Messier v. Ingersoll-Rand Co et al

Filing 48

ORDER. For the reasons set forth in the attached ruling, the 45 Motion to Remand is GRANTED, and the Clerk is directed to remand this case to Connecticut Superior Court. Signed by Judge Michael P. Shea on 6/1/2015. (Luedeman, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GEORGE MESSIER,
Plaintiff,

:
No. 3:15-cv-00408 (MPS)
:
:
v.
:
:
INGERSOLL RAND CO., et al.
:
June 1, 2015
Defendants.
:
____________________________________________________________________________
ORDER REMANDING CASE
Plaintiff George Messier (“Messier”) filed this suit in Connecticut state court against

several corporate defendants, including CBS Corporation (“CBS”) and General Electric
Company (“GE”), for injuries arising from exposure to asbestos. On March 19, 2015, CBS filed
a notice of removal in this Court, asserting jurisdiction under the “federal officer” removal
statute, 28 U.S.C. § 1442, on the basis of a “government contractor defense”—specifically, that
CBS and GE manufactured any allegedly injurious products under contracts with the U.S. Navy.
On March 20, 2015, GE joined in the removal on the same grounds. Messier has moved to
remand the case to state court. Because there has not been an adequate showing of a causal
connection between Messier’s lawsuit and the actions that CBS and GE took under their
government contracts, this Court is without jurisdiction under 28 U.S.C. § 1442 and will grant
the motion to remand the case.
In order to invoke Section 1442, the defendants “must demonstrate that the acts for which
they are being sued . . . occurred because of what they were asked to do by the Government.”
Isaacson v. Dow Chem. Co., 517 F.3d 129, 137 (2d Cir. 2008) (emphasis in original). Thus,
“[t]he issue is not simply whether the defendants acted under [federal] officials, but whether they
are in danger of being sued in state court based upon actions taken pursuant to federal direction.”
Ryan v. Dow Chem. Co., 781 F. Supp. 934, 950 (E.D.N.Y. 1992) (quotation marks omitted)

(cited with approval in In re Methyl Tertiary Butyl Ether (“MTBE”) Products Liab. Litig., 488
F.3d 112, 124-25 (2d Cir. 2007)).
Although the Court must “credit Defendants’ theory of the case when determining
whether a causal connection exists,” Isaacson, 517 F.3d at 137, CBS’s and GE’s removal notices
provide no basis for a finding of a causal connection between Messier’s lawsuit and the actions
that CBS and GE took under contracts with the U.S. Navy. The only allegation in CBS’s removal
notice that might possibly establish a causal connection is its statement that “[t]hroughout the
1940s, 1950s, 1960s and 1970s, Westinghouse”—to which CBS is a successor—“designed,
manufactured and supplied various items of equipment, including turbines, to the United States
Navy for use aboard its vessels.” ECF No. 1 ¶ 3. GE’s removal notice offers the following:
GE supplied marine steam turbines and related propulsion and power generation
equipment to the U.S. Navy and to Electric Boat for use in the construction of
Navy ships and nuclear submarines. GE supplied these products pursuant to
contracts and specifications executed by the U.S. Navy.
ECF No. 11 ¶ 5.
Although the complaint does not specifically allege the circumstances under
which the plaintiff was exposed to asbestos dust and fibers, it appears that the
plaintiff is alleging asbestos exposure from the products GE supplied to the U.S.
Navy for use on Navy ships and/or nuclear submarines.
Id. ¶ 6.
There is no apparent connection between those allegations and the allegations in the
complaint, other than the single fact that Messier works for Electric Boat Corporation, to which
GE supplied equipment at some unspecified time in the past. With regard to the factual
circumstances giving rise to his injuries, Messier’s complaint offers these limited details:
The Plaintiff, GEORGE MESSIER, has been employed at General Dynamics /
Electric Boat Corp., Groton, CT since 1973. He works as a maintenance pipefitter
on the premises of Electric Boat Corporation. During his employment, he was
exposed to asbestos products or products containing, involving or requiring the
use of asbestos, and was exposed to asbestos fibers and materials manufactured
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by the Defendants and otherwise placed into the stream of commerce by the
Defendants. During his employment, he was around and with the Defendants’
products which were designed to require or incorporate asbestos for use, operation
or function.
Compl. ¶ 1.
As a result of the acts of the Defendants as aforesaid and the Plaintiff’s exposure
to asbestos, asbestos related insulation products, asbestos-containing products,
and products that required or involved asbestos for use, operation or function that
were manufactured, sold and distributed by the Defendants, Plaintiff GEORGE
MESSIER is suffering from lung cancer, asbestosis, asbestos-related lung disease,
lung disease and/or loss of lung function.
Id. ¶ 12. The complaint makes no mention of the U.S. Navy or Messier’s involvement, if any, in
the construction of Navy ships and nuclear submarines. Further, the parties have filed a
stipulation (ECF No. 45-2) that effectively clarifies that the complaint’s allegation of exposure to
asbestos “on the premises of Electric Boat Corporation” does not refer to exposure to equipment
manufactured by GE and CBS for the U.S. Navy. 1
In the absence of an adequate showing of a causal connection between Messier’s lawsuit
and the actions that CBS and GE took under their government contracts, this Court is without
jurisdiction under 28 U.S.C. § 1442. The Motion to Remand (ECF No. 45) is therefore
GRANTED, and the Clerk is directed to remand this case to Connecticut Superior Court.

SO ORDERED this 1st day of June 2015 at Hartford, Connecticut.

/s/
a
Michael P. Shea
United States District Judge

1

Cf. Arter v. Pathmark Stores, Inc., No. 14-CV-6933 ERK JMA, 2014 WL 7426792, at *2 (E.D.N.Y. Dec. 31,
2014) (holding, in the context of the amount-in-controversy requirement for diversity jurisdiction, that “a plaintiff’s
stipulations may be considered as clarification of the jurisdictional facts existing at the time of removal, if the
complaint was ambiguous or silent”) (quotation marks omitted).

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