Court: United States District Court for the Eastern District of Pennsylvania
Plaintiffs alleged the decedent, Ralph Pappagallo, had occupational asbestos exposure during portions of his employment with Bethlehem Steel and Kearny Maine between 1961 and 2002.
Mr. Pappagallo was ultimately diagnosed with lung cancer in November 2022. He passed away approximately one month later. On April 21, 2023, plaintiffs initiated this action by filing a complaint with the Philadelphia Court of Common Pleas, naming John Crane Inc. (JCI) and others as defendants. Plaintiffs’ complaint alleged negligence and other related claims against all defendants.
On March 12 of this year, the deposition of Mr. Pappagallo’s former co-worker was conducted. The co-worker testified Mr. Pappagallo had exposure from working with asbestos containing gaskets and packing as a Hoboken Shipyard laborer, including Mr. Pappagallo’s work on both U.S. Navy and Coast Guard Ships during this timeframe. In light of this deposition testimony, JCI removed this action to the U.S. District Court for the Eastern District of Pennsylvania under the federal officer removal statute – 28 U.S.C. § 1442(a)(1) – on April 10. Then on May 5, plaintiffs filed a motion to remand this matter to the state court.
In their motion, plaintiffs informed the Federal Court that they have waived any claims arising out of work that Mr. Pappagallo may have performed in maintaining and repairing U.S. Navy and U.S. Coast Guard ships. Plaintiffs further argued this disclaimer precludes federal officer jurisdiction over plaintiffs’ claims. Plaintiffs’ motion to remand was opposed by JCI and other defendants.
“28 U.S.C. § 1442(a)(1) ‘permits certain officers of the United States to remove actions to federal court.’ It also allows ‘private persons who lawfully assist [a] federal officer in the performance of his official duty’ to remove a case to federal court.” Mohr v. Trs. of Univ. of Pennsylvania, 93 F.4th 100, 104 (3d Cir. 2024) (quoting Watson v. Philip Morris Cos., 551 U.S. 142, 151, 127 S. Ct. 2301, 168 L. Ed. 2d 42 (2007)) (quoting Magnolia v. All. HC Holdings LLC, 16 F.4th 393, 404 (3d Cir. 2021)) (internal citations omitted). “To remove a case under the statute, a defendant must establish: (1) it is person within the meaning of the statute; (2) plaintiff’s claims must be based upon the defendant acting under the United States, its agencies, or its officers; (3) plaintiff’s claims against the defendant must be for or relating to an act under color of federal office; and (4) it has a colorable federal defense to the plaintiff’s claims.” Mohr, 93 F.4th at 104 (internal quotations omitted). The removing party bears the burden of proving removal was appropriate, and federal courts are instructed to construe the provisions of federal officer removal broadly. Dougherty v. A O Smith Corp., 2014 U.S. Dist. LEXIS 96290, 2014 WL 3542243, at *2 (D. Del. July 16, 2014). Courts have drawn a distinction between “jurisdictional” disclaimers and “express claim” disclaimers. Ibid. Jurisdictional disclaimers are technical legal disclaimers designed to circumvent federal officer removal by waiving, for example, “any cause of action or claim for recovery that could give rise to federal subject matter jurisdiction” or “any cause of action or claim of recovery based on any exposure to asbestos cause by any person or entity acting under the authority of a federal officer or agency.” Dougherty, 2014 U.S. Dist. LEXIS 96290, 2014 WL 3542243, at *3. Courts have often found these types of disclaimers ineffective. Id. at *5; In re Asbestos Products Liab. Litig. (No. VI), 770 F. Supp. 2d at 742. On the other hand, courts have treated express claim disclaimers of the claims that are the grounds for removal as sufficient bases for remand. See, e.g., Long v. 3M Co., 2024 U.S. Dist. LEXIS 36293, 2024 WL 866819, at *4 (D. Or. Jan. 31, 2024).
The federal court acknowledged “Third Circuit precedent allows for claim disclaimers in asbestos-liability cases.” Heilner v. Foster Wheeler LLC, 2022 U.S. Dist. LEXIS 137397, 2022 WL 3045838, at *3 (M.D. Pa. Aug. 2, 2022); see Dougherty, 2014 U.S. Dist. LEXIS 96290, 2014 WL 3542243, at *14, 15-16 (identifying a “larger group of asbestos cases in which courts have given effect to express claim disclaimers” and noting “the parties have not identified, nor is the court aware of, any case in which a federal court has rejected on the merits an express disclaimer of claims relating to asbestos exposure on federal jobsites and military vessels/aircrafts.”) In that regard, in Heilner, the Middle District of Pennsylvania maintained remand was warranted when plaintiffs waived their claims for asbestos exposure concerning plaintiff’s service in the U.S. Navy. See Heilner v. Foster Wheeler LLC, 2022 U.S. Dist. LEXIS 137397, 2022 WL 3045838, at *3-4. Similarly, in Martincic, the Western District of Pennsylvania found remand was proper considering, among other things, plaintiffs’ express post-removal disclaimer raised in the motion to remand of “claims for any asbestos exposure suffered by Mr. Martincic during his naval career.” See Martincic v. A.O. Smith Corp., 2020 U.S. Dist. LEXIS 183564, 2020 WL 5850317, at *1, 5 (W.D. Pa. Oct. 1, 2020). In addition, in a factually similar case in the District of Oregon, the federal court found, “that remand is appropriate when a plaintiff alleges asbestos-based injury resulting from work on both commercial and naval vessels but waives claims based on naval exposure or at federal government jobsites, eliminating any causal nexus between the plaintiff’s claims and the defendant’s actions under a federal officer’s direction.” See Long v. 3M Co., 2024 U.S. Dist. LEXIS 36293, 2024 WL 866819, at *3-5.
In the instant action, plaintiffs claim remand is proper since they are expressly waiving any work that Mr. Pappagallo may have performed in maintaining and repair U.S. Navy ships and Coast Guard Ships. JCI, meanwhile, contended that this disclaimer is ineffective to warrant remand because JCI’s federal work is “inextricably” related and would necessarily implicate JCI’s work for the federal government. The federal court was not persuaded by JCI’s argument. The federal court found plaintiffs have not made the over-generalized jurisdictional disclaimer that other federal courts have found to be insufficient to justify remand because plaintiffs have not broadly waived any claims that “give rise to federal subject matter jurisdiction” or “any cause of action or claim of recovery based on any exposure to asbestos cause by any person or entity acting under the authority of a federal officer or agency.” Rather, plaintiffs have specifically waived the claims that prompted removal in this case. Their disclaimer clearly carves out certain claims based on location such that any alleged injury could not have happened under the direction of a federal officer, and the state court will not be required to determine whether defendants were acting under the direction of the federal government at the time they provided the gaskets and packing materials to the non-government vessels that Mr. Pappagallo worked on. In view of the above, the federal court held plaintiffs’ have provided an express claim disclaimer consistent with case precedent. Ibid.
As such, the federal court granted plaintiffs’ motion and remanded the action to the state court.
Read the full decision here.
