Madison - St. Clair Record

Thursday, September 19, 2019

Rosenstengel denied remand in asbestos suit; Removed based on federal officer defense

By Heather Isringhausen Gvillo | Dec 12, 2016

District Judge Nancy Rosenstengel denied a woman’s request to remand an asbestos suit to Madison County Circuit Court, holding that defendant Crane Co. sufficiently established federal jurisdiction.

Rosenstengel filed the order on Nov. 30, denying plaintiff Sylvia Perez’s motion to remand.

“Crane Co. has shown that the Navy approved reasonably precise specifications, Crane Co.’s equipment conformed to those specifications, and the Navy was aware of the dangers of asbestos. Thus, Crane Co. has established the elements of the government contractor defense,” she wrote.

Sylvia Perez filed the wrongful death suit individually and as special administrator of the estate of Armando Perez, her deceased husband, on June 1.

According to her three-count complaint, the plaintiff alleges the decedent was exposed to asbestos while serving in the U.S. Navy aboard the USS Maryland from 1944 to 1946. As a result of his exposure, the decedent developed mesothelioma.

Crane Co. removed the case to federal court on July 25.

The defendant removed the case based on the federal officer removal statute, alleging federal subject matter jurisdiction.

Defendant General Electric Company joined Crane Co.’s removal on Aug. 1. It also filed a separate notice of removal asserting independent grounds for federal officer jurisdiction.

The Illinois Supreme Court explained that the “basic purpose of the statute is to protect the federal government from the interference with its operations which would ensue if a state were able to try federal officers and agents for alleged offenses committed while acting within the scope of their authority.”

Perez filed a motion to remand the case on Aug. 24.

Crane Co. responded to Perez’s motion to remand on Sept. 26.

GE also filed a response.

Crane Co. moved to strike GE’s joinder in its removal and its response to the plaintiff’s motion to remand, “to the extent those documents provided arguments related to GE’s untimely notice of removal asserting independent grounds for federal officer jurisdiction.”

The court denied Perez’s motion to strike but allowed the plaintiff time to provide a reply brief in support of remand.

Perez filed her response brief on Nov. 28.

The plaintiff argues that Crane Co. waived its right to removal by filing a motion to dismiss in the circuit court before removing the case.

However, Crane Co. counter-argues that removal is waived only in “extreme situations.”

Rosenstengel held that because Crane Co. filed its notice of removal only two hours after filings its state court motion to dismiss, “the Court cannot say that Crane Co. evinced an intent to have the state court decide the case on the merits. Therefore, Crane Co. did not waive its ability to remove the case to this Court.”

The plaintiff also claims Crane Co. failed to meet its burden of establishing federal subject matter jurisdiction.

Perez argues that the supporting affidavits filed by the defendant were all originally filed in other asbestos cases in other jurisdictions, “and none of the affiants worked for Crane Co. at the time the products at issue were manufactured.”

Further, she argues that Crane Co. failed to provide any evidence that it supplied the USS Maryland with equipment or made any specific warning requirements for equipment the Navy obtained from the defendant.

However, Rosenstengel cited the Ruppel decision, which holds that individuals with similar positions are “sufficient to merit removal based on federal officer jurisdiction.”

Turning to the merits of Crane Co.’s federal officer defense, Rosenstengel concluded that the defendant is a person under the statute and was acting under a federal officer.

“Crane Co. acted under the direction of the Navy in the design, manufacture, and sale of its products for and to the Navy, and its products were designed and manufactured in strict accordance with contracts and specifications approved by the Navy.

Rosenstengel also held that Crane Co. is not required to notify or obtain the consent from other defendants in order to remove the case to federal court, and removal is allowed for the entire case even when the federal officer defense does not apply to all of the claims.

The court denied Perez’s motion to remand on Nov. 30.

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