George E Burdett et al v. CBS Corporation et al
Filing
91
MINUTES (IN CHAMBERS) Order Denying Plaintiff's Motion to Remand to State Court by Judge Andre Birotte Jr.: The Court finds that Defendant Alcatel has sufficiently established its right to removal pursuant to 28 U.S.C. Section 1442(a)(1). Therefore, the Court hereby DENIES Plaintiffs' Motion to Remand to State Court 46 . Court Reporter: N/A. (gk)
Nike Ajax and Nike Hercules missile defense systems in Los Angeles, CA. Alcatel’s
predecessor companies Western Electric and Bell Labs, contracted with the United States
government to provide products and services at the missile defense sites. Plaintiffs
allege that Alcatel’s predecessors failed to issue warnings of the potential hazards of
asbestos exposure at the missile defense sites.
On June 21, 2017, Alcatel filed a Notice of Removal pursuant to 28 U.S.C. §
1442(a)(1) (“Notice”, Dkt. No. 1). Plaintiffs subsequently filed the instant motion on
July 21, 2017.
II.
LEGAL STANDARD
A motion to remand challenges the propriety of an action’s removal to federal
court. 28 U.S.C. § 1447. A motion to remand is the “the functional equivalent of a
defendant's motion to dismiss for lack of subject-matter jurisdiction” under Federal Rule
of Civil Procedure 12(b)(1). See Leite v. Crane Co., 749 F.3d 1117, 1122 (9th Cir.
2014)). A motion to remand "may raise either a facial attack or a factual attack on the
defendant's jurisdictional allegations." Id., 749 F.3d at 1122. "Like plaintiffs pleading
subject-matter jurisdiction under Rule 8(a)(1), 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." Id. A plaintiff may file a motion to
remand which, "[a]s under Rule 12(b)(1) . . . may raise either a facial attack or a factual
attack on the defendant's jurisdictional allegations. . . .” Id. In response to a facial
attack, the defendant invoking removal must state allegations that are "sufficient as a
legal matter to invoke the court's jurisdiction." Leite, 749 F.3d at 1121.
III.
DISCUSSION
28 U.S.C. § 1442 states in relevant part that
(a) A civil action . . . that is commenced in a State court and that is
against or directed to [the following] may be removed by them to the district
court of the United States for the district and division embracing the place
wherein it is pending:
(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, in an official or individual capacity, for or relating to any act under
color of such office . . . .
28 U.S.C. § 1442 (emphasis added). An entity seeking removal under § 1442(a)(1)
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bears the burden of showing "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) (quoting Jefferson Cty. v.
Acker, 527 U.S. 423, 431, 119 S. Ct. 2069, 144 L. Ed. 2d 408 (1999)).
Plaintiffs do not dispute that Alcatel is a “person” as defined by 28 U.S.C. §
1442(a)(1). Likewise, “[t]he courts of appeals have uniformly held that corporations are
‘person[s]’ under § 1442(a)(1).” Goncalves v. Rady Children's Hosp. San Diego, 865
F.3d 1237, 1244 (9th Cir. 2017) (collecting cases). Plaintiffs contend that Alcatel has
failed to allege that there is a causal nexus between Plaintiffs’ claims and the actions
Alcatel performed under federal officers; and that Alcatel fails to assert a “colorable
federal defense.” The Court addresses each of those arguments in turn.
Causal Nexus to Actions Performed Under Federal Officers
In order to meet the causal nexus requirement of § 1442(a)(1), Alcatel must allege
that: (1) their actions related to the missile defense sites are "actions under" a federal
officer and (2) that those actions are causally connected to Plaintiffs alleged injuries.
See Durham, 445 F.3d at 1251. With regard to the first prong, "[t]he words 'acting
under' are broad," and the Supreme Court "has made clear that the statute must be
'liberally construed.'" Watson v. Philip Morris Cos., 551 U.S. 142, 147 (2007) (quoting
Colorado v. Symes, 286 U.S. 510, 517 (1932)). For a private entity to be "acting under"
a federal officer, the private entity must be involved in "an effort to assist, or to help carry
out, the duties or tasks of the federal superior." Id. at 152. The "relationship typically
involves 'subjection, guidance, or control.’” Alcatel asserts that they manufactured
products for use at the United States Army Missile Defense sites, and that the products
(and the literature accompanying those products) were required to comply with
government and military specifications and requirements. (Notice at 11-12). These
statements sufficiently assert that Alcatel helped or assisted a federal superior in its duties
related to the establishment of the missile defense sites. Moreover, they also assert that
Alcatel acted pursuant to the guidance and/or control of a federal superior. Therefore,
the first prong is sufficiently established for the purposes of the causal nexus requirement
of section 1442(a)(1).
With regard to the second prong of the causal nexus requirement, “the ‘hurdle
erected by [the causal-connection] requirement is quite low.’” Goncalves, 865 F.3d at
1244 (quoting Isaacson v. Dow Chem. Co., 517 F.3d 129, 137 (2d Cir. 2008)).
Therefore, a defendant “need show only that the challenged acts ‘occurred because of
what they were asked to do by the Government.’" Goncalves, 865 F.3d at 1245 (quoting
Isaacson 517 F.3d at 137) (emphasis in original). Plaintiffs argue that the relevant
action for the sake of this motion is Alcatel’s alleged failure to warn of the presence of
asbestos at the missile defense sites. (Mot. at 15). Plaintiffs rely on Arness v. Boeing
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North American, Inc., for the proposition that, in order to establish the causal nexus
requirement in a failure to warn case, a defendant must show that “[the government]
restricted or prohibited [the defendant] from providing adequate precautions against or
otherwise notifying its employees of the hazards of asbestos exposure” Arness v. Boeing
North American, Inc., 997 F. Supp. 1268, 1275 (C.D. Cal. 1998) (quoting Ruffin v. Armco
Steel Corp., 959 F. Supp. 770, 774 (S.D.Texas 1997)). Plaintiffs contend that nothing in
Alcatel’s Notice of Removal states that any orders issued by the United States prevented
Alcatel’s predecessors from warning of the presence of asbestos in Mr. Burdett’s work
environment, and thus Alcatel fails to meet the causal nexus requirement with regard to
the failure to warn claim. (Mot. at 15-16). The Court disagrees.
In paragraph 11 of the Notice of Removal, Alcatel states that “any product
literature, labeling, or warning that accompanied that product(s)) was subject to
government specifications and requirements.” (Notice at 11). Additionally, in
paragraph 13, Alcatel states that “[a]t the time of Mr. Burdett’s alleged exposure to
asbestos at the military bases, the United States government, including the U.S. Army
and National Guard, was aware of the known hazards of asbestos exposure.” (Id. 13).
In Getz v. Boeing Co., 654 F.3d 852 (9th Cir. 2011), the Ninth Circuit stated that in order
to defeat a failure-to-warn claim pursuant to a government contractor defense, “the
contractor must show that it ‘act[ed] in compliance with 'reasonably precise
specifications' imposed on it by the United States’ in deciding whether ‘to provide a
warning.’” Getz, 654 F.3d at 866. Moreover, the Ninth Circuit explicitly rejected the
proposition advanced here, namely, that a government contractor defense in the context
of a failure to warn claim is limited “to cases in which the government specifically
forbids warnings altogether or to instances where the government explicitly dictates the
content of the warnings adopted.” Instead, the Ninth Circuit stated that the only
requirement for the government contractor defense to apply in a failure to warn case is
that “governmental approval (or disapproval) of particular warnings ‘conflict’ with the
contractor's ‘duty to warn under state law.’" Id. at 867. The Ninth Circuit further
provided that the “conflict” requirement is met in situations where the government
exercises discretion in determining which warnings to provide. Id.; see also Tate v.
Boeing Helicopters, 55 F.3d 1150, 1157 (6th Cir. 1995) ("[W]here the government goes
beyond approval and actually determines for itself the warnings to be provided, the
contractor has surely" demonstrated that "the government exercised its discretion").
Here Alcatel alleges that the warnings that accompanied its products were subject to
government specifications and requirements, not merely government approval. This is
sufficient to satisfy the second prong of the causal nexus requirement under 1442(a)(1).
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Colorable Federal Defense
Federal contractors may remove cases based on acts performed under color of a
federal office if they assert a colorable federal defense. Durham, 445 F.3d at 1251. In
order to do so, the removing defendant need not show that the defense is meritorious, but
that there is a legitimate question of federal law to be decided regarding the validity of
the defense. See Mesa v. California, 489 U.S. 121, 129, 109 S. Ct. 959, 103 L. Ed. 2d
99 (1989). “The party seeking removal "need not win his case before he can have it
removed." Willingham v. Morgan, 395 U.S. 402, 407, 89 S. Ct. 1813, 23 L. Ed. 2d 396
(1969). Moreover, the right to removal pursuant to Section 1442, is to be "liberally
construed" in favor of removal. Durham, 445 F.3d at 1252 (citing Colorado v. Symes,
286 U.S. 510, 517, 52 S. Ct. 635, 76 L. Ed. 1253 (1932)).
Alcatel asserts the Federal contractor defense recognized in Boyle v. United Techs.
Corp., 487 U.S. 500, 108 S. Ct. 2510, 101 L. Ed. 2d 442 (1988). Under the framework
of Boyle, military contractors are immunized from liability 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." See
Boyle, 487 U.S. at 512. Plaintiffs do not dispute that Alcatel has established the first
two elements of the Boyle test. The Notice of Removal states that the United States
Army required all products supplied by its predecessors to comply with government and
military specifications and requirements. (Notice at 11). Additionally, Alcatel also
alleges that its predecessors complied with the rules and regulations issued by the United
States government. (Notice at 12, 14).
Therefore, the first two elements are
sufficiently alleged in the Notice of Removal.
Plaintiffs assert that the notice of removal filed by Alcatel does not conform to the
third prong of the Boyle test, because it fails to allege that Alcatel warned the United
States about the dangers in the use of equipment that were known to the supplier but not
to the United States. (Oppo. at 11). However, paragraph 13 of the notice of removal
clearly states that “[a]t the time of Mr. Burdett’s alleged exposure to asbestos at the
military bases, the United States government, including the U.S. Army and National
Guard, was aware of the known hazards of asbestos exposure.” (Notice at 11). The
language of Boyle is clear in that it only requires that contractors issue warnings about
dangers of which the United States is not aware. See Oliver v. Oshkosh Truck Corp., 96
F.3d 992 (7th Cir. 1996) (“Boyle does not require the contractor to warn the government
of every possible danger--only those known to it and not to the government”). See also
Leite v. Crane Co., 868 F. Supp. 2d 1023 (D. Haw. 2012) (“Defendants have no duty to
warn of a danger of which the [United States] is already aware.”) Because Alcatel has
alleged that the United States was aware of the hazards associated with asbestos
exposure, the third prong of Boyle is therefore satisfied. Based on the foregoing, the
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Court finds that Alcatel has sufficiently alleged the existence of a colorable federal
defense.1
IV.
CONCLUSION
Based on the foregoing, the Court finds that Defendant Alcatel has sufficiently
established its right to removal pursuant to 28 U.S.C. § 1442(a)(1). Therefore, the Court
hereby DENIES Plaintiffs’ Motion to Remand to State Court.
IT IS SO ORDERED.
1
Alcatel sufficiently alleges the elements of the Federal Contractor Defense pursuant to Boyle v. United Techs. Corp., 487
U.S. 500, 108 S. Ct. 2510, 101 L. Ed. 2d 442 (1988), therefore, the Court need not address Alcatel’s arguments with regard to
additional federal defenses for the purposes of this motion.
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