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Thrash v. Cirrus Enterprises, LLC

United States District Court, N.D. California

June 20, 2017

JOSEPH THRASH, ET AL., Plaintiffs,
CIRRUS ENTERPRISES, LLC, et al., Defendants.


          JON S. TIGAR United States District Judge

         Before the Court is Plaintiffs' Motion to Remand for Lack of Subject Matter Jurisdiction. ECF No. 26. The Court will deny the motion.

         I. BACKGROUND

         Plaintiff Joseph Thrash alleges he was diagnosed with mesothelioma in September 2016, and was exposed to asbestos while he worked on B-52, C-141, and C-5 airplanes in the United States Air Force from 1975 through the 1980's and while doing automotive work at various locations. ECF No. 1-1 at 5, 7.

         Plaintiffs allege that “Defendants placed their names, logos, and trademarks on asbestos products as well as put out as their own asbestos products manufactured by others so as to be an apparent manufacturer and liable as the manufacturer.” ECF No. 1-1 at 5. Thrash “handled or was otherwise exposed to asbestos, asbestos containing products and/or products designed to be used in association with asbestos products.” ECF No. 1-1 at 5. Plaintiffs allege that Defendants “specified and required the use of such original and replacement asbestos containing parts and components that were integral to their respective asbestos containing products' normal use and operation and that by design such normal use and operation directly created, generated, released and exposed [Plaintiffs] to asbestos-containing dust, debris, fiber and particulate” from those products and components, and that “as a direct and proximate result, ” he was exposed to the asbestos, “which increased his risk of developing the mesothelioma and asbestos disease(s) from which he now suffers.” ECF No. 1-1 at 7.

         Plaintiffs originally filed this case in Alameda County Superior Court on February 21, 2017, bringing claims for negligence, breach of express and implied warranties, strict liability in tort, premises owner/contractor liability, and loss of consortium. ECF No. 1 at 2; ECF No. 1-1. On March 20, 2017, Defendant The Boeing Company (“Boeing”) removed the case to federal court. ECF No. 1. Shortly thereafter, Defendants United Technology Corporation (“UTC”), Lockheed Martin Corporation (“Lockheed”), and The Goodyear Tire & Rubber Company (“Goodyear”) filed notices of joinder in Boeing's removal notice. ECF Nos. 13, 16, 17. On April 4, 2017, Plaintiff filed a Motion to Remand for Lack of Subject Matter Jurisdiction, which the Court now considers. ECF No. 26.


         A defendant may remove a civil action filed in state court to federal court so long as the district court could have exercised original jurisdiction over the matter. 28 U.S.C. § 1441(a). “Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Generally, the removal statute is strictly construed against removal and any doubt as to the right of removal should be resolved in favor of remand. Id. at 566.

         However, the opposite is true where, as here, defendants seek removal under the federal officer removal statute, 28 U.S.C. § 1442(a). See Leite v. Crane Co., 749 F.3d 1117, 1122 (9th Cir. 2014) (“We recognize that defendants enjoy much broader removal rights under the federal officer removal statute than they do under the general removal statute[.]”); Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006) (noting that, because it is important to the federal government to protect federal officers, removal rights under 28 U.S.C. section 1442 are much broader than those under section 1441). Under Section 1442 “[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 the case to federal court. The Ninth Circuit has recognized “a clear command from both Congress and the Supreme Court that when federal officers and their agents are seeking a federal forum, [courts] are to interpret section 1442 broadly in favor of removal.” Id. The reason for this is important and pragmatic: “If the federal government can't guarantee its agents access to a federal forum if they are sued or prosecuted, it may have difficulty finding anyone willing to act on its behalf.” Id.

         “[A] defendant seeking to remove an action may not offer mere legal conclusions; it must allege the underlying facts supporting each of the requirements for removal jurisdiction.” Leite, 749 F.3d at 1122. A motion to remand challenging the existence of removal jurisdiction is the “functional equivalent of a defendant's motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), ” and, like such motions, “may raise either a facial attack or a factual attack on the defendant's jurisdictional allegations . . . .” Id. A facial attack on subject-matter jurisdiction asserts that the jurisdictional allegations, even if true, “are insufficient on their face to invoke federal jurisdiction.” Id. at 1121 (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). “The district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): Accepting the [defendant's jurisdictional] allegations as true and drawing all reasonable inferences in the [removing defendant's] favor . . . .” Id. at 1121. “A ‘factual' attack, by contrast, contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings.” Id. A party responding to a factual attack must support its jurisdictional allegations with “competent proof, ” with the evidence evaluated “under the same evidentiary standard that governs in the summary judgment context.” Id. However, to defeat a motion for remand, a federal officer “doesn't have to prove that its government contractor defense is in fact meritorious”-it only needs to show that the defense is “colorable.” Leite, 749 F.3d at 1124.


         The Court first addresses the proper standard to apply, which turns on whether Plaintiffs have mounted a facial or factual challenge to Defendants' jurisdictional allegations. Plaintiffs in their motion cite the standard for a “factual attack” on removal jurisdiction. See ECF No. 26 at 9. The motion focuses on what Plaintiffs believe to be a lack of evidentiary support in Defendants' removal notices.[1] See e.g., ECF No. 26 at 6 (“As shown below, Defendants have not produced any evidence to support either basis for federal question jurisdiction.”), 7 (“The lack of evidentiary support cited in Defendants' Notice of Removal and Joinders shows that removal was improper.”). Though Plaintiffs do not submit evidence outside the pleadings in support of their Motion to Remand, as would typically be required for a factual attack, they do generally “contest the truth of [Defendants'] factual allegations.” Leite, 749 F.3d at 1122. Since Defendants have submitted evidence supporting removal jurisdiction in response to Plaintiffs' jurisdictional challenge, the Court need not limit its review to the pleadings, and will interpret Plaintiffs' motion as a factual attack on removal jurisdiction.

         A defendant seeking removal under Section 1442 must establish (a) that it is a “person” within the meaning of the statute; (b) that there is a causal nexus between its actions, taken pursuant to a federal officer's directions, and plaintiff's claims; and (c) that it can assert a “colorable federal defense.” Durham, 445 F.3d at 1251. Plaintiffs concede that Defendants are “persons” under Section 1442. ECF No. 26 at 9. However, Plaintiffs contend that Defendants have not sufficiently alleged facts to establish the other two requirements for federal officer removal jurisdiction, namely (i) that the acts complained of in Plaintiffs' complaint were taken at the direction of a federal officer and there is a causal nexus between the actions taken by Defendants and Plaintiffs' claims; and (ii) that Defendants can assert a colorable federal defense. 28 U.S.C. § 1442(a). The Court addresses each of these requirements in turn.

         A. Acting Under the Direction of a Federal ...

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