found:
As the basis for their removal, GE and CBS asserted that, in supplying machinery and equipment to the U.S. Navy, GE and CBS were acting under an officer of the United States, within the meaning of the federal officer removal statute.
Prior to and during oral argument, Plaintiff's counsel represented to the Court that Plaintiff did not intend to seek redress from Defendants for any injuries stemming from exposure that occurred on a Navy vessel, and Plaintiff has now explicitly waived any and all claims that could conceivably be brought based on Navy vessel exposure. In light of Plaintiff's clarification and waiver of her claims, the Court concludes that it lacks subject matter jurisdiction.Findings and Recommendation (ECF #46 at pp. 4-5 in Case No. 3:16-cv-1796-SB) dated March 21, 2017 (adopted ECF #53 on May 26, 2017).
Judge Beckerman cited Fisher v. Asbestos Corp. Ltd., 2014 WL 3752020, at *4 (C.D. Cal. July 30, 2014) for the proposition that if plaintiff attempts to litigate otherwise in state court, defendants are free to remove again to this Court. Id. at p. 6
Upon remand to Multnomah County, the parties engaged in settlement discussions in which settlement counsel for plaintiff stated:
From approximately 1960 through the 1990s, Mr. Coury worked as a shipyard worker at Swan Island, a shipyard in Oregon. During this time he was employed by Northwest Machine & Iron Works. US Naval ships were frequently present at Swan Island and Mr. Coury was tasked with overhauling these ships. Naval Ships known to be present and worked on by Mr. Coury include: USS Paul F. Foster (DD-964), USS Henry B. Wilson, and USS Stein (FF/DE-1065). As a shipyard worker, Mr. Coury had to rip out engine rooms, including but not limited to turbines. He was also in the presence of other maintenance personnel working on the engine room equipment.Notice of Removal (ECF #1-5 at p. 2 in Case No. 3:17-cv-1240-SI). Settlement counsel also described the CBS-manufactured equipment known to be present on the U.S. Navy vessels USS Paul F. Foster and USS Stein at the time Coury worked on those vessels and invited CBS' defense counsel to participate in settling the case. Id. Settlement counsel similarly invited a settlement discussion with GE's defense counsel noting Coury's work on GE-manufactured equipment on the U.S Navy Ships USS Paul F. Foster, USS Stein and USS Henry B. Wilson. Notice of Removal (ECF # 1-4 at p. 2 in Case No. 3:17-cv-1240-SI).
Considering these discussions, on August 9, 2017, GE and CBS again removed the case to this Court. On September 8, 2017, plaintiff moved to remand asserting, among other arguments, the waiver of all claims arising from exposure on a U.S. Navy vessel. Judge Michael Simon denied the motion to remand noting the settlement related email constituted "other paper" for purposes of the federal officer removal statute and they indicated:
that Plaintiff intended to pursue claims related to asbestos exposure on U.S. Navy vessels. Both emails identify in detail the U.S. Navy vessels on which Coury is alleged to have worked, the equipment belonging to each Defendant found aboard those ships, and the work that Coury did on those ships. Indeed, the emails only identify U.S. Navy vessels, and no other ships, as the sources of asbestos exposure from Defendants' machines. Mr. Iola's emails belie Plaintiff's counsel's assertion that Plaintiff did not reassert a claim for exposure aboard a U.S. Navy vessel.Opinion and Order (ECF #52 at p. 11 in Case No. 3:17-1240-SI).
On June 10, 2019, plaintiff filed notices of settlement with GE and CBS and on June 18, 2019, moved to remand the claims against the remaining defendants to the Multnomah County Court. On July 17, 2019, the Court agreed that the federal officer removal statute no longer provided a basis for jurisdiction and granted the motion to remand. Order (ECF #214 in Case No. 3:17-1240-SI).
While the litigation continued in the Multnomah County Court, plaintiff served discovery requests on defendant Foster Wheeler, LLC in which plaintiff sought information and documents related to work done by Foster Wheeler on vessels constructed from 1942 to the present that may have been operational between the time period beginning 1965 through 1975. See Exs. 5-6 attached to the Declaration of Jeffrey S. Mutnick (ECF #8). On August 14, 2019, Foster Wheeler removed the litigation to this Court. It asserted that any discovery necessarily included US naval vessels and thus an intent to litigate exposure to asbestos on naval ships invoking the federal officer removal statute. Plaintiff moved to remand asserting she did not intend to seek damages from such exposure and on November 14, 2019, Judge Michael Mosman held:
Defendant Foster Wheeler LLC does not have standing to bring a federal contractor defense pursuant to 28 U.S.C. § 1446(b) and therefore has not asserted proper grounds for removal. Plaintiffs Motion to Remand [5] is GRANTED.Opinion and Order of Remand (ECF #14 at p. 2 in Case No. 3:19-cv-1277-MO).
Upon remand, plaintiff provided a list of specific ships subject to the above discovery requests. On that list were SS Anison Victory, SS Earlham Victory, SS Maldon Victory, and USS Algol. On February 19, 2020, defendant Foster Wheeler again removed to this Court asserting jurisdiction under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). Plaintiff now moves to remand. For the reasons stated below, plaintiff's motion should be granted.
DISCUSSION
A. Standard
The standard of review applicable to a motion for remand is the same as that applicable to a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). See Leite v. Crane Co., 749 F. 3d 1117, 1121-22 (9th Cir. 2014) (explaining that "[c]hallenges to the existence of removal jurisdiction should be resolved within [the] same framework" as that applicable to motions to dismiss for lack of subject matter jurisdiction, due to "the parallel nature of the inquiry"). Thus, defendants seeking removal bear "the burden of proving by a preponderance of the evidence that each of the requirements for subject-matter jurisdiction" are met. Id. at 1121.
Defendants ask the Court to deny plaintiff's motion for failure to confer as mandated by L.R. 7-1(a)(1). However, plaintiff's attempts to confer were sufficient given the history of this litigation. See Ex. 2 attached to the Declaration of Jeffrey S. Mutnick (ECF #18)
B. Federal Officer Removal
Actions against federal officers may be removed even where the complaint fails to explicitly cast a federal claim. The federal-question element is met if the defense depends on federal law. Jefferson Cnty., Ala. v. Acker, 527 U.S. 423, 431 (1999). The procedure for removal under section 1442 is provided in 28 U.S.C. § 1446. Pursuant to section 1446(b)(3), when a case is not removable based on its initial pleadings, a notice of removal may nonetheless "be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b)(3) (emphasis added). To invoke the federal officer removal statute, a removing party must show that: (1) it is a "person" within the meaning of the statute; (2) a causal nexus exists between the plaintiff's claims and the actions the removing party took pursuant to a federal officer's direction; and (3) it has a "colorable" federal defense to the plaintiff's claims. Cabalce v. Thomas E. Blanchard & Assocs., Inc., 797 F.3d 720, 727 (9th Cir. 2015). The Ninth Circuit instructs that section 1442 should be interpreted "broadly in favor of removal." Goncalves v. Rady Children's Hosp. San Diego, 865 F.3d 1237, 1244 (9th Cir. 2017).
The issue here, as in the previous removals to this Court, is the causal nexus. Throughout this litigation, plaintiff has disclaimed and waived any damages based on naval exposure with respect to defendant Foster Wheeler. However, Foster Wheeler provides an exhaustive discussion of its work installing steam generating units for the vessels SS Anison Victory, SS Earlham Victory, SS Maldon Victory, and USS Algol including the United States Navy's control of every aspect of the work including any warnings about hazards associated with asbestos insulation in the projects. Accordingly, Foster Wheeler asserts the discovery request constitutes "other paper" demonstrating plaintiff has shifted her litigation strategy to assert Naval ship exposure, to which it has a colorable government contractor defense.
See Boyle v. United Techs. Corp., 487 U.S. 500, 511-12 (1988) (selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function within the meaning of 28 U.S.C. § 2680(a) exempting the government and its contractors from tort liability). Liability for design defects in military equipment cannot be imposed, pursuant to state law, when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States. Id. at 512.
In the operative complaint, plaintiff affirmatively pleads as follows:
Plaintiff has previously waived and now disclaims and waives any cause of action or recovery for any injuries resulting from or arising out of exposure to asbestos, if any, on any federal government job sites, U.S. military vessel(s), or U.S. military equipment. There are no allegations in this matter that Plaintiff was exposed to asbestos from products on U.S. naval vessels or for any acts done at the direction of a federal officer.Ex. D to Notice of Removal (ECF #1-4) at ¶ 4.
Despite the naval vessels listed in the ship list in plaintiff's discovery request, plaintiff expressly limited those vessels to their "non-naval commercial use." Plaintiff asserts Coury worked on many ships including decommissioned naval ships and, thus, merely because she lists naval ships in her discovery request, it does not demonstrate a shift in litigation strategy contrary to the allegations in her complaint. Indeed, Judge Beckerman noted at the outset of the federal side of this litigation, "[t]o the extent Plaintiff's production of the Ship List created ambiguity, Plaintiff has cleared up any ambiguity with her clarification and express waiver of any claims related to exposure on Navy ships. In light of Plaintiff's representations, Defendants cannot meet their burden of proving—either at the time of removal or post-removal—the requisite nexus between Plaintiff's claims and any actions that Defendant took pursuant to a federal officer's direction." Findings and Recommendation (ECF #46 at p. 6 in Case No. 3:16-cv-1796-SB) dated March 21, 2017 (adopted ECF #53 on May 26, 2017). And now, to the extent defendant only performed work on the listed ships for non-commercial naval use, it can answer the discovery requests accordingly without needing to raise a government contractor defense to avoid liability for any exposure Coury may have suffered on those vessels. As the United States District Court of the Central District of California has stated:
Foster Wheeler asserts plaintiff cannot now attempt to narrow the scope of her claims so as to eliminate a federal defense to erase subject matter jurisdiction., However, plaintiff did not seek to eliminate liability for exposure to asbestos on naval ships after removal, she expressly pleaded the waiver in her state court pleadings and discovery request prior to removal.
Crane Co. also argues that Plaintiffs' waiver does not extinguish any claims to which it maintains a federal defense. But Plaintiffs have expressly waived the only claims against which Crane Co.'s federal contractor defense could apply. The extent of Mr. Jarvis's exposure to Crane Co.'s products at federal or military facilities or job sites may well be relevant when it comes time to determine fault and/or allocate damages among the various defendants. But that such matters are relevant does not equate to a formal "defense" because Plaintiffs have foregone claims to any such damages. Accordingly, there is no basis for Crane Co. to assert the federal contractor defense.Viveros v. Asbestos Corp. Ltd., 2014 WL 12572926, at *2 (C.D. Cal. Feb. 25, 2014).
Plaintiff's waiver negates any nexus between the plaintiff's claims and the actions Foster Wheeler took pursuant to a federal officer's direction. Accordingly, the Court lacks subject matter jurisdiction and the matter should be remanded to state court.
CONCLUSION
Plaintiff's motion to remand (ECF #7) should be granted and this action should be remanded to the Circuit Court of the State of Oregon for the County of Multnomah.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.
DATED this 22nd day of May, 2020.
/s/ Jolie A. Russo
JOLIE A. RUSSO
United States Magistrate Judge