SACRAMENTO, Calif. (Legal Newsline) - A California district court has granted a claimant's motion to remand his asbestos lawsuit to the Solano Superior Court based on military-related exposure claims.
According to the order filed on Jan. 23 in U.S. District Court for the Eastern District of California, plaintiff Paul Schulz cited Section 1442, which allows for removal despite defendant Crane Co.'s opposition to the motion for remand.
"'When federal officers and their agents are seeking a federal forum, [courts] are to interpret section 1442 broadly in favor of removal.' Removals under section 1442 are not subject to the well-pleaded complaint rule, and a 'federal officer or agency defendant con unilaterally remove a case' without other defendants' consent," the order stated.
Schulz filed his complaint in the Solano County Superior Court against 40 defendants on Sept. 9, alleging negligence, products liability, aiding and abetting, battery, concert of action and fraud.
Then on Nov. 14, Crane Co. removed the case to the federal court.
Crane Co. argued that a civil action could be appropriately removed to district court if any person is "'acting under' the direction of a United States officer."
Schulz responded on Nov. 21 by waiving all claims against Crane Co. that related to his asbestos exposure during military service, employment by the government, from products sold or supplied to the U.S. military or government, at military and federal government jobsites or from U.S. military vessels or missiles.
However, Crane Co. argues that Schulz's complaint remains unchanged, rendering the waiver invalid.
Schulz responded with an instant motion to remand on Dec. 3.
"The primary question raised by the instant motion is defendant's ability to raise a colorable federal defense," the order states. "Specifically, defendant argues it can raise the government contractor defense as a colorable federal defense to plaintiff's claims."
However, Schulz claims the "'specific waiver eliminates the possibility of removal based upon a government contractor defense.' Defendant cannot raise that defense and thus defendant cannot raise that defense and thus defendant cannot meet the colorable defense requirement," his attorneys wrote.
Schulz said he "does not know how to make it any clearer" that he no longer makes any claims against Crane Co. arising out of military, government or federal asbestos exposure."
"Because plaintiff no longer states any claims against which defendant could raise a colorable federal defense, this court no longer has jurisdiction under Section 1442," the opinion states.
From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com
Asbestos plaintiff drops military claims, has lawsuit sent back to state court
