United States District Court, D. Oregon
MAXINE PELKER, Personal Representative of the Estate of REX D. PELKER, JR.., Plaintiff,
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.
OPINION AND ORDER
Michael H. Simon United States District Judge
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.
Motion to Remand
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.
The Findings and Recommendation
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).
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).
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.”
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
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.
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.
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.
17, 2017, GE and CBS 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.
Federal Officer Removal Generally
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).
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.