Federal Magistrate Judge Recommends Denial of Plaintiff’s Motion to Remand in Two Cases Originating in Delaware

Posted by

In two nearly identical cases from the District of Delaware, the magistrate judge issued a report and recommendation, recommending the denial of the plaintiffs’ motion to remand to state court.

In the first case, the plaintiff husband and wife alleged that the husband developed mesothelioma through exposure to asbestos while serving as a boiler tender in the Navy, while working at the shipyard, and through personal automotive work. In the second case, the plaintiff husband and wife alleged that the husband developed mesothelioma through asbestos exposure sustained while serving as a fireman and boiler tender in the Navy.  In both cases, defendant Foster Wheeler removed to federal court through the federal officer removal statute, and Westinghouse joined. Crane joined in the second case. Both sets of the plaintiffs moved to remand.

The defendants argued that the Navy exercised control and supervision over the design and manufacture of their products, such that the government contractor defense precluded state tort law liability. The plaintiffs argued that government specifications included the use of asbestos as an option, not a requirement, and the defendant could not prove by a preponderance of the evidence that either was entitled to removal.

The magistrate applied the standard that defendants must only put forth a “plausible colorable defense to meet the requirements of removal,” and quoted prior case law: “Although the evidence provided by [the defendant] may ultimately prove insufficient to support its defense on the merits, the Court finds that Plaintiffs overestimate the demands of § 1442 at this stage of the proceedings. To establish jurisdiction under § 1442, [the defendant] need not prove its defense but need only show that it has the underpinnings of a valid federal defense.”

The defendants satisfied this standard and each element of federal officer removal jurisdiction, which were: (1) the defendant was a “person” within the meaning of the statue; (2) the plaintiff’s claims were based upon the defendant’s conduct “acting under” a federal office; (3) the defendant raises a colorable federal defense; and (4) there was a causal nexus between the claims and the conduct performed under color of a federal office.” Foster Wheeler submitted three affidavits stating that the acts which formed the basis of the plaintiff’s claims were performed pursuant to direct orders of the Navy. Westinghouse submitted copies of Navy shipbuilding specifications requiring asbestos insulation on turbines and boilers. Crane submitted affidavits showing that their valves were designed and manufactured according to Navy contract specifications. Foster Wheeler, Westinghouse, and Crane produced evidence showing the Navy approved design and manufacture specifications, and products were made in accordance with Navy requirements. Lastly, the defendants showed that the plaintiffs’ claims rose directly from the Navy’s specifications.

Read the first decision here.

Read the second decision here.