Lack of Federal Officer Subject Matter Jurisdiction Leads to Grant of Remand and Award of Fees

The plaintiff filed this action alleging he developed mesothelioma as a result of exposure to asbestos for which the defendants were liable. Specifically, The plaintiff claimed exposure while serving in the United States Navy onboard the U.S.S. Tortuga from 1956-1959.

Defendant Aurora Pump Company (Aurora) removed the case the federal court asserting Federal Officer Removal. The plaintiffs moved to remand. The court began its analysis by stating that removal may be invoked when a defendant establishes that 1) that it is a person within the meaning of the statute 2) that it can assert a colorable federal defense and 3) there is a casual nexus between its actions, taken pursuant to a federal officer’s directions, and plaintiffs’ claims. The court quickly found that Aurora had not established a federal colorable defense under the Government Contractor Defense. The defense may be asserted when the 1) United States approved reasonably precise specifications; 2) the equipment conformed to those specifications; 3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not the United States. The court noted that Aurora satisfied the first two prongs of the test. However, Aurora failed to warn the government about the dangers of its equipment according to the court. Moreover, the court noted that alternative material in its equipment could have been used. Specifically, the government guidelines suggested that the government would consider alternatives from those specified by the government. Aurora countered and argued that the Navy was aware of the dangers of asbestos and therefore it had no duty to warn. The court was not persuaded by what it called “non-binding” authority submitted by Aurora to support its contention. The court found that Aurora had not established a federal colorable defense and therefore remanded the case. The court further awarded the plaintiff’s request for attorney’s fees.

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