DOMINIC FONTALVO, a minor, by and through his Guardian ad litem, NORMA FONTALVO, individually and as successor in interest to Alexis Fontalvo, deceased Plaintiff,
SIKORSKY AIRCRAFT CORPORATION; SIKORSKY SUPPORT SERVICES, INC.; UNITED TECHNOLOGIES CORPORATION; G.E. AVIATION SYSTEMS, LLC; DUPONT AEROSPACE CO.; DUPONT DE NEMOURS AND COMPANY LLC; E.I. DUPONT DE NEMOURS AND COMPANY; PKL SERVICES INC.; and DOES 1 through 100, Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO REMAND [DKT. NO. 7]
GONZALO P. CURIEL, District Judge.
On January 25, 2013, Plaintiff Dominic Fontalvo, a minor, by and through his guardian ad litem, Norma Fontalvo, filed a products liability complaint in the Superior Court of San Diego against numerous Defendants. On February 11, 2013, Defendant Sikorsky Aircraft Corporation ("Sikorsky") removed the case to this Court. (Dkt. No. 1, "Notice of Removal.") On March 6, 2013, Plaintiff filed a motion to remand the action to state court. (Dkt. No. 7, "Pl. Mtn.") On May 3, 2013, Defendant Sikorsky filed an opposition to the motion to remand. (Dkt. No. 19, "Def. Opp.") Defendant E.I. Dupont de Nemours and Company ("Dupont") also filed an opposition to Plaintiff's motion to remand, supporting and elaborating on Sikorsky's arguments. (Dkt. No. 23.) Plaintiff filed a reply to both oppositions. (Dkt. Nos. 24, 25.) The Court finds the matter suitable for resolution without oral argument pursuant to Local Civil Rule 7.1(d)(1). Based on the briefing, supporting documentation and applicable law, the Court DENIES Plaintiff's motion to remand.
This action arises from the death of United States Marine Corps Staff Sergeant Alexis Fontalvo that occurred during a helicopter accident on March 17, 2011 at the Marine Corps Air Station Miramar. (Dkt. No. 1, Ex. A, "Compl.") The accident occurred when a faulty wiring harness of a CH-53E helicopter caused the landing gear to unexpectedly retract while Sgt. Fontalvo was beneath the aircraft. (Pl. Mtn. at 1, Ex. A, "JAGMAN Final Report.") Sgt. Fontalvo was killed by the weight of the helicopter. (Id.) The JAGMAN Final Report, issued following the Judge Advocate General's investigation of the accident, states the wiring in the landing gear control panel was in disrepair, and caused the landing gear to unexpectedly retract on top of Sgt. Fontalvo. (Id.) The Final Report further found that the overall design of the wiring harness exacerbated the danger posed by the exposed wires. (Id.)
Plaintiff Dominic Fontalvo ("Plaintiff"), the minor son and sole heir of Alexis Fontalvo, filed the instant action on January 25, 2013 in the Superior Court of San Diego by through his guardian ad litem, Norma Fontalvo. (Compl. ¶¶ 3-4.) Plaintiff brings the action as the decedent's successor in interest pursuant to Cal. Code Civ. P. § 377.11. (Compl. ¶ 38.) Plaintiff alleges strict and negligent product liability, negligence and breach of warranty against Defendants as the designers and manufacturers of the CH-53E helicopter. (Compl. pp. 2-8.)
Defendant Sikorsky removed this action pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1); federal question jurisdiction, 28 U.S.C. § 1441; and diversity jurisdiction, 28 U.S.C. § 1441. (Notice of Removal.) Plaintiff seeks to remand based on Defendant Sikorsky's failure to meet the requirements of the federal officer removal statute, lack of complete diversity, inapplicability of the federal enclave statute, and pre-service removal defect. In opposition to Plaintiff's motion to remand, Defendant Sikorsky asserts that it has met all the requirements of the federal officer removal statute, and, moreover, removal is appropriate because of the existence of a federal question and complete diversity of the parties.
Pursuant to 28 U.S.C. § 1441(a), a defendant may remove to federal court a claim filed in state court that could have initially been brought in federal court. 28 U.S.C. § 1441(a); Caterpillar Inc. v. Williams , 482 U.S. 386, 392 (1987). As federal courts have limited jurisdiction, they are presumed to lack jurisdiction unless the contrary is established. Gen. Atomic Co. v. United Nuclear Corp. , 655 F.2d 968, 968-69 (9th Cir.1981). Removal statutes are to be strictly construed and any doubts are to be resolved in favor of state court jurisdiction and remand. See Gaus v. Miles , 980 F.2d 564, 566 (9th Cir.1992).
A. Federal Officer Removal Statute
28 U.S.C. § 1442(a)(1), also known as the federal officer removal statute, provides that an action may be removed by "[a]ny officer... of the United States or any agency thereof, in an official or individual capacity, for or relating to any act under color of such office...." 28 U.S.C. § 1442(a)(1). Removal under § 1442(a)(1) requires the moving party to 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) (citing Jefferson Count Alabama v. Acker , 527 U.S. 423, 431 (1999)); Mesa v. California , 489 U.S. 121, 124-25 (1989).
Generally, there is a strong presumption against removal jurisdiction and the defendants always have the burden of establishing that removal is proper. Gaus , 980 F.2d at 566. However, the federal officer removal statute is an exception to this general rule and § 1442 is interpreted broadly in favor of removal. Durham , 445 F.3d at 1252; Ballenger v. Agco, No. 06-2271 CW , 2007 WL 1813821, at *2 (N.D. Cal. June 22, 2007). For example, under § 1442, federal officers can remove both civil and criminal cases while § 1441 only provides for civil removal; a federal officer can remove a case even if the plaintiff couldn't have filed the case in federal court in the first instance; removals under § 1441 are subject to the well-pleaded complaint rule while those under § 1442 are not; and where all defendants must consent to removal under § 1441, a federal officer or agency defendant can unilaterally remove a case under § 1442. Durham , 445 F.3d at 1253. Under the federal officer removal statute, cases against federal officers "may be removed despite the nonfederal cast of the complaint; the federal-question element is met if the defense depends on federal law." Acker , 527 U.S. at 431.
As corporations, Defendants meet the preliminary requirement that the party seeking removal is a person within the meaning of § 1442(a)(1). See Fung v. Abex Corp. , 816 F.Supp. 569, 572 (N.D. Cal. 1992) (concluding that corporations qualify as a ...