The plaintiffs moved to remand after defendant Crane Co. removed to federal court. The court denied the plaintiff’s motion without oral argument.
Decedent John Dugger served in the United States Navy during the 1960s and died of mesothelioma; the plaintiffs filed suit after his death. The plaintiffs alleged Crane manufactured and sold rope and valves to the Navy. Crane removed on the basis of the government contractor defense, and in support submitted affidavits from three individuals.
Defendants may remove to federal court if it establishes (1) the defendant is either a federal officer or acting under a federal officer; (2) a “colorable” federal defense to the plaintiff’s claims; and (3) the suit is for an act under color of office, which requires a causal nexus between the charged conduct and asserted official authority. At the outset , the court noted that the Maryland district court has at least twice examined asbestos products-liability claims against Crane similar to those here, and twice denied remand. Circuit courts have done the same in allowing removal.
For removal to be proper, Crane must establish a colorable, or plausible, federal defense; here, the government contractor defense. The plaintiffs claimed this defense was not plausible. However, proof of a colorable federal defense did not require the defendant to win before it was removed. Here Crane plausibly alleged the three elements of the government contractor defense; the Navy provided Crane with precise specifications; the warnings it provided conformed to federal specifications or that its failure to provide warnings was due to government regulations; and the Navy knew as much or more about asbestos hazards than Crane did. Further, Crane was acting under the direction of a federal officer, and since it established the defense, the causal nexus requirement was also satisfied. Thus, remand was denied.