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Totten v. Crane Co.

United States District Court, N.D. Illinois, Eastern Division

April 28, 2014

CRANE CO., et al., Defendants.


SARA L. ELLIS, District Judge.

Before the Court are Plaintiff William Totten's motions to remand the case to state court [37] and to strike the notice of removal [39]. Both motions are denied. The Court finds that this issue is governed by Ruppel v. CBS Corp., 701 F.3d 1176, 1180 (7th Cir. 2012), in which the Seventh Circuit reversed the district court's remand after a federal contractor defendant had removed the case pursuant to the federal contractor defense. Removal is proper because Defendant Crane Co. ("Crane") has satisfied all four requirements of the removal statute.


Mr. Totten, who suffers from mesothelioma, brought this suit in Illinois state court against approximately 40 Defendants alleging that asbestos in Defendants' products caused his illness. Mr. Totten alleges that he was exposed to asbestos when he served in the U.S. Navy from 1956 to 1958 and also when he worked as a civilian from 1962 to 1983. Crane made valves, which contained asbestos, for U.S. Navy ships.

Totten's first amended complaint contains three counts. Count 1 relates to his post-military employment. It alleges, generally, that Defendants breached their duty of care by manufacturing and marketing products containing asbestos and by failing to warn of the dangers of asbestos. Exhibit A to the first amended complaint identifies a number of Defendants, including Crane, and the asbestos-containing products each Defendant manufactured or sold. Mr. Totten alleges that he was exposed to the products listed in Exhibit A during his civilian career. Count 2 relates to Mr. Totten's service in the Navy, alleging that during the course of his service he was exposed to asbestos from certain products manufactured or sold by Defendants, including Crane. Count 2 ultimately asserts that Defendants breached their duty of care by failing to provide adequate warnings regarding the dangers and proper handling of asbestos. Exhibit B to the first amended complaint identifies a number of Defendants, including Crane, and their products. Mr. Totten alleges that he was exposed to the products listed in Exhibit B during his time in the Navy. Finally, Count 3 alleges that two or more of Defendants conspired to prevent the public from learning the dangers of asbestos.

Defendant Crane removed the case to this Court under 28 U.S.C. § 1442(a)(1), asserting that the government contractor defense provided federal jurisdiction. In its Notice of Removal, Crane erroneously attached a copy of the original complaint, rather than the first amended complaint. Crane also attached affidavits of Anthony Pantaleoni, retired Rear Admiral David Sargent, Jr., and Dr. Samuel Forman. The affidavits, which are all dated January of 2010 and which were filed in another asbestos suit, describe the specifications to which Crane and other contractors were subject in providing parts for the Navy, as well as the Navy's historic knowledge, warnings, and remedial measures regarding asbestos. Lastly, Crane attached to its notice examples of Navy-issued engineering specifications for valves like those Crane manufactured.


A case filed in state court that could have been filed originally in federal court may be properly removed to federal court. 28 U.S.C. § 1441; Tylka v. Gerber Prods. Co., 211 F.3d 445, 448 (7th Cir. 2000). The removing party bears the burden of demonstrating that removal is proper, and any doubt regarding jurisdiction should be resolved in favor of remand. Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009). A case may be remanded for lack of subject matter jurisdiction or, if timely raised, for failure to comply with the removal statutes. 28 U.S.C. §§ 1446, 1447(c); GE Betz, Inc. v. Zee Co., 718 F.3d 615, 625-26 (7th Cir. 2013).


I. Mr. Totten's Motion for Remand

Since 1815, Congress has allowed federal officers sued in state court to remove those cases to federal court. The removal statute addressing this issue is codified at 28 U.S.C. § 1442(a)(1). The purpose of the statute is to prevent an "unfriendly" state from imposing state law liability on federal officers and their agents for actions performed "under the immediate direction of the national government." Tennessee v. Davis, 100 U.S. 257, 263, 25 L.Ed. 648 (1879). Simply put, the removal statute allows a federal officer or contractor to litigate a federal defense in a federal forum. This is an exception to the well-pleaded complaint rule, which would bar jurisdiction where the federal question arises in an affirmative defense rather than in the complaint. Mesa v. California, 489 U.S. 121, 136, 109 S.Ct. 959, 103 L.Ed.2d. 99 (1989); Ruppel, 701 F.3d at 1180.

In removing the case, Crane contends that § 1442(a)(1) provides federal jurisdiction because the acts alleged were undertaken at the direction of the U.S. Navy. In order to remove the case, Crane must establish that (1) it is a person under the statute, (2) it engaged in the allegedly tortious conduct at the direction of a federal officer, (3) there is a causal connection between Totten's claims and Crane's actions under federal direction, and (4) it has raised a colorable defense based on federal law. Mesa, 489 U.S. at 126-36. Crane contends that it satisfies each of these requirements and that it is immune from liability for any injury its products caused Mr. Totten during his military service because in performing the allegedly tortious acts, Crane followed the federal government's "reasonably precise specifications." Boyle v. United Technologies Corp., 487 U.S. 500, 512, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988).

Mr. Totten contends that the question now before the Court is governed by Boyle, in which the Supreme Court outlined the requirements for a defendant to prevail on a federal contractor defense. While Boyle will govern Crane's ultimate defense, it is not controlling at this stage because it does not address the question of jurisdiction-the only question now before the Court. Ruppel, 701 F.3d at 1182. In making a determination regarding jurisdiction, the Court must determine whether Crane has raised a plausible argument that the government contractor defense will apply. But the Court need not determine at this juncture whether Crane's defense will actually prevail. See Jefferson County, Ala. v. Acker, 527 U.S. 423, 431, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999); Ruppel, 701 F.3d at 1182. Therefore, while Boyle is important to understand at this stage, it does not govern the question before the Court. Boyle sets out that a government contractor is not liable for state law products liability torts where (a) the federal government approved reasonably precise specifications, (b) the defendant's product conformed to those specifications, and (c) the contractor warned the government of the product's dangers that were known to the contractor but not to the government. Boyle, 487 U.S. at 512.

Defendants argue, and the Court finds, that Ruppel mandates denying Mr. Totten's motion to remand. In Ruppel, defendant CBS included asbestos in turbines it supplied to the U.S. Navy. Mr. Ruppel, who developed mesothelioma, asserted that he was exposed to asbestos from these turbines during his service in the U.S. Navy and afterward. Ruppel, 701 F.3d at 1178. Shortly after CBS removed the case to federal court, the district court remanded it. The Seventh Circuit reversed, finding that federal jurisdiction was proper because CBS had satisfied all four elements of federal officer jurisdiction. Id. at 1181-82. A district court in this circuit recently interpreted Ruppel to deny the plaintiffs' motion to remand a case that this very same Defendant-Crane-removed to federal court. Hasenberg v. Air & Liquid Sys. Corp., No. ...

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