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Perezz v. Air and Liquid System Corp.

United States District Court, S.D. Illinois

November 30, 2016

SYLVIA PEREZ, Individually and as Special Administrator of the Estate of Armando Perez, Plaintiffs,
v.
AIR AND LIQUID SYSTEMS CORPORATION, Individually and as Successor to BUFFALO PUMPS, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL United States District Judge.

         This case is currently before the Court on the Motion to Remand filed by Plaintiff Sylvia Perez (Doc. 40). Perez brings this wrongful death lawsuit individually and as Special Administrator of the Estate of Armando Perez, her deceased husband. Perez claims the decedent was exposed to asbestos while serving in the U.S. Navy, primarily aboard the USS Maryland, from 1944 to 1946 (Doc. 1-1, p. 5). Perez alleges that the decedent's asbestos exposure caused him to develop mesothelioma, which led to his untimely death (Id., p. 8). The Complaint contains three counts: Count I - Negligence Count as to Manufacturers of Asbestos Products; Count II - Willful and Wanton Conduct; and Count III - Loss of Consortium.

         This case originally was filed in the Circuit Court of Madison County, Illinois, on June 1, 2016, and subsequently was removed to this Court by Defendant Crane Co. on July 25, 2016 (Doc. 1). Crane Co. alleges federal subject matter jurisdiction on the basis of 28 U.S.C. § 1442, the “federal officer” removal statute. To its Notice of Removal, Crane Co. attached the affidavits of Anthony Pantaleoni, Crane Co.'s Vice President of Environment, David Sargent, Jr., a retired Navy Rear Admiral, and Dr. Samuel Forman, a former Naval Medical Officer. Each of the affidavits was signed prior to this case being filed, and two of them contain case captions from other jurisdictions. On August 1, 2016, more than 30 days after being served with the Complaint, [1] Defendant General Electric Company (“GE”) filed a Joinder in Crane's Notice of Removal, as well as a separate Notice of Removal asserting independent grounds for federal officer jurisdiction (Doc. 10).

         On August 24, 2016, Perez filed the instant Motion to Remand. Perez first argues that Crane Co. waived its right to remove by filing a motion to dismiss in state court prior to removing the case to this Court. She next claims that Crane Co. has failed to meet its burden of establishing federal subject matter jurisdiction. On September 26, 2016, Crane Co. filed a response to Perez's motion to remand (Doc. 58). GE, having joined in Crane Co.'s notice of removal, also filed a timely response to the motion to remand (Doc. 61). Perez moved to strike GE's joinder in the notice of removal as well as its response to her motion to remand, to the extent those documents provided arguments related to GE's untimely notice of removal asserting independent grounds for federal officer jurisdiction (Doc. 62). The Court denied Perez's motion to strike, but allowed her time to provide a reply brief in support of remand, which she filed on November 28, 2016 (Doc. 75). For the reasons stated below, Perez's motion to remand is denied.

         Legal Standard

         “The federal officer removal statute is an exception to the well-pled complaint rule, which requires federal jurisdiction to arise on the face of the complaint.” Rozumek v. Air & Liquid Sys., Inc., No. 15-CV-441-SMY-SCW, 2015 WL 6152924, *1 (S.D. Ill. Oct. 20, 2015) (citing Ruppel v. CBS Corp., 701 F.3d 1176, 1180 (7th Cir. 2012)). Removal under 28 U.S.C. § 1442 does not require Crane Co. to notify or obtain the consent of any other defendant to remove the entire case to federal court. Baker v. Air & Liquid Sys. Corp., No. CIV. 11-8-GPM, 2011 WL 499963, at *2 (S.D. Ill. Feb. 7, 2011). Furthermore, Section 1442(a)(1) permits the removal of the entire case, even though the federal officer defense may not apply to all of the claims. 28 U.S.C. 1442(a)(1).

         The Supreme Court of the United States has made clear that the federal officer removal 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.” Hasenberg v. Air & Liquid Sys. Corp., No. 13-CV-1325-MJR-SCW, 2014 WL 1389300, at *1 (S.D. Ill. Apr. 9, 2014) (citing Watson, 551 U.S. at 150). The federal officer removal statute also ensures that the validity of any official immunity defense is tried in federal court. Id. (citing Rodas v. Seidlin, 656 F.3d 610, 617 (7th Cir. 2011)).

         Although “[t]ypically, removal statutes are construed narrowly, with any doubt as to the right of removal resulting in remand to state court . . . Removal under § 1442 is an exception to that general rule.” Harris v. Rapid Am. Corp., 532 F.Supp.2d 1001, 1004 (N.D. Ill. 2007) (citing Jefferson County, Ala. v. Acker, 527 U.S. 423, 431 (1999)). While the burden of proving federal jurisdiction under § 1442 is on the defendant, the Supreme Court has held that “the policy favoring removal should not be frustrated by a narrow, grudging interpretation of § 1442(a)(1).” Id. (quoting Arizona v. Manypenny, 451 U.S. 232, 242 (1981)).

         Analysis

         A. Waiver

         Perez first argues that Crane Co. waived its right to remove the case to federal court by filing a motion to dismiss in state court prior to filing its Notice of Removal. Perez relies on In Re Yasmin & Yaz (Drospirenone) Mktg., Sales Practices & Prod. Liab. Litig., where, in a footnote, Judge Herndon stated that “some district courts have held that a defendant waives the right to removal when the defendant takes action in state court that evinces an intent by the defendant to have the state court decide the case on the merits, such as by filing a motion to dismiss . . . .” In Re Yasmin & Yaz (Drospirenone) Mktg., Sales Practices & Prod. Liab. Litig., 870 F.Supp.2d 587, 593 n.5 (S.D. Ill. 2012). In response, Crane Co. argues that Seventh Circuit precedent allows for waiver of removal only in “extreme situations” such as when “the suit is fully tried before the statutory period has elapsed and the defendant then files a petition for removal.” See Rothner v. City of Chicago, 879 F.2d 1402, 1416 (7th Cir. 1989).

         In Rothner, the Seventh Circuit analyzed the language of 28 U.S.C. § 1447 in determining that waiver cannot be a basis for remand except in “extreme situations.” See Id. at 1409-16. Since Rothner was decided, 28 U.S.C. § 1447 has been amended, and the language interpreted by the Rothner court has been deleted. The Seventh Circuit, however, has yet to revisit the question of waiver and the right to seek removal. As a result, most district courts in this Circuit have continued to follow Rothner and have held that filing motions to dismiss or taking other preliminary actions in state court does not constitute waiver of the right to remove. See Act II Jewelry, LLC v. Wooten, No. 15 C 6950, 2015 WL 7889039, at *3 (N.D. Ill.Dec. 4, 2015) (defendants' participation in the discovery process and filing of a motion to dismiss was not sufficient evidence of an “extreme situation” justifying waiver); Cahill v. Ivex Novacel, Inc., No. 04 C 2566, 2004 WL 2064305, at *3 (N.D. Ill. Sept. 1, 2004) (defendants' motion for a temporary restraining order was insufficient to warrant a finding of waiver); Dorazio v. UAL Corp., No. 02 C 3689, 2002 WL 31236290, at *4 (N.D. Ill. Oct. 2, 2002) (defendant did not waive its right to remove by filing motion to dismiss before filing notice of removal); DeLuca v. Ligget & Myers, Inc., No. 00 C 7781, 2001 WL 629398, at *6 (N.D. Ill. 2001) (ruling that preparing for depositions and opposing motions does not constitute a waiver of the right to remove); In re Bridgestone/Firestone, Inc., ATX, ATX II, 128 F.Supp.2d 1198, 1201 (S.D. Ind. 2001) (filing of motion to dismiss in state court does not waive the right to remove; that right cannot be waived absent defendant “fully trying the state court case on the merits”). Even in cases that have found waiver applicable, the action taken in state court was more substantial than merely filing a motion to dismiss hours before removing the case. See Fate v. Buckeye State Mut. Ins. Co., 174 F.Supp.2d 876, 881-82 (N.D. Ind. 2001) (defendant waived ability to remove when it litigated case for nearly a year in state court, including arguing motion to dismiss, conducting discovery, and moving to bifurcate trial).

         Here, Crane Co.'s responsive pleadings were due in state court the same day as its removal deadline. The record indicates Crane Co. filed its Notice of Removal only two hours after filing its state court motion to dismiss (see Docs. 1, 1-14). On these facts, and based on Seventh Circuit precedent, the Court cannot say that Crane Co. evinced an intent to have the state court decide the case on the merits. Therefore, Crane Co. did not waive its ability to remove the case to this Court.

         B. Federal ...


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