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Gerald Brantley v. Borg-Warner Morse Tec

May 3, 2012

GERALD BRANTLEY,
PLAINTIFF,
v.
BORG-WARNER MORSE TEC, INC.; ET
DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER DENYING MOTION TO REMAND [Doc. No. 15]

The Plaintiff filed a motion to remand, Doc. No. 15, on March 27, 2012. The Defendants filed an opposition, Doc. No. 25, and the Plaintiff filed a reply, Doc. No. 27.*fn1 The hearing set by Judge Moskowitz for April 20, 2012 was vacated by Judge Battaglia, Doc. No. 24, and upon review of the parties moving papers, the Court finds this motion appropriate for submission on the papers without oral argument pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth below, the Plaintiff's motion to remand, Doc. No. 15, is hereby DENIED.

Background

The Plaintiff, Gerald Brantley, originally filed this action in San Diego Superior Court on January 30, 2012. Plaintiff alleges that "he developed mesothelioma as a result of exposure to CBS's asbestos-containing Westinghouse turbines while serving in the United States Navy." (Plaintiff's Memorandum, p. 2). He brought the instant action against Westinghouse "seeking damages for [Westinghouse's] failure to warn and design defect under state law product liability theories." Id. According to his complaint, the only ship on which he served while in the Navy was the USS Fort Marion (Plaintiff's Complaint ("Complaint"), Exh. A), which was outfitted with Westinghouse propulsion turbines that were later insulated with asbestos-containing materials by other parties.

The Plaintiff has expressly disclaimed any cause of action or recovery against Defendants for any injuries resulting from exposure to asbestos caused by any Defendant acting at the direction of an officer of the United State Government.

Defendants removed the case to this Court on March 2, 2012, pursuant to 28 U.S.C. § 1442(A)(1). [Doc. No. 1.] On March 27, 2012, the Plaintiff filed a motion to remand this action to state court. [Doc. No. 15.]

Discussion

Plaintiff asserts two main grounds for remand: (1) that the removal was precluded by a disclaimer that purports to defeat removal; and (2) that this Court lacks jurisdiction because Westinghouse cannot prove the elements of federal officer jurisdiction as set forth in Mesa v. California, 489 U.S. 121 (1989).

Legal Standard on Motion to Remand

Defendant removed of this case pursuant to § 1442(a)(1), under which a state civil action may be removed to federal court by "any officer . . . of the United States or of any agency thereof, sued in an official capacity for any act under color of such office." 28 U.S.C. § 1442(a)(1). A party seeking removal under § 1442(a)(1) must demonstrate: (1) that it is a person within the meaning of the statute,

(2) that it acted under the direction of a federal officer, (3) a causal nexus between plaintiffs' claims and acts it performed under color of federal office, and (4) a colorable federal defense to plaintiffs' claims. Mesa v. California, 489 U.S. 121, 124-25, 134-35, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989); Fung v. Abex ., 816 F.Supp. 569, 571-72 (N.D.Cal.1992).

Generally, there is a strong presumption against removal jurisdiction and, as a result, removal statutes are to be strictly construed against removal and defendants have the burden of establishing that removal jurisdiction is proper. See Gaus v. Miles, Inc., 980 F.2d 564, 566-67 (9th Cir.1992). Federal officer removal, however, is an exception to this general rule. Because the federal government can act only through its officers and agents, it would be difficult to find those to act on its behalf if it did not guarantee its officers and agents access to a federal forum. Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1253 (9th Cir.2006) (citing Tennessee v. Davis, 100 U.S. 257, 263, 25 L.Ed. 648 (1880)). Therefore, "when federal officers and their agents are seeking a federal forum, we are to interpret section 1442 broadly in favor of removal." Id. at 1252.

Plaintiff's Disclaimer Does Not Negate Federal Jurisdiction

In his state court complaint, Mr. Brantley expressly disclaims "any cause of action or claim for injuries caused by any exposure to asbestos dust that caused by any acts or omissions of a party defendant committed at the direction of an officer of the United States Government." (Complaint, attached as Exhibit "A" to the Declaration of Rebecca A. Cucu, p. 3, ΒΆ 4:18-21.) As a result of this disclaimer, the Plaintiff argues that Defendants' removal to this Court is unwarranted because there is no subject matter jurisdiction. However, despite this disclaimer, the Plaintiff still seeks damages arising out of his exposure to asbestos in and around the Westinghouse turbines produced by Defendants while serving in the United States Navy aboard the USS Fort Marion. As explained below, Defendants can assert a federal defense. "Because removals pursuant to the federal officer removal statute are premised on the existence of a federal defense, rather than a plaintiff's artfully constructed complaint, neither Plaintiff's disclaimer nor its characterization of their claims are determinative." Oberstar v. CBS Corp., ...


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