Glein v. Boeing Company (2011)

Our plain-English summary of Glein v. Boeing Company (U.S. District Court, Southern District of Illinois, February 8, 2011).

Betty Glein sued Boeing, Northrop Grumman Systems Corp. (NGSC) and many other companies in Madison County, Illinois, state court. She brought wrongful death, survival and married persons claims over her ex-husband's mesothelioma, which she said was caused by asbestos exposure. NGSC removed the case to federal court under the federal officer removal statute. It said part of his exposure came while he served as a Navy aviation mechanic working on airplanes and components NGSC made, installed and serviced. NGSC argued it acted under Navy direction and could assert the government contractor defense. The court had to decide whether NGSC had shown federal jurisdiction. It held that NGSC had not met its burden. Its evidence consisted of affidavits, Navy communications and specifications, and the ex-husband's deposition. None of this showed that the Navy prevented NGSC from giving warnings required by state law. Even if the Navy controlled the warnings on the equipment, NGSC might still have designed additional warnings. The court remanded the case to the Madison County circuit court and did not reach whether removal was timely.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Southern District of Illinois
• Decided: February 8, 2011
• Stage: Jurisdiction, venue or removal
• State: Illinois

Outcome. The court granted Betty Glein's motion to remand and sent the case back to the Madison County, Illinois circuit court, because Northrop Grumman Systems Corp. failed to prove federal officer removal jurisdiction.

What the court held. A defendant removing under the federal officer statute must show it acted under a federal officer's direction and has a colorable federal defense, which includes evidence that the Navy prevented it from complying with state-law duties to warn. Doubts are resolved in favor of remand.

Issues decided: Wrongful Death and Survival, Government Contractor Defense and Removal, Venue, Removal and Transfer.

The people and their exposure

• Ms. Glein's late ex-husband: mesothelioma; died

The defendants

• Northrop Grumman Systems Corporation (manufacturer)
• The Boeing Company (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Glein v. Boeing Company (June 25, 2010). The court granted Betty Glein's motion to remand and sent the case back to Madison County, Illinois state court, rejecting United Technologies Corporation's federal officer removal.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Hilbert v. Aeroquip, Inc. (U.S. District Court, District of Massachusetts, 2007). The district judge adopted the magistrate judge's report, finding no colorable military contractor or derivative sovereign immunity defense, so the plaintiffs' motion to remand to state court succeeded and Northrop Grumman's motion to stay pending MDL transfer was denied.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

BETTY GLEIN, Plaintiff,

v.

THE BOEING COMPANY; BONDEX INTERNATIONAL, INC.; BORG-WARNER CORP. by its

successor-in-interest BORGWARNER MORSE TEC INC,; BRAND INSULATIONS INC., BUFFALO

PUMPS, INC.; CBS CORP. successor by merger to CBS CORP. formerly known as VIACOM, Inc.,

formerly known as WESTINGHOUSE ELECTRIC CORP.; CERTAIN-TEED CORP.; CROWN CORK &

SEAL COMPANY, INC.; DANA CORP.; CEERE & COMPANY; FORD MOTOR COMPANY; GARLOCK

SEALING TECHNOLOGIES, LLC; GENERAL DYNAMICS CORP.; GENERAL ELECTRIC COMPANY;

GEORGIA-PACIFIC LLC; GOODYEAR TIRE & RUBBER COMPANY; HAWKER BEECHCRAFT CORP.,

formerly known as R AYTHEON AIRCRAFT COMPANY; HONEYWELL INTERNATIONAL, INC.,

individually and as successor-in-interest to ALLIEDSIGNAL, INC. and THE BENDIX CORP.; JOHN

CRANE, INC.; KENTILE FLOORING, INC.; LOCKHEED MARTIN CORP.; METROPOLITAN LIFE

INSURANCE COMPANY; NORTH AMERICAN AVIATION DEV., LLC; NORTHROP GRUMMAN

SYSTEMS CORP.; OWENS-ILLINOIS, INC.; PNEUMO ABEX LLC; PRATT & WHITNEY ENGINE

SERVICES, INC.; UNION CARBIDE CORP.; UNITED TECHNOLOGIES CORP., Defendants.

Civil No. 11-47-GPM.

February 8, 2011.

United States District Court, S.D. Illinois.

MEMORANDUM AND ORDER

G. PATRICK MURPHY, District Judge.

This matter is before the Court on the motion for remand to state court brought by Plaintiff Betty Glein. In this case Betty Glein seeks damages under the Illinois Wrongful Death Act, 740 ILCS 180/1-2.2, the Illinois Survival Act, 755 ILCS 5/27-6, and the Illinois Rights of Married Persons Act, 750 ILCS 65/15, in connection with injuries her ex-husband sustained from mesothelioma allegedly caused by exposure to asbestos. Ms. Glein originally brought suit in the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, and Defendant Northrop Grumman Systems Corporation ("NGSC") removed the case to this Court. Federal subject matter jurisdiction is alleged on the basis of 28 U.S.C. § 1442, the so-called "federal officer" removal statute. Having considered the matter carefully, including NGSC's response in opposition to Plaintiff's motion to remand, the Court now GRANTS Plaintiff Betty Glein's motion to remand (Doc. 14). On the basis of this ruling, Plaintiff's pending motion for leave to file a reply is termed as moot (Doc. 17).

A defendant seeking removal bears the burden of establishing federal subject matter jurisdiction. See Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540 (7th Cir. 2006); Lyerla v. Amco Ins. Co., 461 F. Supp. 2d 834, 835 (S.D. Ill. 2006). Federal removal jurisdiction is statutory in nature and is to be strictly construed. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993); Fuller v. BNSF Ry. Co., 472 F. Supp. 2d 1088, 1091 (S.D. Ill. 2007). Removal is proper if it is based on permissible statutory grounds and if it is timely. See Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004). Any doubts about the propriety of removal must be resolved against removal and in favor of remand to state court. See Kuhlman v. A.W. Chesterton, Inc., et.al, No. 10-119-GPM, 2010 WL 910481, at [*1] (S.D.Ill. Mar. 9, 2010); Clevenger v. Eastman Chem. Co., No. 07-cv-148-DRH, 2007 WL 2458474, at [*1] (S.D. Ill. Aug. 24, 2007); Littleton v. Shelter Ins. Co., No. 99-912-GPM, 2000 WL 356408, at [*1] (S.D. Ill. Mar. 9, 2000). In this case, as noted, the asserted basis for federal subject matter jurisdiction is 28 U.S.C. § 1442, which provides, in relevant part, for the removal of "[a] civil action. . . commenced in a State court against. . . [t]he 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, sued in an official or individual capacity for any act under color of such office[.]" 28 U.S.C. § 1442(a)(1). To effect removal as a person acting under a federal officer, NGSC must prove three elements: (1) it is a "person" within the meaning of the statute;

(2) it acted under the direction of a federal officer, meaning that there is a nexus or causal connection between Ms. Glein's claims and the acts NGSC allegedly performed under the direction of a federal officer; and (3) NGSC has a colorable federal defense to state-law liability. See Jefferson County, Ala. v. Acker, 527 U.S. 423, 431 (1999); Mesa v. California, 489 U.S. 121, 129 (1989); Willingham v. Morgan, 395 U.S. 402, 407 (1969); Wisconsin v. Schaffer, 565 F.2d 961, 964 (7th Cir. 1977); Mills v. Martin & Bayley, Inc., Civil No. 05-888-GPM, 2007 WL 2789431, at [*5] (S.D. Ill. Sept. 21, 2007). Turning to the merits of the instant motion for remand to state court, the Court finds that NGSC, as the proponent of federal subject matter jurisdiction in this case, has failed to carry its burden of proof as to the existence of such jurisdiction. NGSC claims in its notice of removal that it is entitled to invoke federal officer jurisdiction because at least part of Ms. Glein's ex-husband's alleged exposure to asbestos occurred during his service as an aviation mechanic in the United States Navy ("USN"), when he worked on airplanes that were manufactured by NGSC and on aircraft components that were installed and serviced by NGSC. NGSC, which the parties do not dispute is a "person" for purposes of the first prong of the test of federal officer jurisdiction, see Alsup v. 3-Day Blinds, Inc., 435 F. Supp. 2d 838, 845 n.3 (S.D. Ill. 2006) (a corporation is a "person" within the meaning of 28 U.S.C. § 1442) (collecting cases), claims with respect to the second and third prongs of the test that in manufacturing planes the company acted under the direction of the USN and that the company is entitled to assert the so-called "government contractor defense" or "military contractor defense," which provides that a private contractor is shielded from liability under state law for defects in products or equipment that it produced for the United States if: (1) the United States approved reasonably precise specifications for the products or equipment; (2) the products or equipment conformed to those specifications; and (3) the contractor warned the United States about any dangers known to the contractor but not to the United States. See Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997-98 (7th Cir. 1996); Lambert v. B.P. Prods. N. Am., Inc., Civil No. 04-347-GPM, 2006 WL 924988, at [*6] (S.D. Ill. Apr. 6, 2006). To establish the second prong of the test of federal officer jurisdiction with respect to Ms. Glein's claim of negligence against NGSC based on the latter's alleged failure to warn of the asbestos contained in the products the company furnished to the USN, NGSC must produce evidence that the USN prevented the company from complying with its duty to warn under state law. See Weese v. Union Carbide Corp., Civil No. 07-581-GPM, 2007 WL 2908014, at **6-7 (S.D. Ill. Oct. 3, 2007). Similarly, to establish the first prong of the government contractor defense, NGSC must show that the USN approved specific warnings that precluded NGSC from complying with its state-law duty to warn. See id. at [*9].[1]

The only evidence produced by NGSC in support of its claim of federal officer jurisdiction are affidavits by Captain Wesley C. Hewitt -who served in various position in the USN until 1988 -and Commander August Scalia and John DeBois -who each aver they became familiar with USN contracting procedures throughout their respective careers in the Navy and at NGSC. Additionally, NGSC has submitted various communications between itself and the USN, USN specifications, and Ms. Glein's ex-husband's deposition. In the past, the Court has attached little significance to such evidentiary materials, unaccompanied as they are by exemplar contracts between the USN and its contractors or pertinent regulations promulgated by the USN or another responsible agency. See Sether v. Agco Corp., Civil No. 07-809-GPM, 2008 WL 1701172, at **3-4 (S.D. Ill. Mar. 28, 2008). Most importantly, even assuming for the sake of argument that it is the case USN exercised the final control over the content of the warnings that accompanied the equipment it supplied to NGSC, this does not negate the possibility that NGSC had responsibility for designing additional warnings, in whole or in part, or that the USN required contractors like NGSC to provide safety warnings in accordance with state-law duties of care. See id. at [*4]. The Court is mindful that, "[b]ecause federal officer removal is rooted in `an anachronistic mistrust of state courts' ability to protect and enforce federal interests and immunities from suit,' although such jurisdiction is read `expansively' in suits involving federal officials, it is read narrowly where, as in this instance, only the liability of a private company purportedly acting at the direction of a federal officer is at issue." Weese, 2007 WL 2908014, at [*3] (quoting Freiberg v. Swinerton & Walberg Prop. Servs., Inc., 245 F. Supp. 2d 1144, 1150, 1152 n.6 (D. Colo. 2002)). Additionally, the Court is required to construe the record in this case "in the light most favorable to contractor defense are very similar, obviously, and they tend to merge in the analysis of a claim of federal officer jurisdiction. See, e.g., Hilbert v. Aeroquip, Inc., 486 F. Supp. 2d 135, 147-48 & n.11 (D. Mass. 2007). remand while resolving all deficiencies in the record against. . . the proponent of removal[.]" Alsup, 435 F. Supp. 2d at 846. Finally, while the Court recognizes that "a federal defense sufficient to permit removal under [28 U.S.C. § 1442] need only be colorable, not guaranteed to prevail," on the state of the record NGSC has not put forward sufficient evidence even to raise an inference of a colorable federal defense. Weese, 2007 WL 2908014, at [*4]. Since the Court concludes that this action is due to be remanded to state court we need not consider the issue of whether NGSC's removal was timely.

To conclude, Betty Glein's motion to remand is GRANTED. Pursuant to 28 U.S.C. § 1447(c), this case is REMANDED to the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, for lack of federal subject matter jurisdiction. IT IS SO ORDERED.

[1] The second prong of the test of federal officer jurisdiction and the first prong of the government

Sources

• The opinion on Google Scholar
• Illinois asbestos laws
• Illinois asbestos exposure sites