Viale v. Air & Liquid Systems Corp. (N.D. Cal., July 3, 2019)

Our plain-English summary of Viale v. Air & Liquid Systems Corp. (U.S. District Court, Northern District of California, July 3, 2019).

Debbie Viale and Amber Jacobs sued Air & Liquid Systems (successor to Buffalo Pumps), Foster Wheeler, GE, Calaveras and other companies in California state court. They alleged Ronald Viale developed mesothelioma from asbestos exposure at several worksites, including Mare Island Naval Shipyard. Foster Wheeler removed the case to federal court, and the court had earlier denied remand because the removing defendants had a colorable government contractor defense. The plaintiffs then amended their complaint to drop claims based on Viale's Navy service and asked again for remand. The court denied the motion. It reasoned that the plaintiffs still pursued claims based on his work for Ziebarth Alger at Mare Island, where, by the plaintiffs' own disclosures, he worked on Buffalo Pumps and Foster Wheeler boilers. It also found that Mare Island was a federal enclave when the alleged exposure occurred in 1978 and 1979, which gives federal courts original jurisdiction over torts arising there.

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, Northern District of California
• Decided: July 3, 2019
• Docket: Case No. 19-cv-00038-MMC
• Stage: Jurisdiction, venue or removal
• State: California

Outcome. The court denied the plaintiffs' renewed motion to remand, keeping the case in federal court against Foster Wheeler, Buffalo Pumps (Air & Liquid Systems), Calaveras, GE and the other defendants.

What the court held. Federal courts have federal question jurisdiction over tort claims arising on federal enclaves, and Mare Island Naval Shipyard was a federal enclave at the time of the alleged exposure, so claims based on work there stay in federal court even after the Navy-service claims were dropped.

Issues decided: Government Contractor Defense and Removal, Personal Jurisdiction, Venue, Removal and Transfer.

The people and their exposure

• Ronald Viale: mesothelioma; died

Who	Work	Where	When	Products
Ronald Viale	worked on boilers and pumps for Ziebarth Alger (shipyards and maritime work)	Mare Island Naval Shipyard, Vallejo, California	1978-1979	Buffalo Pumps and Foster Wheeler boilers
Ronald Viale	served in the United States Navy (the Navy); military service	Mare Island Naval Shipyard, Vallejo, California

The defendants

• Foster Wheeler LLC (manufacturer)
• Air & Liquid Systems Corp, successor to Buffalo Pumps, Inc. (manufacturer)
• General Electric Company (manufacturer)
• Calaveras Asbestos Ltd
• Calaveras Natural Resources Inc
• SPX Cooling Technologies, Inc. (manufacturer)
• CBS Corporation (manufacturer)

Other decisions in this case

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

• Viale v. Air & Liquid Systems Corp. (March 11, 2019). The court denied the plaintiffs' motion to remand, holding that Foster Wheeler and Air & Liquid Systems (successor to Buffalo Pumps) properly removed the case under the federal officer removal statute.
• Viale v. Air & Liquid Systems Corp. (May 21, 2019). The court granted plaintiffs' motion for leave to file a Second Amended Complaint over Foster Wheeler's objection, and directed plaintiffs to file it by May 31, 2019.
• Viale v. Air & Liquid Systems Corp. (July 6, 2020). The district court granted Foster Wheeler LLC's motion for summary judgment against the plaintiffs, the widow and daughter of Ronald Viale, because they lacked admissible evidence that Viale was exposed to a Foster Wheeler product.
• Viale v. Air & Liquid Systems Corp. (July 6, 2020). The court granted Union Carbide's motion for summary judgment against plaintiffs Debbie Viale and Amber Jacobs because they offered no evidence that Ronald Viale was exposed to a product containing asbestos supplied by Union Carbide.
• Viale v. Air & Liquid Systems Corp. (July 7, 2020). The court granted Foster Wheeler's motion for summary judgment against plaintiffs Debbie Viale and Amber Jacobs because they lacked admissible evidence that Ronald Viale was exposed to a Foster Wheeler boiler.
• Viale v. Air & Liquid Systems Corp. (July 7, 2020). The court granted SPX Cooling Technologies' motion for summary judgment against the plaintiffs (the wife and daughter of Ronald Viale) because they lacked evidence that Viale was exposed to asbestos from a Marley cooling tower.
• Viale v. Air & Liquid Systems Corp. (July 14, 2020). The court granted Exxon Mobil's motion for summary judgment against the wife and daughter of Ronald Viale, finding they lacked evidence that Exxon was negligent as a premises owner or hirer of contractors at the Benicia Refinery.

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.

DEBBIE L. VIALE, etal., Plaintiffs,

v.

AIR & LIQUID SYSTEMS CORP, etal., Defendants.

Case No. 19-cv-00038-MMC.

July 3, 2019.

United States District Court, N.D. California.

Debbie L. Viale, Individually and as Personal Representative of the Estate of Ronald Viale, Deceased & Amber Jacobs, Plaintiffs, represented by Joshua Samuel Paul, The Paul Law Firm, Bryon Josselyn, The Paul Law Firm, Nectaria Belantis, The Paul Law Firm & Peter Christopher Beirne, The Paul Law Firm.

Air & Liquid Systems Corp, sued individually and as successor-in-interest to Buffalo Pumps, Inc., Defendant, represented by James G. Scadden, Gordon Rees Scully Mansukhani LLP, Glen R. Powell, Gordon Rees Scully Mansukhani LLP & Michael J. Pietrykowski, Gordon Rees Scully Mansukhani LLP.

Allied Packing & Supply, Defendant, represented by Theodore Thomas Cordery, Imai Tadlock Keeney & Cordery, LLP. AMEC Foster Wheeler USA Corporation, formerly known as Foster Wheeler LLC formerly known as Foster Wheeler Corporation, Defendant, represented by Charles S. Park, Hugo Parker, LLP & Edward R. Hugo, Hugo Parker, LLP. Anheuser-Busch InBev Worldwide Inc, formerly known as Anheuser Busch Inc & Anheuser-Busch, LLC, Defendants, represented by Jonathan J. Kim, Alston Bird LLP, Cristyn Nicole Chadwick, Alston & Bird, LLP, Nell Gibson Moley, Alston & Bird LLP & Robert D. Phillips, Jr., Alston & Bird.

A.W. Chesterton Company, Defendant, represented by Anthony Sinclair Miller, Manning Gross + Massenburg LLP & Stephen Lindsay Jenkins, Manning Gross + MassenburgLLP.

CBS Corporation, successor by merger to CBS Corporation, a Pennsylvania corporation, Defendant, represented by Kevin Douglas Jamison, Kevin Jamison Law, PC, Erin Nicole Empting, Kevin Jamison Law, PC, Justin Finnell Cronin, Kevin Jamison Law, PC & Katherine Paige Gardiner, WFBM, LLP.

Calaveras Asbestos Ltd & Calaveras Natural Resources Inc, Defendants, represented by Jennifer M. McCormick, Foley & Mansfield, PLLP, Andrew Livingston Sharp, Foley & Mansfield PLLP & Gary David Sharp, Foley and Mansfield. Certainteed Corporation & Metalclad Insulation Corporation, Defendants, represented by Kathy Mai Huynh, Dentons US LLP, Lisa Lurline Oberg, Dentons US LLP & Michelle Christian Jackson, Dentons US LLP.

Chevron U.S.A. Inc. & Union Oil Company, Defendants, represented by Arpi Galfayan, Prindle, Goetz, Barnes and Reinholtz LLP, Andy Justin Goetz, Prindle, Goetz, Barnes and Reinholtz LLP, Michael Howard Schuck, Prindle, Goetz, Barnes and Reinholtz LLP & Thomas Alan Steig, Prindle, Goetz, Barnes & Reinholtz LLP.

Crane Co., Defendant, represented by Geoffrey M. Davis, K&L Gates LLP & Peter Edward Soskin, K&L Gates LLP. Elementis Chemicals Inc, formerly known as Hacros Chemical Inc sii to Harrisons & Crossfields (Pacific) Inc, Defendant, represented by Jennifer Denise Fitzpatrick, Dehay & Elliston, LLP.

Exxonmobile Corporation, Defendant, represented by Jennifer Denise Fitzpatrick, Dehay & Elliston, LLP & Susan A. Ogdie, DeHay & Elliston LLP.

General Electric Company, Defendant, represented by Derek S. Johnson, WFBM, LLP, Charles T. Sheldon, WFBM, LLP, Emily Elizabeth Anselmo, WFBM, LLP & Katherine Paige Gardiner, WFBM, LLP.

Goulds Pumps LLC, formerly known as Goulds Pumps Inc., Grinnell LLC, doing business as Grinnell Corp & Johnson Controls Inc, Defendants, represented by Amy Jo Talarico, Morgan Lewis & Bockius, LLP, Joseph Duffy, Morgan, Lewis &

Bockius LLP & Michael Quinn Eagan, Jr., Morgan Lewis and Bockius LLP.

Keenan Properties Inc., formerly known as Keenan Pipe & Supply formerly known as Keenan Supply, Defendant, represented by W. Joseph Gunter, CMBG3 Law LLC.

Metropolitan Life Insurance Company, Defendant, represented by Erika Aspericueta, Steptoe & Johnson LLP, Michael E. Flynn-O'Brien, Steptoe & Johnson LLP & Patrick Casey Mathews, Steptoe & Johnson LLP.

Shell Oil Company, Defendant, represented by Ross Morton Petty, Nixon Peabody LLP & Aaron Michael Brian, Nixon Peabody LLP.

SPX Cooling Technologies, Inc., successor in interest to Marley Cooling Tower, Defendant, represented by Michael Joseph Estrada, Vasquez & Estrada LLP.

Sterling Fluid Systems USA LLC, doing business as Peerless Pump Company doing business as Indian Head Inc, Defendant, represented by Marissa Kacy Gittler, Pond North LLP, Eric Dean Sentlinger, Pond North LLP, Francis Dennis Pond, Pond North LLP, Frank D. Pond, Pond North LLP & Timothy Carter Pieper, Pond North LLP.

Trane USA, formerly known as America Standard Companies sii to American Blower Company, Defendant, represented by Arpi Galfayan, Prindle, Goetz, Barnes and Reinholtz LLP, Carla Lynn Crochet, Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholz LLP, Jeremy David Milbrodt, Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholtz LLP & Thomas Alan Steig, Prindle, Goetz, Barnes & Reinholtz LLP.

Union Carbide Corporation, Defendant, represented by Florence Anne McClain, Lewis Brisbois Bisgaard & Smith LLP. Foster Wheeler LLC, Defendant, represented by Charles S. Park, Hugo Parker, LLP.

ORDER DENYING PLAINTIFFS' RENEWED MOTION FOR REMAND;

VACATING HEARING

Re: Dkt. No. 182.

MAXINE M. CHESNEY, District Judge.

Before the Court is plaintiffs Debbie L. Viale and Amber Jacobs' Renewed Motion for Remand, filed June 3, 2019. Defendants Calaveras Asbestos, Ltd. and Calaveras Natural Resources, Inc. (collectively, "Calaveras") have filed opposition, as have defendants Foster Wheeler LLC ("Foster Wheeler") and General Electric Company ("GE"). Defendants SPX Cooling Technologies, Inc. and CBS Corporation have joined in each of the oppositions, and plaintiffs have filed a single reply. Having read and considered the papers filed in support of and in opposition to the motion, the Court deems the matter suitable for decision on the parties' respective written submissions, VACATES the hearing scheduled for July 12, 2019, and rules as follows.

In the above-titled action, plaintiffs allege decedent Ronald Viale contracted mesothelioma as a result of his exposure to asbestos and asbestos containing products at a number of worksites. On January 3, 2019, Foster Wheeler removed the action to federal court, and, on January 9, 2019, Air & Liquid Systems Corporation, successor by merger to Buffalo Pumps, Inc. ("Buffalo Pumps"), filed a notice of joinder in the removal.

At the time of removal, plaintiffs' claims were alleged in their Amended Complaint ("AC"). In the AC, plaintiffs alleged, inter alia, that both Foster Wheeler and Buffalo Pumps failed to warn "the decedent, the decedent's employers, and others" about the hazards posed by asbestos. (See AC ¶ 7; see also AC ¶¶ 10, 29, 35, 41-42.) Plaintiffs also alleged that the locations of the decedent's exposures included "Mare Island," a naval shipyard. (See AC Ex. A at 1:2-4, 6-7, 17.) By order filed March 11, 2019, the Court denied plaintiffs' initial motion to remand, finding the above-titled action was properly removed under 28 U.S.C. § 1442(a)(1), as each removing defendant had demonstrated it had a colorable federal defense, specifically, the government contractor defense, to plaintiffs' claims alleging the decedent had been exposed to asbestos-containing products supplied by Foster Wheeler and Buffalo Pumps to the United States Navy.

Thereafter, on May 29, 2019, plaintiffs, with leave of court, filed a Second Amended Complaint ("SAC"), in which plaintiffs no longer allege claims based on the decedent's exposure to asbestos during the period in which he "served in the United States Navy" (see SAC II), and, consistent therewith, plaintiffs have deleted "US Navy" from a chart listing the names of the decedent's employers (compare SAC Ex. A with AC Ex. A).

By the instant motion, plaintiffs renew their request for remand, asserting the SAC no longer includes any claim over which the Court has original jurisdiction. As set forth below, the Court disagrees.

First, although plaintiffs have dismissed all of the claims that were predicated on the decedent's exposure during his employment with the Navy, plaintiffs have not dismissed any of the claims that are predicated on the decedent's exposure during the time the decedent was employed by Ziebarth Alger. (Compare SAC Ex. A at 1:2-4, 21 with AC Ex. A at 1:2-4, 17.) As GE points out, plaintiffs, in their Initial Disclosures, acknowledge that the decedent's duties during said period of employment included working on "Buffalo Pumps and Foster Wheeler boilers" at the Mare Island Naval Shipyard (see Pls.' Initial Disclosures at 12:21-22, 26-27; see also id. at 13:6, 8-9 (stating decedent's work for Ziebarth Alger at the Mare Island Naval Shipyard included "add[ing] a Foster Wheeler boiler")), i.e., the decedent allegedly was exposed to asbestos while working on equipment supplied to the United States Navy by the removing defendants.

Second, as Calaveras and Foster Wheeler correctly note, the Court has original jurisdiction over such claims for a second reason. Specifically, "[f]ederal courts have federal question jurisdiction over tort claims that arise on federal enclaves," see Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1250 (9th Cir. 2006), which include property purchased by the United States "by the Consent of the Legislature of the State" for use as "dock-[y]ards," see Willis v. Craig, 555 F.2d 724, 726 (9th Cir. 1977) (internal quotation and citation omitted). In 1854, the State of California consented to the United States' purchase of Mare Island for the purpose of the United States' erecting and maintaining "dock-yards" and other "naval structures" (see Sharp Decl. Ex. 5), and, consequently, the Mare Island Naval Shipyard, at the time of the alleged exposure, was a federal enclave. See Fung v. Abex Corp., 816 F. Supp. 569, 571 (N.D. Cal. 1992) (holding district court had original jurisdiction over plaintiffs' claims that they were harmed by exposure to asbestos while they worked at Mare Island Naval Shipyard).[1] Accordingly, as the SAC alleges claims over which the Court has original jurisdiction, plaintiffs' renewed motion for remand is hereby DENIED.

IT IS SO ORDERED.

[1] Although the United States closed the Mare Island Naval Shipyard in 1996, see Lennar Mare Island, LLC v. Steadfast Ins. Co., 2016 WL 5847010, at 1 (E.D. Cal. October 6, 2016), the alleged exposure occurred in 1978 and 1979 (see SAC Ex. A at 1:2-4, 21).

Sources

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