United States District Court, D. Maryland
TYNAN SMITH, et al.
UNION CARBIDE CORP., et al.
CATHERINE C. BLAKE, District Judge.
Tynan Smith suffers from head and neck cancer, asbestosis, and non-malignant pleural changes. He and his spouse, Mary Ellen Smith (together, "Smith"), sue the Wayne Manufacturing Corporation ("Wayne"), the Lofton Corporation ("Lofton"), and several other firms, alleging under a host of state law theories that those businesses are responsible for exposing him to the asbestos that allegedly caused his afflictions. Wayne and Lofton removed his case from the Circuit Court of Baltimore City, asserting this court's federal officer jurisdiction under 28 U.S.C. § 1442(a)(1) on the basis of the federal contractor defense. Smith now moves to remand, contesting this court's jurisdiction. That motion has been fully briefed, and the parties argued it at a hearing on April 21, 2015. ( See ECF No. 31.) For the reasons explained below, it will be denied.
In January 2014, Smith was diagnosed with head and neck cancer, along with fibrosis and pleural plaques. ( See Mot. Remand Ex. 3, Short-Form Compl. Attach. ¶ 1, ECF No. 4-3.) He filed in the Circuit Court for Baltimore City a short-form complaint that incorporates by reference certain select paragraphs of the Other Asbestos Cases Amended Master Complaint, which has been on file with that court since mid-1990. ( See id. ) Specifically, he alleges theories of strict liability on the basis both of defective design and failure to warn, breach of warranty, negligence, fraud, conspiracy, market share liability, and, alongside his spouse, loss of consortium. ( See id. at. ¶¶ 1-7.) His complaint names, among many other defendants, Wayne and Lofton as Wayne's successor in interest. ( See id. ) Smith removed the case from the court's inactive docket. ( See Mem. Supp. Mot. Remand Ex. 3, Request for Removal from Inactive Docket, ECF No. 7-3.) In late October 2014, he served Wayne and Lofton. ( See Notice of Removal ¶ 2, ECF No. 1; Notice of Removal Exs. 1-2, ECF No. 1.) They filed their notice of removal in early December.
Smith's complaint is short on facts specific to him. A brief attachment indicates the nature of his current medical condition and date of diagnosis. ( See Short-Form Compl. Attach.) Otherwise, the complaint advances only very general claims by reference to the Master Complaint. It indicates, for example, that "Plaintiff was employed in the building and construction industry as a skilled building tradesman and was required to work with and around asbestos products which were manufactured and/or supplied by each of the Defendants." (Short-Form Comp. ¶ 1; Master Compl. ¶ 3.) But it fails to specify either the nature of his occupational responsibilities or the precise circumstances surrounding his exposure to asbestos. A doctor's report attached to the complaint provides the most specific such details. It states that Smith had "worked at the Bethlehem Steel Sparrows Point Steel mill in Baltimore, Maryland, from 1960 until 1963, as a pipefitter with asbestos exposure. He subsequently worked for the U.S. Coast Guard Shipyard from 1964 until 1974, as a pipefitter, again with asbestos exposure." ( See Mem. Supp. Mot. Remand Ex. 3, Second Short Form Compl., Eliasson Report 1, ECF No. 7-3.)
Wayne and Lofton removed this case on the assumption that Smith's claims against them are premised, at least in part, on "the alleged assembling of asbestos containing Marinite-Micarta bulkhead panels allegedly used in the construction of vessels at the USCG Yard, while... Smith allegedly was employed as a pipefitter" there between 1964 and 1974. (Opp. Mot. Remand 3, ECF No. 7.) On the ground that they supplied those panels pursuant to government specifications, they assert the federal contractor defense as a basis for federal jurisdiction. At the hearing on this motion, Smith conceded that Smith and Lofton correctly surmised the basis for his claims against them.
Wayne and Lofton allege, with reference to certain exhibits, that in the 1960s Wayne operated a manufacturing facility in Virginia that primarily produced custom metal furnishings for ships. ( See Opp. Mot. Remand Ex. 3, Baker Dep. 65:24-66:8, 11/18/92, ECF No. 7-4.) Hopeman Brothers, Inc. ("Hopeman")-which is not named in Smith's complaint and which no party has yet sought to join-purchased most of the plant's output in the late 1960s. ( See id. at 66:14-23.) When Hopeman ordered marinite-micarta paneling containing asbestos, it would ship those materials to Wayne and then "requested Wayne to laminate with a glue the Micarta to the Marinite." ( Id. at 80.) The defendants append to their opposition to remand many purchase orders, which demonstrate that the Coast Guard regularly ordered Marinite-Micarta panels from Hopeman for shipment to the Coast Guard shipyard at Curtis Bay. ( See Notice of Removal Ex. 4, ECF No. 1.) They also append an affidavit from Norman Lemley, a retired Coast Guard captain with "knowledge regarding regulations and specifications of marine materials used aboard U.S. Coast Guard and commercial vessels." (Opp. Mot Remand Ex. 7, Lemley Aff. ¶ 5, ECF No. 7-8.) He explains that "[s]hipbuliding specifications for the 50-80's for USCG Cutters referenced USN shipbuilding mils specs, " including those calling for "asbestos composition panels" made of marinate for bulkheads. ( Id. at ¶ 22; see also id. at ¶¶ 19-21.)
Lofton incorporated in 1982. ( See Baker Dep. 19:3-4.) Although Smith's complaint describes Lofton as Wayne's successor-in-interest, the basis for that assertion is unclear.
Under 28 U.S.C. § 1442(a)(1), a civil defendant may remove a case to federal court where the removing defendant (1) is a federal officer or person who "acted under" the direction of a federal officer, (2) raises a colorable federal defense, and (3) demonstrates a causal nexus between the plaintiff's claims and the conduct performed under color of federal law. See, e.g., Hagen v. Benjamin Foster Co., 739 F.Supp.2d 770, 776 (E.D. Pa. 2010). Such a defendant may remove the case without the consent of its codefendants. See Citrano v. John Crane-Houdaille, Inc., 1 F.Supp. 3d 459, 465 (D. Md. 2014). The statute is "broadly construed" to permit removal. Kolibash v. Comm. on Legal Ethics of the W.Va. Bar, 872 F.2d 571, 576 (4th Cir. 1989). A defendant seeking removal is held to no higher pleading standard "than the one imposed on a plaintiff in drafting an initial complaint, " Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 200 (4th Cir. 2008), which requires only allegations sufficient to "advance the plaintiff's claims across the line from conceivable to plausible, '" Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The defendants satisfy each of these requirements by invoking their federal contractor defense. Where, as here, a defendant removes a suit under § 1442(a)(1) on the basis of the federal contractor defense, satisfaction of that statute's "acting under" and causal nexus requirements is often redundant of its "colorable defense" requirement. See, e.g., Hagen, 739 F.Supp.2d at 785. Accordingly, the court will assess the colorability of the defendants' federal contractor defense before evaluating their satisfaction of the statute's remaining requirements.
I. Colorable Federal Defense
As noted, Wayne and Lofton premise removal on their invocation of the federal contractor defense recognized in Boyle v. United Technologies Corp., 487 U.S. 500 (1988). Under that doctrine, "[l]iability for design defects in military equipment cannot be imposed, pursuant to state law, 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 to the United States." Id. at 512.
Smith concedes that his claims against Wayne and Lofton are predicated on his exposure to marinite-micarta panels those entities allegedly assembled for shipment to the Coast Guard yard at Curtis Bay. The Hopeman purchase orders indicate that those panels were directly purchased by Coast Guard officials for shipment to Curtis Bay. According to Lemley, such purchases were pursuant to specific specifications calling for asbestos in bulkhead paneling. And Wayne and Lofton allegedly assembled those materials on Hopeman's behalf. Those allegations make it ...