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Hukkanen, v. Air and Liquid Systems Corp

United States District Court, C.D. California

March 31, 2017

John Hukkanen, et al.
v.
Air and Liquid Systems Corporation, et al.

          PRESENT: HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGE

          CIVIL MINUTES -- GENERAL

         PROCEEDINGS (IN CHAMBERS): ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' EX PARTE APPLICATION TO REMAND AND FOR AN AWARD OF COSTS INCURRED AGAINST DEFENDANT FOSTER WHEELER LLC AND ITS COUNSEL, HUGO PARKER, LLP [filed 3/30/17; Docket No. 86]

         On March 30, 2017, Plaintiffs John Hukkanen and Mary Hukkanen (collectively, “Plaintiffs”) filed an Ex Parte Application to Remand for an Award of Costs Incurred Against Defendant Foster Wheeler LLC and its Counsel, Hugo Parker, LLP (“Application”). On March 31, 2017, Defendant Foster Wheeler LLC (“Foster Wheeler”) filed its Opposition. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds that this matter is appropriate for decision without oral argument. After considering the moving and opposing papers, and the arguments therein, the Court rules as follows:

         I. Factual and Procedural Background

         On February 22, 2017, Plaintiffs filed a Complaint in Los Angeles Superior Court against Foster Wheeler and numerous other defendants, alleging causes of action for: (1) negligence; (2) breach of express and implied warranties; (3) strict liability; (4) premises owner/contractor liability; and (5) loss of consortium. In the Complaint, Plaintiffs allege that John Hukkanen's mesothelioma was caused by his exposure to asbestos dust and/or fibers. Plaintiffs also allege that John Hukkanen was exposed to asbestos at various times and places, including while serving as a machinist in the U.S. Navy aboard the U.S.S. Somers and the U.S.S. Walke from approximately 1960 through 1968.

         On March 22, 2017, Foster Wheeler removed this action to this Court. In its Notice of Removal, Foster Wheeler alleges that this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1442(a)(1) because Foster Wheeler was acting under an officer or agency of the United States.

         Plaintiffs now move to remand this action to Los Angeles Superior Court on the basis that Foster Wheeler's removal was improper and this Court lacks subject matter jurisdiction because Plaintiffs have waived any claims that would give rise to the military contractors immunity defense.

         II. Legal Standard

         A motion to remand is the proper procedure for challenging removal. See N. Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1038 (9th Cir.1995). The removal statute is strictly construed, and any doubt about the right of removal is resolved in favor of remand. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992); see also Prize Frize, Inc. v. Matrix, Inc., 167 F.3d 1261, 1265 (9th Cir.1999). Consequently, if a plaintiff challenges the defendant's removal of a case, the defendant bears the burden of establishing the propriety of the removal. See Gaus, 980 F.2d at 566; see also Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir.1996) (citations and quotations omitted) (“Because of the Congressional purpose to restrict the jurisdiction of the federal courts on removal, the statute is strictly construed, and federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.”).

         Federal courts are courts of limited jurisdiction, having subject matter jurisdiction only over matters authorized by the Constitution and Congress. See Bender v. Williamsport Area School District, 475 U.S. 534, 541 (1986). Generally, a defendant may remove a civil action filed in state court to federal court if the federal court has original jurisdiction over the action. 28 U.S.C. § 1441(a).

         III. Discussion

         A. This Case Should Be Remanded to Los Angeles Superior Court.

         Foster Wheeler removed this matter pursuant to the federal officer removal statute, which provides that “[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office” may remove to federal court. 28 U.S.C. § 1442(a)(1). Removal is proper if the moving party can (1) demonstrate that it acted under the direction of a federal officer; (2) raise a colorable defense to the plaintiff's claims; and (3) demonstrate a causal nexus between the plaintiff's claims and acts it performed under color of federal office. Fung v. Abex Corp., 816 F.Supp. 569, 571-72 (N.D. Cal. 1992) (citing Mesa v. California, 489 U.S. 121, 124-25, 134-35 (1989)); Jefferson County, Alabama v. Acker, 527 U.S. 423, 431 (1999) (holidng that the defense need only be colorable).

         Foster Wheeler claims that it is shielded from liability by military contractors immunity, which is set forth in Boyle v. United Technologies Corp., 487 U.S. 500 (1988). In Boyle, the Supreme Court held that “[l]iability 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 ...


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