Plaintiff’s Attempt to Avoid Federal Subject Matter Jurisdiction by Disclaiming Federal Officer Claims Unsuccessful U.S. District Court for the Eastern District of Missouri, Eastern Division, August 5, 2016

The plaintiff asserted various claims against 78 defendants due to mesothelioma developed from alleged asbestos exposure incurred during his civilian work in the Navy from 1958-64, Kambien from 1966-69, and Polaroid from 1969-97.  The plaintiff attempted to make the action un-removable by disclaiming any relief for injuries sustained upon a federal enclave or as a result of malfeasance of persons acting as federal officers. However, the plaintiff’s deposition testimony triggered defendant Crane’s right to remove.  Crane timely removed and the plaintiff moved to remand, which was denied.

The plaintiff testified he was a marine machinist from 1958-64; during this time he removed asbestos insulation and coatings from valves which contained asbestos gaskets.  New asbestos-containing valves and those he repaired were made by Crane.  Based on this testimony Crane removed due to the federal contractor defense, and submitted evidence of the Navy’s total control over all aspects of Crane’s design and manufacture of components for Navy vessels.  The court summarized the evidence of total Navy control in its opinion.  The Navy knew of asbestos hazards, and like all contracted components made for the Navy, Crane’s valves were tested for strict compliance.

In his motion to remand, the plaintiff argued that: (1) he renounced federal subject matter jurisdiction in the complaint, and (2) Crane did not meet its burden to show jurisdiction, and cited precedent from other jurisdictions which remanded similar cases.

The court found that first, suits against federal officers may be removed despite the non-federal case of the complaint; the federal-question element was met if the defense depended on federal law.  Second, under Supreme Court and Eighth Circuit precedent, the plaintiff’s claim failed.  Although the plaintiff alleges failure-to-warn claims against Crane as well, the entire case was removable if even one claim fell within the scope of 28 U.S.C. § 1442(a)(1).  “Consequently, plaintiff could not have been exposed to Crane’s valves while working for the Navy if those valves had not contained and been covered in asbestos, as the Navy demanded…Crane has thus cleared the low hurdle to show a causal connection between its decision to include asbestos on and in the valves and the Navy’s directive to do so.”

Read the full decision here.

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