Joyner v. A.C. & R Insulation Co., Inc. et al

Filing 188

MEMORANDUM. Signed by Judge Catherine C. Blake on 3/7/13. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JAMES E. JOYNER
v.
A.C. & R. INSULATION CO., et al.

*
*
*
*
*
*
*
******

Civil No. CCB-12-2294

MEMORANDUM
Plaintiff James Joyner, a twenty-two-year veteran of the United States Coast Guard, was
diagnosed with malignant pleural mesothelioma in March 2012. Three months later he brought
this asbestos products-liability action in the Circuit Court for Baltimore City. The defendants,1
with the exception of Metropolitan Life Insurance Co., manufactured and distributed various
products that contained asbestos—the principal known cause of mesothelioma. Some of these
products allegedly were sold to the United States Navy and United States Coast Guard. Invoking
the government contractor defense to tort liability, defendant Crane Co. removed Joyner’s action
to this court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). Two motions are
pending before this court. Joyner first asks the court to remand the entire case to the Circuit
Court for Baltimore City. In the event that motion fails, Joyner moves to sever one piece of his
claim against Crane Co. from the rest of the suit and to remand the other claims to the state court.
A hearing on both motions was held on February 8, 2013. For the reasons set forth below, this
court will grant the motion to sever and will grant in part and deny in part the motion to remand.

1

Joyner’s claims against several defendants have settled or been dismissed. According to
Joyner, the defendants that remain in the case are John Crane, Inc.; Owens-Illinois, Inc.; Union
Carbide Corp.; Kaiser Gypsum Co.; MCIC, Inc.; Metropolitan Life Insurance Co.; CBS Corp.
(as successor to Westinghouse Electric Corp.); and the Wallace & Gale Asbestos Settlement
Trust. (See Mot. Sever at 4, ECF No. 140-1.) All references in this opinion to the defendants are
intended to encompass only the remaining defendants.
1

BACKGROUND
According to the complaint, Joyner spent about two years as an electrician’s assistant at
the Charleston Navy Shipyard before joining the Coast Guard in 1944. During twenty-two years
of service in the Coast Guard, Joyner worked as an electrician and boiler tender on numerous
ships and in several shipyards throughout the United States. Upon his retirement from the Coast
Guard in 1966, Joyner continued performing electrical work in Charleston, South Carolina,
before moving to Kansas and opening his own electrical business. While in Kansas he earned a
master’s degree in industrial design and worked as a teacher until his retirement in the 1990s.
Joyner, now almost ninety years old, was diagnosed with malignant pleural mesothelioma
in March 2012. The mesothelioma allegedly was caused by Joyner’s inhalation of and exposure
to asbestos dust during his long career in the Coast Guard and as a civilian electrician. Joyner
filed this suit in the Circuit Court for Baltimore City in June 2012, alleging four counts under the
laws of Maryland: strict liability for the asbestos products’ defective design and failure to warn
(Count I); breach of implied warranty (Count II); negligence products-liability claims (Count
III); and aiding-and-abetting and conspiracy claims related to defendants’ alleged participation in
a scheme to conceal and manipulate information about the dangers of asbestos (Count IV).
The complaint expressly disclaimed “any federal cause of action or any claim that would
give rise to federal jurisdiction.” (Compl. ¶ 2, ECF No. 2.) Specifically:
[T]o the extent that any of Plaintiff’s asbestos exposure occurred on board vessels of the
United States military (including Naval ships) or in the construction, maintenance and/or
repair of United States military vessels, Plaintiff[’s] negligence claims against
manufacturers, sellers and suppliers of asbestos-containing products installed on such
vessels and/or aircraft are not based on a theory of defective design, but rather are based
only on the theory of failure to warn.
(Id.)

2

Due to the rapidly declining condition of Joyner’s health, his attorney filed an unopposed
motion on July 11, 2012, to expedite Joyner’s deposition. The circuit court granted the motion
the next day. Between July 24 and July 26, counsel for Crane Co. deposed Joyner for about five
hours.2 On July 27 the circuit court held a telephone conference with all counsel to determine
the appropriate amount of additional deposition hours. At the conclusion of that hearing the
court instructed plaintiff’s counsel to conduct the direct de bene esse deposition on August 1 and
insisted that defense counsel complete their discovery deposition and de bene esse crossexamination on August 2. The attorneys completed their direct and discovery depositions as
instructed. On the afternoon of August 2, however, before conducting its de bene esse crossexamination, Crane Co. removed the case to this court under the federal officer removal statute,
28 U.S.C. § 1442(a)(1), on the basis of the government contractor defense.3 No other defendant
joined in Crane Co.’s removal to federal court.4
In its notice of removal, Crane Co. alleges that “several of the ships identified by Plaintiff
were specifically designed for the United States Navy” and “were built pursuant to Navy
specifications and later transferred to the Coast Guard.” (Notice ¶ 6 n.1, ECF No. 1.) The notice
further states that “Crane Co. valves were designed and manufactured pursuant to precise
contracts and specifications approved by the Navy.” (Id. ¶ 10.) More specifically, Crane Co.
claims that certain Navy specifications “required that internal gaskets in the valves be ‘asbestos

2

Counsel for the other defendants were present but apparently elected not to participate in the
questioning. The deposition hours were limited by Joyner’s extremely bad health and
concomitant need for frequent breaks.
3
Because the circuit court no longer had jurisdiction over the case, the deposition immediately
was terminated. The parties subsequently held a telephone conference with this court, and the
court instructed defendants to complete their depositions on August 22.
4
Although, as a general matter, all defendants must join in or consent to the removal of an action
to federal court, see 28 U.S.C. § 1446(b)(2)(A), that requirement does not apply when the case is
removed under the federal officer removal statute, see Plourde v. Ferguson, 519 F. Supp. 14, 16
(D. Md. 1980).
3

sheet gaskets.’” (Id. (citing March 2012 Sargent Aff. ¶¶ 26–27, 32, ECF No. 1-4).) Naval
Machinery Inspectors purportedly monitored all equipment for compliance with Navy
specifications and would have rejected any effort by Crane Co. to install nonconforming
equipment. (Id. (citing March 2012 Sargent Aff. ¶ 29).) Finally, the notice alleges that the Navy
“possessed knowledge regarding the hazards of asbestos equal to or superior to its equipment
suppliers, such as Crane Co.” (Id. (citing Forman Aff. ¶¶ 21-23, ECF No. 1-5).)
Crane Co. substantiated its notice of removal with three affidavits. Anthony Pantaleoni,
the Vice President of Environment, Health, and Safety at Crane Co. since 1989, briefly discussed
the relevant Navy specifications and attached an example of the Navy’s 1938 valve
specifications. (Pantaleoni Aff. ¶ 5 & Ex. A, ECF No. 1-3.) Dr. Samuel Forman, a specialist in
preventive and occupational medicine, was heavily involved with the Navy’s asbestos medical
surveillance program and its response to mass asbestos litigation. He discusses, among other
things, the Navy’s institutional knowledge about the dangers of asbestos exposure and its
rejection of efforts by suppliers and manufacturers to warn of the health effects of such exposure.
(Forman Aff. ¶¶ 22, 27, 59–65.)
And finally, Crane Co. included an affidavit of Rear Admiral (Retired) David Sargent,
Jr., a mechanical engineer in the Navy from 1967 and 1999 who ultimately oversaw certain ship
development and procurement programs. Sargent explained the widespread use of asbestos in
the Navy’s ships and the Navy’s regulation of health warnings. Sargent stated, without
mentioning asbestos in particular, that “[m]anufacturers of components and equipment were not
permitted, under the [Navy’s] specifications, associated regulations and procedures, nor under
the actual practice as it evolved in the field, to include any warning or caution statement in
instruction books or technical manuals, beyond those required and approved by the Navy without

4

prior discussion and approval by the Navy.” (March 2012 Sargent Aff. ¶ 60.) The Navy,
according to Sargent, “would not have permitted equipment suppliers to place asbestos-related
warnings on packaging or containers for valves and pumps or related parts supplied during the
1940s, 1950s, or 1960s,” or “in any literature or documentations supplied with its valves or
pumps for Navy ships” during that period. (Id. ¶ 63.)
On September 4, 2012, Joyner moved to remand this case to state court. Arguing from
the premise that removal jurisdiction must be narrowly construed, Joyner asserts that remand is
required because Crane Co. has provided “no evidence” to support its jurisdictional allegations.
(Mot. Remand at 6, ECF No. 138-1.) The affidavits attached to Crane Co.’s notice of removal,
Joyner notes, pertain exclusively to the Navy, rather than the Coast Guard, and specify no
government directive barring Crane Co. from warning of the health hazards of asbestos.
In its opposition brief, Crane Co. argues that its jurisdictional allegations need not be
corroborated with admissible evidence at this stage of the litigation. Crane Co. nevertheless
attached to its opposition an amended affidavit of Admiral Sargent. The affidavit, dated
September 20, largely recycles the testimony of Sargent’s earlier affidavit but appends
information, pulled from public web sites, about the provenance of several of the Coast Guard
ships on which Joyner allegedly served. Those ships, it seems, were designed and constructed
for the Navy and subsequently were transferred to the Coast Guard. Crane Co. thus contends
that its affiants’ knowledge about the Navy is germane to Joyner’s case and substantiates its
jurisdictional allegations.
In the event the motion to remand is denied, Joyner seeks to sever the removable claim
against Crane Co. and to remand all other claims to the state court. Because the other defendants
did not join Crane Co.’s notice of removal, Joyner argues, this court should decline to exercise

5

supplemental jurisdiction over their claims. Joyner also seeks to bifurcate his claim against
Crane Co., which allegedly manufactured and sold two products containing asbestos: valves and
gaskets. Joyner argues that Crane Co. cannot assert a colorable federal defense with respect to
its Cranite gaskets because “[t]he Cranite that Crane sold to the Coast Guard is the same as that
which Crane sold in the civilian marketplace.” (Mot. Sever at 5.) If his motion to remand the
entire case is denied, Joyner asks the court instead to remand both his claims against the other
remaining defendants and his claim against Crane Co. related to its Cranite gaskets.
ANALYSIS
I.

Motion to Remand

As a general matter, the “well-pleaded complaint rule” precludes federal courts from
exercising jurisdiction under 28 U.S.C. § 1331 unless a question of federal law appears on the
face of the complaint. See Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908).
“A defense that raises a federal question is inadequate to confer federal jurisdiction.” Merrell
Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 808 (1986). The well-pleaded complaint rule is a
creature of statutory interpretation, however, rather than constitutional decree. See Verlinden
B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 494 (1983). Accordingly, Congress may override
the well-pleaded complaint rule by statute and thereby authorize the removal of particular cases
that otherwise would not fall within the scope of § 1331’s grant of federal-question jurisdiction.
See Okla. Tax Comm’n v. Graham, 489 U.S. 838, 841–42 (1989).
Congress enacted the federal officer removal statute, 28 U.S.C. § 1442(a)(1), to abrogate
the well-pleaded complaint rule in certain cases against an officer of the United States or a
person “acting under” a federal officer. See Jefferson Cnty. v. Acker, 527 U.S. 423, 431 (1999).
A civil or criminal defendant may remove a case to federal court pursuant to § 1442(a)(1) if the

6

removing defendant (1) is either a federal officer or a “person”5 who acted under the direction of
a federal officer, (2) raises a colorable federal defense to the plaintiff’s claims, and (3)
demonstrates a causal nexus between the plaintiff’s claims and the conduct performed under
color of federal office. Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770, 776 (E.D. Pa. 2010)
(Robreno, J.);6 Carter v. Monsanto Co., 635 F. Supp. 2d 479, 488 (S.D.W. Va. 2009); Pack v.
AC & S, Inc., 838 F. Supp. 1099, 1101 (D. Md. 1993).
Because removal implicates “significant federalism concerns,” removal jurisdiction
generally must be strictly construed, and any doubts about the federal court’s jurisdiction must
be resolved in favor of remand. Md. Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d 255, 260
(4th Cir. 2005) (quotation marks omitted). Yet, § 1442(a)(1) is not “narrow or limited,” and
Congress’s decision to permit federal officers—and those acting under their direction—to litigate
their federal defenses in federal court “should not be frustrated by a narrow, grudging
interpretation of [§] 1442(a)(1).” Willingham v. Morgan, 395 U.S. 402, 406–07 (1969) (internal
quotation marks omitted); see also Arizona v. Manypenny, 451 U.S. 232, 242 (1981) (“[T]he
right of removal is absolute for conduct performed under color of federal office . . . .”); Kolibash
v. Comm. on Legal Ethics, 872 F.2d 571, 576 (4th Cir. 1989) (“[T]he right of removal conferred
by § 1442(a)(1) is to be broadly construed.”). The removing defendant “need not win his case
before he can have it removed.” Willingham, 395 U.S. at 407.

5

The District of Maryland and most other courts have determined that a corporation is a
“person” under the statute. See, e.g., Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770, 776
n.6 (E.D. Pa. 2010); Virden v. Altria Grp., Inc., 304 F. Supp. 2d 832, 844 (N.D.W. Va. 2004);
Pack v. AC & S, Inc., 838 F. Supp. 1099, 1102-03 (D. Md. 1993). 
6
For approximately two decades, all asbestos-related personal injury and wrongful death actions
were consolidated in the Eastern District of Pennsylvania as MDL No. 875. See In re Asbestos
Prods. Liability Litig., 830 F. Supp. 2d 1377, 1377-78 (J.P.M.L. 2011). Judge Eduardo Robreno
has presided over MDL No. 875 since 2008. In December 2011 the Judicial Panel on
Multidistrict Litigation stopped transferring new asbestos cases to the MDL. See id.
7

Despite the broad scope that the Supreme Court has attached to § 1442(a)(1), a few lower
courts have concluded that a more restrictive interpretation is warranted when the statute is
invoked by a private government contractor rather than a federal official. Acknowledging “the
Supreme Court’s admonition that Section 1442(a) should not be subject to a narrow, grudging
interpretation,” these courts nevertheless require private contractors to demonstrate “a kind of
preliminary showing typically unknown to bona fide federal officers.” Holdren v. Buffalo
Pumps, Inc., 614 F. Supp. 2d 129, 140–41 (D. Mass. 2009) (internal quotation marks omitted).
Because “government contractors are degrees different from both the federal officers who
originally inspired the removal statute and the cases in which the Supreme Court later coined its
cautionary language,” id. at 141, Holdren concluded that “comity and federalism require a
careful determination of whether there is a meaningful conflict between state law and federal
policy,” id. at 137; see also Prewett v. Goulds Pumps (IPG), No. 09-838, 2009 WL 2959877, at
*3 (W.D. Wash. Sept. 9, 2009). These cases require the removing defendant to submit evidence
enabling the court to “carefully weigh the plausibility of the proffered defense.” Holdren, 614 F.
Supp. 2d at 140.
The heightened burden arguably imposed in Holdren has been rejected by other courts.
See, e.g., Ruppel v. CBS Corp., 701 F.3d 1176, 1180 (7th Cir. 2012) (stating that private parties
face no heavier burden than federal officers and that “the statute has historically authorized
removal by private parties without qualification”). In the asbestos multidistrict litigation, Judge
Robreno examined the conflicting lines of cases and, finding the constitutional concerns
articulated in Holdren to be “overstated,” he “decline[d] to follow those courts that have
seemingly required a heightened showing.” Hagen, 739 F. Supp. 2d at 779–82. Judge Robreno
refused, therefore, “to pierce the pleadings or dissect the facts stated.” Id. at 782. “It is the

8

sufficiency of the facts stated—not the weight of the proof presented—that matters.” Id. at 782–
83.
After reviewing the conflicting cases, this court finds the analysis in Hagen cogent and
consistent with the general removal standard. 28 U.S.C. § 1446, which sets forth the procedures
for removal, provides that the removing defendant must file a signed notice of removal
“containing a short and plain statement of the grounds for removal, together with a copy of all
process, pleadings, and orders.” § 1446(a). “[T]his language in § 1446(a) is deliberately parallel
to the requirements for notice pleading found in Rule 8(a) of the Federal Rules of Civil
Procedure.” Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 199 (4th Cir. 2008)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554–56 (2007)). The notice of removal is held
to no higher pleading standard “than the one imposed on a plaintiff in drafting an initial
complaint.” Id. at 200.
At this nascent stage of the litigation, therefore, the motion to remand will be denied if
Crane Co. “identifies facts which, viewed in the light most favorable to the defendant, would
establish a complete defense at trial.” Hagen, 739 F. Supp. 2d at 783. Those facts may be cited
in Crane Co.’s answer, the notice of removal, the response to a motion for remand, and any
affidavits attached to those pleadings. Id. at 773 n.3, 778 n.8. Applying this standard, Crane Co.
has plausibly alleged the satisfaction of each element of the federal officer removal statute.
A. “Acting Under”
Section 1442(a)(1) authorizes removal by a person “acting under” the direction of a
federal officer. “The words ‘acting under’ are broad, and . . . the statute must be liberally
construed.” Watson v. Philip Morris Cos., 551 U.S. 142, 147 (2007) (internal quotation marks
omitted). “A private firm’s compliance (or noncompliance) with federal laws, rules, and

9

regulations does not by itself fall within the scope of the statutory phrase ‘acting under’ a federal
‘official,’ . . . even if the regulation is highly detailed and even if the private firm’s activities are
highly supervised and monitored.” Id. at 153. Nevertheless, the scope of § 1442(a)(1) is widely
recognized to embrace private firms that manufacture products for the United States subject to
the “strict control” of the federal government. See Winters v. Diamond Shamrock Chem. Co.,
149 F.3d 387, 399 (5th Cir. 1998), cited with approval in Watson, 551 U.S. at 153–54.
Crane Co. declares in its notice of removal that it designed and manufactured its valves
“pursuant to precise contracts and specifications approved by the Navy” and under the Navy’s
“direct and detailed control.” (Notice ¶ 10.) Affidavits attached to the removal notice describe
with adequate specificity the Navy’s strict policies governing the inclusion of health warnings on
packaging or containers and in technical manuals. (See March 2012 Sargent Aff. ¶ 60.) Dr.
Forman tells of the Navy’s determination that a certain “asbestos-containing insulation material”
should not carry any warning label despite the Navy’s knowledge of the hazards posed by
asbestos. (Forman Aff. ¶ 67.) Although that determination was unrelated to valves and gaskets,
it is nonetheless illustrative of the control exerted by the Navy with respect to hazard labeling.
Joyner urges the court to reject Crane Co.’s allegations and affidavits out of hand because
they pertain to the Navy rather than the Coast Guard. As noted above, however, Crane Co.
alleges that several of the relevant ships were constructed for the Navy and later transferred to
the Coast Guard. These allegations, corroborated in Sargent’s September 2012 affidavit,
arguably are not supported by admissible evidence, as they may need to be at the summary
judgment stage of this case; Sargent’s testimony was based on his review of public web sites
rather than personal knowledge. But the allegations in the removal notice are evaluated only for

10

plausibility, and it is certainly plausible that the ships were constructed for the Navy, in
accordance with Navy specifications, before being transferred to the Coast Guard.
Hence, Crane Co. has plausibly alleged that it was acting under the strict control of the
federal government when it manufactured and sold its valves to the United States Navy. In
addition, Crane Co. has plausibly alleged facts supporting its claim that the Navy prohibited any
warnings concerning the dangers posed by asbestos. These allegations, in concert with the
allegation that Joyner served on ships built for the Navy, are sufficient to demonstrate, at this
preliminary stage, that Crane Co. was “acting under” the “direct and detailed control” of federal
officials when it allegedly failed to provide the requisite warnings.
B. Colorable Federal Defense
Removal under § 1442(a)(1) “must be predicated upon averment of a federal defense.”
Mesa v. California, 489 U.S. 121, 139 (1989). Crane Co. has invoked the government contractor
defense, which, when applicable, shields government contractors from certain state-law tort
liabilities. In Boyle v. United Technologies Corp., the Supreme Court held that “[l]iability for
design defects in military equipment cannot be imposed, pursuant to state law, 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.” 487 U.S. 500, 512
(1988).
Although first articulated in a suit alleging design defects, “[i]t is well established that the
government contractor defense . . . may operate to defeat a state failure-to-warn claim.” Oliver
v. Oshkosh Truck Corp., 96 F.3d 992, 1003 (7th Cir. 1996) (citing Butler v. Ingalls Shipbuilding,
Inc., 89 F.3d 582, 586 (9th Cir. 1996); In re Joint E. & S. Dist. N.Y. Asbestos Litig., 897 F.2d

11

626, 629 (2d Cir. 1990)); see also Emory v. McDonnell Douglas Corp., 148 F.3d 347, 350 (4th
Cir. 1998) (stating that cases extending government contractor defense to failure-to-warn claims
are “reasoned soundly”). Given the practical and theoretical differences between design-defect
and failure-to-warn claims, though, different elements comprise the government contractor
defense depending on the type of claim asserted by the plaintiff. See Tate v. Boeing Helicopters,
55 F.3d 1150, 1156 (6th Cir. 1995). The government contractor defense precludes state-law tort
liability for the contractor’s failure to warn if (1) the government exercised its discretion and
approved certain warnings for the products; (2) the warnings provided by the contractor
conformed to the federal specifications; and (3) the contractor warned the government about
dangers known to the contractor but not to the government. Oliver, 96 F.3d at 1003–04; see also
Jowers v. Lincoln Elec. Co., 617 F.3d 346, 352 (5th Cir. 2010); Tate, 55 F.3d at 1157;
Yeroshefsky v. Unisys Corp., 962 F. Supp. 710, 718 (D. Md. 1997).
Crane Co. satisfies this requirement if its federal defense is “colorable.” Acker, 527 U.S.
at 431. Courts across the nation have advanced discordant views on the burden created by the
word “colorable.” The predominant view holds that “a colorable federal defense need only be
plausible.” Bennett v. MIS Corp., 607 F.3d 1076, 1089 (6th Cir. 2010); see also Ruppel, 701
F.3d at 1182. That view comports with the parallelism, noted above, in the removal standard and
the pleading standard—both of which require only a “short and plain statement.” And it
comports with the Supreme Court’s articulation of the purpose of § 1442(a)(1):
One of the primary purposes of the removal statute—as its history clearly demonstrates—
was to have [federal immunity] defenses litigated in the federal courts. The position of
the court below would have the anomalous result of allowing removal only when the
officers had a clearly sustainable defense. The suit would be removed only to be
dismissed. Congress certainly meant more than this when it chose the words “under
color of . . . office.” In fact, one of the most important reasons for removal is to have the
validity of the defense of official immunity tried in a federal court.

12

Willingham, 395 U.S. at 407 (ellipsis in original). This reasoning is equally applicable to the
government contractor defense.
Crane Co. has alleged sufficient facts to demonstrate that the government contractor
defense plausibly shields it from liability for its alleged failure to warn Joyner of the dangers
associated with asbestos exposure. Crane Co. maintains that “the Navy provided Crane Co. with
precise specifications regarding its valves,” (Notice ¶ 15), and Sargent attested that “the Navy
developed precise specifications as to the nature of any markings, communication or directions
affixed to or made a part of any equipment supplied . . . for ultimate use aboard Navy ships,”
(March 2012 Sargent Aff. ¶ 58.)7 These allegations satisfy the first element of the defense. See
Getz v. Boeing Co., 654 F.3d 852, 866–67 (9th Cir. 2011) (stating that the first element is
satisfied when the United States chooses its own warnings); Tate, 55 F.3d at 1157 (concluding
that the United States exercises sufficient discretion whenever “a contractor proposes warnings
that the government substantively approves, . . . even if the government did not ‘prohibit’ the
contractor from proposing more alarming warnings”); Butler, 89 F.3d at 586 (stating that the
government contractor defense applies to failure-to-warn claim if contractor shows it was “acting
in compliance with reasonably precise specifications imposed on it by the United States”
(internal quotation marks and modifications omitted)). Joyner instead entreats this court to
impose the Second Circuit’s more demanding standard, which would require Crane Co. to allege
that its attempts to provide warnings about the dangers of asbestos exposure were expressly
prohibited by the federal government or that the content (or absence) of any warnings attached to

7

Sargent further stated that “[m]anufacturers of components and equipment were not permitted,
under the specifications, associated regulations and procedures, nor under the actual practice as it
evolved in the field, to include any warning or caution statement in instruction books or technical
manuals, beyond those required and approved by the Navy without prior discussion and approval
by the Navy.” (March 2012 Sargent Aff. ¶ 60.) 
13

its valves was “dictated” by federal officials.8 Even under that more onerous standard, however,
Crane Co.’s allegations are sufficient to survive the motion to remand, and this court therefore
need not wade into the thicket of the intercircuit conflict at this juncture.
Crane Co. also alleges sufficient facts to satisfy the second and third elements of the
defense. According to the notice of removal, “Crane Co. delivered valves that conformed to [the
Navy’s] specifications.” (Notice ¶ 15.) This allegation, though conclusory, is sufficient when
considered together with the affidavits to permit a plausible inference that Crane Co. provided
the warnings required by the government—or that Crane Co.’s failure to provide warnings was
attributable to governmental regulations. Crane Co. also satisfactorily alleges that the Navy
“possessed knowledge regarding the hazards of asbestos equal to or superior to its equipment
suppliers, such as Crane Co.” (Id.) This assertion, if established, would absolve Crane Co. of its
duty to warn the Navy of the known dangers of asbestos exposure.
C. Causal Nexus
The final element of the federal officer removal statute requires the removing defendant
to demonstrate a causal nexus between the plaintiff’s claims and the conduct performed under
color of federal office. See Hagen, 739 F. Supp. 2d at 776. The “causal nexus” requirement

8

The Second Circuit has held that a defendant invoking the government contractor defense to a
failure-to-warn claim “must show that the applicable federal contract includes warning
requirements that significantly conflict with those that might be imposed by state law,” “that
whatever warnings accompanied a product resulted from a determination of a government
official,” and “that the Government itself ‘dictated’ the content of the warnings meant to
accompany the product.” In re Joint E. & S. Dist. N.Y. Asbestos Litig., 897 F.2d at 630. This
stringent formulation has been rejected by most other circuits. See Jowers, 617 F.3d at 353 (“If a
plaintiff brings a failure-to-warn case alleging a failure to conform to state law requirements, and
the defendant subsequently establishes that the federal government was involved in the decision
to give (or not to give) a warning and that the defendant complied with the federal government’s
provisions, there necessarily exists a conflict between state law and federal policy in this area.”);
see also Oliver, 96 F.3d at 1004 n.8 (declining to adopt Second Circuit’s approach); Tate, 55
F.3d at 1157 (same).
14

originated in a criminal case removed to federal court on the basis of federal immunity. See
Mesa, 489 U.S. at 131–32 (citing Maryland v. Soper (No. 1), 270 U.S. 9, 33 (1926)). The
removing officer was required to show that the state prosecution related to acts done in the
enforcement of federal law. See Soper, 270 U.S. at 33.
When removal is predicated on the government contractor defense, however, many courts
have concluded that the “causal nexus” requirement is ordinarily satisfied whenever the
removing defendant is able to establish a colorable government contractor defense. See Hagen,
739 F. Supp. 2d at 785. This court finds that analysis persuasive. Whenever a government
contractor is sued under state law for alleged design defects or inadequate warnings, and the
contractor colorably alleges that the purported design defect or lack of adequate warning is
directly attributable to “direct and detailed” government control, such that a different design or
warning would have significantly conflicted with governmental regulations, it necessarily
follows that there is “a causal nexus between the plaintiff’s claims and the conduct performed
under color of federal office.” Crane Co. therefore satisfied this element simply by virtue of
having alleged a colorable government contractor defense to Joyner’s claims.
Accordingly, Crane Co. has plausibly alleged sufficient facts to support removal pursuant
to § 1442(a)(1) and the government contractor defense, and the case was properly removed.9 But

9

In his motion to remand, Joyner also argues that Crane Co. waived its right to remove when it
sought additional discovery while the case was pending in state court. Joyner further contends
that Crane Co. waived its right to remove when its counsel continued to depose Joyner after
having decided to remove the case. Joyner did not press this argument at the hearing, however,
and in any event, the court does not find it persuasive. A defendant may waive the right to
remove by taking “substantial defensive action in state court before petitioning for removal.”
Aqualon Co. v. Mac Equip., Inc., 149 F.3d 262, 264 (4th Cir. 1998). The defensive action must
demonstrate a “clear and unequivocal intent to remain in state court,” and waiver is found only in
“extreme situations.” Id. Seeking additional discovery and conducting depositions scheduled
under emergency circumstances are not the types of substantial defensive action that constitutes
such a waiver.
15

that is not the end of the analysis. Joyner now seeks to bifurcate his claim against Crane Co.,
separating the valve component of the claim from the gasket component, and to sever the valve
component of the claim against Crane Co. from the rest of the litigation, remanding the bulk of
the case to the Circuit Court for Baltimore City. Put more simply, Joyner asks this court to retain
jurisdiction over only his claim with respect to Crane Co.’s valves and to remand all other claims
to the state court.
II.

Motion to Sever

To determine whether the other claims—that is, all claims except the claim related to
Crane Co.’s valves—should be severed and remanded, this court must resolve whether it has
supplemental jurisdiction over the remaining claims and, if so, whether the court should decline
to exercise its supplemental jurisdiction. The indisputable answer to the first question is yes. 28
U.S.C. § 1367(a) provides that the district court “shall have supplemental jurisdiction over all
other claims that are so related to claims in the action [over which the court has original or
removal jurisdiction] that they form part of the same case or controversy under Article III of the
United States Constitution.” Because the ultimate goal of this litigation, taken as a whole, is to
establish which defendants are liable for Joyner’s mesothelioma, there is no question that the
claims against each defendant form part of the same case or controversy.
The more difficult question is whether this court should decline to exercise its
supplemental jurisdiction. The court’s discretion is circumscribed by statute: Such a declination
is permitted only when (1) the claim over which the court has supplemental jurisdiction “raises a
novel or complex issue of State law,” (2) the claim “substantially predominates over” the claim
over which the court has original or removal jurisdiction, (3) the court has dismissed all claims
over which it has original or removal jurisdiction, or (4) there are “exceptional circumstances”

16

and “compelling reasons.” 28 U.S.C. § 1367(c). And the court’s discretion is further
circumscribed by case law: After determining that one or more of these statutory factors would
be satisfied, “the federal court should consider ‘principles of economy, convenience, fairness,
and comity’ and whether the efforts of a party in seeking remand amount to a ‘manipulative
tactic.’” Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 617 (4th Cir. 2001) (quoting CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 357 (1988)).
Weighing each of these considerations, I conclude that severance is appropriate. The
other claims clearly predominate over Joyner’s claim against Crane Co. All of Joyner’s claims
are based on state law; federal jurisdiction is invoked only because Crane Co. has asserted a
federal defense. No other defendant has raised a federal defense, and hence there is no federal
ingredient in Joyner’s claims against those defendants. Joyner’s claim against Crane Co. is but
one sliver of his complaint, moreover, and the state-law claims against the other defendants
therefore predominate over the claim against Crane Co.
Severance of Joyner’s claims against the other defendants also advances fundamental
principles of fairness and comity. The federal officer removal statute permits removal of statelaw cases to federal court because the United States has a strong interest in having questions of
federal law—including federal defenses—litigated in its own courts. By the same token, though,
states have a strong interest in adjudicating issues of state law in their own courts. See Levin v.
Commerce Energy, Inc., 130 S. Ct. 2323, 2330–31 (2010). This court must respect Maryland’s
prerogative to apply its own laws, as well as Joyner’s desire to litigate issues of Maryland law in
the Maryland state courts.
Yet severance must be done without inviting diseconomy. To bifurcate Joyner’s claim
against Crane Co. would compel Crane Co. to conduct simultaneous, parallel litigations in state

17

and federal court—the claim related to its valves would remain here while the claim related to its
gaskets would follow the other defendants back to state court. This would unfairly prejudice
Crane Co. Accordingly, Joyner’s claims against Crane Co. will be severed from his claims
against the other defendants. All claims against Crane Co. will remain in federal court, and the
claims against the other defendants will be remanded to the Circuit Court for Baltimore City. Of
course, Joyner will be permitted to renew his motion to remand the claims against Crane Co. if
Crane Co. is unable to establish a federal defense.
CONCLUSION
For the foregoing reasons, Joyner’s motion to sever will be granted. Joyner’s claims
against Crane Co. will be severed from his claims against all other remaining defendants.
Joyner’s motion to remand will be granted with respect to the claims against the other remaining
defendants. With respect to Joyner’s claims against Crane Co., the motion to remand will be
denied without prejudice to renew the motion at the appropriate time.

March 7, 2013
Date

_____/s/
Catherine C. Blake
United States District Judge

18