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remanding based on the defendant's "fail[ure] to submit evidence demonstrating that it was subject to any government specifications with respect to the placement of warnings on its products"
Summary of this case from Despres v. Ampco-Pittsburgh Corp.Opinion
No. C01-4299 MMC (Docket No. 5)
January 15, 2002
ORDER GRANTING MOTION TO REMAND; DENYING REQUEST FOR ATTORNEY'S FEES AND COSTS
Before the Court is plaintiff's motion to remand, filed December 17, 2001, pursuant to 28 U.S.C. § 1447(c). Defendant United States Steel (USS) filed opposition, to which plaintiff replied. Having considered the papers filed in support of and in opposition to the motion, the Court finds the matter appropriate for decision on the papers, VACATES the hearing scheduled for January 18, 2002, and rules as follows.
0n January 11, 2002, USS moved to strike plaintiffs reply as untimely. In conjunction with the filing of her reply, plaintiff explained that the reply was filed late because "[t]he due-date for Plaintiff's Reply Brief was mistakenly mis-calendared." (See Robert Barrow Decl. ¶ 2.) Under the circumstances, USS's motion to strike is hereby DENIED. As an alternative to striking plaintiffs reply, USS requests leave to file a surreply. Such request is DENIED, as USS has failed to demonstrate how a surreply would assist the Court in adjudicating the instant motion.
Plaintiff filed the instant wrongful death action in state court on June 2, 2000, alleging that her husband's death was caused by his exposure to asbestos on a Naval ship. On November 16, 2001, defendant USS, the alleged successor-in-interest to the manufacturer of the ship, removed the instant action.
In its removal notice, USS asserts that the Court has jurisdiction pursuant to 28 U.S.C. § 1442(a)(1), which provides that an action may be removed by "[a]ny officer of the United States or any agency thereof, or person acting under him, for any act under color of such office." 28 U.S.C. § 1442(a)(1). In order for removal to be proper under § 1442(a)(1), the removing party must "(1) demonstrate that it acted under the direction of a federal officer; (2) raise a colorable federal defense to plaintiffs claims; and (3) demonstrate a causal nexus between plaintiffs claims and the acts defendants performed under color of federal office." Fung v. Abex Corporation, 816 F. Supp. 569, 571 (N.D. Cal. 1992) (citing Mesa v. California, 489 U.S. 121 (1989)).
Specifically, USS asserts that plaintiffs claims are removable under the government contractor's defense defined in Boyle v. United Technologies Corp., 487 U.S. 500 (1988), as the ship in question was constructed "pursuant to contract with the Navy and under the authority of officers of the United States or agencies thereof." (Notice of Removal ¶ 3.) This argument is not persuasive. In the instant action, plaintiff has limited her claim against USS to the failure to warn theory of liability; plaintiff is not pursuing a design defect claim against USS. (See Plaintiff's Waiver of Claim for Design Defect Product Liability, filed January 9, 2002.) The government contractor's defense on which USS relies "is inapplicable to a failure to warn claim in the absence of evidence that in making its decision whether to provide a warning . . . [USS] was `acting in compliance with `reasonably precise specifications' imposed on [it] by the United States.'" Butler v. Ingalls Shipbuilding, Inc., 89 F.3d 582, 586 (9th Cir. 1996). Here, USS has failed to submit evidence demonstrating that it was subject to any government specifications with respect to the placement of warnings on its products. Absent such showing, defendant may not rely on the government contractor's defense. See id. As defendant has failed to raise a colorable federal defense to plaintiffs claims, removal is not proper pursuant to 28 U.S.C. § 1442(a)(1). See Mesa, 489 U.S. at 124-25, 134-35.
In light of this finding, the Court need not address whether defendant's removal was timely under 28 U.S.C. § 1446(b). Nor, under the facts presented, would the timing of the removal warrant an award of attorney's fees. See infra.
Pursuant to 28 U.S.C. § 1447(c), plaintiff seeks to recover her attorney's fees and other expenses resulting from defendant's removal of the action to the district court. Under § 1447(c), "[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." 28 U.S.C. § 1447(c). The district court has "wide discretion" to award attorney's fees and costs under § 1447(c), even in the absence of a finding that defendant acted in bad faith. See Moore v. Permanente Medical Group, Inc., 981 F.2d 443, 446-47 (1992). In the instant action, at the time USS filed its notice of removal, plaintiffs claims against USS were not limited to a theory of liability based on failure to warn. Under such circumstances, the Court declines to exercise its discretion to award attorney's fees.
Accordingly, plaintiffs motion to remand is hereby GRANTED, and plaintiffs request for attorney's fees and costs is hereby DENIED.
This order closes Docket No. 5.
IT IS SO ORDERED.