Graves v. 3M Company, No. 20-1635 (8th Cir. 2021)
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Plaintiffs, employees of civilian and military contractors who used Combat Arms Version 2 earplugs, filed separate suits against 3M in Minnesota state court, asserting failure-to-warn claims under state law. After removal to federal court, the district court granted plaintiffs' motions to remand the cases to state court for lack of federal jurisdiction, concluding that 28 U.S.C. 1442(a)(1) was not a basis for removal.
Reviewing de novo, the Eighth Circuit affirmed the remand orders in the Graves and Hall actions, whose members acquired commercial earplugs. The court concluded that 3M failed to establish it was "acting under" a federal officer or agency in developing and disseminating warnings and instructions for its commercial earplugs. However, the court affirmed in part and reversed in part the remand orders in the Copeland cases and remanded for further proceedings. The court concluded that 3M has a colorable federal contractor defense for claims made by Copeland plaintiffs who acquired earplugs through the military, and has satisfied the other elements required for section 1442(a)(1) removal as to these plaintiffs. Therefore, the district court's remand orders are reversed as to this group, whose members will need to be determined on remand.
Court Description: [Loken, Author, with Kelly and Erickson, Circuit Judges Civil Case - Federal Jurisdiction. A separate group of employees employed by civilian and military contractors who used the Combat Arms Version 2 (CAEv2) earplugs, filed suit in state court asserting failure-to-warn claims against manufacturer 3M. 3M removed the action to federal court, asserting federal officer defenses under 28 U.S.C. sec. 1442(a)(1). 3M appeals the district court's remand orders. 3M failed to establish it was "acting under" a federal officer or agency in developing and disseminating warnings and instructions for its commercial CAEv2 earplugs, and thus remand of the claims of employees who acquired earplugs in the commercial marketplace is affirmed. As for the plaintiffs that worked for defense contractors and received earplugs from the military, 3M made a requisite showing of a colorable federal contractor defense showing that 3M complied with the government's direction to provide earplugs to the military in bulk without instructions, as the military would produce its own instructions. The order remanding the claims brought by those who acquired them through the military is reversed.
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