223 F. Supp. 3d 756
S.D. Ill.2016Background
- Plaintiff Sylvia Perez (individually and as special administrator) sued manufacturers alleging her husband developed mesothelioma from Navy-era asbestos exposure aboard the USS Maryland (filed in Madison County, IL).
- Crane Co. removed to federal court invoking 28 U.S.C. § 1442 (federal-officer removal), attaching affidavits (some originally used in other cases) from company and retired Navy personnel and a doctor.
- GE joined Crane’s removal and separately filed its own removal notice more than 80 days after service; plaintiff moved to strike GE’s late filings and to remand the case to state court.
- Perez argued Crane waived removal by filing a state-court motion to dismiss before removing and that Crane failed to carry its burden to show federal-officer jurisdiction because the affidavits lacked case-specific contracts/specs and were recycled.
- The court denied waiver, finding Crane removed within hours of filing a responsive motion and that Seventh Circuit precedent requires an “extreme situation” to find waiver.
- The court held Crane met the four-part § 1442 test (person, acted under federal officer, causal nexus, colorable federal defense—here, the government-contractor defense) and denied remand; it noted GE’s independent removal was untimely but need not be resolved given Crane’s successful removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of removal by pre-removal state-court filing | Perez: Crane waived removal by filing a motion to dismiss in state court before removing. | Crane: Filing motion and removing shortly thereafter does not evince intent to litigate in state court; waiver occurs only in extreme circumstances. | Denied waiver—Crane filed removal two hours after the motion; Seventh Circuit standard requires extreme conduct to find waiver. |
| Whether § 1442 federal-officer removal is established | Perez: Affidavits are generic/reused, lack contracts/specifications and case-specific facts so they fail to establish federal-officer jurisdiction. | Crane: Affidavits and exhibits show contracts/specs, Navy direction over design/manufacture, and support a colorable government-contractor defense; Ruppel allows such evidence at this stage. | Removal valid—Crane is a “person,” acted under Navy direction, there is causal nexus, and the government-contractor defense is colorable. |
| Government-contractor defense sufficiency at removal | Perez: Absent precise contracts/specs and evidence of warnings, Crane cannot show defense. | Crane: Evidence shows Navy approved specifications, Crane conformed, and Navy knew asbestos risks; defense need only be plausible for removal. | Defense deemed plausible (colorable), satisfying § 1442 defensive element and supporting federal jurisdiction. |
| Timeliness of GE's independent removal | Perez: GE’s separate removal/joinder was untimely. | GE: (joined removal; also asserted independent grounds late). | Court observed GE’s independent removal was untimely but did not need to resolve it because Crane’s removal established jurisdiction. |
Key Cases Cited
- Watson v. Philip Morris Cos., 551 U.S. 142 (2007) (§ 1442 must be liberally construed to protect federal functions)
- Jefferson County v. Acker, 527 U.S. 423 (1999) (removal statutes typically narrow but § 1442 is an exception)
- Ruppel v. CBS Corp., 701 F.3d 1176 (7th Cir. 2012) (affidavits from experts and evidence can render government-contractor defense colorable at removal)
- Boyle v. United Technologies Corp., 487 U.S. 500 (1988) (elements of government-contractor defense)
- Mesa v. California, 489 U.S. 121 (1989) (elements required for removal under federal-officer statutes)
- Manypenny v. Arizona, 451 U.S. 232 (1981) (policy favoring removal under § 1442 should not be frustrated by narrow interpretation)
- Rothner v. City of Chicago, 879 F.2d 1402 (7th Cir. 1989) (waiver of removal recognized only in extreme situations)