In this mesothelioma case, the plaintiff brought suit in Maryland State Court claiming exposure to asbestos products while working at a Baltimore shipyard, which then resulted in some of the defendants removing the case to federal court pursuant to 28 U.S.C. 1442(a)(1) alleging a federal contractor defense. The plaintiff moved to remand, claiming that the removing defendants did not meet their burden of meeting the three-prong test for asserting a colorable federal contractor defense.
The district court agreed that the defendants did not meet their burden: “Even broadly construing the right of removal under the federal officer removal statute, Kolibash, 872 F.2d at 576, the defendants have not raised a colorable federal defense to the plaintiffs’ failure to warn claims, see McCurdy v. John Crane-Houdaille, Inc., No. CIV. WDQ-07-2681, 2013 WL 3155445, at *4 (D. Md. June 19, 2013) (remanding suit when removing defendant ‘submitted no affidavits explaining the Navy’s procedures about warnings or the extent of its own or the Navy’s knowledge of the dangers of asbestos,’ and provided no ‘exhibits indicat[ing] that it gave any warnings or that the government knew more about the dangers than it did’). Thus, the Court need not address whether the ‘causal connection’ element is met. See Pack, 857 F. Supp. at 28 (‘A defendant who satisfies [both] elements … gains access to federal court … ‘). Removal was improper under § 1442(a), and the motion to remand will be granted.”
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