Ayotte v. The Boeing Company
Filing
309
MEMORANDUM OPINION AND ORDER Signed by the Honorable Ruben Castillo on 6/22/2018:(rao, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DANIEL L. AYOTTE,
Plaintiff,
v.
THE BOEING COMPANY, et al.,
Defendants.
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No. 18 C 2662
Chief Judge Rubén Castillo
MEMORANDUM OPINION AND ORDER
Daniel L. Ayotte (“Plaintiff”) filed this action in the Circuit Court of Cook County,
Illinois, alleging claims against a host of defendants, including The Boeing Company
(“Boeing”), arising from his exposure to asbestos. (R. 1-1, Compl.) Boeing removed the action to
this Court. (R. 1, Notice of Removal.) Before the Court is Plaintiff’s motion to remand the case
to state court. (R. 240, Mot. to Remand.) For the reasons set forth below, the motion is denied.
BACKGROUND
In September 2016, Plaintiff was diagnosed with mesothelioma, and in September 2017,
he filed suit against Boeing and other defendants asserting that his illness was caused by
exposure to asbestos. (R. 1-1, Compl.) He alleged that he was “exposed to and inhaled, ingested
or otherwise absorbed asbestos fibers emanating from certain products he was working with and
around that were manufactured, sold, distributed, marketed or installed by the Defendants[.]” (Id.
at 4.) He claimed that his exposure occurred sometime between 1970 and 2004 while he was
serving in the U.S. Air Force, working as a commercial airline mechanic, and/or engaging in
home remodeling and other activities. (Id. at 4-14.) As to Boeing, he alleged that he was exposed
to asbestos in Boeing’s products “during the course of his employment, non-occupational work
projects (including, but not limited to, home and automotive repairs, maintenance, and
remodeling) and/or in other ways[.]” (Id. at 4.)
Boeing was served with the complaint on September 21, 2017, and filed its answer on
October 30, 2017. (R. 240-5, Docket at 71; R. 240-3, Answer.) In addition to denying the bulk of
the allegations in the complaint, Boeing asserted 23 separate affirmative defenses, including that
Boeing “is immune from liability as a government contractor who manufactured the products to
which Plaintiff claims to have been exposed pursuant to reasonably precise specifications of the
United States government.” (R. 240-3, Answer at 10.) In the ensuing months, Plaintiff amended
his complaint several times, although the substance of the allegations against Boeing remained
the same. 1 (See R. 240-5, Docket at 14, 60, 122, 136; R. 240-6, Fourth Am. Compl.; R. 240-7,
Fifth Am. Compl.)
In October 2017, Plaintiff executed an authorization for release of his military records.
(R. 1-2, Disc. Resp. at 8-19.) In November 2017, Plaintiff filed a disclosure of expected trial
witnesses. (R. 240-4, Disclosure.) As to Boeing, he disclosed that he and several other witnesses
intended to testify about his work at three different military bases during the 1970s, as well as his
work as a commercial mechanic at three different airports between 1979-2004, during which
time he claimed to have been exposed to asbestos in Boeing’s products. (Id.)
On March 13, 2018, Boeing gained electronic access to Plaintiff’s military records.
(R. 1-4, Military Records.) Those records showed that while serving in the U.S. Air Force,
Plaintiff worked on various Boeing airplanes, including B-52s and KC-135s, which, according to
Boeing, were specifically manufactured by Boeing for the U.S. military. (Id. at 9; R. 1-7,
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Plaintiff amended the complaint five times in state court, but in his motion to remand, he acknowledges
that he failed to properly notice the fifth amended complaint. (R. 240, Mot. to Remand at 4.) He asserts,
and Boeing does not dispute, that the fourth amended complaint is the operative pleading. (Id.; R. 296,
Resp. at 3.)
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Leatherman Decl. ¶¶ 11-30.) On March 20, 2018, Plaintiff sat for the first day of his discovery
deposition, and it was revealed that Plaintiff had worked on DC-3 aircraft during his time as a
commercial airline mechanic. (R. 1-5, Pl.’s Dep. Tr. at 12.) According to Boeing, a significant
number of DC-3 aircraft were Boeing C-47 and C-54 planes that were originally manufactured
for the U.S. military, sold as military surplus after World War II, and converted for commercial
use. (R. 1-7, Leatherman Decl. ¶¶ 31-33.)
On April 12, 2018, Boeing removed the case to this Court on the basis of federal officer
jurisdiction. (R. 1, Notice of Removal.) Boeing asserts that removal is proper because it is “being
sued for asbestos-related injuries arising from or relating to equipment that it manufactured and
supplied to the United States government under the government’s detailed direction and
control[.]” (Id. at 5.) On May 11, 2018, Plaintiff moved to remand the case to state court.
(R. 240, Mot. to Remand.) In Plaintiff’s view, Boeing’s notice of removal was untimely because
it was not filed within 30 days of the date Boeing was served with the original complaint. (Id. at
4-5.) Boeing opposes the motion to remand, arguing that its notice of removal was timely
because it was filed within 30 days of the date Boeing obtained information providing the basis
for its assertion of federal officer jurisdiction. (R. 296, Resp. at 5-12.)
LEGAL STANDARD
“[A]ny civil action brought in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the defendant or the defendants, to the
district court of the United States.” 28 U.S.C. § 1441(a). A notice of removal must be filed
“within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon which such action or proceeding is
based[.]” 28 U.S.C. § 1446(b)(1). When it is not apparent from the complaint that the case is
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removable, a notice of removal may be filed “within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended pleading, motion, order or other paper
from which it may first be ascertained that the case is one in which is or has become removable.”
28 U.S.C. § 1446(b)(3). The party removing the action “bears the burden of establishing federal
jurisdiction.” Tri-State Water Treatment, Inc. v. Bauer, 845 F.3d 350, 352 (7th Cir. 2017). A
removing party meets this burden by submitting evidence demonstrating a “reasonable
probability” that jurisdiction exists. Schimmer v. Jaguar Cars, Inc., 384 F.3d 402, 404 (7th Cir.
2004) (citation omitted).
A case must be remanded to state court if subject-matter jurisdiction is lacking or if the
defendant failed to comply with the removal statute. See generally GE Betz, Inc. v. Zee Co., 718
F.3d 615, 625-26 (7th Cir. 2013). “In considering a motion for remand, the court must examine
the plaintiff’s complaint at the time of the defendant’s removal and assume the truth of all factual
allegations contained within the original complaint.” Elftmann v. Vill. of Tinley Park, 191 F.
Supp. 3d 874, 878 (N.D. Ill. 2016) (citation omitted). The Court can also consider “summary
judgment-type evidence such as affidavits and deposition testimony,” provided that the Court
does not use this evidence “to ‘pre-try’ the case[.]” Brokaw v. Boeing Co., 137 F. Supp. 3d 1082,
1092 (N.D. Ill. 2015) (citation omitted).
ANALYSIS
Congress has granted a right of removal to federal officers who face civil or criminal
lawsuits in state court based on their official acts. 28 U.S.C. § 1442(a)(1). The removal statute
provides in pertinent part:
A civil action or criminal prosecution that is commenced in a State court and that
is against or directed to any of 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: . . . The United States or any agency thereof or any officer
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(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(a)(1). This provision “evinces concern that ‘unfriendly’ states will impose
state-law liability on federal officers and their agents for actions done under the immediate
direction of the national government.” Ruppel v. CBS Corp., 701 F.3d 1176, 1180 (7th Cir. 2012)
(citation and internal quotation marks omitted). The purpose of the statute is to provide federal
officers with the right to have such lawsuits “litigated in the federal courts.” Willingham v.
Morgan, 395 U.S. 402, 407 (1969).
Although federal officers and agencies are the intended beneficiaries of Section
1442(a)(1), a non-governmental party can also invoke the removal provision under certain
circumstances. Ruppel, 701 F.3d at 1180. To remove a case based on federal officer jurisdiction,
a private defendant must establish four elements: (1) he is a “person” within the meaning of the
statute; (2) he was “acting under” the federal government or one of its officers; (3) there is a
causal nexus between the federal authority and the conduct challenged in the plaintiff’s lawsuit;
and (4) he has a colorable federal defense to the plaintiff’s claim. Id. at 1180-81. In effect,
federal officer jurisdiction exists when a private party is “working hand-in-hand with the federal
government to achieve a task that furthers an end of the federal government” and is sued in
relation to that conduct. Id. at 1181. The federal officer removal provision is not to be given
“narrow” or “limited” interpretation, regardless of whether it is invoked by a private party or a
government official. Id. at 1180. Rather, the statute should be “liberally construed” to effectuate
its purpose. Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 147 (2007). If the requirements of
federal officer jurisdiction are met, “then the entire case is removable.” Ruppel, 701 F.3d at
1182. Unlike other types of removal, the federal officer removal provision does not require the
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consent of the other defendants. 28 U.S.C. § 1442(a)(1); see also Alsup v. 3-Day Blinds, Inc., 435
F. Supp. 2d 838, 842 (S.D. Ill. 2006) (collecting cases and observing that “removal under 28
U.S.C. § 1442 can be effected by any defendant in an action, with or without the consent of codefendants”).
In his motion to remand, Plaintiff does not challenge Boeing’s right to remove this case
to federal court based on federal officer jurisdiction. 2 (R. 240, Mot. to Remand.) Rather, Plaintiff
argues that Boeing’s notice of removal was untimely because it was filed seven months after
Boeing was served with the original complaint. (Id. at 5-7.) Boeing disagrees that its notice of
removal was untimely, arguing that it did not have a basis to remove until several months after it
was served. (R. 296, Resp. at 5-12.) Specifically, Boeing argues that the basis for federal officer
removal was not revealed until March 13, 2018, when Boeing obtained Plaintiff’s military
records showing that several of the aircraft he worked on were manufactured by Boeing for the
2
Because it pertains to the Court’s subject-matter jurisdiction, the Court has independently considered
whether the requirements of federal officer jurisdiction are met in this case. See Evergreen Square of
Cudahy v. Wisc. Hous. & Econ. Dev. Auth., 776 F.3d 463, 465 (7th Cir. 2015) (“[T]he parties cannot
confer subject-matter jurisdiction by agreement, and federal courts are obligated to inquire into the
existence of jurisdiction sua sponte[.]” (internal citation omitted)). Corporate entities like Boeing qualify
as “persons” for purposes of federal officer jurisdiction, Ruppel, 701 F.3d at 1181, and Boeing has
submitted evidence that it was acting under the direction of the U.S. government when it manufactured
certain planes that allegedly caused Plaintiff’s injury. (R. 1-7, Leatherman Decl. ¶¶ 20-33.) Boeing is
asserting a government contractor defense, a recognized federal defense that “immunizes government
contractors from state tort law when the government had a hand in a defendant’s allegedly defective
design” of a product alleged to have injured the plaintiff. Ruppel, 701 F.3d at 1183; see also Boyle v.
United Techs. Corp., 487 U.S. 500, 507 (1988) (recognizing the “uniquely federal interest” in protecting
private companies performing work under contract with the U.S. government). The defense applies 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.” Boyle, 487 U.S. at 512. Although the Court
does not prejudge the merits, Boeing’s assertion of the government contractor defense is at least plausible
given the evidence Boeing has submitted about the planes that allegedly caused Plaintiff’s injuries.
Ruppel, 701 F.3d at 1182; see also Totten v. Crane Co., No. 13 C 8157, 2014 WL 1689689, at *1-4 (N.D.
Ill. Apr. 28, 2014) (defendant’s assertion of government contractor defense was plausible where plaintiff
alleged that he had contracted mesothelioma from defendant’s products, and defendant submitted
evidence that those products had been manufactured for the U.S. Navy). The Court therefore finds a
“reasonable probability” that jurisdiction exists. Schimmer, 384 F.3d at 404.
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U.S. military. (Id. at 5-6.) Plaintiff counters that Boeing could have readily discerned a basis for
removal earlier, either from his original complaint or from his pretrial disclosures filed in
November 2017, because it was clear from those documents that Plaintiff was claiming exposure
to asbestos during his time in the U.S. military. (R. 240, Mot. to Remand at 5; R. 304, Reply at 23.)
The Court agrees with Boeing. The 30-day removal clock is triggered only when the
defendant receives a pleading or other paper that “affirmatively and unambiguously reveals that
the predicates for removal are present.” 3 Collier v. SP Plus Corp., 889 F.3d 894, 897 (7th Cir.
2018) (quoting Walker v. Trailer Transit, Inc., 727 F.3d 819, 824 (7th Cir. 2013)). The question
is not “what the defendant subjectively knew or should have discovered through independent
investigation.” Walker, 727 F.3d at 825. Rather, “the timeliness inquiry is limited to examining
contents of the clock-triggering pleading or other litigation paper; the question is whether that
document, on its face or in combination with earlier-filed pleadings, provides specific and
unambiguous notice that the case satisfies federal jurisdictional requirements and therefore is
removable.” Id. “This bright-line rule promotes clarity and ease of administration for the courts,
discourages evasive or ambiguous statements by plaintiffs in their pleadings and other litigation
papers, and reduces guesswork and wasteful protective removals by defendants.” Id.
Plaintiff’s original complaint, and his superseding amended complaints, were far too
vague to provide “unambiguous” notice to Boeing that it had a right to remove based on federal
officer jurisdiction. In his original complaint, Plaintiff alleged generally that he was exposed to
asbestos both as a civilian and during his service in the Air Force, but he did not name Boeing as
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“The phrase ‘other paper’ in Section 1446(b)(3) includes deposition transcripts, interrogatory answers,
and any other official papers filed or exchanged in connection with the action.” Gross v. FCA US LLC,
No. 17 C 4889, 2017 WL 6065234, at *2 n.3 (N.D. Ill. Dec. 7, 2017). Plaintiff’s official military records
certainly appear to meet this definition, and Plaintiff does not argue otherwise. Plaintiff also does not
dispute Boeing’s assertion that it gained access to Plaintiff’s military records on March 13, 2018.
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a defendant in the count pertaining to his military service. (R. 1-1, Compl.) As to the count
pertaining to his civilian exposure, he named Boeing and upwards of 50 other defendants and
alleged generally that his exposure occurred “[d]uring the course of his employment, nonoccupational work projects (including, but not limited to, home and automotive repairs,
maintenance and remodeling) and/or in other ways.” (Id. at 4.) In a chart attached to the
complaint, Plaintiff provided slightly more detail, delineating that Boeing was being named as a
defendant in connection with his work for Delta Air Lines between 1979 and 2004 at three
different airports: O’Hare Airport (Chicago, Illinois), West Palm Beach Airport (West Palm
Beach, Florida), and Hartsfield-Jackson Airport (Atlanta, Georgia). (R. 1-1, Ex. A to Compl. at
17-20.) As to Boeing’s products at issue, he identified them only as “[a]sbestos containing
brakes, gaskets, heat shields, fire hoses, valves, and other asbestos containing products.” (Id. at
20.) Although Plaintiff amended his complaint several times, the substance of the allegations
against Boeing remained the same. (See R. 240-6, Fourth Am. Compl.; R. 240-7, Fifth Am.
Compl.)
The pretrial disclosures Plaintiff points to were no more definitive. Plaintiff disclosed
only generally that he had witnesses who would testify about his exposure to Boeing’s products
sometime over the course of four decades at any one of three airports or three military bases.
(R. 240-4, Disclosure.) Regarding the specific products at issue, he again identified them only as
“[a]sbestos containing brakes, gaskets, heat shields, fire hoses, valves, and other asbestos
containing products[.]” (Id. at 37.) Nothing about these filings provided specific notice to Boeing
that Plaintiff’s alleged injuries were caused by products manufactured by Boeing for the U.S.
military.
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Plaintiff seems to believe that Boeing should have pieced together from his filings that
the products at issue were military planes, but that is not the standard. “[W]hat a defendant might
have discovered by following up on clues or suggestions that federal jurisdiction may exist is
irrelevant to the timeliness inquiry.” Gross v. FCA US LLC, No. 17 C 4889, 2017 WL 6065234,
at *3 (N.D. Ill. Dec. 7, 2017). Courts in other asbestos cases have concluded that the 30-day
deadline for asserting federal officer jurisdiction does not begin to run until the defendant is put
on notice of the specific products that allegedly caused the plaintiff’s exposure to asbestos. See,
e.g., Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006) (“Until Durham
revealed which aircraft he had worked on during his Air Force career, Lockheed couldn’t assert
either that its actions were taken pursuant to a federal officer’s directions, or that it had a
colorable federal defense.”); Bond v. Am. Biltrite Co., No. CV 13-1340-SLR-CJB, 2014 WL
657402, at *4 (D. Del. Feb. 20, 2014) (“[A] defendant has no firm basis for removal [based on
federal officer jurisdiction] until the military products relating to the defendant that are alleged to
be associated with asbestos exposure are specifically identified.” (citation, internal quotation
marks, and alterations omitted)); In re Asbestos Prod. Liab. Litig., No. CIV.A. 11-CV-63520,
2011 WL 2039218, at *3 (E.D. Pa. May 25, 2011) (“[S]pecific military product identification is
the linchpin of federal officer removal in the asbestos context.”).
The Court finds these cases persuasive. As the court observed in Durham, defendants like
Boeing manufacture a variety of products, some of which involve government contracts and
some of which do not. Durham, 445 F.3d at 1251. Until Boeing had information about the exact
products that allegedly caused Plaintiff’s injury, it could not know whether those products had
been manufactured for the U.S. government and thus whether the predicates for federal officer
jurisdiction were present. Id.
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Plaintiff relies on Mims v. 84 Lumber Co., No. CV 13-298-SLR-CJB, 2013 WL 4775306
(D. Del. Sept. 6, 2013), for the opposite conclusion. (R. 304, Reply at 2.) In that case, however,
the court found that the defendant failed to adequately explain “what it was about the content of
Mr. Mims’ deposition that made its federal defense now ascertainable for the first time.” Mims,
2013 WL 4775306 Id. at *7. Here, by contrast, Boeing has clearly explained that it did not know
until the specific planes at issue were identified that these products had been manufactured for
the U.S. government, rather than for purely commercial purposes. (R. 296, Resp. at 7-8; R. 1-7,
Leatherman Decl.) The court in Mims specifically noted that the defendant did not advance such
an argument in its filings. Mims, 2013 WL 4775306, at *5. Plaintiff also cites Pantalone v.
Aurora Pump Co., 576 F. Supp. 2d 325, 334 (D. Conn. 2008), where the court determined that
the defendant failed to demonstrate “that it could not have reasonably ascertained the case’s
removability” much earlier in the case. Id. at 334. However, in Pantalone the plaintiff clearly
alleged in his complaint that he was exposed to asbestos in pumps made by defendant while he
was working at a Navy shipyard. Id. Here, by contrast, Plaintiff failed to name Boeing (whether
inadvertently or otherwise) in the count arising from his military service. (See R. 1-1, Compl. at
9-14.) His pretrial disclosure was also vague, as he revealed only generally that he had witnesses
who would testify about his exposure to Boeing’s products at some point over the course of four
decades at any one of six different locations, some of which were military bases and some of
which were not. (R. 240-4, Disclosure.) He also identified Boeing’s products very generally,
referring only to parts rather than to any particular aircraft. (Id. at 37.) Based on these
distinctions, the Court is unpersuaded by Plaintiff’s reliance on these cases.
It is true, as Plaintiff points out, that Boeing asserted an affirmative defense based on
government contractor immunity months before removing the case. (See R. 240, Mot. to Remand
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at 6; R. 240-3, Answer at 10.) The Court does not find this dispositive, however, because the
standards governing assertion of an affirmative defense and the decision to remove a case to
federal court are quite different. As the court in another asbestos case observed, an “affirmative
defense need not be plausible to survive, and must merely provide fair notice of the issue
involved.” Bond, 2014 WL 657402, at *4 (citation, internal quotation marks, and alterations
omitted). Thus, a defendant could assert a government contractor defense “based only on the
possibility that a federal contract would be at issue.” Id. (citation and internal quotation marks
omitted). By contrast, “a defendant seeking to remove under Section 1442(a) must be able to
muster more evidence than that—it must instead have identified concrete factual information
that, viewed in the light most favorable to it, entitles it to a complete defense.” Id. (citation and
internal quotation marks omitted). Boeing did not have that “concrete factual information” until
it learned which specific aircraft had allegedly caused Plaintiff’s injury. See id. Had Boeing acted
precipitously and filed a notice of removal based on incomplete information, “it may well have
subjected itself to fees and costs, and potentially Rule 11 sanctions, for filing a baseless notice of
removal.” Durham, 445 F.3d at 1251.
Based on the above, the Court concludes that the 30-day deadline for removal did not
begin to run until Boeing learned on March 13, 2018, that Plaintiff’s exposure to asbestos
occurred, at least in part, in connection with his work on planes manufactured by Boeing for the
U.S. government. Boeing’s notice of removal filed on April 12, 2018, was therefore timely. The
motion to remand is denied.
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CONCLUSION
For the foregoing reasons, Plaintiff’s motion to remand (R. 240) is DENIED. The parties
are ordered to appear for a status hearing on July 3, 2018, at 9:45 a.m. They are directed to
reconsider their settlement positions in light of this opinion and to exhaust all avenues for
settling this action prior to the status hearing.
ENTERED:
Chief Judge Rubén Castillo
United States District Court
Dated: June 22, 2018
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