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Reinbold v. Advance Auto Parts Inc.

United States District Court, S.D. Illinois

June 19, 2018

JANICE REINBOLD, Individually and as Special Administrator of the Estate of GERALD REINBOLD, Deceased, Plaintiff,
v.
ADVANCED AUTO PARTS, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          STACI M. YANDLE UNITED STATES DISTRICT JUDGE

         On March 23, 2018, Defendant Crane Co. ("Crane") removed this asbestos action from state court, asserting federal subject matter jurisdiction pursuant to 28 U.S.C. § 1442, the federal officer removal statute (Doc. 1). Pending before the Court is Plaintiff Janice Reinbold's Motion to Remand (Doc. 116). Plaintiff contends that remand is appropriate because she disclaimed any causes of action that could provide a basis for federal subject matter jurisdiction and, alternatively, that Crane has not met the requirements for removal under § 1442. Crane filed a Response (Doc. 153). For the following reasons, Plaintiff's Motion to Remand is DENIED.

         Background

         Plaintiff Janice Reinbold brings this wrongful death action individually, and as Special Administrator of the Estate of Gerald Reinbold, her deceased husband. Plaintiff claims that Gerald Reinbold was first exposed to asbestos in approximately 1967 while working as a shipfitter at Puget Sound Naval Shipyard; he continued to work at the shipyard until 1979 (Doc. 1-14). She further alleges that Reinbold was exposed to asbestos while performing home construction remodeling and home automotive repair work throughout the 1960s and 1970s. Id. Plaintiff claims that her husband's asbestos exposure caused him to develop lung cancer, which led to his untimely death. Id.

         Plaintiff's Complaint contains four Counts: Count I - Negligence as to Manufacturers of Asbestos Products; Count II - Willful and Wanton Conduct; Count III - Conspiracy; and Count IV - Loss of Consortium. The Complaint also includes the following disclaimer:

Every claim arising under the constitution, treaties, or laws of the United States is expressly disclaimed (including any claim arising from an act or omission on a federal enclave, or any federal office of the U.S. or agency or person acting under him occurring under color of such office). No. claim of admiralty or maritime law is raised…

         (Doc. 1-14, ¶ 15).

         Discussion

         The federal officer removal statute permits removal of a state court action to federal court when such action is brought against “[t]he United States or an agency thereof of any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office.” 28 U.S.C. § 1442(a)(1). “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 v. Philip Morris Companies, Inc., 551 U.S. 142, 150 (2007). Section 1442 also ensures that the validity of any official immunity defense is tried in federal court. Rodas v. Seidlin, 656 F.3d 610, 617 (7th Cir. 2011).

         Although removal statutes are typically construed narrowly, with any doubt as to the right of removal resulting in remand to state court, the Supreme Court instructs that “the policy favoring removal should not be frustrated by a narrow, grudging interpretation of §1442(a)(1).” Arizona v. Manypenny, 451 U.S. 232, 242 (1981)). To effectuate removal under § 1442, the removing defendant must establish: (1) it is a “person” within the meaning of the statute; (2) it acted under the direction of a federal officer when it engaged in the allegedly tortious conduct; (3) there is a causal nexus between the plaintiff's claims and the defendant's actions under federal direction; and (4) the defendant has raised a colorable defense based on federal law. See Mesa v. California, 489 U.S. 121, 124-25 (1989).

         Waiver

         As an initial matter, the Court must determine whether Plaintiff's disclaimer precludes Crane's government contractor immunity defense and, correspondingly, the basis for removal of this action. Plaintiff's decedent worked as a shipfitter at Puget Sound Naval Shipyard from 1967 until 1979. Crane contends that his alleged exposure to asbestos-containing products while working at the Navy shipyard gives rise to Crane's federal defense.

         For her part, Plaintiff asserts that she has expressly waived "all claims arising from an act or omission on a federal enclave, or of any officer of the U.S. or any agency or person acting under him occurring under color of such office.” As a result, she argues, Crane is asserting a government contractor defense to a nonexistent claim.

         Federal courts “recognize a distinction between artful pleading designed to circumvent federal officer jurisdiction, and express disclaimers of the claims that serve as the grounds for removal under Section 1442(a)(1).” Dougherty v. A O Smith Corp., 2014 WL 3542243, at *10 (D. Del. July 16, 2014). In that vein, courts have held that disclaimers did not defeat removal where (1) the plaintiffs only waived federal claims or (2) the plaintiffs sought to hold the defendant liable for acts or omissions related to its asserted official authority in contravention to the language of the disclaimer. See, e.g., Boyd v. Boeing Co., 2015 WL 4371928, at *6 (E.D. La. July 14, 2015) (rejecting disclaimer because facts of case suggested that it was likely that the defendants would rely, at least in part, on a government contractor defense); In re Asbestos Prods. Liability Litig. (No. VI), 770 F.Supp.2d 736, 742-43 (E.D. Pa. 2011) (finding that the plaintiffs' disclaimer provision did not defeat removal where the disclaimer purported to exclude any acts or omissions of the defendants “committed at the specific and proven direction of an officer of the United States government acting in his official capacity, ” yet “the only claims alleged ...


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