United States District Court, S.D. Illinois
JANICE REINBOLD, Individually and as Special Administrator of the Estate of GERALD REINBOLD, Deceased, Plaintiff,
ADVANCED AUTO PARTS, INC., et al., Defendants.
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE
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.
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.
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
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…
1-14, ¶ 15).
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).
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).
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.
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.
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