Summary
upholding removal based on the affidavit of a project superintendent
Summary of this case from Crutchfield v. Sewerage & Water Bd. of New OrleansOpinion
Civil Action No. 04-1587, Section "K" (4).
August 9, 2004
Before the Court is a Motion to Remand (Rec. Doc. No. 8) filed by defendant Sewerage Water Board of New Orleans ("SWB"). Having reviewed the pleadings, memoranda, and relevant law, this Court finds the motion to be without merit and DENIES the motion, for the reasons set forth below.
I. BACKGROUND
The underlying proceedings involve property damage claims arising from the construction of certain drainage improvements in the Parish of Orleans, formally known as the Southeast Louisiana Urban Flood Control Project, Napoleon Avenue Covered Canal (S. Claiborne Ave. to S. Broad St.) ("Project"). The Project involved multiple participants, including the U.S. Army Corps of Engineers (the "Corps"), SWB, and various engineers and contractors. Plaintiffs originally filed suit in Civil District Court for the Parish of Orleans, claiming property damage to their homes, as a result of nearby construction on the Project. SWB filed third party demands against various parties, including James Construction Group ("James"), the general contractor on the Project. James subsequently removed these proceedings to this Court, pursuant to 28 U.S.C. § 1442(a)(1), the Federal Officer Removal Statute. On July 9, 2004, defendant/third-party plaintiff SWB filed the instant motion to remand, alleging that James has failed to prove federal officer removal jurisdiction.
II. LAW ANALYSIS
The burden of proof for establishing federal jurisdiction is placed upon the party seeking removal. Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1998) ( citing Wilson v. Republic Iron Steel Co., 257 U.S. 92, 42 S.Ct. 35 (1921)). "If the right to remove is doubtful, the case should be remanded." Ryan v. Dow Chemical., 781 F. Supp. 934, 939 (E.D.N.Y. 1992) (citations omitted); see Butler v. Polk, 592 F.2d 1293, 1296 (5th Cir. 1979).
The United States Court of Appeals for the Fifth Circuit has recognized that § 1442(a)(1) provides the only exception to the well-pleaded complaint rule found in Louisville Nashville R.R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42 (1908). Aquafaith Shipping, Ltd. v. Jarillas, 963 F.2d 806 (5th Cir.) cert. denied, 113 S.Ct. 413 (1992) ( citing Mesa v. California, 489 U.S. 121, 136-37, 109 S.Ct. 959, 968 (1989)). Thus, by virtue of this federal statute, when a "person" "acting under" federal officers can present a colorable "government contractor defense" or other federal law defense, the case is removable by such "person." Ryan, 781 F. Supp. at 939. The power to remove is absolute, provided the proper procedures are followed. Id. ( citing Willingham v. Morgan, 395 U.S. 402, 406, 89 S.Ct. 1813 (1969)). See Wright Miller, Federal Practice and Procedure, § 3727 at 459, n. 35; Doe v. Kerwood, 969 F.2d 165, 168, n. 12 and accompanying text (5th Cir. 1992). Consent of other defendants is not required.
In Mesa v. California, the Supreme Court set forth the criteria necessary to support removal under § 1442(a)(1). Crocker v. Borden, 852 F. Supp. 1322 (E.D.La. 1994); Akin v. Big Three Indus., Inc., 851 F. Supp. 819 (E.D.Tex. 1994); Ryan, 781 F. Supp. at 943. Under Mesa, in addition to alleging a federal law defense, a person seeking removal must:
(1) demonstrate that it acted under the direction of a federal officer;
(2) raise a colorable defense to the plaintiff's claims; and
(3) demonstrate a causal nexus between plaintiff's claims and the acts performed under color of federal office.Crocker, 852 F. Supp. at 1325.
The Fifth Circuit has previously recognized that a corporation is a "person," as that term is contemplated by 28 U.S.C. § 1442(a)(1). Peterson v. Blue Cross/Blue Shield of Texas, 508 F.2d 55 (5th Cir. 1975). Peterson involved a malicious prosecution case brought by a physician against corporate defendants for his alleged wrongful suspension under the Medicare program. Id. at 57. Defendants removed the case under § 1442(a)(1), alleging federal officer removal jurisdiction. The Court stated that "[i]t is indisputable that each of the defendants was either an `officer of the United States or an agency thereof, or person acting under him.'" Id. (emphasis added). Peterson thus suggests that the term "person" encompasses more than just natural persons. SWB's objections notwithstanding, the Court finds that James qualifies as a person, for the purposes of the Federal Officer Removal Statute.
The Court also finds that James acted under the direction of a federal officer, namely, the Corps and its chief engineer for the project, Timothy Roth. See Memorandum in Opposition to Motion to Remand by Third-Party Defendant James, at 2. As stated in James' Notice of Removal and the supporting affidavit by James Project Superintendent, Jerry E. Swensen, the Corps had direct and detailed control over James' work, and performed daily inspections to insure that it was being performed in compliance with the specifications of the Corps. Id. at 5. Prior to performing each stage of the work, James had to submit proposed construction methods and items of equipment to be used, and these had to be approved by the Corps. Id. On August 14, 2003, chief engineer Timothy Roth sent a letter to Superintendent Swensen, informing him that James' work was accepted as in compliance with the Project plans and specifications. James contends that these facts show that it acted under the direction of a federal officer, and this Court agrees.
Additionally, the Court finds that James has raised a colorable defense, the "government contractor defense," because James acted under the direct control and supervision of the Corps. "The purpose for this requirement is to ensure that the federal district court is passing on a question of federal law. In other words, assertion of the federal defense provides federal question jurisdiction which makes the case suitably removable." Akin, 851 F. Supp. at 823. James' government contractor defense need not prevail, in order to have this case removed. Willingham v. Morgan, 395 U.S. at 407. All that is required under § 1442(a)(1), as interpreted by Mesa, is that James assert a colorable claim to the defense; the Court need not delve into the actual merits of the defense. Faulk v. Owens-Corning Fiberglass Corp., 48 F. Supp.2d 653, 664 (E.D.Tex. 1999). The Court therefore concludes that James has averred a colorable claim to the government contractor defense.
The only question that remains is whether James has demonstrated a causal nexus between plaintiffs' claims and the acts it performed under the control and supervision of the Corps. A number of courts have previously recognized that the nexus requirement for § 1442(a)(1) is satisfied when defendant contractor has performed in compliance with government specifications. Arness v. Boeing North American, Inc., 997 F. Supp. 1268, 1274 (C.D.Cal. 1998); see also Akin, 851 F. Supp. at 823-24. Plaintiffs contend that James' noncompliance with the Corp's Project specifications is the cause of their property damage, and SWB therefore asserts that James has failed to prove causal nexus. James reiterates that it performed under the direct, daily supervision of the Corps, and that its work was accepted as in compliance with the Project plans and specifications. Based upon this documentary evidence, the Court finds that James has demonstrated a causal nexus between plaintiffs' claims and the work it performed under the direction of the Corps.
Based upon these findings, the Court concludes that this case was properly removed, pursuant to 28 U.S.C. § 1442(a)(1). Accordingly, for reasons stated supra, IT IS ORDERED that defendant/third-party plaintiff SWB's Motion to Remand (Rec Doc. 8) is hereby DENIED.