Case Remanded to State Court as Defendants Could Not Use the Federal Officer Removal Statute Where the Plaintiff Expressly Disclaimed Any Naval Asbestos Exposure

Plaintiff Richard Batchelor, a former employee of Florida Power & Light Company who was diagnosed with terminal mesothelioma after he was exposed to and inhaled asbestos fibers from asbestos-containing products manufactured, sold, supplied, distributed, or controlled, by the defendants, sued in the Circuit Court for the 11th Judicial District in and for Miami-Dade County Florida alleging three causes of action; (i) negligence; (ii) strict liability; and (iii) loss of consortium. Following Batchelor’s deposition, during which he testified that he served in the U.S. Navy and, as part of his service, worked a reactor operator on the U.S.S. Gato, a nuclear submarine and responsible for replacing control panels and supervising turbine repairs in shipyards, defendant CBS Corporation/Westinghouse (CBS) removed the action to federal court based pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1). To successfully remove an action pursuant to the statute, “[a] defendant ‘must advance a…colorable defense arising out of [his] duty to enforce federal law[.]” Magnin v. Teledyne Cont’l Motors, 91 F.3d 1424, 1427 (11th Cir. 1996). CBS thus alleged the existence of a colorable defense arising from the plaintiff’s work on the U.S.S. Gato. The plaintiff’s subsequently filed a motion to remand their action to state court.

The U.S. District Court for the Southern District of Florida granted the plaintiffs’ motion to remand. In support of its doing so, the District Court noted that the plaintiffs had expressly disclaimed any attempt to recover for asbestos exposure based upon his four-year service on the U.S.S. Gato and cited that the supporting evidence, such as the complaint and exposure sheets, did not even reference Batchelor’s time in the Navy, nonetheless any asbestos exposure during same. The District Court thus found that CBS could not raise a colorable federal defense based upon government contractor immunity to the plaintiffs’ claims since its “sole basis for remove is its contention that Plaintiff was exposed to asbestos while aboard the U.S.S. Gato, which is not at issue in this case[]” and thus, that the basis for removal pertained “to claims that simply do not exist.” Accordingly, the case was remanded to the 11th Judicial Circuit in and for Miami-Dade County, Florida pursuant to 28 U.S.C. § 1447(c) due to lack of subject matter jurisdiction.

Read the full decision here.