Kuhlman v. A.W. Chesterton, Inc. et al

Filing 20

ORDER OF REMAND: The motion for recusal brought by Defendant Foster Wheeler Energy Company (Doc. 18) is denied; the motion for remand of this case to state court brought by Plaintiff Martha Kuhlman, individually and as the special administrator for the estate of Franklin Swindle, deceased, (Doc. 7) is granted and, pursuant to 28 U.S.C. 1447(c), this case is remanded to the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, for lack of federal subject matter jurisdiction. Signed by Judge G. Patrick Murphy on 3/9/2010. (jhs)

I N THE UNITED STATES DISTRICT COURT F O R THE SOUTHERN DISTRICT OF ILLINOIS M AR T H A KUHLM AN , Individually and as ) th e Special Administrator for the Estate of ) F r an klin Swindle, Deceased, ) ) P l a in t i f f , ) ) v s. ) ) A .W . CHESTERTON, INC., et al., ) ) D e f e n d an t s . )

C I V I L NO. 10-119-GPM

MEMORANDUM AND ORDER
M U R P H Y , District Judge: I . INTRODUCTION T his matter is before the Court on the motion for recusal brought by Defendant Foster Wheeler E n er gy Corporation ("Foster Wheeler") (Doc. 18) and the motion for remand of this case to state court brou ght by Plaintiff Martha Kuhlman, individually and as the special administrator for the estate of F ra nk lin Swindle, deceased (Doc. 7). This case, in which Martha Kuhlman seeks damages for the death of Franklin Swindle, allegedly as a result of exposure to asbestos, was filed originally in the C ircu it Court of the Third Judicial Circuit, Madison County, Illinois, and Foster Wheeler has removed the case to this Court.1 Federal subject matter jurisdiction is alleged on the basis of 28 U.S.C. § 1442,

1. It appears from the record of this case that, in addition to A.W. Chesterton, Inc., Foster Wheeler's c o - D efenda nts are: Trane USA, Inc., f/k/a American Standard, Inc.; Armstrong International, Inc.; B a yer Cropscience, Inc.; Beazer East, Inc., f/k/a Koppers Industries, Inc; Bondex International, Inc.; B o rg -W a r ner Corp. by its successor in interest Borg-Warner Morse Tec, Inc.; CBS Corp., a Delaware corpor a tion f/k/a Viacom, Inc., successor by merger to CBS Corp., a Pennsylvania corporation f/k/a W estinghou se Electric Corp.; C.P. Hall Co.; CSR, Inc.; Carboline Co.; Certain-Teed Corp.; Chicago Pneu m a tic Tool Co., LLC; Cleaver Brooks Inc., a division of Aqua-Chem, Inc.; Crane Co.; Crown, C or k & Seal USA, Inc.; Dana Corp.; Dap, Inc.; Essex Specialty Products, LLC; Exxonmobil Oil Corp.; F or d Motor Co.; Garlock, Inc.; General Electric Co.; General Refractories Co.; Georgia-Pacific Corp.; P a ge 1 of 6

the so-called "federal officer" removal statute. Having considered the matter carefully, the Court now ru les as follows. T u rning first to Foster Wheeler's motion for recusal, this motion will not detain the Court long. T he gist of Foster Wheeler's motion is that the spouse of the undersigned District Judge is an attorney w ho sometimes represents plaintiffs claiming personal injuries, including injuries allegedly caused by asbestos (Foster W heeler points out also that one of the undersigned's judicial clerks practiced p er so na l-in ju r y law with the undersigned's spouse at one time). Apparently in Foster Wheeler's view, these facts disqualify the undersigned from hearing cases involving personal injuries resulting from a sbes t o s , or perhaps cases involving personal injuries generally. The Court finds no merit in

Foster Wheeler's motion. While the undersigned District Judge certainly would recuse himself from hea ring any case in which his wife had an interest or was participating as counsel for one of the parties, su ch is not the case here. A judge is not required to abstain from hearing an entire class of cases because his or her spouse, as an attorney, participates in such cases, and any such construction of 28 U.S.C. § 455 would quickly bring the judicial business of the federal courts to a complete halt. At bottom it a ppea rs that Foster Wheeler is aggrieved by certain decisions in which the undersigned has found a ga inst Foster Wheeler on issues pertaining to federal subject matter jurisdiction on removal, but

Goodyear Tire & Rubber Co.; Goulds Pumps; Honeywell International, Inc., f/k/a Alliedsignal, Inc., su ccessor in interest to Bendix Corp.; Imo Industries, Inc.; Industrial Holding Corp. f/k/a Carborundum C o.; Ingersoll-Rand Co.; ITT Corp.; J.S. Alberici Construction Co. n/k/a Alberici Constructor, Inc.; J .M . Asbestos Sales, Inc.; J-M Manufacturing Co.; John Crane, Inc.; Kentile Floors, Inc.; National S ervice Industries, Inc., f/k/a North Brothers, Inc.; Pfizer, Inc.; Plastics Engineering Co.; Pneumo Abex C orp . as successor in interest to Abex Corp.; Riley Power, Inc., f/k/a Riley Stoker Corp.; Saint Gobain A b ra siv es, Inc.; Sprinkman Insulation, Inc.; Sprinkmann Sons Corp.; Sterling Fluid Systems (USA), L L C ; Thermwell Products Co. f/k/a Mortite Corp.; Union Carbide Corp.; W a t e r Applications D istribu tion Group, Inc., as successor in interest to Sidener Supply Co.; Welco Manufacturing Co.; Y a rw a y Corp.; Young Insulation Group of St. Louis; Young Group, Ltd., f/k/a Young Sales Corp.; Z u rn Industries, LLC; and Metropolitan Life Insurance Co. P a ge 2 of 6

a dv erse rulings are not evidence of judicial bias such as to warrant recusal. See Liteky v. United States, 5 1 0 U.S. 540, 555 (1994); McLaughlin v. Union Oil Co. of Cal., 869 F.2d 1039, 1047 (7 th Cir. 1989); Cohee v. McDade, 472 F. Supp. 2d 1082, 1084 (S.D. Ill. 2006). Accordingly, the u nd ersign ed declines to recuse himself in this case. T u r ning then to the instant motion for remand of this case to state court, the Court notes as an initia l matter the standard under which such a motion must be evaluated. A defendant seeking removal b e a r s the burden of establishing federal subject matter jurisdiction. See Meridian Sec. Ins. Co. v. S a d o ws k i, 441 F.3d 536, 540 (7th Cir. 2006); Lyerla v. Amco Ins. Co., 461 F. Supp. 2d 834, 835 (S .D . Ill. 2006). Federal removal jurisdiction is statutory in nature and is to be strictly construed. See S h a m r o c k Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Doe v. Allied-Signal, Inc., 985 F .2 d 908, 911 (7th Cir. 1993); Fuller v. BNSF Ry. Co., 472 F. Supp. 2d 1088, 1091 (S.D. Ill. 2007). R em ov a l is proper if it is based on permissible statutory grounds and if it is timely. See

B o y d v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004); Gragg v. Alfa Laval, Inc., C ivil No. 09-773-GPM, 2009 WL 4110389, at *1 (S.D. Ill. Nov. 20, 2009). Any doubts about the pr op riety of removal must be resolved against removal and in favor of remand to state court. See C le v e n g e r v. Eastman Chem. Co., No. 07-cv-148-DRH, 2007 WL 2458474, at *1 (S .D . Ill. Aug. 24, 2007); Littleton v. Shelter Ins. Co., No. 99-912-GPM, 2000 WL 356408, at *1 ( S .D . Ill. Mar. 9, 2000). In this case, as noted, the asserted basis for federal subject matter jurisdiction is 28 U.S.C. § 1442, which provides, in relevant part, for the removal of "[a] civil action . . . commenced in a State cou rt against . . . [t]he United States or any agency thereof or any officer (or any person acting under tha t officer) of the United States or of any agency thereof, sued in an official or individual capacity for

Page 3 of 6

a ny act under color of such office[.]" 28 U.S.C. § 1442(a)(1). To effect removal under Section 1442, F oster Wheeler must prove three elements: (1) it is a "person" within the meaning of the statute; (2) it a cted under the direction of a federal officer, meaning that there is a nexus or causal connection between K u h lm a n's claims and the acts Foster Wheeler allegedly performed under the direction of a federal officer; and (3) Foster W h e e l e r has a colorable federal defense to state-law liability. See Jefferson C o u n ty , Ala. v. Acker, 527 U.S. 423, 431 (1999); Mesa v. California, 489 U.S. 121, 129 (1989); Willin g h a m v. Morgan, 395 U.S. 402, 407 (1969); Wisconsin v. Schaffer, 565 F.2d 961, 964 (7 th Cir. 1977); Mills v. Martin & Bayley, Inc., Civil No. 05-888-GPM, 2007 WL 2789431, at *5 ( S .D . Ill. Sept. 21, 2007).2 F oster Wheeler claims in its notice of removal that it is entitled to invoke federal officer ju risdiction because at least part of the alleged exposure of Kuhlman's decedent Franklin Swindle to a sbestos occurred during Swindle's service in the United States Navy ("USN") aboard the U .S .S . Constellation, a vessel for which Foster Wheeler claims that it manufactured components, inclu ding boilers and economizers, that contained asbestos. With respect to the second prong of the test of federal officer jurisdiction, acting under a federal officer, Foster Wheeler claims that it acted under the direction of the USN in designing equipment for the U.S.S. Constellation. As to the third prong, a colorable federal defense, Foster Wheeler claims that it is entitled to assert the so-called "government contra ctor defense," under which, of course, a private contractor is shielded from liability under state la w for defects in products or equipment that it produced for the United States if: (1) the United States a pproved reasonably precise specifications for the products or equipment; (2) the products or equipment

2. Here the parties do not dispute that Foster Wheeler, a corporation, is a "person" for purposes of the first prong of the test of federal officer jurisdiction. See Stephens v. A.W. Chesterton, Inc., C ivil No. 09-633-GPM, 2009 WL 3517560, at *2 (S.D. Ill. Oct. 22, 2009) ("[A] corporation is a ` per so n' within the meaning of 28 U.S.C. § 1442[.]"). P a ge 4 of 6

co nfo rm e d to those specifications; and (3) the contractor warned the United States about any dangers k no w n to the contractor but not to the United States. See Boyle v. United Techs. Corp., 487 U.S. 5 0 0 , 512 (1988); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997-98 (7th Cir. 1996); L a m b e r t v. B.P. Prods. N. Am . , Inc., Civil No. 04-347-GPM, 2006 WL 924988, at *6 (S .D . Ill. Apr. 6, 2006). To establish the second prong of the test of federal officer jurisdiction with respect to Kuhlman's state-law claims of strict products liability and negligence against Foster Wheeler ba sed on the latter's alleged failure to warn of the asbestos contained in the products that the company fu rnished to the USN, Foster Wheeler must produce evidence that the USN prevented the company from complying with its duty to warn under state law. See Weese v. Union Carbide Corp., C ivil No. 07-581-GPM, 2007 WL 2908014, at **6-7 (S.D. Ill. Oct. 3, 2007). Similarly, to establish the first prong of the government contractor defense, Foster Wheeler must show that the USN a ppr oved specific warnings that precluded Foster Wheeler from complying with its state-law duty to w a rn. See id. at *9. In this instance, the chief evidence produced by Foster Wheeler in support of its claim of federal officer jurisdiction are affidavits by J. Thomas Schroppe, an employee of Foster Wheeler from 1962 u n til 1999, and Ben J. Lehman, who served as a ship superintendent in the USN and who claims in that ca pa city to have had personal involvement with the supervision and oversight of ship construction as w ell as ship alterations and equipment overhauls. See Doc. 19-1 at 24-28, 29-36. In the past the Court ha s attached little significance to such evidentiary materials, unaccompanied as they are by exemplar contra cts between the USN and its contractors or pertinent regulations promulgated by the USN or a no ther responsible agency. See Sether v. Agco Corp., Civil No. 07-809-GPM, 2008 WL 1701172, a t **3-4 (S.D. Ill. Mar. 28, 2008). Most importantly, even assuming for the sake of argument that it is the case that, as Schroppe and Lehman attest in their affidavits, the USN exercised the final control Page 5 of 6

over the content of the warnings that accompanied the equipment supplied to it by Foster Wheeler, this does not negative the possibility that Foster Wheeler had responsibility for designing the warnings, in whole or in part, or that the USN required contractors like Foster Wheeler to provide safety warnings in accordance with state-law duties of care. See Rinier v. A.W. Chesterton, Inc.,

C ivil No. 09-1068-GPM, 2010 WL 289194, at *3 (S.D. Ill. Jan. 19, 2010). On the state of the record, constru ing that record most strongly against removal and in favor of remand, the Court concludes that F oster Wheeler has failed to show what a defendant seeking removal under 28 U.S.C. § 1442 must, na m ely, that "[t]he government made me do it." Alsup v. 3-Day Blinds, Inc., 435 F. Supp. 2d 838, 848 (S .D . Ill. 2006). Accordingly, Foster Wheeler's motion for recusal (Doc. 18) is DENIED and K u hlm a n's motion for remand of this case (Doc. 7) is GRANTED. Pursuant to 28 U.S.C. § 1447(c), this case is REM A N D E D to the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, for lack of federal subject matter jurisdiction. I T IS SO ORDERED. D A T E D : March 9, 2010

/s/ G. Patrick Murphy G. PATRICK MURPHY United States District Judge

Page 6 of 6