United States District Court, D. Delaware
MARY J. HICKS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ALVA HICKS JR. AND MARY J. HICKS INDIVIDUALLY, Plaintiff,
THE BOEING COMPANY, et al., Defendants.
REPORT AND RECOMMENDATION
SHERRY R. FALLON, Magistrate Judge.
Presently before the court in this diversity personal injury action is a Motion to Remand to State Court ("Motion to Remand" or "Motion") filed by the Plaintiff, Mary J. Hicks ("Plaintiff'), on the ground that the removing party, Defendant United Technologies Corporation ("UTC"), did not meet the requirements for removal under 28 U.S.C. § 1442. (D.I. 31) UTC opposes Plaintiff's Motion. (D.I. 44) For the reasons that follow, I recommend that the court DENY Plaintiff's Motion to Remand.
Plaintiff filed this action against UTC and other defendants on January 18, 2013, in the Superior Court of Delaware. (D.I. 1, Ex. A) The complaint alleges that Alva N. Hicks, Jr. was exposed to asbestos through personal construction work and throughout his employment. (D.I. 1, Ex. A ¶ 21; D.I. 73)
On March 11, 2013, UTC removed the action to this court. (D.I. 1) Plaintiff filed the pending Motion to Remand on April 12, 2013. (D.I. 13)
III. LEGAL STANDARD
The federal officer removal statute permits removal of a state court action to federal court when, inter alia, such action is brought against "[t]he United States or an agency thereof of any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office." 28 U.S.C. § 1442(a)(1). The party removing an action to federal court bears the burden of proving that removal is appropriate. See Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). In the Third Circuit, the provisions of the federal officer removal statute are to be "broadly construed." Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1262 (3d Cir. 1994). The Supreme Court has explained that "the right of removal is absolute for conduct performed under color of federal office, and has insisted that the policy favoring removal should not be frustrated by a narrow, grudging interpretation of § 1442(a)(1).'" Arizona v. Manypenny, 451 U.S. 232, 242 (1981) (citation omitted).
To properly establish removal under Section 1442(a)(1), a defendant must show the following:
(1) it is a "person" within the meaning of the statute;
(2) the plaintiff's claims are based upon the defendant's conduct "acting under" a federal office;
(3) it raises a colorable federal defense; and
(4) there is a causal nexus between the claims and the conduct performed under color of a federal office. Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124, 127 (3d Cir. 1998) (citing Mesa v. California, 489 U.S. 121, 129 (1989)).
As to the first element of the statute, this court has held that "defendants, as corporations, are persons' within the meaning of [Section 1442(a)(1)]." In re Asbestos Litig. ( Seitz ), 661 F.Supp.2d 451, 454 (D. Del. 2009) (citing Good v. Armstrong World Indus., Inc., 914 F.Supp. 1125, 1128 (E.D. Pa. 1996)). See also Kirks v. GE, 654 F.Supp.2d 220, 223 (D. Del. 2009).
To satisfy the second element, the defendant "must demonstrate that a federal office' was the source of the specific act for which the contractor now faces suit." In re Asbestos Litig. ( Seitz ), 661 F.Supp.2d at 454. "The second factor has been described as requiring a showing that the acts forming the basis of the state suit were performed pursuant to an officer's direct orders or comprehensive and detailed regulations.'" Id. (quoting Good, 914 F.Supp. at 1128).
The third element "requires a moving defendant to demonstrate that there is a colorable defense to a plaintiffs claims." Id. (citing Megill v. Worthington Pump, Inc., 1999 WL 191565, at *3 (D. Del. Mar. 26, 1999)). The colorable defense asserted here is the federal common law government contractor defense. According to the Supreme Court, a federal contractor will not be liable for design defects in equipment under state tort laws 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.
Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988).
Although the Boyle Court applied the government contractor defense to a design defect products liability claim, federal courts have subsequently recognized the applicability of the defense to state law failure to warn clams. See, e.g., Mac Queen v. Union Carbide Corp., 2013 WL 6571808, at *3 (D. Del. Dec. 13, 2013), report and recommendation adopted, 2014 WL 108535 (D. Del. Jan. 9, 2014); Walkup v. Air & Liquid Sys. Corp., 2013 WL 5448623, at *2 (D. Del. Sept. 26, 2013), report and recommendation adopted, 2013 WL 5798701 (D. Del. Oct. 24, 2013); In re Asbestos Litig. ( Seitz ), 661 F.Supp.2d at 454; Kirks, 654 F.Supp.2d at 224-25. "However, because design defect and failure to warn claims differ practically as well as theoretically, ' courts have required the government approval to transcend rubber stamping' for the defense to shield a government contractor from failure to warn liability." Hagen, 739 F.Supp.2d at 783 (quoting Tate v. Boeing Helicopters , 55 F.3d 1150, 1156-57 (6th Cir. 1995)). Consequently, in cases involving failure to warn claims, federal courts have tailored the Boyle elements as follows:
(1) the United States exercised its discretion and approved the ...