Adams et al v. Armstrong International, Inc. et al

Filing 36

ORDER granting #26 #28 Motion to Remand. Signed by Judge G. Patrick Murphy on 1/10/2012. (ktc)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

LEONARD R. ADAMS and MARIAN M. )
ADAMS,
)
)
Plaintiffs,
)
)
vs.
)
)
ARMSTRONG INTERNATIONAL, INC, et )
al.,
)
)
Defendants.
)

CIVIL NO. 11-857-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This matter is before the Court on the motion for remand and amended motion to remand to
state court brought by Plaintiffs Leonard R. Adams and Marian M. Adams (Docs. 26, 28). Plaintiffs
allege that Defendants’ negligence and failure to warn resulted in Leonard Adams’s asbestos
exposure and mesothelioma. This case was originally filed in the Circuit Court of the Third Judicial
Circuit, Madison County, Illinois. Defendant General Electric Company (“GE”) removed the case
to this Court (Doc. 2).1 Federal subject matter is alleged on the basis of 28 U.S.C. § 1442, the so1

It appears that, in addition to Armstrong International, Inc., GE’s co-Defendants are: Avocet
Enterprises, Inc., f/k/a Ventfabrics, Inc.; Beazer East, individually and as successor-in-interest to
Theim and as successor-in-interest to Universal Refractories; Borg-Warner Corporation, by its
successor-in-interest Borg-Warner Morse Tec Inc.; Bridgestone/Firestone America’s Holding,
Inc.; CBS Corporation, a Delaware Corp., f/k/a Viacom, Inc., successor by its merger to CBS
Corp., a Pennsylvania Corp., f/k/a Westinghouse Electric Corporation; The C.P. Hall Company;
CSR, Inc.; Carboline Company; Caterpillar Inc.; Certainteed Corporation; Chicago Pneumatic
Tool Company LLC; Cleaver-Brooks, a division of Aqua-Chem, Inc.; Consolidated Rail
Corporation; Conwed Corporation, individually and as successor-in-interest to Wood Conversion
Company; Crane Co.; Crown Cork & Seal USA, Inc.; Dap, Inc.; D & F Distributing, Inc.; Dravo
Corporation; Duro Dyne Corporation; Elliott Turbomachinery Company; Essex Specialty
Products, LLC; Ferro Engineering, a division of Oglebay Norton; Ford Motor Company; Foster
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called “federal officer” removal statute. Plaintiffs argue that GE’s removal was untimely and that
the Court in any event lacks subject matter jurisdiction. GE’s removal included multiple exhibits
in support, and GE’s response to the Plaintiffs’ motion to remand included additional exhibits,
including deposition transcripts, declarations of former Naval officers, military specifications for
Naval ships, a 1939 handbook for the Navy’s Hospital Corp, and a 1938 Treasury Department Public
Health Bulletin regarding a study of asbestosis in the textile industry. The motion has been fully
briefed, and the Court has considered both parties’ arguments and exhibits.
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
court against … [t]he United States or any agency thereof or any officer (or any person acting under
that officer) of the United States or of any agency thereof, sued in an official or individual capacity
for any act under color of such office[.]” 28 U.S.C. § 1442(a)(1). To effect removal as a person
acting under a federal officer, GE must prove three elements: (1) it is a “person” within the meaning

Wheeler Energy Corporation; Gardner-Gibson, Inc., as successor-in-interest to Gibson Homans
Company; General Refractories Company; Genuine Parts Company, a/k/a NAPA Auto Parts;
Georgia-Pacific Corporation; Goodyear Tire & Rubber Co.; Goulds Pumps; Hitco Carbon
Composites, Inc.; Honeywell Inc.; Honeywell International, Inc., f/k/a Alliedsignal Inc.,
successor-in-interest to The Benedix Corporation; Imo Industries, Inc.; Industrial Holding
Corporation, f/k/a Carborundum Company; Ingersoll-Rand Company; ITT Corporation; J.M.
Asbestos Sales, Inc.; J-M Manufacturing Company, Inc.; John Crane, Inc.; John Deere
Company; Kaiser Gypsum Company, Inc.; Kentile Floors, Inc.; Mack Trucks Inc.; Maremont
Corporation; McKesson Corporation; Motion Control Industries, Inc.; National Service
Industries, Inc., f/k/a North Brothers, Inc.; Navistar Inc., f/k/a International Harvester
Corporation; Nooter Corporation; PPL Electric Utilities Corporation; Pfizer, Inc.; Plastics
Engineering Company; Pneumo Abex Corporation, as successor-in-interest to Abex Corporation;
Riley Power Inc., f/k/a Riley Stoker Corporation; Rockwell Automation, Inc., f/k/a AllenBradley Company, Inc., individually and successor-in-interest to Rostone Corporation; SaintGobain Abrasives, Inc.; Square D, a brand of Schneider Electric; Sterling Fluid Systems USA,
LLC; Superior Boiler Works, Inc.; Terex Corporation; Trane US, Inc., f/k/a American Standard
Inc.; Union Carbide Corporation; The William Powell Company; Yarway Corporation; York
International Corporation; Zurn Industries, LLC; and Metropolitan Life Insurance Co.
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of the statute; (2) it acted under the direction of a federal officer, meaning that there is a nexus or
causal connection between Plaintiffs’ claims and the acts GE allegedly performed under the
direction of a federal officer; and (3) GE has a colorable federal defense to state-law liability. See
Jefferson County, Ala. v. Acker, 527 U.S. 423, 431 (1999); Mesa v. California, 489 U.S. 121, 129
(1989); Wisconsin v. Schaffer, 565 F.2d 961, 964 (7th Cir. 1977); Mills v. Martin & Bayley, Inc.,
Civil No. 05-888-GPM, 2007 WL 2789431, at *5 (S.D. Ill. Sept. 21, 2007). Removal pursuant to
Section 1442 does not require GE to notify or obtain the consent of any other Defendant in this case
in order to remove the entire case to federal court. See Alsup v. 3-Day Blinds, Inc., 435 F. Supp. 2d
838, 842-43 (S.D. Ill. 2006) (collecting cases). As the proponent of removal, however, GE “bears
the burden of establishing federal subject matter jurisdiction,” and “[d]oubts concerning removal
must be resolved in favor of remand to the state court.” Id. at 841. See also Baker v. Air & Liquid
Sys. Corp., Civil No. 11-8-GPM, 2011 WL 499963, at *2 (S.D. Ill. Feb. 7, 2011).
GE claims that it is entitled to invoke federal officer jurisdiction because at least part of
Leonard Adams’s alleged exposure to asbestos occurred while he was serving in the United States
Navy (“Navy”) at the Knolls Atomic Power Laboratory and aboard the U.S.S. Enterprise vesselSfor
which GE manufactured turbines containing asbestos. The parties do not dispute that GE is a
“person” for purposes of the first prong of the test of federal officer jurisdiction. See Glein v. Boeing
Co., Civil No. 10-452-GPM, 2010 WL 2608284, at *2 (S.D. Ill. June 25, 2010) (a corporation is a
“person” within the meaning of 28 U.S.C. § 1442); Stephens v. A.W. Chesterton, Inc., Civil No. 09633-GPM, 2009 WL 3517560, at *2 (S.D. Ill. Oct. 22, 2009) (same). With respect to the second
and third prongs of the test, GE claims that in designing equipment for Navy vessels, the company
acted under the direction of the Navy and that the company is therefore entitled to assert the socalled “government contractor defense” or “military contractor defense.” That defense provides
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generally that a private contractor is shielded from liability under state law for defects in products
or equipment that it produced for the United States if: (1) the United States approved reasonably
precise specifications for the products or equipment; (2) the products or equipment conformed to
those specifications; and (3) the contractor warned the United States about any dangers known to
the contractor but not to the United States. See Boyle v. United Techs. Corp., 487 U.S. 500, 512
(1988); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997-98 (7th Cir. 1996); Lambert 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, GE must produce evidence that the Navy
prevented GE from complying with its duty to warn under state law. See Rinier v. A.W. Chesterton,
Inc., Civil No. 09-1068-GPM, 2010 WL 289194, at *2 (S.D. Ill. Jan. 19, 2010). Similarly, to
establish the first prong of the government contractor defense, GE must show that the Navy
approved specific warnings that precluded GE from complying with its state-law duty to warn. See
Weese v. Union Carbide Corp., Civil No. 07-581-GPM, 2007 WL 2908014, at **7-9 (S.D. Ill. Oct.
3, 2007).2
In support of its claim of federal officer jurisdiction in the notice of removal, GE submitted
an affidavit given by Ben J. Lehman, a retired Navy rear admiral who served as a ship
superintendent in the Navy. Mr. Lehman attests to personal involvement with the supervision and
oversight of ship construction as well as ship alterations and equipment overhauls. See Doc. 14-59.
In the past, the Court has attached little significance to such evidentiary material, unaccompanied
as it is by exemplar contracts between the Navy and its contractors or pertinent regulations
2

The second prong of the test of federal officer jurisdiction and the first prong of the government
contractor defense are very similar, obviously, and they tend to merge in the analysis of a claim
of federal officer jurisdiction. See, e.g., Hilbert v. Aeroquip, Inc., 486 F. Supp. 2d 135, 147-48 &
n.11 (D. Mass. 2007).
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promulgated by the Navy or another responsible agency. See, e.g., Sether v. Agco Corp., Civil No.
07-809-GPM, 2008 WL 1701172, at **3-4 (S.D. Ill. Mar. 28, 2008). Here, as an exhibit to its
response to the motion to remand, GE provided a copy of a 1946 contract between GE and the Corps
of Engineers (Doc. 31-52). Though the contract references the safety standards with which GE was
to comply, the contract does not state that the Navy had final control over equipment safety or
warnings, nor does it state that GE was prohibited from providing additional safety features or
warnings. Indeed, the contract contemplates that GE will pursue expenditures, orders, subcontracts,
and commitments independently (Doc. 31-52 ¶5) Most importantly, even assuming for the sake of
argument that the Navy exercised final control over the content of the warnings that accompanied
the equipment supplied to it by GE, this does not dispose of the possibility that GE had
responsibility for designing the warnings, in whole or in part, or that the Navy required contractors
like GE to provide safety warnings in accordance with state-law duties of care. See Sether at *4.
Neither has GE shown that it warned the Navy about the dangers of subpar asbestos safety warnings.
The federal officer removal statute is “an exception to the well-pleaded complaint rule.”
Rodas v. Seidlin, 656 F.3d 610, 616 (7th Cir. 2011). The Court is mindful that, “[b]ecause federal
officer removal is rooted in ‘an anachronistic mistrust of state courts’ ability to protect and enforce
federal interests and immunities from suit,’ although such jurisdiction is read ‘expansively’ in suits
involving federal officials, it is read narrowly where, as in this instance, only the liability of a private
company purportedly acting at the direction of a federal officer is at issue.” Weese, 2007 WL
2908014, at *3 (quoting Freiberg v. Swinerton & Walberg Prop. Servs., Inc., 245 F. Supp. 2d 1144,
1150, 1152 n.6 (D. Colo. 2002)). Additionally, the Court is required to construe the record in this
case “in the light most favorable to remand while resolving all deficiencies in the record against …
the proponent of removal[.]” Alsup, 435 F. Supp. 2d at 846.
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GE fails to show that the Navy prevented it from complying with a state duty to warn. The
notice of removal does not support federal subject matter jurisdiction, so this action shall be
remanded to state court. Since the Court concludes that this action is due to be remanded, we need
not consider the issue of whether GE’s removal was timely. Plaintiffs’ motion for remand (Doc. 26)
is GRANTED. 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.

IT IS SO ORDERED.
DATED: January 10, 2012
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G. PATRICK MURPHY
United States District Judge

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