Barber v. Avco Corp., CIVIL ACTION No. 15-03146

STEVEN BARBER, et al., Plaintiffs, v. AVCO CORPORATION, et al., Defendants.

CIVIL ACTION No. 15-03146

CIVIL ACTION No. 15-04096

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

November 16, 2015

MEMORANDUM

PAPPERT, J.

Plaintiffs Steven Barber, Carol Dumont, Jessica Jose and Andrea Boley (collectively "Plaintiffs") filed this lawsuit in the Philadelphia County Court of Common Pleas after Sandra Haley and Jamie Jose were killed in an airplane crash.¹ Defendant D&G Supply ("D&G"), which overhauled and certified as airworthy the plane's carburetor, removed the complaint to this Court based upon the federal officer removal statute, 28 U.S.C. Section 1442. (ECF No. 9.) Before the Court is Plaintiffs' motion to remand. (ECF No. 22.) For the reasons stated below, the Court grants the motion and remands the case to the Common Pleas Court.²

I.

Sandra Haley, Jamie Jose and two others were passengers aboard a Cessna 172M aircraft when it crashed on June 21, 2013, in Waterford Township, Michigan. (Compl. ¶ 74.) All fourdied in the crash. (Id.) Plaintiffs allege that the plane's carburetor was improperly overhauled and certified as airworthy by D&G, and that the faulty carburetor caused the engine to fail and the plane to crash. (Id. ¶ 79.)

Plaintiffs assert claims against AVCO Corporation, Lycoming Engines, and AVCO Lycoming-Textron which together designed, manufactured, sold, supplied, overhauled, and/or rebuilt the engine; AVStar Fuel Systems, Inc., which designed, manufactured, sold, supplied, overhauled, and/or rebuilt certain engine components; and D&G, which overhauled the carburetor, certified it as airworthy, and returned it to service for installation into the Lycoming engine. (Id. ¶¶ 5-22.) With respect to D&G, Plaintiffs allege negligence, breach of warranty, breach of contract, and negligent infliction of emotional distress. (Id. ¶¶ 240-75.)

On June 8, 2015, D&G removed the case from the Philadelphia County Court of Common Pleas to this Court pursuant to the federal officer removal statute, 28 U.S.C. Section 1442(a)(1).³ (ECF No. 9.) On July 5, 2015, Plaintiffs filed their motion to remand. (ECF No. 22.) D&G filed its response on July 16, 2015. (ECF No. 26.) The Court heard oral argument on the motion on November 13, 2015.

II.

Removal of an action from state court is typically only permissible to the extent that the action could have initially been brought in federal court. 28 U.S.C. § 1441. Congress's conferral of original jurisdiction on federal courts does not generally allow a defendant to remove a suit to federal court on the basis of a federal defense. Louisville & Nashville R. R. Co. v. Mottley, 211 U.S. 149, 152 (1908) (describing the statutory grant of federal questionjurisdiction to only permit jurisdiction "when the plaintiff's statement of his own cause of action shows that it is based upon [federal law]" and that it is not enough "that the plaintiff alleges some anticipated [federal law] defense").

The federal officer removal statute is an exception to this general principle.⁴ Mesa v. California, 489 U.S. 121, 136 (1989) (explaining that the federal officer removal statute is a "pure jurisdictional statute . . . [that] grant[s] district court jurisdiction over cases in which a federal officer is a defendant"). It allows the following class of defendants to remove a state action to federal court:

The 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, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

28 U.S.C. § 1442(a)(1). The party removing an action to federal court bears the burden of proving that removal is appropriate. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). To establish subject matter jurisdiction under Section 1442(a)(1), a defendant must show:

(1) [I]t is a "person" within the meaning of the statute; (2) the plaintiffs' claims are for or related to acts taken by the defendant "acting under" the color of a federal officer; and (3) that it raises a colorable federal defense.⁵

The Court must broadly construe defendants' ability to remove under Section 1442(a)(1) as to avoid frustrating its policy objective of "hav[ing] the validity of the defense of official immunity tried in federal court" by applying a "narrow, grudging interpretation." See Willingham v.Morgan, 395 U.S. 402, 407 (1969); see also Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1262 (3d Cir. 1994) (distinguishing the general removal standard from the standard applicable in cases removed pursuant to Section 1442(a)).

Moreover, "a defendant is entitled to removal under Section 1442(a)(1) where the defendant identifies facts which, viewed in the light most favorable to the defendant, entitle him or her to a complete defense." Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770, 778 (E.D. Pa. 2010). If it later becomes evident that the relevant facts developed in the litigation do not support jurisdiction, the Court will do what it would do in any removed case: dismiss and remand the action based on lack of subject matter jurisdiction. FED. R. CIV. P. 12(h)(3) ("If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action."); 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.").

III.

A.

Plaintiffs do not contest that D&G is a "person" within the meaning of the statute. (See generally Pls.' Motion.) In any event, it is well settled that corporations such as D&G qualify as persons under the statute and may seek removal accordingly. 1 U.S.C. § 1 ("[I]n determining the meaning of any Act of Congress, unless the context indicates otherwise . . . the words 'person' and 'whoever' include corporations, companies, and associations."); see Good v. Armstrong World Industries, Inc., 914 F. Supp. 1125, 1128-29 (E.D. Pa. 1996) (finding that a corporation is a person under Section 1442(a)(1)); see also Hagen, 739 F. Supp. 2d at 777 (determining that a corporation is a person under Section 1442(a)(1)).

B.

The federal officer removal statute extends removal authority only to persons acting under an officer of the United States. See Int'l Primate Prot. League v. Adm'rs of Tulane Educ. Fund, 500 U.S. 72, 80 (1991). A private person "acting under" a federal officer must assist or help carry out the duties or tasks of the federal superior. See Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 152 (2007); see also Davis v. South Carolina, 107 U.S. 597, 600 (1883). It is not enough for a defendant to show that the "relevant acts occurred under the general auspices of a federal officer." Good, 914 F. Supp. at 1128.

Plaintiffs argue that their claims against D&G pertain to its conduct as an "overhaul shop," not a federal officer. (Pls.' Motion at 4.) Furthermore, Plaintiffs allege that their claims against D&G arise from "its own duty to comply with the applicable regulatory requirements and standards of care." (Id.) Plaintiffs rely primarily on two decisions: the United States Supreme Court's opinion in Watson v. Philip Morris Companies, Inc., 551 U.S. 142 (2007) and the Seventh Circuit Court of Appeals' opinion in Lu Junhong v. Boeing Co., 792 F.3d 805 (7th Cir. 2015). (Pls.' Motion at 4-5.)

The question before the Court in Watson was whether the fact that a federal regulatory agency "directs, supervises, and monitors" a company's activities in "considerable detail" brings that company "within the scope of the italicized language ('acting under' an 'officer' of the United States)" and thereby permits removal. Watson, 551 U.S. at 145. The Court held that it did not. Id. Lisa Watson filed a class action lawsuit against Philip Morris, claiming that the company violated Arkansas law by misrepresenting the amount of tar and nicotine in cigarettes branded as "light." Id. at 146. Philip Morris removed the case to federal court on the basis that it was acting under the direct control of regulations promulgated by the Federal TradeCommission (FTC), making Section 1442(a)(1) applicable. Id. The district court denied Watson's motion to remand, and the Eighth Circuit Court of Appeals affirmed the district court's ruling.⁶ Id. at 147. The Eighth Circuit noted "unprecedented" government involvement in the tobacco industry, including detailed FTC regulations concerning the testing and disclosure of tar and nicotine levels. Id. Philip Morris was therefore "acting under a federal officer" and consequently entitled to remove the case to federal court. Id.

The Supreme Court reversed. The Court began its analysis by acknowledging the requirement to broadly construe Section 1442(a)(1), but stated that such construction is not without boundaries. Id. "[B]road language is not limitless. And a liberal construction nonetheless can find limits in a text's language, context, history, and purposes."⁷ Id. In the Court's view, "the help or assistance necessary to bring a private person within the scope of the statute [Section 1442(a)(1)] does not include simply complying with the law." Id. at 152.

The upshot is that a highly regulated firm cannot find a statutory basis for removal in the fact of federal regulation alone. A private firm's compliance (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase "acting under" a federal "official." And that is so even if the regulation is highly detailed and even if the private firm's activities are highly supervised and monitored. A contrary determination would expand the scope of the statute considerably, potentially bringing within its scope state-court actions filed against

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