Jurisdiction: United States District Court for the Central District of California
Decedent David L. Dunlavey worked as a pipefitter and steamfitter from 1967 to 2006 — including time spent around 1970 working as a pipefitter for University Mechanical and performing work for National Steel and Shipbuilding Company (NASSCO).
His employment required him to handle asbestos-containing materials and products in the service, maintenance, repair, installation, removal, and disposal of various piping and boilers systems. Decedent was diagnosed with mesothelioma and his estate brought a wrongful death action following his passing on June 26, 2024.
Plaintiffs’ case brought a number of state-law causes of action against NASSCO and codefendants. These included: (1) Negligence-Premises Owner/Contractor Liability; (2) General Negligence – Civil Code § 1714; and (3) Vicarious Liability of Defendants Based upon Respondeat Superior.
NASSCO removed the action pursuant to the federal-officer and federal question removal statute 28 U.S.C. §1442(a); 28 U.S.C. §1331. It provided four grounds of removal: (1) Government Contractor Immunity under Boyle; (2) Derivative Sovereign Immunity under Immunity under Yearsley; (3) the Federal Enclave Doctrine; and (4) the Combatant Activities exception to the Federal Torts Claims Act. Plaintiffs opposed and moved to remand the case back to Los Angeles County Superior Court.
A removing defendant bears the burden of establishing that removal is proper. See Abrego v. The Dow Chem Co., 443 F.3d 676, 684 (9th Cir 2006). According to §1442(a), a civil action filed in state court may be removed to federal district court if the action is against or directed to the “United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office.” 28 U.S.C. §1442(a). A defendant must prove (1) “it is a ‘person’ within the meaning of the statute; (2) a causal nexus exist between [the] plaintiff[‘]s[] claims and the actions [the defendant] took pursuant to a federal officer’s direction, and (3) it has a ‘colorable’ federal defense to [the] plaintiff[‘]s[].” Dunlavey v. 3M Co., No. CV 24-08746-MWF (AGRx), 2024 U.S. Dist. LEXIS 225249, at *7 (C.D. Cal. Dec. 12, 2024); Leite v. Crane Co., 749 F.3d 1117, 1120 (9th Cir. 2014)(citing Durham v. Lockheed Martin Corp.¸445 F.3d 1247, 1251 (9th Cir. 2006)).
The purpose of §1442(a) is to protect federal officers from interference with their official duties through state-court litigation. Similarly to a plaintiff pleading subject-matter jurisdiction, a defendant seeking to remove may not offer mere legal conclusions. Instead, it must allege the underlying facts supporting each of the three requirements for removal jurisdiction. See Leite, 749 F.3d at 1122. A plaintiff’s motion for remand is similar to a 12(b)(1) motion to dismiss and must raise either a facial attack or a factual attack. Here, plaintiffs alleged both.
In terms of the facial challenge, plaintiffs contended the government contractor defense did not apply to NASSCO because it only applies to claims of product liability, not negligence. See Boyle v. United Technologies, Corp., 487 U.S. 500, 504 (1988); Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18 (1940). However, the court disagreed and pointed to Ollerton v. Nat’l Steel & Shipbuilding Co., where it allowed the application of this defense to negligence claims, as per Supreme Court and Ninth Circuit precedent. CV 23-1267-MWF (RAOx), 2023 WL 2947544, at *3-7 (C.D. Cal. Apr. 14, 2023). As such, it rejected plaintiffs’ facial challenge argument.
Plaintiffs’ factual challenge argued NASSCO failed to prove the decedent “actually worked on a military vessel” or had asbestos exposure from any United States Military vessel. Dunlavey, 2024 U.S. Dist. LEXIS 225249, at 10. In opposition, NASSCO pointed to email correspondence with plaintiff that referred to five Naval vessels where decedent worked. Further, NASSCO contended removal was proper because such email fell under the “other paper” doctrine. Id. at *10-11. This allows a defendant to remove a case after receiving written information outside the initial pleads that reveals new facts or claims that qualifies the case as removable. See id.
Plaintiffs disputed not only whether the subject email could qualify as “other paper” but also on the contents of the email as well. They contended the email contained confidential settlement discussions and thus was not “other paper.” The court disagreed with plaintiffs but stated this rule did not necessarily apply to the email in question. Plaintiffs further alleged the portion of the email NASSCO depended on did not establish the decedent’s presence on any vessel. The court agreed and determined NASSCO’s Notice of Removal was premature.
Likewise, the court rejected NASSCO’s claims under sovereign immunity finding it failed to establish plaintiffs brought the action arising from “a validly conferred governmental contract.” Id. at *16. NASSCO then conceded it lacked admissible evidence to allege a Combatant Activities defense and withdrew this claim with prejudice. Accordingly, the court granted plaintiffs’ motion and remanded the action to the Superior Court of the State of California for the County of Los Angeles.
Read the full decision here.