Leite V. Crane Co

When a plaintiff challenges removal under the federal officers removal statute, the burden is on the defendant to show beyond a preponderance of the evidence that the colorable federal defense and causal nexus requirements for removal jurisdiction were met.

Plaintiffs worked as machinists at the Pearl Harbor Naval Shipyard in Hawaii. The plaintiffs brought a claim under state tort law alleging that the defendant, Crane Co (“Crane”), failed to warn them of hazards posed by asbestos in and around the equipment that was sold to the United States Navy. Plaintiffs filed their action in state court and the defendants removed to federal court under 28 U.S.C. § 1442. The court determined that if a plaintiff challenges removal, then a defendant must prove by a preponderance of the evidence that each of the requirements for removal have been met, analogous to when a defendant challenges jurisdiction under the Federal Rules of Civil Procedure Rule 12(b)(1). A plaintiff who contests removal may raise a facial attack or factual attack, just like a plaintiff who files a motion to remand after a 12(b)(1) motion. Here, the plaintiffs raise a factual attack of the evidence presented by the defendant. This triggered the defendants to prove by preponderance of the evidence that each of the federal officer removal statute were met. First, the defendant must of having a colorable defense. The defendant does not have to prove the defense will win, just that the defense is colorable. Here, Crane asserted a government contractors defense, which the panel determined was a colorable defense. Finally, the defendant must prove that a causal nexus existed. Here, the panel held that there Crane did show a causal nexus between the plaintiff’s actions and the actions Crane took at the direction of a federal officer. AFFIRMED