Defendant Fails to Meet Removal Requirements under 28 U.S.C. § 1442(a) United States District Court, C.D. California, September 19, 2018

CALIFORNIA — The plaintiff Randolph Morton (Plaintiff or Morton) filed this personal injury claim in California state court alleging that Morton’s asbestos-related disease was allegedly caused by the defendants’ acts and omissions involving the use of asbestos at or in the vicinity of Morton’s workplace.

The defendant removed the case to federal court (United States District Court, Central District of California) based on federal office removal jurisdiction under 28 U.S.C. § 1442(a).  Here, defendant seeks to put forth the government contractor defense, which outlines that military contractors cannot be held liable under state law for any injuries caused by the work performed on equipment supplied by the U.S. military when three (3) elements are present:  (i) the United States approved reasonably precise specifications; (ii) the work performed conformed to these specifications; and (iii) the government contractor warned the military about any hazards involved in the equipment or services it was contracted to supply that are known to the government contractor but not known to the military.  See Boyle v. United Technologies Corp., 487 U.S. 500, 512 (1988).

The plaintiff argues that defendant failed to meet the requirements that are needed for § 1442(a) removal.  The plaintiff emphasized that defendant failed to introduce any evidence that contract specifications had a causal nexus to plaintiffs’ claims nor any evidence of Navy policies restricting the safety procedures available to government contractors handling asbestos.

The court ultimately found that defendant failed to demonstrate that it had a “colorable defense”.  While acknowledging that the Navy requires strict compliance with precise specifications in many facets of shipbuilding, maintenance and repair, the court emphasized that defendant failed to provide any evidence that such specifications placed limits on defendants ability to implement precautions to protect and warn against the dangers of asbestos.

In conclusion, as defendant failed to establish the necessary requirements for removal under 28 U.S.C. § 1442(a), and no opposition was submitted by another defendant, plaintiff’s motion to remand was granted.

Read the full case decision here.

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