798 F. Supp. 2d 985
C.D. Ill.2011Background
- Plaintiffs filed a state court asbestos exposure suit alleging injuries from Navy-related duties; Walter Tom is deceased and Linda Ellis is his plaintiff; Westinghouse and Crane were added as defendants.
- Westinghouse removed the case to federal court under 28 U.S.C. § 1442(a)(1) asserting a federal government contractor defense and jurisdiction under 28 U.S.C. § 1331/1332.
- Plaintiff moved to remand; Westinghouse moved to stay proceedings pending transfer to MDL-875; Crane joined in opposition to remand.
- Court must determine subject-matter jurisdiction before addressing remand and evaluates the government contractor defense as a potential basis for removal.
- Court applies the Seventh Circuit three-part test for federal officer removal and concludes removal is appropriate; remand denied and stay granted pending MDL transfer.
- Court directs timely notice to the MDL Panel regarding transfer decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal under §1442(a)(1) is proper | Ellis argues no federal officer nexus or defense defeats remand | Westinghouse contends it is a federal contractor acting under a federal officer with a colorable defense | Removal proper; remand denied |
| Whether the government contractor defense provides a colorable federal defense | Plaintiff challenges applicability to failure-to-warn claims | Westinghouse asserts the modified Boyle test supports a defense to such claims | Colorable federal defense established; removal sustained |
| Whether a stay pending MDL transfer should be granted | Limited argument focused on jurisdictional ruling; prejudice concerns vague | Judicial economy and consistency favor staying pending MDL transfer | Stay granted pending MDL transfer |
Key Cases Cited
- Watson v. Philip Morris Cos., 551 U.S. 142 (U.S. 2007) (federal officer removal must be liberally construed to effect purposes)
- Boyle v. United Technologies Corp., 487 U.S. 500 (U.S. 1988) (discretionary function defense for federal contractors)
- Oliver v. Oshkosh Truck Corp., 96 F.3d 992 (7th Cir. 1996) (government contractor defense can apply to design decisions and warnings)
- Tate v. Boeing Helicopters, 55 F.3d 1150 (6th Cir. 1995) (modified Boyle test for failure-to-warn claims)
- Venezia v. Robinson, 16 F.3d 209 (7th Cir. 1994) (affidavits can suffice to establish removal under §1442(a)(1))
- Harris v. Rapid Am. Corp., 532 F. Supp. 2d 1001 (N.D. Ill. 2007) (three-part test for federal officer removal)
- Pollitt v. Health Care Service Corp., 558 F.3d 615 (7th Cir. 2009) (three-part test components for §1442(a)(1) removal)
- Johnson v. Wattenbarger, 361 F.3d 991 (7th Cir. 2004) (subject-matter jurisdiction precedes other considerations)