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Pelker v. Air & Liquid Systems Corp.

United States District Court, D. Oregon

February 2, 2018

MAXINE PELKER, Personal Representative of the Estate of REX D. PELKER, JR.., Plaintiff,


          Michael H. Simon United States District Judge

         This case arises out of a wrongful death action brought against several defendants in Multnomah County Circuit Court. Rex D. Pelker, Jr. (“Pelker”) died of lung cancer in December 2014. His wife and personal representative of his estate, Maxine Pelker (“Plaintiff”), alleges that her husband died as a result of exposure to asbestos. Plaintiff sued General Electric Corporation (“GE”), CBS Corporation (“CBS”), and others in state court. GE and CBS jointly removed the case to federal court. Pending before the Court is Plaintiff's motion to remand and for sanctions and fees. ECF 22. For the reasons that follow, the Court remands the action but denies Plaintiff's request for sanctions or fees.


         A. Motion to Remand

         The standard of review applicable to a motion to remand is the same as that applicable to a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). See Leite v. Crane Co., 749 F.3d 1117, 1121-22 (9th Cir. 2014) (explaining that “[c]hallenges to the existence of removal jurisdiction should be resolved within [the] same framework” as that applicable to motions to dismiss for lack of subject matter jurisdiction, due to “the parallel nature of the inquiry”). Thus, defendants seeking removal bear “the burden of proving by a preponderance of the evidence that each of the requirements for subject-matter jurisdiction” is met. Id. at 1121.

         B. The Findings and Recommendation

         United States Magistrate Judge Youlee Yim You issued Findings and Recommendation in this case on September 25, 2017. ECF 32. Judge You recommended that the Court grant Pelker's motion to remand the case to state court (ECF 22) and deny Pelker's motions for sanctions, fees, and costs (ECF 22).

         Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate's findings and recommendations, “the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.; Fed.R.Civ.P. 72(b)(3).

         For those portions of a magistrate's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed.”); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review de novo magistrate's findings and recommendations if objection is made, “but not otherwise”). Although in the absence of objections no review is required, the Act “does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that “[w]hen no timely objection is filed, ” the Court review the magistrate's recommendations for “clear error on the face of the record.”

         Defendants timely filed an objection (ECF 35), to which Plaintiff responded (ECF 36). Defendants object to Judge You's recommendation that Plaintiff's motion to remand be granted.


         Acting as the personal representative of the estate of her husband, Rex D. Pelker, Jr., Plaintiff commenced this action in Multnomah County Circuit Court on April 13, 2016. While in state court, Plaintiff filed a First Amended Complaint, a Second Amended Complaint, a Third Amended Complaint, and a Fourth Amended Complaint. ECF 1-1 through ECF 1-5. Plaintiff sues numerous defendants and alleges that her husband died of lung cancer as a result of asbestos exposure sustained while he was working as a laborer, insulator, shipyard worker, or construction worker between 1960 and 1980. Plaintiff also alleges that her husand was exposed to asbestos as early as 1956, while accompanying his father, who also worked as an insulator. Plaintiff's Fourth Amended Complaint details various job sites at which Pelker allegedly was exposed to asbestos. ECF 1-5. The Fourth Amended Complaint does not specifically allege that Pelker was exposed to asbestos on board any U.S. Navy ships.

         On June 15, 2017, Plaintiff's counsel sent Defendants a request for production seeking, among other things, any evidence “relevant to the Plaintiff's claim that he [sic] was exposed to asbestos while working in the pump rooms on the USS Franklin D. Roosevelt.” ECF 23 at 31 (Request for Production No. 29). On July 12, 2017, Randy Iola (“Iola”), purportedly acting as settlement counsel for Plaintiff, sent an email to counsel for CBS, Richard M. Lauth (“Lauth”). In Iola's email to counsel for CBS, Iola stated, in relevant part:

From approximately 1961 through the 1970s, Mr. Pelker worked as a shipyard worker and insulator at Swan Island, a shipyard in Oregon. During this time he was employed by AC & S Inc., Owens Corning, Northwest Machine & Iron Works, and Albina Engine & Machine Works, and Columbia Asbestos. U.S. Naval ships were frequently present at Swan Island and Mr. Pelker assisted in the overhauling of these ships. Naval Ships that are known to be present and worked on by Mr. Pelker include: USS Meyerkord (FF-1058), USS Lang (FF/DE-1060), USS Henry B. Wilson, and USS Stein (FF/DE-1065). As a shipyard worker and insulator, Mr. Pelker had to rip out engine rooms, including but not limited to turbines, and replace new materials. He was also in the presence of other maintenance personnel who worked on the engine room equipment.

ECF 27-1 at 1. In his email, Iola also listed the CBS equipment that was believed to have been aboard these ships. Iola invited Lauth to call to discuss the matter.

         On the same day, Iola sent a similar email to counsel for GE, Paul Slater (“Slater”). Iola similarly explained in detail Pelker's exposure on the USS Meyerkord, USS Lang, USS Henry B. Wilson, and USS Stein. ECF 29-1 at 1-2. Iola's email to counsel for GE similarly provided details about Pelker and his exposure to GE equipment, including while working on the USS Henry B. Wilson. Iola similarly invited Slater to call to discuss resolving this claim.

         On July 17, 2017, GE and CBS[1] removed the action to federal court, pursuant to 28 U.S.C. § 1442(a)(1). That statute is sometimes known as the “federal officer removal statute.” After removal, trial counsel for Plaintiff, Jeffrey Mutnick (“Mutnick”), contacted several of the Defendants and explained that the discovery request referencing the USS Franklin D. Roosevelt had been sent in error and that Plaintiff had not intended to assert and would not assert any claims in this case based on Pelker's exposure to asbestos while on a U.S. Navy vessel. ECF 23 at 7. Based on this representation, Mutnick asked Christopher Marks, counsel for GE and CBS, to withdraw the removal petition filed by those Defendants. Id. These Defendants declined to do so. On August 16, 2017, Plaintiff filed a motion to remand the case to state court. ECF 22.


         A. Federal Officer Removal Generally

         One requirement for removal of a civil action to federal court is that the case could have been brought in federal court originally. See 28 U.S.C. § 1441(a). Under the “well-pleaded complaint rule, ” “federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Because a defense “does not appear on the face of a well-pleaded complaint, [it] does not authorize removal to federal court.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987).

         Defendants, however, assert that removal is proper under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). Under § 1442, certain cases are not subject to the well-pleaded complaint rule. Specifically, a case brought against a federal officer “may be removed . . . if the defense depends on federal law.” Jefferson Cty., Ala. v. Acker, 527 U.S. 423, 431 (1999) (emphasis added). The purpose of § 1442 is “to ensure a federal forum in any case where a federal official is entitled to raise a defense arising out of his duties.” Goncalves v. Rady Children's Hosp. San Diego, 865 F.3d 1237, 1244 (9th Cir. 2017) (quoting Arizona v. ...

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