Fong et al v. Asbestos Defendants (B-P), et al

Filing 20

ORDER by Judge Thelton E. Henderson granting 16 Motion to Remand. (tehlc3, COURT STAFF) (Filed on 4/15/2010)

1 2 3 4 5 6 7 8 9 10 v. ASBESTOS DEFENDANTS (B*P), et al., Defendants. AVERY FONG, et al., Plaintiffs, NO. C10-0287 TEH ORDER GRANTING MOTION TO REMAND IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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For the Northern District of California

12 13 This matter comes before the Court on Plaintiffs' motion to remand. After carefully

14 reviewing the parties' written arguments, the Court finds oral argument to be unnecessary 15 and now GRANTS Plaintiffs' motion for the reasons set forth below. 16 17 BACKGROUND 18 Sherman Fong filed a complaint in the Superior Court of California for the County of

19 San Francisco on August 21, 2009, alleging asbestos-related injuries against various 20 defendants, including Defendant Metalclad Insulation Corporation. Mr. Fong alleges that he 21 was exposed to asbestos while working as a shipfitter at Mare Island Naval Shipyard from 22 1956 to 1986. Metalclad's alleged liability stems from its involvement in brokering shipment 23 of Unibestos thermal insulation from Pittsburgh Corning Corporation to Mare Island. It is 24 undisputed that Unibestos, which was used in the nuclear reactor compartments of four 25 submarines on which Mr. Fong worked, contained asbestos. 26 Mr. Fong passed away in September 2009, and Plaintiffs Avery Fong, Sing Yee Fong,

27 Connie Wong, and Arlene Young subsequently filed an amended complaint for survival and 28 wrongful death. The amended complaint identifies Avery Fong as Sherman Fong's

1 successor-in-interest and the other three Plaintiffs as Sherman Fong's siblings and legal heirs. 2 The summons on the amended complaint was issued on December 30, 2009. 3 Metalclad timely removed the case to this Court on January 21, 2010, under 28 U.S.C.

4 § 1442(a)(1). Plaintiffs now seek remand back to state court. 5 6 DISCUSSION 7 The federal officer removal statute, 28 U.S.C. § 1442(a)(1), provides for removal of a

8 state action to federal court by "[t]he United States or any agency thereof or any officer (or 9 any person acting under that officer) of the United States or of any agency thereof, sued in an 10 official or individual capacity for any act under color of such office." A party seeking

United States District Court

11 removal under this section "must demonstrate that (a) it is a `person' within the meaning of
For the Northern District of California

12 the statute; (b) there is a causal nexus between its actions, taken pursuant to a federal 13 officer's directions, and plaintiff's claims; and (c) it can assert a `colorable federal defense.'" 14 Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006) (citing Jefferson 15 County v. Acker, 527 U.S. 423, 431 (1999); Mesa v. California, 489 U.S. 121, 124-25, 16 131-35 (1989)). Although removal statutes are generally to be construed strictly, "when 17 federal officers and their agents are seeking a federal forum, we are to interpret section 1442 18 broadly in favor of removal." Id. at 1252. Thus, for example, the asserted federal defense 19 need only be "colorable" and not "clearly sustainable . . . . The officer need not win his case 20 before he can have it removed." Willingham v. Morgan, 395 U.S. 402, 407 (1969). 21 Nonetheless, for the reasons discussed below, the Court finds that Metalclad has failed

22 to raise a colorable federal defense to Plaintiffs' claims. Metalclad relies on the government 23 contractor defense, which "immunizes contractors who supply military equipment to the 24 Government from the duties imposed by state tort law." In re Hawaii Fed. Asbestos Cases, 25 960 F.2d 806, 810 (9th Cir. 1992). This defense can be invoked "when (1) the United States 26 approved reasonably precise specifications; (2) the equipment conformed to those 27 specifications; and (3) the supplier warned the United States about the dangers in the use of 28 the equipment that were known to the supplier but not to the United States." Boyle v. United 2

1 Technologies Corp., 487 U.S. 500, 512 (1988). However, "[w]here the goods ordered by the 2 military are those readily available, in substantially similar form, to commercial users, the 3 military contractor defense does not apply." In re Hawaii, 960 F.2d at 811. 4 Based on the same evidence presented in this case, another court in this district

5 recently concluded that: 6 7 8 9 10 At most, Metalclad demonstrates that the Unibestos was subject to testing by the United States Navy and that the Navy approved Unibestos as a material to be used. In fact, the witness Metalclad relies on to demonstrate that the Unibestos qualifies as "military equipment," Dan H. Helfin [sic], Jr. ("Heflin"), testified that he does not know whether the Unibestos brokered to the military was altered, manipulated or redesigned in any way. Heflin said that he did not know what physical differences there were, that he did not know what made it a special run of Unibestos, and that he did not know if [it] was manufactured differently than any other Unibestos made by Pittsburgh Corning. He further testified that he has no knowledge regarding whether or not the exact kind of Unibestos brokered by Metalclad for use on the submarines was sold to the private sector. Moreover, Donald Trueblood, the person Metalclad offered at the deposition of the "person most knowledgeable," testified that he could not say that there were any changes in the formulation of the Unibestos that was used on the four submarines Plaintiff worked on, as opposed to the Unibestos available to the general public.

United States District Court

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For the Northern District of California

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16 Delahaye v. Asbestos Defs., Case No. C09-5504 JSW, 2010 WL 366611, at *3 (N.D. 17 Cal. Jan. 25, 2010) (citations omitted). Consequently, the court found "that Metalclad has 18 not met its burden to demonstrate a colorable federal defense" and remanded the case to the 19 state court from which it was removed. Id. at *4. 20 Metalclad failed to distinguish ­ or even cite ­ Delahaye, and this Court finds no basis

21 for distinguishing that case or departing from that court's reasoning. Accordingly, the Court 22 finds that Metalclad's removal under 28 U.S.C. § 1442(a)(1) was improper because 23 Metalclad has not demonstrated that it has a colorable federal defense to Plaintiffs' claims. 24 // 25 // 26 // 27 // 28 // 3

1 CONCLUSION 2 For the reasons discussed above, Plaintiffs' motion to remand is GRANTED. The

3 hearing scheduled for April 26, 2010, is VACATED. This matter is hereby remanded 4 forthwith to the Superior Court of California for the County of San Francisco. The Clerk 5 shall close the file. 6 7 IT IS SO ORDERED. 8 9 Dated: 04/15/10 10 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

United States District Court

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For the Northern District of California

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