The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO TAKE AN INTERLOCUTORY APPEAL FROM ORDER DATED 4/17/2012
Before the Court is Plaintiff David M. Thompson, Jr.'s ("Plaintiff") Motion for Leave to Take an Interlocutory Appeal from Order Dated 4/17/2012 ("Motion"), filed on May 1, 2012. Defendant Crane Co. ("Crane") filed its memorandum in opposition on May 16, 2012, and Plaintiff filed his reply on May 23, 2012. None of the other defendants responded to the Motion. The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i ("Local Rules"). After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, Plaintiff's Motion is HEREBY GRANTED because the proposed appeal could materially affect the outcome of the instant litigation, and for the reasons set forth below.
Plaintiff filed his Complaint on September 6, 2011 in state court. The Complaint alleges that Plaintiff was exposed to asbestos while working at Pearl Harbor Naval Shipyard and two non-military shipyards during various periods from 1951 to 1985. The defendants in this action allegedly manufactured, sold, and/or supplied products which contained asbestos to the shipyards. Plaintiff claims that his exposure to the defendants' products directly and proximately caused him to develop asbestos-related diseases and injuries. [Complaint at ¶¶ 1, 5-6.]
On October 21, 2011, Defendant Warren Pumps, LLC ("Warren") filed its Notice of Removal. Warren asserted that removal was appropriate under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), because Warren: 1) acted under the direction of a federal officer in manufacturing the products at issue; 2) has a colorable defense to Plaintiff's claims; and 3) can establish a causal nexus between Plaintiff's claims and the acts Warren performed under the direction of a federal officer. The Notice of Removal asserts that Warren has a colorable federal defense as a government contractor pursuant to Boyle v. United Technologies Corp., 487 U.S. 500 (1988). [Notice of Removal at ¶¶ 6, 8.]
On October 24, 2011, Defendant IMO Industries, Inc. ("IMO") and Defendant Air & Liquid Systems Corporation, successor by merger to Buffalo Pumps, Inc. ("Buffalo"), each filed a joinder in Warren's Notice of Removal. [Dkt. nos. 2, 6.] Crane filed its joinder on October 25, 2011.*fn1 [Dkt. no. 11.]
Plaintiff filed his Motion to Remand on November 10, 2011. [Dkt. no. 28.] The Removing Defendants each opposed the Motion to Remand. [Dkt. nos. 54, 55, 57, 82.]
On April 17, 2012, this Court issued its Order Denying Plaintiff's Motion to Remand ("Remand Order"). 2012 WL 1344453. In the Remand Order, this Court concluded that, "even where the asserted federal defense is the government contractor defense, 'a defense is colorable for purposes of determining jurisdiction under Section 1442(a)(1) if the defendant asserting it identifies facts which, viewed in the light most favorable to the defendant, would establish a complete defense at trial.'" Id. at *20 (footnote omitted) (quoting Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770, 783 (E.D. Pa. 2010)). This Court applied the modified Boyle analysis for failure-to-warn claims as set forth in Getz v. Boeing Co., 654 F.3d 852, 867 (9th Cir. 2011), and noted that Getz rejected the proposition that a defendant asserting the government contractor defense must prove that the government rejected the specific warning at issue in the case.
This Court found that Buffalo made a colorable showing that it could establish all of the elements of the Getz analysis, and therefore Buffalo established that it had a colorable federal defense. Id. at *24-27. Further, this Court found that Buffalo established all of the requirements for federal officer removal jurisdiction and concluded that Buffalo's removal was proper and sufficient to establish jurisdiction over all Defendants in this case, even assuming arguendo that the other Removing Defendants could not establish that they were entitled to federal officer removal jurisdiction. Id. at *27-29.
In the instant Motion, Plaintiff argues that an interlocutory appeal is appropriate in this case because the existence of federal jurisdiction is a threshold issue and whether the Removing Defendants have presented a colorable defense and established the requisite causal nexus are controlling issues of law. [Mem. in Supp. of Motion at 2.] Plaintiff also argues that the requirements to establish a colorable defense and a causal nexus in asbestos failure-to-warn cases are hotly contested issues in the district courts within the Ninth Circuit, as well as in district courts across the country. [Id. at 2-10 & n.1 (listing cases concluding that there was no removal jurisdiction in similar cases).] Finally, Plaintiff argues that an interlocutory appeal would materially advance the ultimate termination of the litigation, regardless of the outcome on the appeal. If the Ninth Circuit holds that there is no removal jurisdiction, the ruling will terminate the case. Plaintiff also argues that, even if the Ninth Circuit affirms this Court's ruling that removal jurisdiction exists, a ruling on the admissibility of the affidavits by Retired Rear Admiral Roger B. Horne, Jr., Retired Rear Admiral David P. Sargent, Jr., and Samuel A. Forman, M.D., will also advance the ultimate resolution of the case. [Id. at 10.]
III. Crane's Memorandum in Opposition
In its memorandum in opposition, Crane emphasizes that Plaintiff's mere disagreement with the Remand Order is not grounds for an interlocutory appeal. Crane contends that the Remand Order does not present an issue in which there is a substantial ground for a difference of opinion because Plaintiff's arguments in favor of remand are based on an incorrect interpretation of In re Hawaii Federal Asbestos Cases, 960 F.2d 806 (9th Cir. 1992), and Butler v. Ingalls Shipbuilding, Inc., 89 F.3d 582 (9th Cir. 1996). Crane argues that the Ninth Circuit's recent decision in Getz is controlling and precludes Plaintiff's arguments based on In Hawaii Federal Asbestos and Butler. [Mem. in Opp. at 4-5.] Crane emphasizes that Getz is consistent with the decisions of other circuits that have addressed whether the federal contractor defense requires a showing that the government prohibited the specific warnings at issue. [Id. at 5-6.] Crane urges this Court to disregard the district court orders that Plaintiff cited in the Motion because they pre-date Getz and rely on interpretations of Ninth Circuit precedent which Getz rejected. [Id. at 6-7.]
Crane further argues that an interlocutory appeal is not warranted because Plaintiff intends to dispute issues of fact in his appeal, in particular whether this Court accorded appropriate weight to the Removing Defendants' evidence. District courts should not certify interlocutory appeals for the purpose of challenging factual findings. [Id. at 7 (citing Johnson v. Alldredge, 488 F.2d 820, 822 (3d Cir. 1973), cert. denied, 419 U.S. 882 (1974)).]
Finally, Crane argues that an interlocutory appeal will not materially advance the termination of this case because "there is no indication that a remand to state court will materially advance the ultimate termination of the case." [Id. at 9 (citing Van Scoy v. New Albertson's Inc., No. 2:08-cv-02237, 2011 WL 597020 at *1 (E.D. Cal. Feb. 9, 2011)).] Crane asserts ...