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Hasenberg v. Air & Liquid Systems Corp.

United States District Court, S.D. Illinois

April 9, 2014



MICHAEL J. REAGAN, District Judge.

William and Linda Hasenberg filed suit in Illinois state court against 35 Defendants. The Hasenbergs seek to recover for injuries William allegedly sustained from exposure to asbestos-containing products during his work in the United States Navy from 1968 to 1972, in a series of jobs from 1974 to 1988 (including a crane rental business and auto body repair/service shops), and on personal automotive repairs from 1973 to 2013. William alleges that the products were manufactured, sold, distributed or installed by Defendants, and this exposure resulted in him developing lung cancer. The complaint contained six counts:

Count I - Negligence Count as to Manufacturers/Suppliers
Count II - "Willful and Wanton as to Manufacturers/Suppliers"
Count III - Conspiracy (against Defendants Metropolitan Life Insurance, Honeywell, International, and Pneumo Abex LLC)
Count IV - Negligent Spoliation of Evidence as to Manufacturers/Suppliers
Count V - Willful and Wanton Spoliation as to Manufacturers/Suppliers
Count VI - Loss of Consortium.

One named Defendant, Crane Co. (Crane)[1], removed the case to this District Court, based on 28 U.S.C. 1442(a)(1), the federal officer removal statute. On threshold review of the case, the undersigned ordered the Hasenbergs (Plaintiffs) to address subject matter jurisdiction. Various Defendants entered, answered, and filed motions in response to the complaint. Three Defendants (Georgia Pacific, LLC, Ingersoll-Rand Company, and Trane US, Inc.) filed a motion to dismiss or for more definite statement (Doc. 12). In their February 10, 2014 response to that motion, Plaintiffs addressed subject matter jurisdiction - asserting that Crane has not satisfied its burden (as the party seeking the federal forum) of establishing subject matter jurisdiction. Plaintiffs ask this Court to remand the case to Madison County (Illinois) Circuit Court.

For the reasons stated below, the undersigned denies that request, having concluded that this Court enjoys subject matter jurisdiction. 28 U.S.C. 1442(a)(1) permits a defendant to remove to federal court a lawsuit filed in state court against the "United States or any agency thereof or any officer (or any person acting under that officer) of the United States..., sued in an official or individual capacity for any act under color of such office." The federal officer removal provision is an exception to the well-pleaded complaint rule, which provides that for a non-diversity case to be removable, the complaint itself (not a defense) must establish that the case arises under federal law. Rodas v. Seidlin, 656 F.3d 610, 616-17 (7th Cir. 2011).

The Supreme Court of the United States has made clear that the statute must be "liberally construed." Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 147 (2007). The basic purpose of the statute is to protect the federal government from the interference with its operations which would ensue if a state were able to try federal officers and agents for alleged offenses committed while acting within the scope of their authority. Watson, 551 U.S. at 150. The statute addressed the concern that state court proceedings might reflect "local prejudice" or hostility against unpopular federal laws or federal officials. Id., citing Maryland v. Soper (No. 1), 270 U.S. 9, 32 (1926). The statute also was intended to ensure that the validity of any defense of official immunity is tried in a federal court. Rodas, 656 F.3d at 617; Willingham v. Morgan, 395 U.S. 402, 407 (1969). See also International Primate Protection League v. Administrators of Tulane Educational Fund, 500 U.S. 72, 86-87 (1991).

The mere fact that a private firm must comply with detailed federal regulations is not sufficient to support federal officer removal. "A private firm's compliance... with federal laws, rules, and regulations does not by itself fall within the scope of acting under' a federal official.'" Watson, 551 U.S. at 153. But when an intensely-regulated private contractor helps the federal government produce an item the government needs, the assistance being provided to the federal officers "goes beyond simple compliance with the law and helps [the federal] officers fulfill other basic governmental tasks." Id. So, Philip Morris's compliance with regulatory laws and rules of the Federal Trade Commission was not enough to support federal officer removal, whereas Dow Chemical's contract to provide the federal government with a product with war-time uses ("Agent Orange") was sufficient to support federal officer removal in a suit brought by a nurse allegedly injured by her exposure to the product. Watson, 551 U.S. at 153-54.

In 2012, the United States Court of Appeals for the Seventh Circuit reversed a district court's remand order after finding that the contractor defendant had satisfied the elements of federal officer removal in a case involving asbestos exposure allegedly causing mesothelioma. In Ruppel v. CBS Corp., 701 F.3d 1176 (7th Cir. 2012), the Court rejected the argument that removal under the statute was "narrow" or "limited, " and clarified that the statute has four requirements. The removing defendant must show that it was a (1) "person" (2) "acting under" the United States, it agencies or its officers, (3) that has been sued "for or relating to any act under color of such office, " and (4) has a colorable federal defense to the plaintiff's claim. Ruppel, 701 F.3d at 1180-81, citing 28 U.S.C. 1442(a), and Mesa v. California, 489 U.S. 121, 124-135 (1989).

Plaintiffs concede that Crane has satisfied the first of the four elements needed to support the exercise of federal officer jurisdiction - that Crane is a person under the statute (Doc. 78, p. 3). The Court finds that ...

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