The opinion of the court was delivered by: J. Michael Seabright United States District Judge
ORDER (1) SUSTAINING OBJECTIONS TO JANUARY 23, 2012 FINDINGS AND
RECOMMENDATION TO GRANT PLAINTIFFS' MOTION FOR REMAND; AND
(2) DENYING MOTION FOR REMAND
On September 6, 2011, Plaintiffs Douglas and Mary Leite ("Plaintiffs") filed this action in the First Circuit Court of the State of Hawaii asserting claims against eighteen Defendants that manufactured, sold and/or supplied various products containing asbestos to the United States Navy. As alleged in the Complaint, Douglas Leite was exposed to asbestos contained in Defendants' products while working as a machinist at the Pearl Harbor Naval Shipyard ("PHNS") from 1966 to 1972, causing him to develop asbestos-related diseases.
On October 21, 2011, Defendant Crane Company ("Crane") removed the action to this court pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1), which allows removal where a defendant can establish a colorable federal defense. In response, Plaintiffs filed their Motion to Remand. On January 23, 2012, Magistrate Judge Richard L. Puglisi entered his Findings and Recommendation to grant Plaintiffs' Motion for Remand (the "January 23 F&R"), finding that Defendants had not established a colorable federal defense.
Currently before the court are several Defendants' Objections to the January 23 F&R. As explained below, the court finds that removal pursuant to § 1442(a)(1) was proper and therefore SUSTAINS the Objections to the January 23 F&R and DENIES the Motion for Remand.
A. Plaintiffs' Allegations Against Defendants
The Complaint, filed September 6, 2011 in the First Circuit Court of the State of Hawaii, alleges that Douglas Leite was exposed to asbestos while working as a machinist at the PHNS from 1966 through 1972, causing him to develop pleural plaques and other asbestos-related diseases and injuries, which he first discovered in May 2010. Doc. No. 3-1, Compl. ¶ 6. Plaintiffs bring this action against various companies that manufactured, sold, and/or supplied asbestos products to the PHNS including Crane; Aurora Pump Co. ("Aurora"); Bayer Cropscience, Inc., successor-in-interest to Rhone Poulenc AG Co., fka Amchem Products, Inc. fka Benjamin Foster Products Co. ("Bayer"); Union Carbide Corp.; Air & Liquid Systems Corp., successor-by-merger to Buffalo Pumps, Inc. ("Buffalo Pumps"); Certainteed Corp.; Cleaver-Brooks, Inc. ("Cleaver Brooks"); Goulds Pumps, Inc. ("Goulds"); IMO Industries, Inc. individually and as successor-in interest to Delaval Inc., and Delaval Steam Turbine Co. ("IMO"); Ingersoll Rand Co. ("Ingersoll"); John Crane, Inc.; the Lynch Co.; Metropolitan Life Insurance Co. ("Met Life"); Warren Pumps, Inc. ("Warren"); the William Powell Co. ("Powell"); Velan Valve Corp. ("Velan"); Copes-Vulcan ("Copes"); and Atwood & Morrill ("Atwood").
The Complaint asserts that Aurora, Buffalo, Cleaver-Brooks, Crane Co., Goulds, IMO, Ingersoll, Met Life, Powell, Warren, Velan, Copes, and Atwood (collectively, "Supplier Defendants"): sold and supplied certain equipment to the United States Navy and Pearl Harbor Naval Shipyard and other shipyards, which contained asbestos gaskets and/or packing, required asbestos insulation, or required other asbestos containing parts to function properly; and also sold replacement component parts for their equipment, including asbestos gaskets and packing which were identical to their commercial counterparts.
Id. ¶ 5. The Complaint alleges that all other Defendants ("Manufacturer Defendants") "manufactured, sold and/or supplied certain generically similar asbestos products which were ultimately used by insulators and others, and/or to which they came in contact, while working in their trades and occupations in the State of Hawaii and other locations," and "manufactured, sold and/or supplied certain generically similar asbestos products to Pearl Harbor Naval Shipyard and other shipyards and ships for use in the general overhaul, building, refitting and maintenance of ships." Id. Based on these allegations, Plaintiffs assert various claims against Defendants and in particular, claims against Supplier Defendants for negligent and strict liability failure to warn of the dangers of asbestos. See id. ¶¶ 5, 9, 16.
B. Defendants' Removal and Plaintiffs' Motion to Remand
On October 21, 2011, Crane removed the action to this court on the basis of federal officer jurisdiction pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446. IMO, Warren Pumps, and Buffalo Pumps subsequently filed joinders. Doc. Nos. 1, 2, 12. In response, Plaintiffs filed their Motion to Remand on November 10, 2011. Doc. No. 29. Oppositions were filed November 28, 2011, and Replies were filed on December 12, 2011. The January 23, 2012 F&R followed.
On February 6, 2012, Crane, IMO, Warren Pumps and Buffalo Pumps filed Objections to the January 23 F&R.*fn1
When a party objects to a magistrate judge's findings or recommendations, the district court must review de novo those portions to which the objections are made and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673 (1980); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) ("[T]he district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.").
Under a de novo standard, this court reviews "the matter anew, the same as if it had not been heard before, and as if no decision previously had been rendered." Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); United States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The district court need not hold a de novo hearing; however, it is the court's obligation to arrive at its own independent conclusion about those portions of the magistrate judge's findings or recommendation to which a party objects. United States v. Remsing, 874 F.2d 614, 616 (9th Cir. 1989).
The federal officer removal statute, 28 U.S.C. § 1442(a)(1), states that a civil action commenced in state court is removable when "any officer (or any person acting under that officer) of the United States or of any agency thereof, [is sued for] any act under color of such office." "A party seeking removal under section 1442 must demonstrate that (a) it is a 'person' within the meaning of the statute; (b) there is a causal nexus between its actions, taken pursuant to a federal officer's directions, and plaintiff's claims; and (c) it can assert a 'colorable federal defense.'" Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006) (quoting Jefferson Cnty. v. Acker, 527 U.S. 423, 431 (1999)); see also Mesa v. California, 489 U.S. 121, 124-25 (1989). "Under the federal officer removal statute, suits against federal officers may be removed despite the nonfederal cast of the complaint; the federal-question element is met if the defense depends on federal law." Acker, 527 U.S. at 431. The reasoning behind § 1442(a)(1) is that "[i]f the federal government can't guarantee its agents access to a federal forum if they are sued or prosecuted, it may have difficulty finding anyone willing to act on its behalf." Durham, 445 F.3d at 1253; see also Willingham v. Morgan, 395 U.S. 402, 406-07 (1969) (explaining that allowing removal ensures that "where federal officers can raise a colorable defense arising out of their duty to enforce federal law," they "have such defenses litigated in the federal courts").
As a result, although removal statutes are generally construed strictly against removal, the Supreme Court has mandated that § 1442(a)(1) be "liberally construed to give full effect to the purposes for which [it was] enacted," Durham, 445 F.3d at 1252, and "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) (quoting Willingham, 395 U.S. at 407)). Thus, to justify removal, a defendant need not assert a "clearly sustainable defense," nor does he need to "win his case before he can have it removed." Willingham, 395 U.S. at 407; see also Acker, 527 U.S. at 431. Rather, where a defendant seeks removal pursuant to the federal officer removal statute, "no determination of fact is required but it must fairly appear from the showing made that [the defendant's removal] claim is not without foundation and is made in good faith." Colorado v. Symes, 286 U.S. 510, 519 (1932).
The parties dispute whether Defendants have established two elements necessary for federal officer removal -- a colorable federal defense, and a causal nexus between Defendants' actions taken pursuant to the Navy's directions and Plaintiffs' failure-to-warn claims.*fn2 The arguments and evidence presented by the parties are not novel -- defendants in numerous state asbestos cases have removed them to federal court on the basis of § 1442(a)(1), and district courts (including the asbestos multi-district litigation ("MDL") court) have addressed the issues and evidence presented in the parties' voluminous briefings. And these courts are split -- in the specific context of failure-to-warn claims, district courts have fallen on both sides of removal and the MDL court has denied remand. See, e.g., Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770 (E.D. Pa. 2010) (holding in MDL proceeding that defendants established a colorable federal defense supporting removal);*fn3 Ellis v. Pneumo Abex Corp., 798 F. Supp. 2d 985 (C.D. Ill. 2011) (denying remand motion); O'Connell v. Foster Wheeler Energy Corp., 544 F. Supp. 2d 51 (D. Mass. 2008) (same); Beckwith v. Gen. Elec. Co., 2010 WL 1287095 (D. Conn. Mar. 30, 2010) (same); Cardaro v. Aerojet Gen. Corp., 2010 WL 3488207 (E.D. La. Aug. 27, 2010) (remanding action); Holdren v. Buffalo Pumps, Inc., 614 F. Supp. 2d 129 (D. Mass. 2009) (same).
Needless to say, this split in caselaw shows that the issues presented are not clear-cut and well-reasoned courts may come to opposite conclusions. The January 23 F&R agreed with Plaintiffs that Defendants have not established a colorable federal defense and recommends that this action be remanded. But based on a de novo review and addressing the two elements in dispute for federal officer removal, this court finds that Defendants properly removed this action pursuant to § 1442(a)(1).
A. Colorable Federal Defense
To establish a colorable federal defense, Defendants invoke the government contractor defense. The court first outlines legal framework for this defense, and then outlines the evidence and applies that evidence to the defense's elements.
The government contractor defense "protects contractors from tort liability that arises as a result of the contractor's 'compli[ance] with the specifications of a federal government contract.'" Getz v. Boeing Co., 654 F.3d 852, 860 (9th Cir. 2011) (quoting In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1000 (9th Cir. 2008)). This defense "displaces state law only when the Government, making a discretionary, safety-related military procurement decision contrary to the requirements of state law, incorporates this decision into a military contractor's contractual obligations, thereby limiting the contractor's ability to accommodate safety in a different fashion." In re Haw. Fed. Asbestos Cases, 960 F.2d 806, 813 (9th Cir. 1992) (quoting In re Joint E. & S. Dist. N.Y. Asbestos Litig., 897 F.2d 626, 632 (2nd Cir. 1990)).
In Boyle v. United Technologies Corp., 487 U.S. 500, 512 (1988), the Supreme Court held that a contractor establishes this defense where: "(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 explains that "[t]he first two of these conditions assure that the suit is within the area where the policy of the 'discretionary function' would be frustrated -- i.e., they assure that the design feature in question was considered by a Government officer, and not merely by the contractor itself," while the third condition precludes any manufacturer incentive to withhold knowledge of risks. Id.
Because Boyle addresses design and manufacture defect claims, courts have recast these elements to apply to failure-to-warn claims -- "a contractor cannot defeat a failure-to-warn claim simply by establishing the elements of the Boyle defense as it applies to design and manufacturing defect claims." Getz,654 F.3d at 866; Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 1003-04 (7th Cir. 1996) (same); see also Tate v. Boeing Helicopters, 140 F.3d 654, 656 (6th Cir. 1998) ("Warning the government of dangers arising from its specific design . . . does not encompass or state a failure to warn claim; it simply encourages contractors to provide the government with all the information required to soundly exercise its discretion." (quotations omitted)).
In Getz, the Ninth Circuit joined other circuits in holding that in the failure-to-warn context, a contractor establishes this defense where "(1) the government exercised its discretion and approved certain warnings; (2) the contractor provided the warnings required by the government; [and] (3) the contractor warned the government about dangers in the equipment's use that were known to the contractor but not to the government." 654 F.3d at 866 (quoting Oliver, 96 F.3d at 1003-04); see also Tate, 140 F.3d at 656-57 (stating same elements). In other words, "the contractor must demonstrate that the government 'approved reasonably precise specifications' thereby ...