Opinion
No. C 18-03704 WHA
09-20-2018
DELIGHT SANCHEZ, individually and as successor in interest to DAVID P. SANCHEZ, deceased; DAVID SANCHEZ, an individual; and DION SANCHEZ, an individual, Plaintiffs, v. AIR & LIQUID SYSTEMS, CORPORATION, et al., Defendants.
ORDER GRANTING MOTION TO REMAND
INTRODUCTION
In this wrongful death action based upon alleged exposure to asbestos, plaintiffs seek remand to state court. Because this order finds federal-officer subject matter jurisdiction lacking, plaintiffs' motion to remand is GRANTED.
STATEMENT
The complaint asserts asbestos-related wrongful death claims by plaintiffs Delight Sanchez, the widow of decedent David P. Sanchez, and Dion and David Sanchez, decedent's sons. Defendants are companies that manufactured products containing asbestos during the relevant time period. Plaintiffs allege that decedent David P. Sanchez was exposed to asbestos while serving aboard the USS Tortuga in the United States Navy from 1956 to 1959. Sanchez was diagnosed with mesothelioma in September 2017 and died two months later due to his exposure, according to plaintiffs (Compl. ¶ 12). Plaintiffs further allege that the products with which decedent came into contact were manufactured by defendants. Plaintiffs' wrongful death claims stem primarily from design defect and failure-to-warn allegations.
In June 2018, defendant Aurora Pump Company ("Aurora") removed this action from Alameda County Superior Court. At oral argument on the motion to remand, supplemental briefing on the question of whether there is evidence the United States Navy directed defendant to use asbestos in its products was ordered. As evidence, Aurora submitted two documents issued by the United States Military: MIL-P-17639 (1953) and MIL-P-17640 (1954) (Dkt. No. 96, Exh. 4).
Aurora contends that the products in question were in accordance with the demands of the United States Navy, both in terms of design and warning requirements. Aurora argues such specifications present a colorable argument that it is a government contractor who is therefore immune from state tort law. As such, Aurora contends removal was proper (Dkt. Nos. 45, 58).
ANALYSIS
1. FEDERAL OFFICER DEFENSE.
The provision under which defendant Aurora asserts federal jurisdiction is the Federal Officer Removal Statute, which provides in part:
A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:28 U.S.C. § 1442(a)(1).
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue
To invoke federal officer removal under Section 1442(a)(1), a defendant must establish: (1) that it is a person within the meaning of the statute; (2) that it can assert a colorable federal defense; and (3) that there is a causal nexus between its actions, taken pursuant to a federal officer's directions, and plaintiffs' claims. Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006). The first element is not in dispute. This order finds, however, that Aurora failed to establish a colorable federal defense and has therefore failed to overcome the presumption against removal.
A. Aurora's Government-Contractor Defense Does Not Rise to the Level of a Colorable Federal Defense.
The government-contractor defense provides a defense where an accused supplier sells military equipment to, or performs work for, the United States when: (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not the United States. Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988). The defense applies "only when the Government, making a discretionary, safety-related military procurement decision contrary to the requirements of state law, incorporates this decision into a military contractor's contractual obligations, thereby limiting the contractor's ability to accommodate safety in a different fashion." In re Hawaii Fed. Asbestos Cases, 960 F.2d 806, 813 (9th Cir. 1992). This order finds Aurora failed to establish the third element and thus removal was proper.
First, Aurora must show the United States approved reasonably precise specifications. Here, Aurora has satisfied this prong. In support of its government contractor defense, Aurora submitted two documents issued by the United States Military: MIL-P-17639 (1953) and MIL-P-17640 (1954) (Dkt. No. 96, Exh. 4). Each document included language stating that "pump casing joints shall be made up using compressed asbestos sheet gaskets" (Dkt. No. 96, Exh. 4, ¶ 3.4.1.5; 3.26). Thus, Aurora's evidence shows that the military approved the use of asbestos in its pumps.
Aurora requests judicial notice of military specifications MIL-P-17639 (SHIPS) and MIL-P-17640 (SHIPS) (Dkt. No. 96). Plaintiffs do not oppose. A court may judicially notice a fact that is not subject to reasonable dispute because it "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." FRE 201(b). Accordingly, Aurora's request for judicial notice is GRANTED. --------
Second, Aurora must prove its equipment conformed to military specifications. To establish conformity with the Navy's specifications, Aurora must show "extensive government involvement in the design, review, development, and testing of a product" and "extensive acceptance and use of the product following production." Getz v. Boeing Co., 654 F.3d 852, 864 (9th Cir. 2011). Aurora must make this showing by a preponderance of the evidence. Leite v. Crane Co., 749 F.3d 1117, 1122 (9th Cir. 2014). The complaint proceeds on the premise that Aurora's pumps conformed to the specifications, so this requirement will be met; otherwise plaintiff has no case.
Third, Aurora must prove it warned the United States about "the dangers in the use of the equipment that were known to the supplier but not the United States. Boyle, 487 U.S. at 512. Where "a contractor does not offer any evidence that it proposed a warning to the government," the contractor "cannot rely on a hypothetical assertion that such an effort would have been futile." See Lindenmayer v. Allied Packing & Supply, Inc., No. C09-05800, 2010 WL 234906, at *6 (N.D. Cal. Jan. 14, 2010) (Judge Thelton Henderson) (granting motion to remand).
Aurora could have disposed of its duty to warn against the harms of asbestos had they used an alternate material in manufacturing their pumps. Plaintiffs correctly note that MIL-P-17639 (1953) included language stating that, "the use of materials differing in properties from those specified . . . will be considered when the contractor shows the necessity for such substitution, the material is readily obtainable, and provided that the material is satisfactory to the bureau or agency concerned" (Dkt. No. 96-5, Exh. A, ¶ 3.2.2). Thus, Aurora could have manufactured its pumps using an alternate material. Moreover, Aurora has not furnished evidence showing that the Navy would have rejected alternatives to asbestos.
Aurora argues it was relieved of its duty to warn the Navy about potential asbestos hazards because the Navy was already aware of these hazards (Dkt. No. 58). In support of this argument, Aurora cites non-binding authority for the proposition that the Navy knew at least as much about asbestos hazards as it did (Dkt. No. 58 at 11). See Niemann v. McDonnell Douglas Corp., 721 F. Supp. 1019, 1027-28 (S.D. Ill. 1989) (Judge William Beatty). Niemann, however, is distinguishable. There, the defendants submitted evidence in the form of declarations and affidavits, showing the defendants themselves were "unaware of the dangers and risks associated with the use of asbestos." Id. at 1127. The defendants also submitted two depositions that showed that at the time the aircraft in question were constructed, the "government was aware of the risks of the use of asbestos, and chose to continue to use asbestos in spite of this knowledge." Ibid. Here, knowledge by some in the Navy, by itself, does not excuse Aurora's failure to warn. Unlike in Niemann, Aurora has submitted nothing showing Aurora was unaware of the dangers of asbestos while the government was fully aware of the risks. Thus, this element is not met.
Because this order finds that Aurora has failed to assert a colorable federal defense, it does not and need not reach the causal nexus element.
2. ATTORNEY'S FEES GRANTED.
Plaintiffs request an award of costs and attorney's fees pursuant to Section 1447(c), which provides that an order of remand "may require payment to just costs and any actual expenses, including attorney fees, incurred as a result of removal." A court has "wide discretion" in deciding whether to award attorney's fees under this provision. Moore v. Permanente Med. Group, 981 F.2d 443, 447 (9th Cir. 1992). Attorney's fees should be awarded only where the removing party lacked an objectively reasonable basis for seeking removal." Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). Because Aurora lacked any objectively reasonable basis to remove this action, plaintiffs' request for attorney's fees in the amount of $3,500 is GRANTED.
CONCLUSION
For the foregoing reasons, plaintiffs' motion to remand is GRANTED. This action is immediately REMANDED to the Superior Court of California for the County of Alameda. Plaintiffs' request for attorney's fees in the amount of $3,500 is GRANTED. The Court will retain jurisdiction solely in connection with enforcing the aforementioned attorney's fee award.
IT IS SO ORDERED. Dated: September 20, 2018.
/s/_________
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE