United States District Court, S.D. Illinois
SYLVIA PEREZ, Individually and as Special Administrator of the Estate of Armando Perez, Plaintiffs,
AIR AND LIQUID SYSTEMS CORPORATION, Individually and as Successor to BUFFALO PUMPS, INC., et al., Defendants.
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge.
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.
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,  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.
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.
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).
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)).
“[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
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).
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
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.