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Leite v. Crane Co.

United States Court of Appeals, Ninth Circuit

April 25, 2014

DOUGLAS P. LEITE; MARY ANN K. LEITE, Plaintiffs-Appellants,
v.
CRANE COMPANY, a Delaware corporation; AURORA PUMP COMPANY, a foreign corporation; BAYER CROPSCIENCE, INC., successor-in-interest to Rhone-Poulenc AG Company, a foreign company, AKA Amchem Products, Inc., AKA Benjamin Foster Products Company; UNION CARBIDE CORPORATION, a New York corporation; AIR & LIQUID SYSTEMS CORPORATION, successor-by-merger to Buffalo Pumps, Inc., a New York corporation; CERTAINTEED CORPORATION, a Delaware corporation; CLEAVER-BROOKS, INC., a Delaware corporation; GOULDS PUMPS, INC., a Delaware corporation; IMO INDUSTRIES, INC., individually and as successor-in-interest to Delaval Turbine, Inc., a Delaware corporation, FKA Delaval Steam Turbine Company, FKA IMO Delaval, Inc., FKA Transamerica Delaval, Inc.; INGERSOLL RAND COMPANY, a New Jersey corporation; JOHN CRANE, INC., a Delaware corporation; THE LYNCH COMPANY, INC., a Hawaii corporation; METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation; WARREN PUMPS, LLC, a Delaware corporation; THE WILLIAM POWELL COMPANY, an Ohio corporation; VELAN VALVE CORPORATION, a New York corporation; COPES-VULCAN, a subsidiary of SPX Corporation, a Delaware corporation; ATWOOD & MORRILL, a subsidiary of Weir Valves & Controls USA, Inc., a Massachusetts Corporation; DOES 1 TO 25, Defendants-Appellees. DAVID THOMPSON, Plaintiff-Appellant,
v.
CRANE COMPANY, Delaware corporation; AURORA PUMP COMPANY, a foreign corporation; BAYER CROPSCIENCE, INC., successor-in-interest to Rhone-Poulenc AG Company, a foreign company, AKA Amchem Products, Inc., AKA Benjamin Foster Products Company; UNION CARBIDE CORPORATION, a New York corporation; AIR & LIQUID SYSTEMS CORPORATION, successor-by-merger to Buffalo Pumps, Inc., a New York corporation; CERTAINTEED CORPORATION, a Delaware corporation; CLEAVER-BROOKS, INC., a Delaware corporation; GOULDS PUMPS, INC., a Delaware corporation; IMO INDUSTRIES, INC., individually and as successor-in-interest to Delaval Turbine, Inc., a Delaware corporation, FKA Delaval Steam Turbine Company, FKA IMO Delaval, Inc., FKA Transamerica Delaval, Inc.; INGERSOLL RAND COMPANY, a New Jersey corporation; JOHN CRANE, INC., a Delaware corporation; THE LYNCH COMPANY, INC., a Hawaii corporation; METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation; WARREN PUMPS, LLC, a Delaware corporation; THE WILLIAM POWELL COMPANY, an Ohio corporation; VELAN VALVE CORPORATION, a New York corporation; COPES-VULCAN, a subsidiary of SPX Corporation, a Delaware Corporation; ATWOOD & MORRILL, a subsidiary of Weir Valves & Controls USA, Inc., a Massachusetts Corporation; DOES 1 TO 25, Defendants-Appellees

Argued and Submitted, Honolulu, Hawaii October 8, 2013

Petition for certiorari filed at, 07/31/2014

Page 1118

Appeals from the United States District Court for the District of Hawaii. D.C. No. 1:11-cv-00636-JMS-RLP. D.C. No. 1:11-cv-00638-LEK-RLP. J. Michael Seabright, District Judge, Presiding. Leslie E. Kobayashi, District Judge, Presiding.

L. Richard DeRobertis (argued), Gary O. Galiher, and Todd W. Eddins, Galhier DeRobertis Ono, Honolulu, Hawaii, for Plaintiffs-Appellants.

Michael J. Ross (argued), Nicholas P. Vari, and Michael J. Zukowski, K& L Gates LLP, Pittsburgh, Pennsylvania; Edward P. Sangster, K& L Gates LLP, San Francisco, California, for Defendants-Appellees.

Before: Alex Kozinski, Chief Judge, and Raymond C. Fisher and Paul J. Watford, Circuit Judges.

OPINION

Page 1119

WATFORD, Circuit Judge:

The plaintiffs in these consolidated appeals, Douglas Leite and David Thompson, worked as machinists at the Pearl Harbor Naval Shipyard in Hawaii, where they were allegedly injured by exposure to asbestos. They sued defendants under state tort law on the theory that defendants failed to warn them of the hazards posed

Page 1120

by asbestos used in and around equipment that defendants sold to the United States Navy. (We focus here on only one of the defendants, Crane Co., because it alone filed a brief on appeal.)

Plaintiffs filed separate lawsuits against Crane in state court, but Crane removed the actions to federal court under the federal officer removal statute, 28 U.S.C. § 1442. Plaintiffs asked the district courts to remand the actions to state court on the ground that Crane had not provided sufficient evidence of the factual requirements for removal jurisdiction. In both cases, the district courts denied plaintiffs' motions. Acknowledging that other district courts confronted with similar facts have reached the opposite conclusion,[1] the courts certified their orders for interlocutory appeal. We agreed to hear these appeals under 28 U.S.C. § 1292(b).

As relevant here, the federal officer removal statute authorizes removal of a civil action brought against any person " acting under" an officer of the United States " for or relating to any act under color of such office." 28 U.S.C. § 1442(a)(1).[2] To invoke the statute, Crane must show that (1) it is a " person" within the meaning of the statute, (2) a causal nexus exists between plaintiffs' claims and the actions Crane took pursuant to a federal officer's direction, and (3) it has a " colorable" federal defense to ...


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