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Phillips v. Asbestos Corporation Limited

United States District Court, N.D. California

February 26, 2014



CLAUDIA WILKEN, District Judge.

Plaintiff David Phillips moves to remand this case back to San Francisco superior court. Defendant Crane Co. opposes. The Court finds this motion suitable for disposition without oral argument pursuant to Civil Local Rule 7-1(b). Having considered the papers submitted by the parties, the Court GRANTS Phillips' motion to remand.


On December 20, 2011, Phillips filed suit in San Francisco superior court against Crane and other defendants, asserting negligence and other state law claims for causing him asbestos-related injuries. Specifically, Phillips worked at several locations containing asbestos, including the Mare Island Naval Shipyard, and now suffers from asbestos-related pleural disease and asbestosis, serious lung diseases that are associated with the inhalation of asbestos fibers. In his complaint, Phillips expressly waived claims against Crane relating to his exposure to asbestos at military and federal government jobsites, or from U.S. military vessels, aircraft, or equipment. Complaint ¶ 6.

On December 6, 2013, Crane removed this action to federal court. Phillips now moves to remand the suit back to San Francisco superior court.


Crane argues that it properly removed this action under the federal officer removal statute, which provides 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." 28 U.S.C. § 1442(a)(1). Suits against federal officers are exceptional in that they may be removed to federal court despite the nonfederal nature of the complaint. Jefferson County v. Acker , 527 U.S. 423, 431 (1999). Although removal under § 1441 is strictly construed, with any doubt resolved in favor of remand, the removal rights of § 1442 are broader than those provided by § 1441 because it is important to the federal government to protect its officers. See Gaus v. Miles, Inc. , 980 F.2d 564, 566 (9th Cir. 1992); Durham v. Lockheed Martin Corp. , 445 F.3d 1247, 1252 (9th Cir. 2006). The Ninth Circuit instructs that there is a "clear command from both Congress and the Supreme Court that when federal officers and their agents are seeking a federal forum, we are to interpret section 1442 broadly in favor of removal." Durham , 445 F.3d at 1252 (quoting Arizona v. Manypenny , 451 U.S. 232, 242 (1981)).

Thus, the fact that Phillips' complaint expressly disavows any federal claims is not determinative. Rather, removal is proper under the federal officer removal statute if the removing party: (1) demonstrates that it acted under the direction of a federal officer; (2) raises a colorable federal defense to the plaintiff's claims; and (3) demonstrates a causal nexus between the plaintiff's claims and the defendant's acts performed under color of federal office. Mesa v. California , 489 U.S. 121, 124-25, 134-35 (1989); Fung v. Abex Corp. , 816 F.Supp. 569, 571-72 (N.D. Cal. 1992).

Here, Crane claims that the federal defense of military contractor immunity shields it from liability. This doctrine provides, "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." Boyle v. United Technologies Corp. , 487 U.S. 500, 512 (1988). The justification for this defense is that liability for independent contractors performing work for the federal government constitutes a uniquely federal concern. Id. at 505.

In the present case, however, Phillips has expressly disclaimed and waived any claim arising out of or related to any asbestos exposure aboard federal jobsites and navy vessels. This removes any claims to which military contractor immunity might act as a defense. The Court sees no reason not to hold Phillips to this waiver; this same waiver language was found to justify remand in many cases in this district with very similar facts.[1] The waiver justifies remand. If Phillips later attempts to reverse course, and is allowed to do so by the state court despite his express waiver, Crane can remove once again.[2]


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