Presley v. Bill Vann Company, Inc. et al

Filing 106

ORDER granting #58 Motion for expedited consideration of motion for remand; denying #59 & #90 Motions to Remand; denying as moot the #88 & #89 Motions to exclude evidence. Signed by Chief Judge William H. Steele on 9/29/2011. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
CLEVELAND G. KITE,
Plaintiff,
v.
BILL VANN COMPANY, INC., et al.,
Defendants.

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) CIVIL ACTION 11-0444-WS-N
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ORDER
This matter is before the Court on the plaintiff’s motion for remand, motion for
remand based on additional grounds, and motion for expedited consideration of motion
for remand. (Docs. 58, 59, 90). The parties have presented briefs and evidentiary
materials in support of their respective positions, (Docs. 58-59, 67-68, 70-75, 78-80, 8792, 102), and the motions are ripe for resolution.

BACKGROUND
The plaintiff sued a number of defendants in state court to recover for injuries,
including malignant mesothelioma, allegedly caused by exposure to asbestos. After his
discovery deposition disclosed that he claimed exposure occurring on Navy vessels and at
military installations including Guantanamo Bay, defendants Cummins Inc. (“Cummins”)
and Warren Pumps LLC (“Warren”) filed a notice of removal. (Doc. 1). Warren
removed under the “federal officer” removal statute, 28 U.S.C. § 1442(a), based on the
plaintiff’s alleged exposure aboard the U.S.S. Wisconsin, for which vessel Warren
supplied pumps insulated with asbestos. Warren and Cummins both removed on the
basis of “federal enclave” jurisdiction, due to the plaintiff’s alleged exposure at
Guantanamo Bay and other military installations. Apparently all co-defendants filed
consents and/or joinders in the removal. (Id., Exhibit D). Defendant CBS Corporation
[1]

(“CBS”)1 filed a separate notice of consent to removal in which it separately claimed
removal was proper as to it under federal officer removal due to its provision of
propulsion turbines for the Wisconsin that were insulated with asbestos. (Doc. 6; Doc. 67
at 1-2). Defendant Buffalo Pumps, Inc. did likewise. (Doc. 7).

DISCUSSION
I. Motion to Expedite.
The multi-district litigation panel (“MDL panel”) has entered a conditional
transfer order, to which the plaintiff has objected. The plaintiff seeks expedited
consideration of his motions for remand because, given his mesothelioma, he doubts he
will survive what he predicts will be a long sojourn in the land of MDL. (Doc. 58 at 2-3).
Despite judicial invitation to do so, (Doc. 60 at 1), the defendants declined the
opportunity to oppose expedited consideration.2 Accordingly, the motion to expedite will
be granted.

II. Motions for Remand.
The defendants base removal on federal officer removal and federal enclave
jurisdiction. Before reaching the merits of these grounds, the Court addresses the
plaintiff’s argument that he effectively disclaimed anything that could support removal
under them.

1

CBS is a successor in interest and not itself a past purveyor of asbestos-containing
products. For convenience, the Court describes both the defendant and the predecessor entities
as CBS.
2

Warren and Cummins devote one footnote to dispelling the plaintiff’s suggestion that
MDL litigation is a “black hole.” (Doc. 68 at 30 n.6). Whatever the impact of their statistical
and anecdotal evidence, they do not use it to articulate any argument that the motion for
expedited consideration should be denied. They do not, for example, note or apply the test
adopted by the Court for considering motions to stay resolution of motions to remand pending
transfer to an MDL court. Betts v. Eli Lilly & Co., 435 F. Supp. 2d 1180, 1182 (S.D. Ala. 2006).

[2]

A. Disclaimer.
“[T]he plaintiff expressly disclaims every claim arising under the Constitution,
treaties or laws of the United States (including any claim arising from an act or omission
on a federal enclave, or by any officer of the United States or any agency or person acting
under him/her under color of such office ….” (Complaint at 13-14). It is this language
on which the plaintiff relies for his disclaimer argument.
As a general matter, “the plaintiff [is] the master of the claim ….” Caterpillar,
Inc. v. Williams, 482 U.S. 386, 392 (1987). Thus, “he or she may avoid federal
jurisdiction by exclusive reliance on state law, even where a federal claim is also
available.” Dunlap v. G&L Holding Group, Inc., 381 F.3d 1285, 1290 (11th Cir. 2004)
(internal quotes omitted). For the same reason, a plaintiff can avoid a federal forum by
specifically claiming under $75,000, unless the removing defendant proves to a legal
certainty that the amount in controversy exceeds that amount. Burns v. Windsor
Insurance Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Subject to rules governing
fraudulent joinder, necessary parties and the like, a plaintiff may also be able to thwart
removal by his selection of defendants. Given this backdrop, it is likely that a plaintiff
may similarly defeat removal by electing not to sue for all the wrongs that a defendant
has done him. The Court indulges that assumption for present purposes.
Had the plaintiff disclaimed any claim arising from exposure aboard a Navy vessel
or while on a military installation, he might well have prevailed on his argument. In that
event, he could not be suing for any exposure occurring on a federal enclave or due to a
defendant’s provision of asbestos-containing products under the direction of a federal
officer. Several courts have found such specific pleading disclaimers adequate to
preclude removal.3

3

See Powers v. Allis-Chalmers Corp. Product Liability Trust, 2010 WL 2898287 at *1-2
(N.D. Cal. 2010) (waiver of claims “arising out of or related to asbestos exposure to or on
(Continued)
[3]

The plaintiff’s disclaimer, however, is much more limited. He does not disclaim
suit as to all exposure occurring at Guantanamo and other military installations, by name
or more generally. Instead, he disclaims suit only as to exposures “on a federal enclave.”
This phraseology begs the question whether Guantanamo and the other military
installations mentioned in his deposition actually constitute “federal enclaves” for
purposes of removal. The point is not an idle one, as the plaintiff goes to great lengths in
his briefing to deny that these locations are in fact federal enclaves. That is, despite his
disclaimer the plaintiff insists that he can sue for exposure occurring at Guantanamo and
other military installations. The plaintiff’s disclaimer, in short, does not eliminate the
federal enclave issue from the lawsuit, and it is therefore ineffective to preclude removal
on the basis of federal enclave.
The same is true with respect to federal officer removal. The plaintiff does not
disclaim suit as to all exposure on Navy vessels but only those exposures which, in his
own estimation, occurred as a result of a defendant’s operation within the bounds of
Section 1442(a), and the plaintiff stridently insists that none of the defendants fall within
this section. The disclaimer does not eliminate any question of federal officer removal
but simply seeks to force this federal issue to be resolved in state court.

military or federal government aircraft” precluded federal officer removal); Hopkins v. Buffalo
Pumps, Inc., 2009 WL 4496053 at *6-7 (D.R.I. 2009) (express exclusion of claims other than at
two identified non-governmental sites precluded federal officer removal); Madden v. A.H. Voss
Co., 2009 WL 3415377 at *2-3 (N.D. Cal. 2009) (express exclusion of “plaintiff’s asbestos
exposure at military and federal government jobsites and aboard U.S. Navy vessels” precluded
federal officer removal); Debrocke v. Allis-Chalmers Corp. Product Liability Trust, 2009 WL
1464153 at *1-2 (N.D. Cal. 2009) (statement that “Plaintiff’s claims against [a certain defendant]
exclude plaintiff’s asbestos exposure at military and federal government worksites and aboard
U.S. Navy vessels” precluded federal officer removal).

[4]

A number of cases have ruled that purported disclaimers of a piece with the
plaintiff’s are inadequate to prevent removal.4 Their explanations generally are not
compelling,5 but the Court finds itself in agreement with Judge Jordan in Marley v. Elliot
Turbomachinery Co., 545 F. Supp. 2d 1266 (S.D. Fla. 2008), who analyzed a disclaimer
substantively identical to the one under consideration.
This disclaimer is circular. Its applicability depends on a
determination of the core question in this case: whether the defendants’
purported omission – failure to warn – was required or caused by
their contractual relationship with the Navy. If the failure to warn was
required by the Navy, the disclaimer applies and the plaintiffs’ claims
fail as a matter of law. If the failure to warn was not required by the Navy,
then the disclaimer does not apply. The problem with this argument is that
the defendants have the right to have this question decided in federal court.
Id. at 1274.
The plaintiff suggests that he can now effectively waive claims against the Navy
contractor defendants. (Doc. 90 at 8-10). Such a gesture would come too late to affect
the propriety of the defendants’ removal. E.g., Connecticut State Dental Association v.
Anthem Health Plans, Inc., 591 F.3d 1337, 1351 n.9 (11th Cir. 2009) (“Although
Plaintiffs reference their amended complaints in their briefs, we consider the original
complaints because removal jurisdiction is determined at the time of removal, and events

4

See In re: Asbestos Products Liability Litigation (No. VI), 770 F. Supp. 2d 736, 740-43
(E.D. Pa. 2011); Corley v. Long-Lewis, Inc., 688 F. Supp. 2d 1315, 1318, 1329 (N.D. Ala. 2010);
Despres v. Ampco-Pittsburgh Corp., 577 F. Supp. 2d 604, 607-08 (D. Conn. 2008); O’Connell
v. Foster Wheeler Energy Corp., 544 F. Supp. 2d 51, 54 n.6 (D. Mass. 2008); Redman v. A.W.
Chesterton Co., 2007 WL 4447729 at *3 (N.D. Cal. 2008); Ballenger v. Agco Corp., 2007 WL
1813821 at *1-2 (N.D. Cal. 2007).
5

They tend to stress that federal officer removal represents a statutory exception to the
“well-pleaded complaint” rule, thus allowing removal to be based on a federal defense. True
enough, but a federal defense to a claim that is not asserted presumably would not justify
removal. It is the plaintiff’s failure to employ language in his disclaimer actually eliminating any
claim based on exposures potentially triggering federal officer removal (or federal enclave
jurisdiction) that renders the disclaimer ineffective.

[5]

occurring after removal … do not oust the district court’s jurisdiction.”) (internal quotes
omitted).
For the reasons set forth above, the Court rules that neither the disclaimer
expressed in the complaint nor the waiver articulated in brief precludes removal.

B. Federal Officer Removal.
“A civil action … against any of the following may be removed by them …: (1)
The 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 ….” 28 U.S.C. § 1442(a)(1). The statute,
as interpreted, establishes three requirements for removal by a non-governmental
defendant.6
First, the removing defendant must be one “acting under” an officer of the United
States when carrying out the acts for which it is sued. Watson v. Philip Morris
Companies, 551 U.S. 142, 147 (2007). Second, there must be “a causal connection
between the charged conduct and asserted official authority.” Jefferson County v. Acker,
527 U.S. 423, 431 (1999). The parties agree that the defendants satisfy these
requirements only if the Navy held direct and detailed control over their provision of
products containing asbestos for incorporation in naval vessels. (Doc. 59 at 4; Doc. 67 at
13; Doc. 68 at 11-12; Doc. 90 at 26).7
The third requirement for removal under Section 1442(a) is that “federal officer
removal must be predicated on the allegation of a colorable federal defense.” Mesa v.
6

The plaintiff does not assert that an artificial entity cannot be a “person” within Section

1442(a).
7

The parties cite Fung v. Abex Corp., 816 F. Supp. 569 (N.D. Cal. 1992), for this
proposition. See id. at 572 (to satisfy these requirements, “[a] majority of courts have held that
the federal official must have direct and detailed control over the defendant.”) (internal quotes
omitted).

[6]

California, 489 U.S. 121, 129 (1989). To be colorable, the defense need not be “clearly
sustainable” but merely “plausible.” Acker, 527 U.S. at 432 (internal quotes omitted);
Magnin v. Teledyne Continental Motors, 91 F.3d 1424, 1427 (11th Cir. 1996).
The federal defense asserted here is the “government contractor defense.” Under
that defense, “[l]iability for design defects in military equipment cannot be imposed,
pursuant to state law, when (1) the United States approved reasonably specific
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 plaintiff believes it more difficult for a defendant to justify removal of a
failure-to-warn claim than of a defective design claim. He admits that his complaint
contains defective design allegations against “[e]ach Defendant,” (Complaint at 12,
¶ 58(a), (b)), but he insists that the complaint’s disclaimer effectively eliminated any
design defect claim as to the Navy contractor defendants. His theory is that, since he
knew full well that products supplied by Navy contractors typically are “designed per
specific [N]avy specifications including the use of asbestos,” he would have been foolish
to include a design defect claim against these defendants. (Doc. 87 at 6-7; Doc. 90 at 78). Perhaps so, but the explicit language of the complaint accuses all defendants –
necessarily including the Navy contractor defendants – of defective design and, as
discussed in Part II.A, his disclaimer is ineffective. The complaint indisputably alleges
that the Navy contractor defendants provided defectively designed products including
asbestos.8

8

The plaintiff now “chooses not to pursue design defect claims against the named Navy
contractor Defendants ….” (Doc. 90 at 9). All well and good but, as discussed in Part II.A, the
gesture comes too late to affect the propriety of removal.

[7]

CBS has submitted an affidavit for the proposition that “[a]ll aspects of the design,
performance requirements, and materials used for the construction of the main propulsion
turbines, turbine generators and related equipment, including thermal insulation, were
specified by” the Navy and directly enforced at its plant by naval officers. (Gate
Affidavit, ¶ 7). “Military specifications affirmatively required the use of asbestoscontaining thermal insulation in relation to that equipment.” (Id., ¶ 8). The propulsion
turbines, related equipment and turbine generators were “built in accordance with the
Navy specifications in existence at the time and w[ere] approved and accepted by the
Navy as being in accordance with those specifications.” (Id., ¶ 29). The intervening
paragraphs flesh out these statements in considerable detail. The plaintiff offers no
response to CBS’s showing,9 which the Court concludes satisfies the first two
requirements for removal as well as the first two elements of a colorable government
contractor defense.
To meet the final element of the government contractor defense, CBS relies on the
affidavit of Dr. Samuel Forman. (Doc. 67, Exhibit E). Dr. Forman was tasked by the
Navy to conduct a comprehensive review of the Navy’s awareness of and response to the
health hazards of asbestos, which he performed. (Id., ¶¶ 8-10). He concludes that, during
the period when CBS supplied asbestos-containing materials for the Wisconsin, the
Navy’s knowledge of asbestos was “state-of-the-art” and “quite complete when compared
to available knowledge.” (Id., ¶¶ 19-20, 56). Dr. Forman describes in some detail the

9

On the contrary, the plaintiff concedes that “many products designed by contractors for
the United States Navy are designed per specific [N]avy specifications including the use of
asbestos” and that “Navy contractors had no control over the use of asbestos in the products
and/or equipment manufactured according to specific Navy criteria.” (Doc. 87 at 7; Doc. 90 at
8).

[8]

Navy’s awareness of dangers posed by asbestos and its efforts to reduce exposure during
the relevant time period. (Id., ¶¶ 22-24, 29-30, 33-34).10
The plaintiff has filed a motion to strike Dr. Forman’s affidavit. (Doc. 89). The
motion, however, is directed exclusively to perceived deficiencies in his affidavit as it
relates to the plaintiff’s failure-to-warn claims; it is completely irrelevant to his defective
design claims.
The plaintiff has submitted discovery responses from CBS stating that, during the
relevant time period, it “learned that inhalation of certain types and quantities of asbestos
fibers, over significant periods of time, was being associated with increased risks of
disease for some people.” (Doc. 87, Exhibit A at 20-21). The plaintiff argues that CBS
has, by this response, “admitted to knowing of the hazards of asbestos” at the relevant
time. (Doc. 87 at 10). CBS may have admitted having some knowledge of some
hazards, but the question is whether CBS knew about dangers of which the Navy was
ignorant. The plaintiff neither makes such an allegation nor attempts to support it, and
CBS’s rather bland discovery responses do not prevent Dr. Forman’s affidavit from
making it colorable that CBS at the relevant time did not know about dangers in the use
of asbestos that were unknown to the Navy. The government contractor defense thus
remains intact for purposes of removal.
In a similar vein, the plaintiff points to deposition testimony from a Navy admiral
which, he says, refutes Dr. Forman’s affidavit concerning the state of the Navy’s
knowledge at the relevant time. (Doc. 90 at 23). The threshold problem with this
argument is that the plaintiff has not submitted the deposition testimony on which he
10

The Wisconsin was commissioned in 1944, (Doc. 67 at 4 n.2), and CBS supplied the
turbines and other equipment before then. The plaintiff apparently worked aboard the Wisconsin
in the late 1980’s, (Doc. 1 at 4; Doc. 90 at 7), but he has not argued that CBS retained a perpetual
duty to keep the Navy apprised of any new knowledge of asbestos dangers it acquired after
delivering the equipment and having it accepted as conforming to specifications. At any rate, Dr.
Forman’s affidavit supports the proposition that the Navy’s awareness of asbestos hazards
remained cutting-edge throughout the period of the plaintiff’s exposure aboard the Wisconsin.

[9]

relies,11 so there is in fact no testimonial evidence on file with which to counter CBS’s
evidence. Even if there were some inconsistency shown by the plaintiff, he has not
explained how a tension in the evidence precludes Dr. Forman’s affidavit from making
CBS’s defense colorable.
CBS has thus met all the requirements for removal under Section 1442(a). As a
final argument, the plaintiff argues that removal of an asbestos case under that section is
now impossible because the federal government so heavily regulates the use of asbestos
that state proceedings cannot adversely affect future government contracts. (Doc. 87 at
4-6). The plaintiff relies on Good v. Armstrong World Industries, Inc., 914 F. Supp. 1125
(E.D. Penn. 1996), to support his position.
Good was another case alleging exposure to asbestos-containing products supplied
to the Navy by CBS. The Court ruled that CBS satisfied all elements of a colorable
federal contractor defense but determined that removal was unnecessary to uphold the
policies underlying Section 1442(a), which it identified as avoiding state interference
with the implementation of federal policy and avoiding state manipulation of a federal
defense. 914 F. Supp. at 1130-31. The Good Court identified the federal interest
underlying the government contractor defense as “protecting future defense
procurement,” an interest it did not believe could be adversely affected by an asbestos
case since it was “common knowledge” that the military no longer uses asbestos. Id. at
1130. The Court also concluded that the policy of avoiding state manipulation of a
federal defense was not in play because the federal contractor defense “raises
straightforward common law issues that state courts are as adept at handling as the
federal judiciary.” Id. at 1131.
The plaintiff cites, and the Court has located, no case following Good in this
regard. Nor is the Court inclined to do so. Assuming without deciding that Good
11

The deposition is described as Exhibit G, (Doc. 90 at 22), but the plaintiff’s exhibits
end with F-2. (Doc. 91).

[10]

accurately expresses the policies informing Section 1442(a) and the impact on them of
remanding a case involving the provision of asbestos-containing products to the military,
the Court’s role is to enforce the statute, not the policies motivating its enactment. When
as here the requirements for removal under Section 1442(a), as construed by the Supreme
Court, are satisfied, this Court has no authority to order remand because removal, though
statutorily proper, is unnecessary to fulfill congressional policy.12 If, as the Good Court
apparently believed, Section 1442(a) sometimes allows removal when no legislative
policy is advanced thereby, that is a matter for Congress to rectify, not the Court.
“It is well settled that, if one claim cognizable under Section 1442 is present, the
entire action is removed, regardless of the relationship between the Section 1442 claim
and the non-removable claims.” Nadler v. Mann, 951 F.2d 301, 306 n.9 (11th Cir. 1992)
(internal quotes omitted). The plaintiff does not assert otherwise. Because it is clear that
Section 1442(a) removal by CBS of the plaintiff’s defective design claim was proper, it is
unnecessary for the Court to consider whether removal was likewise proper as to the
defective design claims against the other Navy contractor defendants, the failure-to-warn
claims against any Navy contractor defendant, or the federal enclave removal by Warren
and Cummins.

12

International Primate Protection League v. Administrators of Tulane Educational
Fund, 500 U.S. 72 (1991), is not, as the plaintiff maintains, to the contrary. The Supreme Court
did not deny agencies the right to remove under Section 1442(a) because there was no good
policy reason to allow it but because the language of Section 1442(a) does not extend the
opportunity for removal to agencies in the first place. Id. at 79-84. The High Court discussed
policy only to refute the defendants’ position that the statutory exclusion of agencies would
produce absurd results. Id. at 84-87.

[11]

CONCLUSION
For the reasons set forth above, the plaintiff’s motion to expedite is granted and
his two motions for remand are denied.13
DONE and ORDERED this 29th day of September, 2011.

s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

13

The plaintiff’s two motions to exclude evidence, (Docs. 88, 89), are denied as moot, as
they are limited to witnesses and/or legal theories not made the basis of the Court’s ruling on the
motions for remand.

[12]