Denial of Remand Based on Government Directed Actions of Airplane Manufacturing Process United States District Court for the Northern District of California, June 20, 2017

The plaintiff filed a motion to remand for lack of subject matter jurisdiction in the United States District Court in the Northern District of California. The plaintiff, Joseph Thrash, alleged he was diagnosed with mesothelioma in September 2016, and was exposed to asbestos while he worked on B-52, C-141, and C-5 airplanes in the United States Air Force from 1975 through the 1980s and while doing automotive work at various locations. The defendant, The Boeing Company, removed the case to federal court; shortly thereafter, defendants United Technology Corporation, Lockheed Martin Corporation, and The Goodyear Tire & Rubber Company filed notices of joinder in Boeing’s removal notice.

The plaintiffs alleged that “Defendants placed their names, logos, and trademarks on asbestos products as well as put out as their own asbestos products manufactured by others so as to be an apparent manufacturer and liable as the manufacturer.” Thrash “handled or was otherwise exposed to asbestos, asbestos containing products and/or products designed to be used in association with asbestos products.” The plaintiffs alleged the defendants “specified and required the use of such original and replacement asbestos containing parts and components that were integral to their respective asbestos containing products’ normal use and operation and that by design such normal use and operation directly created, generated, released and exposed [Plaintiffs] to asbestos-containing dust, debris, fiber and particulate” from those products and components, and that “as a direct and proximate result,” he was exposed to the asbestos, “which increased his risk of developing the mesothelioma and asbestos disease(s) from which he now suffers.”

A defendant seeking removal under Section 1442 must establish (a) that it is a “person” within the meaning of the statute; (b) that there is a causal nexus between its actions, taken pursuant to a federal officer’s directions, and plaintiff’s claims; and (c) that it can assert a “colorable federal defense.” The plaintiffs contend the defendants have not sufficiently alleged facts to establish two requirements for federal officer removal jurisdiction, namely (i) that the acts complained of in the plaintiffs’ complaint were taken at the direction of a federal officer and there is a causal nexus between the actions taken by the defendants and the plaintiffs’ claims; and (ii) that the defendants can assert a colorable federal defense.

The court found the defendants established the United States military exerted direct and detailed control over their work as it relates to the plaintiffs’ allegations; specifically noting, “…Defendants have established that the United States government exerted direct and detailed control over their design and manufacture of these products, the Court further finds that Defendants have established a causal nexus between Plaintiffs’ claims and the acts performed by Defendants under the direction of the United States government.”

In order to assert a colorable government contractor defense, defendants must show, “(1) the United States approved reasonably precise specifications; (2) the equipment [Defendants supplied] conformed to those specifications; and (3) [Defendants] warned the United States about the dangers in the use of the equipment that were known to the [Defendants] but not to the United States.” The court found the defendants alleged sufficient facts, supported by affidavits and documentary evidence, to establish a colorable government contractor defense.

As a result of the court’s findings, the plaintiff’s motion to remand was denied.

Read the full decision here.

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