Ford v. Foster Wheeler USA Corporation
Filing
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ORDER GRANTING: 104 Motion to Remand. Signed by Judge Jeffrey S. White on February 12, 2016. (jswlc3, COURT STAFF) (Filed on 2/12/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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CHARLES FORD, et al.,
Plaintiffs,
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ORDER GRANTING MOTION TO
REMAND
v.
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Case No. 15-cv-05426-JSW
FOSTER WHEELER USA
CORPORATION, et al.,
Re: Docket No. 104
United States District Court
Northern District of California
Defendants.
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Now before the Court for consideration is the motion to remand, filed by Plaintiffs Charles
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Ford (“Mr. Ford”) and Carol Ford (“Ms. Ford”) (collectively “Plaintiffs”). The Court has
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considered the parties’ papers, relevant legal authority, and the record in this case, and it finds the
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motion suitable for disposition without oral argument. See N.D. Civ. L.R. 7-1(b). The Court
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VACATES the hearing scheduled for February 19, 2016, and it HEREBY GRANTING Plaintiffs’
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motion.
BACKGROUND
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On or about June 15, 2015, Plaintiffs filed this action in the Superior Court of the State of
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California, County of Alameda (“Alameda County Superior Court”), asserting a variety of state
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law claims based on Mr. Ford’s exposure to asbestos. (See generally, Notice of Removal, Ex. A
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(Complaint).)
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On November 25, 2015, Defendant, Foster Wheeler Energy Corporation (“Foster
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Wheeler”) removed this matter. Foster Wheeler asserts that during Mr. Ford’s deposition, he
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testified that he worked aboard the USS Oklahoma City while employed by Bethlehem Steel
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Shipyards, in the late 1960s. (Notice of Removal ¶ 2 and Ex. B (Deposition of Charles Ford at
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721:11-18, 725:25-726:18).) Foster Wheeler contends that it “manufactured marine boilers and
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auxiliary equipment for use on Navy ships pursuant to contracts and specifications executed by the
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Navy,” including economizers on the USS Oklahoma City. (Notice of Removal ¶ 6.) Foster
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Wheeler also contends that it was acting under the direction of an officer of the United States
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within the meaning of 28 U.S.C. section 1442(a)(1). (Id.)
On December 23, 2015, Plaintiffs filed a document entitled “Notice of Waiver of Federal
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Claims Against Removing Defendant Foster Wheeler Energy Corporation.” (Docket No. 103,
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Notice of Waiver.) Notwithstanding the caption, in that document Plaintiffs state, through
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counsel, that they “hereby waive any claims against [Foster Wheeler] arising out of [Mr. Ford’s]
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exposure to asbestos at military and/or federal government jobsites or from U.S. military and other
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federal government vessels.” (Id. at 2:3-5 (emphasis added).)1
ANALYSIS
United States District Court
Northern District of California
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A.
Legal Standards Relevant to Removal Jurisdiction.
“[A]ny civil action brought in a State court of which the district courts of the United States
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have original jurisdiction, may be removed by the defendant ... to the district court of the United
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States for the district and division embracing the place where such action is pending.” Franchise
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Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 7-8 (1983) (citation omitted); see also 28
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U.S.C. § 1441. However, federal courts are courts of limited jurisdiction. See, e.g., Kokkonen v.
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Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Accordingly, the burden of establishing
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federal jurisdiction for purposes of removal is on the party seeking removal. Valdez v. Allstate
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Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004); see also Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th
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Cir. 1992).
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Generally, the removal statute is strictly construed against removal and any doubt as to the
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right of removal should be resolved in favor of remand. Gaus, 980 F.2d at 566. However, that is
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not the case concerning the federal officer removal statute. See Leite v. Crane Co., 749 F.3d 1117,
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1122 (9th Cir. 2014) (“We recognize that defendants enjoy much broader removal rights under the
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federal officer removal statute than they do under the general removal statute[.]”); Durham v.
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Plaintiffs also included a disclaimer in their Complaint. (Compl. ¶ 9.)
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Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006) (noting that, because it is important
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to the federal government to protect federal officers, removal rights under 28 U.S.C. section 1442
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are much broader than those under section 1441). Section 1442 is interpreted broadly in favor of
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removal. Durham, 445 F.3d at 1252.
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B.
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The Court Grants the Motion to Remand.
Foster Wheeler removed this matter pursuant to the federal officer removal statute, which
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provides that “[t]he United States or any agency thereof or any officer (or any person acting under
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that officer) of the United States or of any agency thereof, sued in an official or individual capacity
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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
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United States District Court
Northern District of California
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federal officer; (2) raise a colorable defense to the plaintiff’s claims; and (3) demonstrate a causal
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nexus between the plaintiff’s claims and acts it performed under color of federal office. Fung v.
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Abex Corp., 816 F. Supp. 569, 571-72 (N.D. Cal. 1992) (citing Mesa v. California, 489 U.S. 121,
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124-25, 134-35 (1989)); Jefferson County, Alabama v. Acker, 527 U.S. 423, 431 (1999) (defense
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need only be colorable).
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Foster Wheeler claims that it is shielded from liability by military contractors immunity as
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set forth in Boyle v. United Technologies Corp., 487 U.S. 500 (1988). In Boyle, the Supreme
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Court held that “[l]iability for design defects in military equipment cannot be imposed, pursuant to
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state law, when (1) the United States approved reasonably precise specifications; (2) the
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equipment conformed to those specifications; and (3) the supplier warned the United States about
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the dangers in the use of the equipment that were known to the supplier but not to the United
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States.” Id., at 512. Plaintiffs have “waive[d] any claims against [Foster Wheeler] arising out of
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[Mr. Ford’s] exposure to asbestos at military and/or federal government jobsites or from U.S.
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military and other federal government vessels.” (Notice of Waiver at 2:3-5 (emphasis added).)
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This Court, other courts within this District, and courts within neighboring districts, have
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found similar disclaimers sufficient to eviscerate Foster Wheeler’s grounds for removal. See
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Phillips v. Asbestos Corp. Ltd., No. 13-cv-05655-CW, 2014 WL 794051, at *2 (N.D. Cal. Feb. 26,
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2014); Lockwood v. Crane Co., No. 2:12-cv-01473-JHN-CW, 2012 WL 1425157, at *1-2 (C.D.
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Cal. Apr. 25, 2012); Pratt v. Asbestos Corp., No. 11-cv-03503 EMC, 2011 WL 4433724, at *1-2
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(N.D. Cal. Sept. 22, 2011); Dobrocke v. Allis-Chalmers Corp. Prod. Liability Trust, No. 09-cv-
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01456 CW, 2009 WL 1464153, at *2 (N.D. Cal. May 26, 2009); Madden v. A.H. Voss. Co., No.
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09-cv-03786 JSW, 2009 WL 3415377, at *2-3 (N.D. Cal. Oct. 21, 2009); Westbrook v. Asbestos
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Defendants, No. 01-cv-01661-VRW, 2001 WL 902642, at *2-3 (N.D. Cal. July 31, 2001).
Foster Wheeler relies on a number of cases in which courts have rejected the principle that
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a plaintiff can obtain remand in this situation by way of waiver or disclaimers. See, e.g., McMann
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v. Air & Liquid Systems Corp., No. 2:14-cv-00281-RSM, 2014 U.S. Dist. LEXIS 62687, at *7
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(W.D. Wash. May 6, 2014); In re Asbestos Prods. Liab. Litig. (No. VI), 770 F. Supp. 2d 736, 741
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(E.D. Pa. 2011). This Court previously reached the opposite conclusion in Madden, supra, and it
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United States District Court
Northern District of California
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is not persuaded by these cases that it should revisit that ruling.
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The Court also finds some of the cases relied upon by Foster Wheeler distinguishable on
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their facts, because the courts found the disclaimers were not as broad as the disclaimer at issue
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here. See, e.g., Wright v. A.W. Chesterton Co. Inc., No. 07-cv-05403 MJJ, 2008 WL512728, at *1
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(N.D. Cal. Feb. 21, 2008) (plaintiffs disclaimer did not include failure to warn claims); Oberstar v.
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CBS Corp., No. 08-cv-00118 PA (JWJx), 2008 U.S. Dist. LEXIS 14023, at *8 (C.D. Cal. Feb. 11,
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2008) (plaintiff did not disclaim claims arising out of exposure occurring on Navy vessels); No.
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06-cv-2271-CW, 2007 WL 1813821, at *1 n.2 (N.D. Cal. June 22, 2007) (distinguishing
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Westbrook because plaintiffs did not disclaim in writing any claims arising out of work done on
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U.S. Navy vessels). Thus, the Court finds that these authorities are inapposite.
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Foster Wheeler also argues that Plaintiffs’ waiver was not effective. However, as this
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Court previously stated in Madden, it “’sees no reason not to hold plaintiff[] to [his] waiver of
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claims arising out of work done on federal jobsites and vessels’” against Foster Wheeler. See
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Madden, 2009 WL 3415377, at *3 (quoting Westbrook, 2001 WL 902642, at *3.) If Plaintiffs
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subsequently attempt to bring such claims against Foster Wheeler, it can remove this matter at that
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time.
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CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs’ motion to remand. The Clerk
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sha close this file and rem
all
mand it to Al
lameda Coun Superior Court.
nty
r
IT IS SO ORDER
S
RED.
Da
ated: Februar 12, 2016
ry
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__________
___________
__________
________
JEF
FFREY S. W
WHITE
Un
nited States D
District Judg
ge
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United States District Court
Northern District of California
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