Douglas P. LEITE; Mary Ann K. Leite, Plaintiffs-Appellants, v. CRANE COMPANY, a Delaware corporation; Aurora Pump Company, a foreign corporation; Bayer CropScience, Inc., successor-in-interest to Rhone-Poulenc AG Company, a foreign company, aka Amchem Products, Inc., aka Benjamin Foster Products Company; Union Carbide Corporation, a New York corporation; Air & Liquid Systems Corporation, successor-by-merger to Buffalo Pumps, Inc., a New York corporation; Certainteed Corporation, a Delaware corporation; Cleaver-Brooks, Inc., a Delaware corporation; Goulds Pumps, Inc., a Delaware corporation; IMO Industries, Inc., individually and as successor-in-interest to Delaval Turbine, Inc., a Delaware corporation, fka Delaval Steam Turbine Company, fka IMO Delaval, Inc., fka Transamerica Delaval, Inc.; Ingersoll Rand Company, a New Jersey corporation; John Crane, Inc., a Delaware corporation; The Lynch Company, Inc., a Hawaii corporation; Metropolitan Life Insurance Company, a New York corporation; Warren Pumps, LLC, a Delaware corporation; The William Powell Company, an Ohio corporation; Velan Valve Corporation, a New York corporation; Copes-Vulcan, a subsidiary of SPX Corporation, a Delaware corporation; Atwood & Morrill, a subsidiary of Weir Valves & Controls USA, Inc., a Massachusetts Corporation; Does 1 to 25, Defendants-Appellees. David Thompson, Plaintiff-Appellant, v. Crane Company, Delaware corporation; Aurora Pump Company, a foreign corporation; Bayer CropScience, Inc., successor-in-interest to Rhone-Poulenc AG Company, a foreign company, aka Amchem Products, Inc., aka Benjamin Foster Products Company; Union Carbide Corporation, a New York corporation; Air & Liquid Systems Corporation, successor-by-merger to Buffalo Pumps, Inc., a New York corporation; Certainteed Corporation, a Delaware corporation; Cleaver-Brooks, Inc., a Delaware corporation; Goulds Pumps, Inc., a Delaware corporation; IMO Industries, Inc., individually and as successor-in-interest to Delaval Turbine, Inc., a Delaware corporation, fka Delaval Steam Turbine Company, fka IMO Delaval, Inc., fka Transamerica Delaval, Inc.; Ingersoll Rand Company, a New Jersey corporation; John Crane, Inc., a Delaware corporation; The Lynch Company, Inc., a Hawaii corporation; Metropolitan Life Insurance Company, a New York corporation; Warren Pumps, LLC, a Delaware corporation; The William Powell Company, an Ohio corporation; Velan Valve Corporation, a New York corporation; Copes-Vulcan, a subsidiary of SPX Corporation, a Delaware Corporation; Atwood & Morrill, a subsidiary of Weir Valves & Controls USA, Inc., a Massachusetts Corporation; Does 1 to 25, Defendants-Appellees.
Nos. 12-16864, 12-16982.
United States Court of Appeals, Ninth Circuit.
April 25, 2014.
749 F.3d 1117
Argued and Submitted Oct. 8, 2013.
Michael J. Ross (argued), Nicholas P. Vari, and Michael J. Zukowski, K & L Gates LLP, Pittsburgh, PA; Edward P. Sangster, K & L Gates LLP, San Francisco, CA, for Defendants-Appellees.
Before: ALEX KOZINSKI, Chief Judge, and RAYMOND C. FISHER and PAUL J. WATFORD, Circuit Judges.
OPINION
WATFORD, Circuit Judge:
The plaintiffs in these consolidated appeals, Douglas Leite and David Thompson, worked as machinists at the Pearl Harbor Naval Shipyard in Hawaii, where they were allegedly injured by exposure to asbestos. They sued defendants under state tort law on the theory that defendants failed to warn them of the hazards posed
Plaintiffs filed separate lawsuits against Crane in state court, but Crane removed the actions to federal court under the federal officer removal statute,
As relevant here, the federal officer removal statute authorizes removal of a civil action brought against any person “acting under” an officer of the United States “for or relating to any act under color of such office.”
In its removal notices, Crane alleged facts satisfying each of these requirements. Crane alleged that it is a “person” for purposes of
Plaintiffs contest Crane‘s jurisdictional allegations and raise evidentiary objections to portions of Crane‘s affidavits, mainly on
Plaintiffs’ arguments raise several novel procedural questions we have not yet squarely addressed: May a defendant establish removal jurisdiction under
Fortunately, all of these questions have been answered in a procedurally analogous context—cases in which the plaintiff files suit in federal court and the defendant moves to dismiss for lack of subject-matter jurisdiction under
To invoke a federal court‘s subject-matter jurisdiction, a plaintiff needs to provide only “a short and plain statement of the grounds for the court‘s jurisdiction.”
Under
A “factual” attack, by contrast, contests the truth of the plaintiff‘s factual allegations, usually by introducing evidence outside the pleadings. Safe Air for Everyone, 373 F.3d at 1039; Thornhill Publ‘g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir.1979). When the defendant raises a factual attack, the plaintiff must support her jurisdictional allegations with “competent proof,” Hertz Corp. v. Friend, 559 U.S. 77, 96-97 (2010), under the same evidentiary standard that governs in the summary judgment context. See Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir.2010) (en banc); Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1559 (9th Cir.1987);
Challenges to the existence of removal jurisdiction should be resolved within this same framework, given the parallel nature of the inquiry. The statute governing removal of civil actions tracks the language of
We recognize that defendants enjoy much broader removal rights under the federal officer removal statute than they do under the general removal statute,
In this case, plaintiffs do not raise a facial attack on Crane‘s jurisdictional allegations, as the allegations are sufficient on their face to support removal jurisdiction under
Because plaintiffs have raised a factual attack on Crane‘s jurisdictional allegations, Crane must support its allegations with competent proof. See Safe Air for Everyone, 373 F.3d at 1039. And Crane bears the burden of proving by a preponderance of the evidence that the colorable federal defense and causal nexus requirements for removal jurisdiction have been met. See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir.2004).4
Crane‘s affidavits establish that it has a colorable federal defense. With respect to the first element, Rear Admirals Horne and Sargent state that the Navy issued detailed specifications governing the form and content of all warnings that equipment manufacturers were required to provide, both on the equipment itself and in accompanying technical manuals. According to their affidavits, the Navy was directly involved in preparing the manuals, which included safety information about equipment operation only to the extent directed by the Navy. Horne and Sargent further state that equipment manufacturers could not include warnings beyond those specifically required and approved by the Navy, and that the Navy‘s specifications did not require equipment manufacturers to include warnings about asbestos hazards. These statements, which are supported by an adequate foundation based on the affiants’ knowledge of Navy procurement policies, establish a colorable showing that the Navy exercised its discretion and approved certain warnings for Crane‘s products. See Getz, 654 F.3d at 866-67.5
In their affidavits, Horne and Sargent go further and opine that if Crane had asked the Navy to approve warnings about asbestos hazards, the Navy would have rejected them. Plaintiffs argue at length that this counterfactual opinion testimony is entirely speculative and unreliable and therefore can never be established by admissible evidence under Federal Rule of Evidence 702. We need not resolve plaintiffs’ evidentiary objections to this testimony because Crane has made a colorable showing under Getz‘s first element without it, based on the portions of the Horne and Sargent affidavits discussed above. It‘s enough under Getz that the Navy exercised its discretion by prescribing certain warnings and prohibiting others without its express approval. Horne and Sargent are competent to testify to those facts; there‘s nothing speculative about what, in their view, the Navy‘s procurement policies actually required. Contrary to plaintiffs’ assumption, Crane need not prove that the Navy would have forbidden it to issue asbestos warnings had Crane requested the Navy‘s approval. As we held in Getz, the government contractor defense isn‘t limited to “instances where the government forbids additional warning or dictates the precise contents of a warning.”
Crane‘s affidavits also establish a colorable showing with respect to the second and third elements of the government contractor defense. Pantaleoni, a Crane vice-president, states that all of the equipment Crane sold to the Navy complied with Navy specifications, which would include the specifications regarding required warnings. Sargent confirms that an outside vendor‘s equipment could not have been installed aboard Navy vessels unless it complied with all applicable Navy specifications. Plaintiffs do not raise evidentiary objections to these statements, which make a colorable showing that Crane provided the warnings required by the Navy. And Dr. Forman‘s affidavit, supported by an adequate foundation based on his years of historical research, makes a colorable showing that the Navy at all times knew at least as much about asbestos hazards as the equipment manufacturers, leaving nothing for Crane to warn the Navy about.
At this stage, Crane doesn‘t have to prove that its government contractor defense is in fact meritorious, and we express no view on whether it is. As the Supreme Court has held, a defendant invoking
Based on the same evidence, Crane has also proved by a preponderance of the evidence that a causal nexus exists between plaintiffs’ claims and the actions Crane took at the direction of a federal officer. In assessing whether a causal nexus exists, we credit the defendant‘s theory of the case. Id. at 432; Isaacson, 517 F.3d at 137. Such a nexus exists here because the very act that forms the basis of plaintiffs’ claims—Crane‘s failure to warn about asbestos hazards—is an act that Crane contends it performed under the direction of the Navy. Crane may not be right—indeed, it may be that the Navy had nothing to do with Crane‘s failure to warn. But the question “whether the challenged act was outside the scope of [Crane‘s] official duties, or whether it was specifically directed by the federal Government, is one for the federal—not state—courts to answer.” Isaacson, 517 F.3d at 138; see also Willingham, 395 U.S. at 407.
AFFIRMED.
Notes
(a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.