United States District Court, D. Maryland
JOHN C. DUGGER, JR., as Personal Representative of the Estate of JOHN C. DUGGER, SR., et al.
AIR & LIQUID SYSTEMS CORPORATION, as successor in interest to Buffalo Pumps, Inc., et al.
CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE.
products liability case, the estate of John C. Dugger and
others have sued various manufacturers and distributors of
asbestos-containing products and insurer Metropolitan Life
Insurance Co. (Compl., ECF No. 2; Mot. for Remand Mem. Law,
ECF No. 338-1, 2). The plaintiffs filed suit in the Circuit
Court for Baltimore City on October 26, 2016. (Compl.). On
December 7, 2016, one defendant - Crane Co. - removed the
case to the United States District Court for the District of
Maryland. (Notice of Removal, ECF No. 1). The plaintiffs
moved to remand the case to state court on January 6, 2017.
(Mot for Remand, ECF No. 338). Crane Co. responded, (Resp. in
Opp'n to Mot. for Remand, ECF No. 351), and the
plaintiffs replied, (Reply, ECF No. 355). No oral argument
is necessary. See Local Rule 105.6 (D. Md. 2016).
For the reasons set forth below, the court will deny the
plaintiffs' motion for remand.
Dugger, Sr. (“Dugger”) served in the United
States Navy during the 1960s. On November 2, 2015, he was
diagnosed with malignant pleural mesothelioma; according to
the plaintiffs, he contracted this form of cancer “as a
result of being exposed to and inhaling asbestos-containing
dust while serving in the United States Navy.” (Mot.
for Remand Mem. Law 1-2). Dugger died on February 17, 2016;
after his death, his estate filed suit in state court based
on various causes of action, including state common-law
products liability claims of strict liability and negligence
against the manufacturers and distributors of
asbestos-containing products. (Id.). Crane Co.
allegedly manufactured and sold rope and valves to the Navy
that were designed to be used with asbestos-containing
packing, rope, and gaskets. (Id. 2). The complaint
alleges Crane Co. failed to warn Dugger about the hazards
associated with asbestos-containing products and/or products
designed to be used with asbestos-containing components.
(See Id. 2- 3).
to Crane Co., removal is proper under 28 U.S.C. §
1442(a)(1), partly because Crane Co. has successfully invoked
the government contractor defense to tort liability. (Notice
of Removal ¶¶ 3, 7). To support its claim that this
federal defense applies, Crane Co. has submitted affidavits
from Anthony D. Pantaleoni (“Pantaleoni”), David
P. Sargent, Jr. (“Sargent”), and Dr. Samuel A.
Forman (“Dr. Forman”) as attachments to its
notice of removal. (Notice of Removal Exs. B, C, D, ECF Nos.
1-3, 1-4, 1-5).
the federal officer removal statute, 28 U.S.C. §
1442(a)(1), a defendant may remove a case to federal court if
that defendant establishes (1) the defendant is either a
federal officer or a “person acting under that officer,
” 28 U.S.C. § 1442(a)(1); (2) a
“colorable” federal defense to the
plaintiff's claims; and (3) the suit is
“for a[n] act under color of office, ”
which requires a causal nexus “between the charged
conduct and asserted official authority.” Ripley v.
Foster Wheeler LLC, 841 F.3d 207, 209-10 (4th Cir. 2016)
(quoting Jefferson Cty., Ala. v. Acker, 527 U.S.
423, 431 (1999)). One of the purposes of federal officer
removal is to provide a federal forum for a federal defense.
Id. at 210 (citing Willingham v. Morgan,
395 U.S. 402, 407 (1969)). Accordingly, a defendant's use
of § 1442(a)(1) “should not be frustrated by a
narrow, grudging interpretation” of the statute.
See Willingham, 395 U.S. at 406-07; see also
Kolibash v. Comm. on Legal Ethics of W.Va. Bar, 872 F.2d
571, 576 (4th Cir. 1989) (“[T]he right of removal
conferred by § 1442(a)(1) is to be broadly
construed.”). To defeat a motion for remand, a
defendant need only plausibly allege the existence of each
element under § 1442(a)(1). See Joyner v. A.C. &
R. Insulation Co., 2013 WL 877125, at *6 (D. Md. Mar. 7,
2013), aff'd sub nom. Wood v. Crane Co., 764
F.3d 316 (4th Cir. 2014); cf. Ellenburg v. Spartan Motors
Chassis, Inc., 519 F.3d 192, 199-200 (4th Cir. 2008) (a
notice of removal need not “meet a higher pleading
standard than the one imposed on a plaintiff in drafting an
least two separate occasions, the district court in Maryland
has examined asbestos products-liability claims against Crane
Co. similar to those here. In both of those cases, the court
has denied a motion for remand after considering evidence
similar to the evidence Crane Co. now offers. See
Joyner, 2013 WL 877125; Rhodes v. MCIC, Inc.,
210 F.Supp.3d 778 (D. Md. 2016). Circuit courts also have
examined similar claims against Crane Co. and similar
evidence, and they also have concluded removal was
permissible. See, e.g., Cuomo v. Crane Co.,
771 F.3d 113 (2d Cir. 2014); Leite v. Crane Co., 749
F.3d 1117 (9th Cir. 2014). For the reasons explained below,
the court also will deny the motion for remand here.
Crane Co. must satisfy all three elements under §
1442(a)(1), the primary issue is whether it has raised a
colorable federal defense. Accordingly, the court will
examine that issue first.
Colorable Federal Defense
order for removal to be proper, Crane must establish a
“colorable” federal defense. The defense in
question here is the government contractor defense, which
precludes state-law tort liability for a contractor's
failure to warn if (1) the federal government exercised its
discretion and approved certain warnings for the products
supplied by the contractor; (2) the warnings provided by the
contractor conformed to the federal specifications; and (3)
the contractor warned the government about dangers known to
the contractor but not to the government. Rhodes,
210 F.Supp.3d at 781. Although the government contractor
defense may apply in failure-to-warn products liability
cases, see Ripley, 841 F.3d at 210-11, the
plaintiffs claim the defense as raised by Crane Co. is not
“colorable, ” (see Mot. for Remand Mem.
“colorable” federal defense is one that is
plausible. See, e.g., Bennett v. MIS Corp.,
607 F.3d 1076, 1089 (6th Cir. 2010). To prove the government
contractor defense is “colorable, ” Crane Co.
must allege facts that demonstrate the defense plausibly
shields it from liability for its alleged failure to warn
Dugger of the dangers associated with asbestos exposure.
See Joyner, 2013 WL 877215, at *8. “Proof of a
‘colorable' federal defense thus does not require
the defendant to ‘win his case before he can have it
removed' nor even establish that the defense is
‘clearly sustainable.'” Ripley, 841
F.3d at 210 (quoting Willingham, 395 U.S. at 407).
That is, a court need not “dissect the facts” or
“weigh the quantum of evidence, ” because
“[i]t is the sufficiency of the facts stated - not the
weight of the proof presented - that matters.”
Hagen v. Benjamin Foster Co., 739 F.Supp.2d 770,
782-83 (E.D. Pa. 2010); see also Rhodes, 210
F.Supp.3d at 782 (D. Md. 2016) (“Cases dwelling on the
exactness of ‘proof' or ‘evidence' to
support the defense are not persuasive.”).
Co. has plausibly alleged the three elements of the
government contractor defense. First, it has plausibly
alleged the government exercised its discretion and approved
warnings (if any) for products that Crane Co. supplied to the
Navy. In its notice of removal, Crane Co. states that
“the Navy provided Crane Co. with precise
specifications regarding its products.” (Notice of
Removal ¶ 11). Sargent, a retired Rear Admiral of the
United States Navy, stated in his affidavit that “the
Navy developed precise specifications as to the nature of any
markings, communication or directions affixed to or made a
part of any equipment supplied . . . for ultimate use aboard
Navy ships.” (Sargent Aff. ¶¶ 1, 58). Sargent
further attested that “[m]anufacturers of components
and equipment were not permitted, under the specifications,
associated regulations and procedures, nor under the actual
practice as it evolved in the field, to include any type of
warning or caution ...