Affidavits Used in Other Cases Enough to Establish Removal Under Federal Officer Jurisdiction U.S. District Court for the Southern District of Illinois, November 30, 2016
The plaintiff brought a wrongful death lawsuit after her husband died of mesothelioma, alleging asbestos exposure during her husband’s service in the Navy. Originally filed in Madison County, Illinois, defendant Crane Co. removed on the basis of the federal officer removal statute. The plaintiff filed a motion to remand, arguing that Crane waived its right to remove by first filing a motion to dismiss in state court, and that Crane failed to establish federal subject matter jurisdiction. The court denied the plaintiff’s motion.
Regarding waiver of removal by first filing a motion to dismiss, the Seventh Circuit has found that waiver cannot be a basis for remand except in “extreme situations.” Since this ruling was made, the language interpreted by the Seventh Circuit has been deleted. Most district courts have continued to follow this ruling and have held that filing motions to dismiss or taking other preliminary actions in state court did not constitute waiver of the right to remove.
The plaintiff next argued that Crane failed to establish federal officer jurisdiction because Crane’s supporting affidavits were devoid of specific facts applicable to this case; the affidavits were filed in other asbestos cases in other jurisdictions, and none of the affiants worked for Crane at the time the products at issue were made. Further, Crane provided no evidence of contracts, specific warning requirements from the Navy, and no evidence of warnings Crane gave to the government about asbestos.
The court found that the evidentiary materials attached to Crane’s removal were sufficient to support removal. Several other courts have found nearly identical evidence adequate to merit removal under federal officer jurisdiction. In analyzing the merits of Crane’s removal, the court likewise found that Crane satisfied the elements necessary to plausibly establish the government contractor defense. “’As the Seventh Circuit pointed out…the validity of Crane’s defense may be hotly contested and may present complex issues, ‘but the propriety of removal does not depend on answers’ to those questions; rather ‘the claimed defense need only be plausible.’”