Fontalvo et al v. Sikorasky Aircraft Corporation et al, No. 3:2013cv00331 - Document 31 (S.D. Cal. 2013)
Court Description: ORDER Denying 7 Plaintiff's Motion to Remand. The Court Vacates the hearing set for June 21, 2013. Signed by Judge Gonzalo P. Curiel on 6/20/2013. (All non-registered users served via U.S. Mail Service)(srm)
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Fontalvo et al v. Sikorasky Aircraft Corporation et al Doc. 31 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 14 DOMINIC FONTALVO, a minor, by and through his Guardian ad litem, NORMA FONTALVO, individually and as successor in interest to Alexis Fontalvo, deceased Plaintiff, Civil Action No. 13-cv-0331-GPC-KSC ORDER DENYING PLAINTIFF’S MOTION TO REMAND 15 vs. 16 17 18 19 20 21 SIKORSKY AIRCRAFT CORPORATION; SIKORSKY SUPPORT SERVICES, INC.; UNITED TECHNOLOGIES CORPORATION; G.E. AVIATION SYSTEMS, LLC; DUPONT AEROSPACE CO.; DUPONT DE NEMOURS AND COMPANY LLC; E.I. DUPONT DE NEMOURS AND COMPANY; PKL SERVICES INC. ; and DOES 1 through 100, [DKT. NO. 7] 22 Defendants. 23 24 25 26 27 28 Civil Action No. 13-cv-0331-GPC-KSC Dockets.Justia.com 1 On January 25, 2013, Plaintiff Dominic Fontalvo, a minor, by and through 2 his guardian ad litem, Norma Fontalvo, filed a products liability complaint in the 3 Superior Court of San Diego against numerous Defendants. On February 11, 4 2013, Defendant Sikorsky Aircraft Corporation (“Sikorsky”) removed the case to 5 this Court. (Dkt. No. 1, “Notice of Removal.”) On March 6, 2013, Plaintiff filed a 6 motion to remand the action to state court. (Dkt. No. 7, “Pl. Mtn.”) On May 3, 7 2013, Defendant Sikorsky filed an opposition to the motion to remand. (Dkt. No. 8 19, “Def. Opp.”) Defendant E.I. Dupont de Nemours and Company (“Dupont”) 9 also filed an opposition to Plaintiff’s motion to remand, supporting and 10 elaborating on Sikorsky’s arguments. (Dkt. No. 23.) Plaintiff filed a reply to both 11 oppositions. (Dkt. Nos. 24, 25.) The Court finds the matter suitable for resolution 12 without oral argument pursuant to Local Civil Rule 7.1(d)(1). Based on the 13 briefing, supporting documentation and applicable law, the Court DENIES 14 Plaintiff’s motion to remand. 15 BACKGROUND 16 This action arises from the death of United States Marine Corps Staff 17 Sergeant Alexis Fontalvo that occurred during a helicopter accident on March 17, 18 2011 at the Marine Corps Air Station Miramar. (Dkt. No. 1, Ex. A, “Compl.”) 19 The accident occurred when a faulty wiring harness of a CH-53E helicopter 20 caused the landing gear to unexpectedly retract while Sgt. Fontalvo was beneath 21 the aircraft. (Pl. Mtn. at 1, Ex. A, “JAGMAN Final Report.”) Sgt. Fontalvo was 22 killed by the weight of the helicopter. (Id.) The JAGMAN Final Report, issued 23 following the Judge Advocate General’s investigation of the accident, states the 24 wiring in the landing gear control panel was in disrepair, and caused the landing 25 gear to unexpectedly retract on top of Sgt. Fontalvo. (Id.) The Final Report 26 27 28 1 Civil Action No. 13-cv-0331-GPC-KSC 1 further found that the overall design of the wiring harness exacerbated the danger 2 posed by the exposed wires. (Id.) Plaintiff Dominic Fontalvo (“Plaintiff”), the minor son and sole heir of 3 4 Alexis Fontalvo, filed the instant action on January 25, 2013 in the Superior Court 5 of San Diego by through his guardian ad litem, Norma Fontalvo. (Compl. ¶¶ 3-4.) 6 Plaintiff brings the action as the decedent’s successor in interest pursuant to Cal. 7 Code Civ. P. § 377.11. (Compl. ¶ 38.) Plaintiff alleges strict and negligent 8 product liability, negligence and breach of warranty against Defendants as the 9 designers and manufacturers of the CH-53E helicopter. (Compl. pp. 2-8.) 10 DISCUSSION 11 Defendant Sikorsky removed this action pursuant to the federal officer 12 removal statute, 28 U.S.C. § 1442(a)(1); federal question jurisdiction, 28 U.S.C. § 13 1441; and diversity jurisdiction, 28 U.S.C. § 1441. (Notice of Removal.) Plaintiff 14 seeks to remand based on Defendant Sikorsky’s failure to meet the requirements 15 of the federal officer removal statute, lack of complete diversity, inapplicability of 16 the federal enclave statute, and pre-service removal defect. In opposition to 17 Plaintiff’s motion to remand, Defendant Sikorsky asserts that it has met all the 18 requirements of the federal officer removal statute, and, moreover, removal is 19 appropriate because of the existence of a federal question and complete diversity 20 of the parties. 21 1. Removal 22 Pursuant to 28 U.S.C. § 1441(a), a defendant may remove to federal court a 23 claim filed in state court that could have initially been brought in federal court. 28 24 U.S.C. § 1441(a); Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). As 25 federal courts have limited jurisdiction, they are presumed to lack jurisdiction 26 unless the contrary is established. Gen. Atomic Co. v. United Nuclear Corp., 655 27 28 2 Civil Action No. 13-cv-0331-GPC-KSC 1 F.2d 968, 968-69 (9th Cir.1981). Removal statutes are to be strictly construed and 2 any doubts are to be resolved in favor of state court jurisdiction and remand. See 3 Gaus v. Miles, 980 F.2d 564, 566 (9th Cir.1992). 4 A. Federal Officer Removal Statute 5 28 U.S.C. § 1442(a)(1), also known as the federal officer removal statute, 6 provides that an action may be removed by “[a]ny officer . . . of the United States 7 or any agency thereof, in an official or individual capacity, for or relating to any 8 act under color of such office . . . .” 28 U.S.C. § 1442(a)(1). Removal under § 9 1442(a)(1) requires the moving party to show “that (a) it is a ‘person’ within the 10 meaning of the statute; (b) there is a causal nexus between its actions, taken 11 pursuant to a federal officer’s directions, and plaintiff’s claims; and (c) it can 12 assert a “colorable federal defense.” Durham v. Lockheed Martin Corp., 445 F.3d 13 1247, 1251 (9th Cir. 2006) (citing Jefferson Count Alabama v. Acker, 527 U.S. 14 423, 431 (1999)); Mesa v. California, 489 U.S. 121, 124–25 (1989). 15 Generally, there is a strong presumption against removal jurisdiction and 16 the defendants always have the burden of establishing that removal is proper. 17 Gaus, 980 F.2d at 566. However, the federal officer removal statute is an 18 exception to this general rule and § 1442 is interpreted broadly in favor of 19 removal. Durham, 445 F.3d at 1252; Ballenger v. Agco, No. 06-2271 CW, 2007 20 WL 1813821, at *2 (N.D. Cal. June 22, 2007). For example, under § 1442, 21 federal officers can remove both civil and criminal cases while § 1441 only 22 provides for civil removal; a federal officer can remove a case even if the plaintiff 23 couldn’t have filed the case in federal court in the first instance; removals under § 24 1441 are subject to the well-pleaded complaint rule while those under § 1442 are 25 not; and where all defendants must consent to removal under § 1441, a federal 26 officer or agency defendant can unilaterally remove a case under § 1442. 27 28 3 Civil Action No. 13-cv-0331-GPC-KSC 1 Durham, 445 F.3d at 1253. Under the federal officer removal statute, cases 2 against federal officers “may be removed despite the nonfederal cast of the 3 complaint; the federal-question element is met if the defense depends on federal 4 law.” Acker, 527 U.S. at 431. 5 1. Person 6 As corporations, Defendants meet the preliminary requirement that the 7 party seeking removal is a person within the meaning of § 1442(a)(1). See Fung v. 8 Abex Corp., 816 F. Supp. 569, 572 (N.D. Cal. 1992) (concluding that corporations 9 qualify as a “person” under § 1442(a)(1)). The parties do not dispute this factor. 10 2. Defendants Acted Under the Direction of a Federal Officer 11 To show that it was acting under the direction of a federal officer, 12 Defendant must show that a federal officer had “direct and detailed” control over 13 it. Fung, 816 F. Supp. at 573 (citing Ryan v. Dow Chemical Co., 781 F. Supp. 14 934, 946 (E.D.N.Y. 1992)). If Defendants establish “‘only that the relevant acts 15 occurred under the general auspices of’ a federal officer, such as being a 16 participant in a regulated industry, they are not entitled § 1442(a)(1) removal.” Id. 17 (quotations omitted). 18 In its removal, Defendant Sikorsky asserts that all of its activities related to 19 the design and manufacturing of the CH-53E helicopter were “performed under 20 close government supervision pursuant to comprehensive and detailed contract 21 specifications provided by the U.S. Government and its officers.” (Notice of 22 Removal at 4.) In its opposition briefing, Sikorsky provides evidence showing 23 Defendants manufactured the CH-53E under close supervision of the United 24 States Department of the Navy (“U.S. Navy”). (Def. Opp., Exs. A-D.) Plaintiff 25 does not assert any arguments on this prong, and rather focuses, as discussed 26 below, on the sufficiency of Defendant’s government contractor defense. 27 28 4 Civil Action No. 13-cv-0331-GPC-KSC The Court concludes Defendants “acted under” the direction of the U.S. 1 2 government. In the complaint, Plaintiff alleges Defendants designed and 3 manufactured component parts and equipment for the CH-53E helicopter. (FAC ¶ 4 10.) The Navy procurement and specification documents provided by Sikorsky 5 suggest that the helicopter, wiring components, and landing gear were designed 6 according to detailed government specifications. (Def. Opp. Exs. A-D; Dkt. No. 7 30, “Supplemental Ex. A”.) The over 200 page specification report goes into 8 minute technical detail as to not only overall design, but also particular 9 specifications for each component of the helicopter. (Supplemental Ex. A.) As 10 noted by Defendants, the development of military aircraft requires regular 11 interaction with the U.S. Navy in status meetings, conferences, technical reviews 12 and program reviews. (Def. Opp. n. 3.) 13 Moreover, the accident occurred due to a malfunction of the wires and 14 landing gear. The Final Report produced by the Judge Advocate General 15 indicates the helicopter landing gear unexpectedly retracted as a result of a wiring 16 issue. (JAGMAN Final Report, Findings of Fact.) The Report cites “widespread 17 Kapton wire degradation” in the CH-53E. (Id. at 64.) The Report further states 18 “several portions of the wire leading from the landing gear control panel to the 19 utility module had exposed wires.” (Id. at 60.) The Report states that upon 20 government performing testing, it found the exposed wires when energized caused 21 the landing gear to retract. (Id. at 62.) The U.S. Navy Detail Specification Report 22 for the manufacture of the CH-53E shows the government required specifications 23 for the particular design of the components at issue here – the landing gear, 24 retraction system, and the specific type of wiring to be used in the system. 25 (Supplemental Ex. A ¶ 3.8.2-3.8.3, 3.16, 3.16.5.) 26 27 28 5 Civil Action No. 13-cv-0331-GPC-KSC 1 The Court refrains from making a determination as to the precise role of the 2 U.S. government in the design of the CH-53E. However, based on the above 3 evidence, the Court finds a sufficient showing that the government, under the 4 direction of the Navy, was not just a participant but exercised “direct and detailed” 5 control over the design and construction of the CH-53E helicopter and, more 6 specifically, the wiring specifications and landing gear utilized in the helicopter. 7 As such, Sikorsky has made a sufficient required showing that it “acted under” the 8 direction of the U.S. government officers in the manufacture and design of the 9 CH-53E helicopter. 10 3. 11 Causal Nexus Between Plaintiff’s Claims and Acts it Performed Under Color of Federal Office 12 Defendants seek removal under the government contractor defense which 13 “protects a government contractor from liability for acts done by him while 14 complying with government specifications during execution of [sic] performance 15 of a contract with the United States.” McKay v. Rockwell Int’l Corp., 704 F.2d 16 444, 448 (9th Cir. 1983); In re Hanford Nuclear Reserv. Litig., 534 F.3d 986, 17 1000 (9th Cir. 2008). In a removal action, Defendants must demonstrate a 18 colorable federal defense. See Mesa, 489 U.S. at 128. In construing the colorable 19 federal defense requirement, the United States Supreme Court has rejected a 20 “‘narrow, grudging interpretation’ of the statute, recognizing that ‘one of the most 21 important reasons for removal is to have the validity of the defense of official 22 immunity tried in a federal court.’ . . .We therefore do not require the officer 23 virtually to ‘win his case before he can have it removed.’” Acker, 527 U.S. at 431 24 (quoting Willingham v. Morgan, 395 U.S. 402, 407 (1969)). A defendant does 25 not need to show a meritorious or likely successful federal defense but merely a 26 27 28 6 Civil Action No. 13-cv-0331-GPC-KSC 1 colorable one. Fung, 816 F. Supp. at 573 (asserting government contractor 2 immunity was sufficient to assert a colorable federal defense under § 1442(a)(1)). 3 To invoke the government contractor defense, the contractor must show 4 three elements: “(1) the United States approved reasonably precise specifications; 5 (2) the equipment conformed to those specifications; and (3) the supplier warned 6 the United States about the dangers in the use of the equipment that were known 7 to the supplier but not to the United States.” Boyle v. United Tech. Corp., 8 487 U.S. 500, 512 (1988). The Boyle court explained that the procurement of 9 military equipment involved “uniquely federal interests” that sometimes preempt 10 a plaintiff’s product liability claims against government contractors. Id. at 504. 11 The parties dispute whether Defendant has sufficiently shown a “colorable” claim 12 to the government contractor defense. 13 Plaintiff contends Defendant has failed to satisfy Boyle’s first prong, that 14 the government approved reasonably precise specifications. Relying on Snell v. 15 Bell Helicopter Textron, Inc., 107 F.3d 744, 746 (9th Cir. 1997), and similar cases, 16 Plaintiff asserts government approval requires more than a “rubber stamp,” and 17 Defendant must provide more supportive evidence to show the government 18 approved the specifications. (Pl. Mtn at 19.) Plaintiff further argues Defendant 19 Sikorsky’s representation that the CH-53E helicopter was designed and 20 manufactured in conformance with specifications approved by the U.S. 21 government is both unsubstantiated and insufficient to raise a colorable defense. 22 (Pl. Mtn. at 20.) 23 Plaintiff cites cases wherein courts have found contractors failed to 24 establish the first Boyle prong. In one such case, the Court found that while the 25 contractor/defendant “had produced extensive evidence that there was a close 26 working relationship between it and the Navy during the overall design and 27 28 7 Civil Action No. 13-cv-0331-GPC-KSC 1 creation of the [defective product],” it was insufficient to satisfy the first Boyle 2 prong. Gray v. Lockheed Aeronautical Sys. Co., a Div. of Lockheed Corp., 880 F. 3 Supp. 1559, 1566 (N.D. Ga. 1995) aff'd and remanded sub nom. Gray v. 4 Lockheed Aeronautical Sys. Co., 125 F.3d 1371 (11th Cir. 1997) cert. granted, 5 judgment vacated, 524 U.S. 924 (1998). “‘Boyle makes clear that the 6 requirements of ‘reasonably precise specifications’ and conformity with them 7 refer to the particular feature of the product claimed to be defective.” Id. (quoting 8 Bailey v. McDonnell Douglas Corp., 989 F.2d 794, 799 (5th Cir.1993)). The 9 Court concluded the contractor/defendant had not produced evidence that the 10 Navy reviewed and approved specific engineering drawings of the allegedly 11 defective feature in the product (the “servo”). As such, the Navy's overall 12 acceptance of the product following the various reviews, audits, and tests was, 13 with regard to the servo, merely a “rubber stamp” approval that did not satisfy the 14 first Boyle prong. Id. (citing Trevino v. General Dynamics Corp. 865 F.2d 1474, 15 1480 (5th Cir. 1989), cert. denied, 493 U.S. 935 (1989)). In affirming the district 16 court’s finding on this particular point, the Eleventh Circuit further stated that to 17 meet the first Boyle requirement, the contractor must show that the Navy “actually 18 participated in discretionary design decisions, either by designing [the servo] itself 19 or approving specifications that the contractor prepared. Gray v. Lockheed 20 Aeronautical Sys. Co., 125 F.3d 1371, 1377 (11th Cir. 1997) cert. granted, 21 judgment vacated, 524 U.S. 924 (1998) (internal quotations omitted). Plaintiff 22 argues Defendant has failed to show such specificity that the U.S. Navy 23 participated in the discretionary design decisions of the features that caused the 24 CH-53E helicopter to malfunction. (Pl. Mtn. at 20-21.) 25 26 Defendant argues the U.S. Government has approved reasonably precise specifications for the CH-53E helicopter. The U.S. Navy Material Inspection and 27 28 8 Civil Action No. 13-cv-0331-GPC-KSC 1 Receiving Report confirms acceptance of a CH-53E helicopter according to 2 government specifications SD-552-3-9. (Def. Opp. Ex. A.) The Detail 3 Specification Report specifies every design detail, including its landing gear 4 system and electrical system, and states “wire shall have polyimide insulation in 5 accordance with MIL-W-81381.” (Supplemental Ex. A, ¶ 3.16.5.) Additionally, 6 Defendant argues the JAGMAN Final Report shows the government had 7 knowledge of the Kapton MIL-W-81381 wire chaffing issue. Defendant asserts 8 this evidence shows the U.S. government participated in the discretionary design 9 features, including the design of the alleged faulty wiring at issue, to raise a 10 colorable defense. As a preliminary matter, Plaintiff’s reliance on decisions on summary 11 12 judgment motions is inapplicable at this stage of the litigation. At removal, the 13 removing party is required to only raise a “colorable” claim to a federal defense. 14 In other words, for removal purposes, the party is not required to prove success on 15 the defense. See Mesa, 489 U.S. at 133; Magnin v. Teledyne Continental Motors, 16 91 F.3d 1424, 1427 (11th Cir.1996) (“defense need only be plausible; its ultimate 17 validity is not to be determined at the time of removal.”); Jamison v. Wiley, 14 18 F.3d 222, 238 (4th Cir.1994) (“defendant need not prove that he will actually 19 prevail on his federal immunity defense in order to obtain removal”). This is 20 because “one of the most important reasons for removal is to have the validity of 21 the defense of official immunity tried in a federal court.” Mesa, 489 U.S. at 133 22 (emphasis added). In response to Plaintiff’s motion to remand, Defendant has sufficiently 23 24 shown evidence that the U.S. government approved reasonably precise 25 specifications and knew about the dangers of the MIL-W-81381Kapton wiring. 26 The Court finds the following evidence establishes a “colorable” claim to the 27 28 9 Civil Action No. 13-cv-0331-GPC-KSC 1 government contractor defense: (1) The U.S. Navy Detail Specification Report 2 indicates the Navy put forth specific requirements detailing many aspects of the 3 design and manufacture of CH-53E helicopters, including the wiring components 4 at issue in this case (See Supplemental Ex. A.) (2) The JAGMAN Final Report 5 shows the Government’s extensive knowledge and efforts to address the issue of 6 the faulty Kapton wiring in the CH-53E helicopters (See Pl. Mtn., Ex. A.); (3) The 7 letter from the Naval Aviation Maintenance Office shows knowledge of the 8 wiring issue, concluding “the results of various tests [sic] confirm that MIL-W- 9 81381, Kapton insulated wire, exhibits properties that are not acceptable for 10 continued installation in naval aircraft,” and advises an amendment that specifies 11 other acceptable wire types. (See Def. Opp., Ex. C.); and (4) The “Policy 12 Statement on Naval Aerospace Interconnect Wire Requirements” by the U.S. 13 Navy explicitly states a government issued policy restricting the use of Kapton 14 MIL-W-81381 insulated wire in naval aircraft. (See Def. Opp., Ex. D.) At the very 15 least, this evidence establishes a claim to the government contractor defense, 16 sufficient for the third prong for the § 1442(a) removal. 17 Furthermore, the facts and opinions by the Judge Advocate General support 18 the finding that there is a causal nexus between Defendant’s alleged actions and 19 Plaintiff’s claims. The accident took place on MCAS Miramar, a U.S. military 20 base. (JAGMAN Final Report, Finding of Fact 1.) Sergeant Fontalvo died in the 21 line of duty as a military officer. (Id., Recommendation 1.) The investigation 22 report relies heavily upon several voluntary statements by eyewitnesses at MCAS 23 Miramar, including aircrew members, military emergency responders, and other 24 U.S. military personnel. (Id., Finding of Fact 3-5.) The investigation report states 25 that a similar incident regarding inadvertent gear retraction occurred in 2005, and 26 following the full command and engineering investigation of the 2005 mishap, 27 28 10 Civil Action No. 13-cv-0331-GPC-KSC 1 “the command investigation Convening Authority should have followed up and 2 made appropriate recommendations for corrective action, possibly preventing a 3 future incident.” (Id., Opinion 11.) The report further notes while the source of 4 the electrical signal that caused the landing gear to retract is unknown, 5 There exists a significant training issue with respect to maintenance publications and the landing gear safety pins. While most aircrewman and all Airframes mechanics have come to understand its function through repeated contact and routine maintenance, at no time are aircrewman nor airframes mechanics formally taught the function of the landing gear safety pin, nor the danger and immediate actions if the pin is not functioning properly. (JAGMAN Final Report, Opinions 6, 10) 6 7 8 9 10 The JAGMAN Final Report suggests there may have been preventative 11 12 measures that the government could have taken to address the landing gear 13 retraction problem. The “significant training issue” likely refers to government 14 military training that could have prevented future accidents, such as the present 15 one. Notably, the Report states the electrical problem is unknown. This will 16 likely require discovery to determine whether the wiring was faulty due to the 17 Defendants’ design or manufacture defect. Overall, the Court finds there is a 18 causal nexus between the allegations against Defendant as the manufacturer of the 19 CH-53E, performed pursuant to U.S. government direction and particular 20 specifications, and Plaintiff’s product liability claims. 21 In conclusion, Defendants have made a sufficient showing that they are 22 people that acted under the direction of a federal officer, that there is a causal 23 nexus between their action and Plaintiff’s claims and they can assert a colorable 24 federal defense. Therefore “federal officer” jurisdiction is proper under 25 § 1442(a)(1). The Court briefly addresses additional grounds for jurisdiction. 26 27 /// 28 11 Civil Action No. 13-cv-0331-GPC-KSC 1 B. Federal Question Jurisdiction 2 Defendant also seeks removal pursuant to 28 U.S.C. § 1441(a), which sets 3 forth the jurisdictional basis for removal of cases where the court has original 4 jurisdiction, also known as federal question jurisdiction. 28 U.S.C. § 1441; 28 5 U.S.C.A. § 1331 (“[D]istrict courts shall have original jurisdiction of all civil 6 actions arising under the Constitution, laws, or treaties of the United States.”) 7 Defendant asserts removal is appropriate on federal enclave grounds 8 because the accident in question took place on the Marine Corps Air Station 9 (“MCAS”) Miramar, a federal enclave. Federal enclaves include “numerous 10 military bases, federal facilities, and even some national forests and parks.” 11 Azhocar v. Coastal Marine Servs., Inc., 13-CV-155 BEN DHB, 2013 WL 12 2177784 (S.D. Cal. May 20, 2013)(citing Allison v. Boeing Laser Technical 13 Servs., 689 F.3d 1234, 1235 (10th Cir.2012); see also U.S. Const. art. I, § 8, cl. 1). 14 The Ninth Circuit has indicated that federal courts have federal question 15 jurisdiction over tort claims that arise on “federal enclaves.” Durham v. Lockheed 16 Martin Corp., 445 F.3d 1247, 1250 (9th Cir. 2006) (citing 28 U.S.C. § 1331; 17 Willis v. Craig, 555 F.2d 724, 726 n. 4 (9th Cir.1977) (per curiam); Mater v. 18 Holley, 200 F.2d 123, 125 (5th Cir.1952)). 19 Plaintiff argues federal enclave jurisdiction does not apply because the 20 tortious conduct occurred not on MCAS Miramar, but during the design and 21 manufacturing of the helicopter and its parts elsewhere. (Pl. Mtn at 23-24.) 22 Defendant responds that Sgt. Fontalvo died while servicing a naval aircraft on a 23 military base, sufficiently satisfying removal on federal enclave grounds. (Def. 24 Mtn. at 20.) 25 The Court notes neither party raises the procedural defect which ultimately 26 bars removal on federal enclave grounds. Generally, 28 U.S.C. § 1446 sets forth 27 28 12 Civil Action No. 13-cv-0331-GPC-KSC 1 the procedural requirements for removing an action to federal court. Pursuant to 2 these requirements, all defendants must join or consent to a removal petition 3 brought under § 1441. 28 U.S.C. § 1446(b)(2)(A); see Durham , 445 F.3d at 1250 4 (Removal based on federal enclave grounds required consent of all defendants. ) 5 Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986) (Removal based on 6 federal question jurisdiction requires consent of all defendants.). 7 The Court finds removal of this action to federal court is improper due to a 8 lack of consent or joinder by all defendants. Defendants Sikorsky and United 9 Technologies Corporation filed the notice of removal. (Dkt. No. 1.) Defendant 10 Dupont timely filed a notice of consent to removal. (Dkt. No. 12.) Two remaining 11 Defendants failed to join or consent to removal. Although Defendant G.E. 12 Aviations has filed a motion before this Court, the filing does not satisfy the 13 requirement for joinder or consent to removal. See Andreshak v. Service Heat 14 Treating, Inc., 439 F.Supp.2d 898 (E.D.Wis.2006)(“A defendant joins a notice of 15 removal by supporting it in writing,” and thus “written support must be 16 communicated to the court within thirty days of the date when the removing 17 defendant was served”). 18 19 Given the lack of consent, Defendant Sikorsky has failed to meet its burden of proving that removal is proper under § 1441. 20 C. Diversity Jurisdiction 21 A district court has diversity jurisdiction over any civil action where all of 22 the parties are citizens of different states, and the amount in controversy exceeds 23 $75,000. 28 U.S.C. § 1332(a). The burden of establishing that diversity 24 jurisdiction exists, and that an action is removable, rests at all times with the 25 proponent of removal. Abrego v. Dow Chemical Co., 443 F.3d 676, 685 (9th 26 Cir.2006) (per curiam). Complete diversity is required for removal of a state court 27 28 13 Civil Action No. 13-cv-0331-GPC-KSC 1 action to a federal district court. 28 U.S.C. § 1441(b)(2)(“A civil action otherwise 2 removable solely on the basis of [diversity] jurisdiction . . . may not be removed if 3 any of the parties in interest properly joined and served as defendants is a citizen 4 of the State in which such action is brought”) (italics added). 5 The parties do not dispute the amount in controversy exceeds the 6 jurisdictional requirement. However, Plaintiff argues complete diversity of parties 7 is lacking, and removal is improper because Defendant Sikorsky sought removal 8 prior to Defendant PKL, a citizen of California, receiving service of process. (Pl. 9 Mtn. 3, 5-8.) Plaintiff further argues Defendant PKL is a properly joined 10 defendant and citizen of California, and therefore diversity jurisdiction is 11 destroyed. 12 The Court notes that diversity jurisdiction is not the sole basis for removal 13 here. As previously discussed, the Court has jurisdiction pursuant to federal 14 officer removal statute. The fact that one defendant is a citizen of California does 15 not preclude removal based on other jurisdictional grounds. For these reasons, the 16 Court declines to address whether removal based on diversity jurisdiction is 17 proper. In so doing, the Court also refrains from addressing the split in California 18 federal district courts regarding proper application of the “joined and served” 19 requirement that a plaintiff should be afforded a meaningful opportunity to 20 effectuate service on a resident defendant. See Hoskinson v. Alza Corp., 2010 21 WL 2652467 (E.D. Cal. July 1, 2010)(remanding case to state court before 22 plaintiff had the opportunity to serve resident forum defendant); compare to Regal 23 Stone Ltd. v. Longs Drug Stores California, L.L.C., 881 F. Supp. 2d 1123, 1127 24 (N.D. Cal. 2012), motion to certify appeal granted (May 4, 2012)(noting the split 25 in federal district courts as to whether removal on diversity grounds is proper 26 27 28 14 Civil Action No. 13-cv-0331-GPC-KSC 1 when a forum defendant is joined but not served and concluding “the statute only 2 prohibits removal after a properly joined forum defendant has been served.”) 3 D. Pre-Service Removal Defect 4 The Court briefly addresses Plaintiff’s argument that Sikorsky’s pre-service 5 removal was improper. Plaintiff asserts Defendant Sikorsky removed this action 6 prior to receiving service of the state summons and complaint, and therefore 7 Sikorsky was not a proper party before any court with the authority to remove the 8 present action. (Pl. Mtn. at 8-10.) Plaintiff relies on Murphy Brothers v. Michetti 9 Pipe Stringing, Inc., 526 U.S. 344 (1999), for the proposition that receipt of a 10 courtesy copy of a complaint, unaccompanied by a summons, does not trigger a 11 defendant's time to remove under § 1446(b). Defendant responds that the notice 12 of removal was proper because the case was pending in the California state court. 13 (Def. Mtn. at 23-24.) 14 The procedural facts are as follows. On January 25, 2013, Plaintiff filed the 15 complaint in the Superior Court of San Diego. (Notice of Removal, Ex. A.) On 16 February 11, 2013, Defendant Sikorsky filed the notice of removal. (Notice of 17 Removal.) On February 14, 2013, Defendant PKL received service of the state 18 summons and complaint. (Pl. Mtn., Ex. E.) As of March 6, 2013, Defendant 19 Sikorsky had not been served with process of the state summons or the complaint. 20 (Pl. Mtn. n 2.) Plaintiff’s reliance on Murphy Brothers is misplaced and the procedural 21 22 facts support a finding that removal prior to receiving formal service of process 23 was not improper. The Supreme Court in Murphy Brothers addressed whether a 24 defendant could be “obligated” to remove an action prior to formal service, not 25 whether a defendant is permitted to do so. Regal Stone Ltd. 881 F. Supp. 2d at 26 1129 (citing Murphy Brothers, 526 U.S. at 353-354). The purpose of § 1446(b) 27 28 15 Civil Action No. 13-cv-0331-GPC-KSC 1 “assures defendants adequate time to decide whether to remove an action to 2 federal court.” Murphy Brothers, 526 U.S. at 354. Moreover, removal is 3 appropriate upon commencement of an action. A defendant seeking to remove a 4 civil action from state court shall file in the district court where such action is 5 pending. 28 U.S.C. § 1446(a). “In California, as in the federal courts, a suit is 6 ‘commenced’ upon filing.” Bush v. Cheaptickets, Inc., 425 F.3d 683, 686 (9th 7 Cir. 2005) (citing Cal. Civ. Proc. Code § 350). 8 9 Here, Defendant Sikorsky filed a notice of removal eleven days after the filing of the state court action. Plaintiff admittedly had not served Defendant 10 Sikorsky with the service of summons or the complaint, but it had successfully 11 served Defendant PKL. There is no indication Plaintiff sought to serve other 12 Defendants in this matter. Although it is unclear how Sikorsky came to receive a 13 notice of the complaint, the action was pending in state court upon time of 14 removal. As such, the action was subject to removal. Under these circumstances, 15 and given the purpose of the removal procedural statutes, the Court concludes the 16 notice of removal was not procedurally defective. 17 CONCLUSION 18 For the above reasons, the Court finds it has jurisdiction over this matter 19 pursuant to the federal officer removal statute. Accordingly, the Court DENIES 20 Plaintiff’s motion to remand and VACATES the hearing set for Friday, June 21, 21 2013. 22 23 IT IS SO ORDERED. DATE: June 20, 2013 24 ________________________________ 25 HONORABLE GONZALO P. CURIEL 26 27 28 16 Civil Action No. 13-cv-0331-GPC-KSC
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