The opinion of the court was delivered by: Honorable Jacqueline H. Nguyen
Present: The Honorable JACQUELINE H. NGUYEN
Alicia Mamer Not Reported N/A
Deputy Clerk Court Reporter/Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Not Present Not Present
Proceedings: ORDER REMANDING MATTER TO LOS ANGELES COUNTY SUPERIOR COURT (In Chambers)
This matter is before the Court on Plaintiff Geoffrey Lockwood's ("Plaintiff") Motion to Remand Case to Los Angeles Superior Court. (Docket no. 28.) Defendant Foster Wheeler LLC ("Defendant") has filed an opposition (docket no. 45) and Plaintiff has filed a reply (docket no. 57). The Court has reviewed the parties' briefs and deems the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78(b); Local Rule 7-15. For the reasons herein, the Motion is GRANTED.
A civil case that is commenced in a state court against any person "acting under" the direction of a United States officer may be removed by that defendant to the district court. 28 U.S.C. § 1442(a)(1). A party seeking removal under § 1442 must show that: "(a) it is a 'person' within the meaning of the statute; (b) there is a causal nexus between its actions, taken pursuant to a federal officer's directions, and plaintiff's claims, and (c) it can assert a 'colorable federal defense.'" Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006) (citations omitted). With regard to the second element, § 1442(a)(1) specifically requires that a plaintiff's claim be based upon defendant's conduct "acting under" a federal officer. "[P]recedent and statutory purpose make clear that the private person's 'acting under' must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior." Watson v. Philip Morris Cos., 551 U.S. 142, 152 (2007) (emphasis in the original). "A private firm's compliance (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase 'acting under' a federal 'official.' And that is so even if the regulation is highly detailed and even if the private firm's activities are highly supervised and monitored." Id. at 153.
"The burden of establishing federal jurisdiction is on the party invoking federal jurisdiction." United States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).
Defendant removed the instant action from Los Angeles Superior Court on February 22, 2012, on the grounds that in manufacturing the "marine steam generators, including boilers and economizers, on the USS Taluga," which Plaintiff allegedly worked on, it acted "under an officer or agency of the United States within the meaning of 28 U.S.C. § 1442(a)(1)." (Docket no. 1 (the "Notice of Removal") ¶¶ 6-8.) Plaintiff argues that its ...