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FUNG v. ABEX CORP.

October 26, 1992

JERRY FUNG AND LISA FUNG, Plaintiffs,
v.
ABEX CORPORATION, ET AL., Defendants. RICHARD BOOK and PHYLLIS BOOK, Plaintiffs, v. ABEX CORPORATION, ET AL., Defendants. DALE EPPERSON and CARMEN EPPERSON, Plaintiffs, v. ABEX CORPORATION, ET AL., Defendants.



The opinion of the court was delivered by: D. LOWELL JENSEN

 On October 14, 1992 the Court considered plaintiffs' motion for remand. Philip A. Harley and Patricia E. Henle of Brayton, Gisvold & Harley appeared for plaintiffs. Christopher J. Mead of Cooper, White & Cooper, Beth E. Orlowsky of McKenna & Cuneo, and Merle J. Smith, Jr., General Counsel for General Dynamics appeared for defendants. Having considered the papers submitted, the arguments of counsel, the applicable law, and the entire record herein, the Court DENIES plaintiffs' motion for remand and shall notify the Clerk of the Judicial Panel on Multidistrict Litigation regarding the pendency of these actions pursuant to 28 U.S.C.A. § 1407.

 I. BACKGROUND

 On or about June 10, 1992, plaintiffs Jerry and Lisa Fung and plaintiffs Richard and Phyllis Book filed personal injury and loss of consortium actions against defendant General Dynamics and 277 other defendants. Plaintiffs Dale and Carmen Epperson filed a similar action against the same defendants on July 7, 1992. Initially the cases were filed in San Francisco Superior Court alleging personal injuries resulting from exposure to asbestos.

 Defendant General Dynamics removed the cases to the United States District Court for the Northern District of California pursuant to 28 U.S.C. §§ 1441 and 1442. General Dynamics argues that many of plaintiffs' allegations stem from their employment by the United States Navy at Mare Island Shipyard, a United States Naval facility as well as other Naval facilities. Defendant also argues that the claims of asbestos exposure involve plaintiffs' duties while on board United States Navy submarines constructed by General Dynamics pursuant to federal contract. This Court related the three actions on September 11, 1992. Plaintiffs request that the Court remand these actions to San Francisco County Superior Court claiming that 28 U.S.C.A. §§ 1441, 1442 and 1446 are inapplicable.

 II. DISCUSSION

 A. Motion for Remand

 Title 28 U.S.C. § 1441(a) provides that any civil action of which the district courts have original jurisdiction may be removed unless a statute expressly provides otherwise. "On Motion for Remand, the burden of proving the propriety of removal rests in the party who removed." Societa Anonima Lucchese Olii E. Vini v. Catania Spagna Corp., 440 F. Supp. 461 (D.C. Mass. 1977). "[A] cause of action arises under federal law only when the plaintiff's well pleaded complaint raises issues of federal law." Metropolitan Life Insurance Co. 481 U.S. 58, , 481 U.S. 58, 107 S. Ct. 1542, 1546, 95 L. Ed. 2d 55; Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-10, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983). Thus, claims "brought under state law may 'arise under' federal law if vindication of the state right necessarily turns upon construction of a substantial question of federal law, i.e., if federal law is a necessary element of one of the well-pleaded claims." Ultramar America, Ltd. v. Dwelle, 900 F.2d 1412, 1414 (9th Cir. 1990).

 A complainant cannot, "however, avoid federal jurisdiction simply by omitting from the complaint federal law essential to his claim, or by casting in state law terms a claim that can be made only under federal law." Harper v. San Diego Transit Corp., 764 F.2d 663 (1985).

 Title 28 U.S.C. § 1331(a) provides that the district court has concurrent original jurisdiction over claims where the matter in controversy exceeds $ 10,000 and arises under the Constitution, laws or treaties of the United States. The Ninth Circuit has indicated that personal injury actions arising from incidents occurring on federal enclaves may support district court jurisdiction under § 1331 and arise under the Constitution. Willis v. Craig, 555 F.2d 724, 726 (9th Cir. 1977); Mater v. Holley, 200 F.2d 123 (5th Cir. 1952).

 In Mater, the plaintiff sued to recover for personal injuries while in Fort McPherson, a federal enclave. The court upheld federal jurisdiction even though state law would apply to the action. The court stated that the claims arose under the laws of the United States within the meaning of 28 U.S.C.A. § 1331, and federal jurisdiction was "not affected by concurrent jurisdiction in state courts." Id. at 125.

 Although plaintiffs do not mention in their complaint that the alleged exposure to asbestos took place while on federally procured submarines which were docked at Mare Island and other federal enclaves, they claim that the injuries were a consequence of their working on naval vessels under the supervision of General Dynamics. Failure to indicate the federal enclave status and location of the exposure will not shield plaintiffs from the consequences of this federal enclave status. Like the facts in Mater, plaintiffs' actions arise under the laws of the United States as stated in § 1331 and are properly the subject of federal jurisdiction.

 Defendant also argues that removal is proper under Title 28 U.S.C. § 1442(a)(1), which states that an action may be removed by "any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office." This provision is satisfied if the moving party can (1) demonstrate that it acted under the direction of a federal officer, (2) raise a federal defense to plaintiffs' claims, and (3) demonstrate a causal nexus between plaintiffs' claims and acts it performed under color of federal office. Mesa v. California, 489 U.S. 121, 124-25, 134-35, 103 L. Ed. 2d 99, 109 S. Ct. 959 (1989).

 Defendant General Dynamics must first show that it is a person in the context of § 1442(a)(1). While the Supreme Court has held that § 1442's "person" should not include government agencies, the Court has not decided whether a "person" should include corporations acting under a federal officer. International Primate Protection League v. Administrators of Tulane Educ. Fund, U.S. , 111 S. Ct. ...


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