Connie Dietrich v. Autozone West, Inc.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

Case No. LA CV19-04291 JAK (PJWx) Date October 28, 2019

Title Connie Dietrich v. Autozone West, Inc., et al.

Present: The Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE

Andrea Keifer Not Reported

Deputy Clerk Court Reporter / Recorder

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

None Present None Present

Proceedings: (IN CHAMBERS) ORDER RE PLAINTIFF'S MOTION TO REMAND FOR

LACK OF SUBJECT MATTER JURISDICTION (DKT. 32)

lL. Introduction

On October 11, 2011, Connie Dietrich (“Plaintiff,” or “Connie”!) brought this action in the Los Angeles

Superior Court. Dkt. 1-1 at 10. The Complaint names the following defendants: Autozone West, Inc.

(“Autozone”); Borgwarner Morse TEC LLC (“Borgwarner”); Honeywell International Inc. (“Honeywell”);

Kelly-Moore Paint Company, Inc. (“Kelly-Moore”); Masoneilan International Inc. (“Masoneilan”);

Metalclad Insulation LLC (“Metalclad”); Owens-lllinois, Inc. (“Owens”); Soco West, Inc. (“Soco”); The

Boeing Company (“Boeing’)?; The Pep Boys -- Manny, Moe & Jack of California (‘Pep Boys”); Union

Carbide Corporation (“Union Carbide”); and Western Auto Supply Company (“Western Auto”)

(collectively, “Defendants’). /d. at 10-11. The Complaint advances four causes of action: (i) negligence;

(ii) breach of express and implied warranties; (iii) strict liability; and (iv) premises owner/contractor

liability. Jd. at 10. The claims arise out of Plaintiffs alleged exposure to asbestos at home and through

take-home exposure due to the work of her husband, Paul Dietrich (“Paul”), and her father, Melvin

Beachler (“Beachler’). /d. Jj 7.

Trial was set to commence in the Superior Court on July 15, 2019. Dkt. 32 at 6. On May 16, 2019,

Boeing removed the action pursuant to 28 U.S.C. § 1442. Dkt. 1 at 16. On June 14, 2019, Plaintiff filed

a Motion to Remand for Lack of Subject Matter Jurisdiction (the “Motion”). Dkt. 32. Boeing filed an

opposition on July 2, 2019. Dkt. 35. Plaintiff filed a reply on July 19, 2019. Dkt. 40.

A hearing on the Motion was conducted on September 16, 2019, and the matter was then taken under

submission. Dkt. 44. For the reasons stated in this Order, the Motion is GRANTED, and the action is

REMANDED to the Los Angeles Superior Court. Plaintiff is also awarded $3500 in costs and attorney's

' The use of first names to identify those with common surnames follows a common practice that is designed to

facilitate the discussion in this Order. No disrespect is intended by the use of this common convention.

2 Sued individually and as successor by merger to McDonnell Douglas Aircraft Company, successor by merger

with Douglas Aircraft Company. /d. The allegations at issue here relate principally to Douglas Aircraft Company.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

Case No. LA CV19-04291 JAK (PJWx) Date October 28, 2019

Title Connie Dietrich v. Autozone West, Inc., et al.

fees in connection with these proceedings.

Il. Factual Background

The Complaint alleges that Plaintiff was exposed to products manufactured by the Defendants that

contained asbestos. Dkt. 1-1 ¥ 7. It also alleges that she had such exposure because her husband and

father were exposed to asbestos while working for one or more of the Defendants, and brought fibers

home on their clothing. /d. J] 7, 12. At relevant times during the employment of Paul and Beachler,

Plaintiff allegedly “would launder and/or shake out her own clothing and the clothing of her father and

husband, sweep|] and/or clean] the laundry room and house, among other activities involving dust, and

would ride in and/or clean the family automobiles,” thus “disturb[ing] the asbestos dust that had settled”

thereon and breathing it in. /d. 7.8. In June 2018, Plaintiff was allegedly diagnosed with mesothelioma,

a lung disease “caused by cumulative inhalation of asbestos fibers.” /d. Jf] 9-10.

The Complaint alleges that Plaintiff, Paul and Beachler “entered, performed work and was [sic]

otherwise on or about . . . premises” which were owned, managed, contracted to or controlled by

certain companies, including Boeing, where “asbestos and asbestos-containing products were

fabricated, used, repaired, or disturbed.” /d. J] 53-54. Each company allegedly failed to control

asbestos use, warn workers about asbestos, or implement adequate safety measures against asbestos

exposure. /d. {fj 55-58. As a result, Plaintiff was allegedly “exposed to dangerous quantities of

asbestos dust, debris, fiber and particulate.” /d. J 81.

A “Preliminary Fact Sheet,” was filed with the Complaint. It alleged that the claims against Boeing relate

to “premises take home” exposures between 1948 and 1979, and that these exposures occurred in

Lakewood and Long Beach, California. /d. at 37-40.

Ill. Analysis

A. Legal Standards

1. Removal and Remand

A motion to remand is the procedural means to challenge the removal of an action. Moore-Thomas v.

Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). A state civil action may be removed only if, at

the time of removal, it is one over which there is federal jurisdiction. 28 U.S.C. § 1441(a). The removing

party has the burden of establishing that removal is proper, including that there is federal jurisdiction

over one or more of the claims. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “If a case is

improperly removed, the federal court must remand the action because it has no subject matter

jurisdiction to decide the case.” ARCO Envtl. Remediation, L.L.C. v. Dep't of Health & Envtl. Quality of

Mont., 213 F.3d 1108, 1113 (9th Cir. 2000) (internal citations omitted).

2. Federal Officer Removal Statute and Federal Contractor Defense

A civil case “commenced in a State court against. . . [t]he United States or any agency thereof or any

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

Case No. LA CV19-04291 JAK (PJWx) Date October 28, 2019

Title Connie Dietrich v. Autozone West, Inc., et al.

officer (or person acting under that officer) of the United States or of any agency thereof” may be

removed. 28 U.S.C. § 1442(a)(1). The party removing under the statute must show each of the

following: (i) it acted under the direction of a federal officer; (ii) there is causal nexus between those

acts and plaintiff's claims; and (iii) it has a colorable federal defense to the plaintiff's claims. Mesa v.

California, 489 U.S. 121, 124-25, 131, 139 (1989). The federal officer removal statute was enacted to

protect federal tariffs from state nullification. Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252

(9th Cir. 2006). Consequently, the Supreme Court has concluded that removal under the statute

“should not be frustrated by a narrow, grudging interpretation.” /d. (quoting Arizona v. Manypenny, 451

U.S. 232, 242 (1981)).

Furthermore, Ҥ 1442 represents an exception to the general rule . . . that all defendants must join in

the removal petition. Since the federal officer is the only one entitled to remove under § 1442, he alone

can remove without other defendants joining in the petition, and the entire case is removed to the

federal court.” Ely Valley Mines, inc. v. Hartford Acc. & Indem. Co., 644 F.2d 1310, 1315 (9th Cir.

1981).

3. Timeliness of Removal

“TA] notice of removal may be filed within 30 days after receipt by the defendant, through service or

otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be

ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(2)-(3). “The

federal courts have given the reference to “other paper” an expansive construction and have included a

wide array of documents within its scope,” in order to “interpret the statute in Keeping with its intended

purpose of assuring that a defendant has an opportunity to assert the Congressionally bestowed right

to remove upon receiving notice that the right exists in a particular case.” 14C Fed. Prac. & Proc. Juris.

§ 3731 (Rev. 4th ed.) (collecting cases). Such “papers” may include deposition transcripts, Carvalho v.

Equifax Information Servs., LLC, 629 F.3d 876, 887 (9th Cir. 2010), and answers to interrogatories,

Akin v. Ashland Chem. Co., 156 F.3d 1030, 1035-36 (10th Cir. 1998).

“Where the timeliness of a federal officer's removal is at issue, we extend section 1442's liberal

interpretation to section 1446.” Durham, 445 F.3d at 1252-53 (citing Federal Courts Improvement Act of

1996, Pub. L. No. 104-317 § 206, 110 Stat. 3847, 3850; Manypenny, 451 U.S. at 242; Int'l Primate Prot.

League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 76, 79 n.5 (1991). Thus, this Circuit has held that

the 30 day clock for removing an action on federal officer grounds runs independently of the 30 day

clock for removal on other grounds; /.e., “a federal officer defendant's thirty days to remove commence

when the plaintiff discloses sufficient facts for federal officer removal, even if the officer was previously

aware of a different basis for removal.” /d. at 1253.

B. Application

1. Timeliness of Removal

Plaintiff argues that Boeing’s removal was untimely, thereby warranting its remand. Dkt. 32 at 6. Thus,

Plaintiff contends that since November 2018, Boeing has had substantial evidence from which it could

have been, and was, ascertained that there were grounds for removal, but that it did not do so until May

16, 2019. /d. Plaintiff adds that this was less than two months prior to the trial date that had been set in

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

Case No. LA CV19-04291 JAK (PJWx) Date October 28, 2019

Title Connie Dietrich v. Autozone West, Inc., et al.

the Superior Court. /d.

“After a defendant learns that an action is removable, he has thirty days to remove the case to federal

court.” Durham, 445 F.3d 1247, 1250 (9th Cir. 2006) (citing 28 U.S.C. § 1446(b)). “Section 1446(b)’s

‘time limit is mandatory [such that] a timely objection to a late petition will defeat removal.” Kuxhausen

v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1142 n.4 (9th Cir. 2013) (quoting Fristoe v. Reynolds

Metals Co., 615 F.2d 1209, 1212 (9th Cir.1980) (per curiam)). In determining when the 30-day period

starts, “the Ninth Circuit ‘has endorsed the Fifth Circuit's practice of considering facts presented in the

removal petition as well as any summary-judgment type evidence.” Zamora v. Lowe’s Home Centers,

Inc., No. C -14-02143-EDL, 2014 WL 12647740, at *1 (N.D. Cal. July 11, 2014) (quoting Matheson v.

Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003)). A preponderance of the evidence

standard applies to these determinations. Matheson, 319 F.3d at 1090.

For federal officer removal, notice must be based on facts sufficient “to support each of the three

requirements” of removal, i.e., that (i) “it is a ‘person’ within the meaning of the statute;” (ii) “there is a

causal nexus between its actions, taken pursuant to a federal officer's directions, and plaintiff's claims;”

and (iii) “it can assert a ‘colorable federal defense.” Durham, 445 F.3d at 1251 (citing Jefferson Cty. v.

Acker, 527 U.S. 423, 431 (1999)).

a) Facts Regarding the Ascertainability of Grounds for Removal

(1) Notice of Removal

The Notice of Removal states that Boeing originally considered the claims asserted by Plaintiff to be

“limited . . . exclusively to take home exposures .. . arising out of Mr. Dietrich’s employment at a

Douglas Aircraft facility in Long Beach, California; /.e., after Paul’s military service had concluded. Dkt.

1 at 14. It contends that the grounds for removal pursuant to a government contractor defense came to

light during discovery. /d. at 14-15. Specifically, Boeing contends that certain of Plaintiffs discovery

responses, “served on April 19, 2019, now reveal that Plaintiff is indeed making a claim of exposure

arising out Paul Dietrich’s military service,” but that “there was no indication prior to April 19, 2019 that

Plaintiff ever intended to amend and augment her own take home claims of exposure against Boeing to

include” such exposures. /d. at 15.

In the April 19, 2019 discovery response to which Boeing refers, Plaintiff stated that she was exposed

to asbestos due to her husbands’ work on “BOEING’s aircraft, and the original and replacement parts

and/or materials supplied/purchased by Defendant BOEING, during Mr. DIETRICH’s time in the United

States Marine Core [sic] working as an airplane mechanic from 1948-1957,” as well as “[flollowing his

service,” when he “continued to service BOEING aircraft at Douglas Aircraft Company.” Dkt. 1-6 at 5.

Plaintiff also stated in the discovery response that, while Paul was in the Marine Corps:

the aforementioned work was performed on various asbestos containing military aircraft

designed, manufactured, sold, supplied, distributed and otherwise marketed with original

and replacement asbestos-containing brakes, brake systems, brake shoes, brake

linings, clutches, clutch systems, clutch linings, engines/motors, exhaust systems,

gaskets and seals with, in, and/or on various military wheeled vehicles, and many, if not

all, variants, upgrades, and changes resulting in subsequent model number and/or

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

Case No. LA CV19-04291 JAK (PJWx) Date October 28, 2019

Title Connie Dietrich v. Autozone West, Inc., et al.

designation or derivative changes.

Id. at 6.

(2) “Other Papers”

(a) November 8, 2018: Plaintiffs Responses to Standard

Interrogatories

Plaintiffs Responses to Standard Interrogatories were served on Boeing on November 8, 2018. Dkt. 32

at 6. Exhibit A to them is a “Work History.” Dkt. 1-13 at 2. It states that the “product at issue” as to the

claims against Boeing is “[a]viation product / premises take home,” incurred between 1948 and 1979 as

the result of “[a]viation manufacture/repair by Connie’s husband, Paul Dietrich,” which occurred in

Lakewood and Long Beach, California. /d. at 84. The Work History also includes a general explanation

of the take-home allegations with respect to Paul’s aviation work:

From 1948 to 1957, Mr. Dietrich worked as an aircraft mechanic in the United States

Marine Corps, including inside aircraft engines to perform repairs that would have

involved wiring and firewalls. He was first stationed at Hickam AFB in Hawaii and then at

EI Toro Air Station in California. After he left the service, Mr. Dietrich performed the

same type of work for Douglas Aircraft in Long Beach, CA. . . . Throughout their

marriage, Connie Dietrich shook out and washed her husband’s work clothes once a

week. Paul’s clothing also contaminated the family home and vehicles.

Id. at 85-86.

(b) November 15, 2018: Boeing’s Assertion of Defenses

On November 15, 2018, Boeing filed its answer to the Complaint. Dkt. 32-2. It asserted government

contractor and sovereign immunity defenses:

39. Any products manufactured by Boeing that incorporated asbestos-containing

materials alleged to have been a cause of, or to have contributed to, any disease

contracted by Plaintiff, were manufactured in, under, and in conformity with the direction

and control of the United States Government, which at all times material hereto had

knowledge superior to that of Boeing with respect to the potential hazards of asbestos

products; accordingly, no liability can be imposed upon Boeing.

40. Insofar as any of Plaintiffs claims against Boeing involves any military products or

equipment it manufactured or supplied to the U.S. Government, Boeing asserts that

such claims are barred by the doctrine known as the “Government Contractor Defense”

adopted by the United States Supreme Court in the case of Boyle v. United

Technologies Corp., 108 S. Ct. 2510 (1988).

41. Insofar as any of Plaintiffs claims against Boeing involves any military products or

equipment it manufactured or supplied to the U.S. Government, Boeing asserts that any

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

Case No. LA CV19-04291 JAK (PJWx) Date October 28, 2019

Title Connie Dietrich v. Autozone West, Inc., et al.

military products made or supplied by Boeing were procured by the United States

Government, which was sophisticated and knowledgeable concerning the use of and

any potential hazards of asbestos products. Boeing reasonably relied upon the

sophistication of the United States Government and is not responsible for any failure of

the United States Government to warn or take proper precautions for the protection of its

own employees or civil servants, including Plaintiff, Paul Dietrich, and/or Melvin

Beachler.

42. Insofar as any of Plaintiffs claims against Boeing involves any military products or

equipment it manufactured or supplied to the U.S. Government, Boeing asserts that any

products manufactured or supplied by Boeing which incorporated asbestos-containing

materials alleged to have been a cause of any disease contracted by Plaintiff were

manufactured under and in conformity with the direction and control of the United States

Government, which at all times material hereto had knowledge superior to that of Boeing

with respect to the potential hazards of asbestos products; accordingly, no liability can

be imposed upon Boeing.

43. Insofar as any of Plaintiffs claims against Boeing involves any military products or

equipment it manufactured or supplied to the U.S. Government, Boeing asserts that

Boeing satisfied any duty to warn by providing the United States Government with

detailed specifications of each and every one of its products to which Plaintiff was

allegedly exposed.

44. Insofar as any of Plaintiffs claims against Boeing involves any military products or

equipment it manufactured or supplied to the U.S. Government, Boeing asserts that

Plaintiffs claims are barred by the derivative sovereign immunity defense doctrine under

Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940).

Id. at 9-11.

(c) November 30, 2018: Service of Military Records

On November 30, 2018, through discovery Boeing was provided with copies of Paul’s military records.

Dkt. 1-2 at 2. These records include, inter alia, statements as to the following: Paul resided in Long

Beach at the time of his enlistment and discharge; he was married to Plaintiff during his service; he

served on bases in California and in Hawaii; and his service included extensive work as a mechanic

certified to work on Douglas military aircraft, including the R4D-6 and R4D-8. Dkt. 1-2 at 28, 31-32.

(d) December 13-21, 2018: Deposition of Plaintiff

Plaintiffs deposition was taken between December 13 and 21, 2018. Dkt. 32 at 8. The deposition

transcript reflects extensive colloquies between Plaintiff, Boeing’s counsel, and Plaintiff's counsel

regarding any exposure of Plaintiff and Paul to asbestos, as well as Paul’s work on military aircraft

manufactured by Douglas while he was on active duty in the Marines:

Q [Plaintiff's Counsel]: Your husband was a Marine, ma’am?

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

Case No. LA CV19-04291 JAK (PJWx) Date October 28, 2019

Title Connie Dietrich v. Autozone West, Inc., et al.

A: Yes, he was... .

Q: Was he in when you married him?

A: Yes.

Q: He was already in?

A: Yes. .. . he was in the air wing.

Q: So when you married him, was he doing anything different or was he still a

mechanic?

A: He was a mechanic.

Dkt. 32-4 at 10-12.

Q [Plaintiffs Counsel]: Did your husband work on airplanes, ma’am?

[Boeing objections]

A: Yes, he did... .

Q: Do you remember then that your husband worked on jets?

A: Yes.

Id. at 14, 16.

Q [Plaintiffs Counsel]: The question is do you know, when he was a mechanic working

on these planes as a Marine, what he did in the planes?

[Boeing objections]

A:.... Yes, engines. He worked on the engines, on whatever part that needed fixed.

[Boeing objections]

Q:....Do you recognize the pictures in Exhibit 6?

A: Yes, | do.

Q: What are they pictures of?

[Boeing objections]

A: His airplanes that he flew in and worked on.

Id. at 18-19.

Q [Boeing's Counsel]: Now, when you first went on a date with Paul, where was he

stationed?

A: In El Toro... .

Q: Okay. El Toro -- is it a --

A: Marine Corps base.

Q: Marine Corps base. Okay. Now, do you know -- I'm going to ask you some questions

about your husband’s Marine Corps service. .. .

Q: You were married in June of 53. How long were the two of you dating before you got

married?

A: | was -- probably three years, two -- two and a half... .

Q: Now, from when you started dating him, was he at El Toro?

A: Yes....

Q [Boeing’s Counsel]: So during the course of his service in the Marine Corps, while the

two of you were married, you recall him going to El Toro and the place in San Diego?

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

Case No. LA CV19-04291 JAK (PJWx) Date October 28, 2019

Title Connie Dietrich v. Autozone West, Inc., et al.

A: Yes.

Q: Anywhere else?

A: No. | mean they would send him a lot of times to Florida and different — actually he

went overseas a few times, different places where he was -- you know, where they

needed his -- what he did. I’m not even sure what that all was.

Q: | know. | know. But here’s what I’m trying to get from you: If you know, do you know

how long your husband was stationed at El Toro after the two of you were married?

A: No. | mean he got transferred after a couple years, | think, after we married.

Q: Okay. So a couple of years at El Toro?

A: | believe it was. And then, yeah, then he got transferred to Hawaii. . . .

Q: So from the time you started dating your husband up until the time you guys moved to

Hawaii, did you ever go see your husband at El Toro?

A: | was with him a few times, yeah, but | more or less sitin the caralot....

Q: Were you in the car on the base?

A: Yes.

Id. at 39, 41-43.

Q [Boeing’s Counsel]: Do you have any information or knowledge that while your

husband was in the Marine Corps, he had worked on or around any asbestos-containing

aircraft components?

A: Yes, he did. ...

Q: When did he tell you that? When he was sick?

A: | mean when he started getting sick, he says | just -- he used to say | wonder if it’s the

asbestos or whatever.

Q: Okay. Did he tell you specifically from El Toro?

A: No.

Q: Did he tell you from San Diego?

A: No. The -- jeez, right here. That -- I'm trying to -- what was it that -- I'm sorry. I’m not --

Q: My question was specifically about El Toro.

A: Well, no, not El Toro, no.

Id. at 48.

A: .. . [H]Je would come home and he would say, ‘I coughed my head off today with all

this dusty,’ you know, ‘stuff we’re working on,’ or whatever he was into.

Q [Boeing’s Counsel]: We're talking about Hawaii?

A: In --

Q: I’m just asking about Hawaii.

A: Well, right. Right. Hawaii too, yes.

Id. at 59-60.

Q [Plaintiff's Counsel]: Let’s go down the bottom [a military service record]. It says, in the

little box there, ‘Satisfactorily completed 56 hours of instruction in Phase I AD

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

Case No. LA CV19-04291 JAK (PJWx) Date October 28, 2019

Title Connie Dietrich v. Autozone West, Inc., et al.

maintenance,’ and then parenthesis, ‘(F4D-1) on 12 February, 1957.’* Do you see that,

ma’am?

A: Yes.

Q: 12 February, 1957, you guys were married?”

A: Yes.

Q: Were you doing his laundry then?

A: Yes.

Q: The F4D-1 -- that was a Douglas Skyray. Did you know that?

A: No, | didn’t... .

A: Do you think it’s fair to ask you questions about whether or not Paul worked on

Douglas planes when he actually had 56 hours in the records we turned over showing

him rated on a Douglas Skyray?

A: No.

Id. at 79-80.

Q [Plaintiff's Counsel]: That date there is 27 March ’56, is that right?

A: Yes.

Q: Was that when you guys were in El Toro?

A: Yes, it was.

Q: And did you do Paul’s laundry then?

A: Yes.

Q: It says here, ‘Qualified as crew member on R4D6 and R4D8 type aircraft.’ Do you see

that?

A: Yes.

Q: Do you know what those are?

A: | have no idea.

Q: Did you ever hear Paul say ‘Douglas Skytrain?’

[Boeing’s Counsel objects]

A: No.

Q: Those are Douglas Skytrains.

[Further Boeing objections]

Id. at 81-82.

(e) April 8-10, 2019: Deposition of Plaintiffs Children

Between April 8 and 10, 2019, depositions were taken of Plaintiffs children, Sherri Pope (“Pope”) and

Michael Dietrich (“Michael”). Dkt. 32 at 8-9. Both testified about their father’s work:

Q [Plaintiff's Counsel]: Do you know whether or not your father ever worked on Douglas

aircraft before he was employed by Douglas?

[Boeing’s Counsel objects]

A [Pope]: | don’t know if they were Douglas, but | know he was an airplane mechanic in

3 Paul was again stationed at El Toro at this time. See Dkt. 1-2 at 14.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

Case No. LA CV19-04291 JAK (PJWx) Date October 28, 2019

Title Connie Dietrich v. Autozone West, Inc., et al.

the Marines. ...

Q: Are you telling us, ma’am, that there’s an airplane that your father worked on that’s

sitting in a park somewhere? ....

A: Yes... . [photographic exhibits are introduced]

Q: Did you dad ever tell you whether or not that was a Douglas Aircraft Company F3D-2

Skynight fighter?

[Boeing’s Counsel objects]

Dkt. 32-5 at 8-12.

Q [Plaintiff's Counsel]: And what are some of the aircraft that you learned that your dad

worked on when he was in the flight wing as a mechanic?

[Boeing’s Counsel objects]

A [Michael]: | found out later that my dad worked on the Douglas -- it was the F3 — |

believe it was a Skynight .. .. And then | recently . . . found out that [another plane] was

a military version of a DC-3 that he had hours in. The way he put it, | actually put a lot

hours in that plane. ...

Q: And when you say it looked like a DC-3, are you talking about an old tail dragger

passenger plane? ...

A: Yes.

Q: DC being a Douglas plane? ...

A: Yes.

Q: Do you know where they built the DCs? . . .

A: Long Beach....

Q: Do you have any connection -- your family, your father have any connection with the

Long Beach Douglas plant where they built the DCs? .. .

A: | know he worked there.

Dkt. 32-6 at 10-11, 17-18.

b) Application of the Evidence

Boeing’s position is that the 30-day clock for removing an action starts only when the information

supporting removal is “unequivocally clear and certain.” Dkt. 35 at 5, 8, 11 (citing Mattel, Inc. v. Bryant,

441 F. Supp. 2d 1081, 1089-90 (C.D. Cal. 2005), aff'd on other grounds, 446 F.3d 1011 (9th Cir.

2006)). Thus, it argues that, although the Complaint and the November 8, 2018 Responses to Standard

Interrogatories “might inform what Mr. Dietrich’s own claims of direct exposure were,” they do “not

constitute clear and unequivocal information sufficient to put Boeing on notice that Plaintiff . . . intended

to expand her own claims of exposure as to Boeing to include Mr. Dietrich’s military service.” Dkt. 35 at

8 (emphasis in original).4

The “unequivocally clear and certain” standard in Matte! was based on decisions by the Fifth Circuit and

Tenth Circuit, and was applied in connection with an assessment of removals based on federal

question and diversity. 441 F. Supp. 2d at 1090 (citing Bosky v. Kroger Tex., LP., 288 F.3d 208, 211

* Paul died on April 27, 2018, which was prior to the filing of this action in the Superior Court. Dkt. 1-13 at 6.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

Case No. LA CV19-04291 JAK (PJWx) Date October 28, 2019

Title Connie Dietrich v. Autozone West, Inc., et al.

(5th Cir. 2002); Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d 1072, 1078 (10th Cir. 1999)). The Ninth

Circuit has not adopted an “unequivocally clear and certain” standard as to the start of the 30-day clock

in any context. Instead, with respect to federal officer removal specifically, the rule is that the “thirty

days to remove commences when the plaintiff discloses sufficient facts for federal officer removal.”

Durham, 445 F.3d 1247 at 1253; see also Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694 (9th

Cir. 2005) (the “thirty-day window is in play” once an action is “rendered removable by virtue of . . .

circumstance[s] revealed in a newly-filed ‘paper.””).

Plaintiff does not disagree with Boeing that the face of the Complaint, which was filed on October 11,

2018, showed that Plaintiff asserted claims against Boeing for “premises take home” exposures that

occurred in Lakewood and Long Beach, California between 1948 and 1979, and that this was nota

sufficient, independent basis for federal officer removal. Dkt. 1 at 8; see a/so Dkt. 32 at 6; Dkt. 35 at 7.

However, Boeing also argues that, in the Complaint and Plaintiffs Responses to Standard

Interrogatories, “the only actual identification of Boeing, undeniably related to Plaintiffs premises claim,

is the general statement that Mr. Dietrich worked for Douglas Aircraft in Long Beach, California; and. . .

the only enumerated locations of exposure are Lakewood and Long Beach, California -- the cities

where Plaintiff resided and allegedly suffered take-home exposures during Mr. Dietrich’s non-military

work history.” Dkt. 35 at 8. Boeing contends that this requires interpreting the Complaint, Responses,

and other papers prior to the April 19, 2019 discovery responses as excluding from Plaintiff's claim any

exposure incurred during the period of Paul’s military service; /.e.,1948-57. Jd. at 5, 9-11. The basis for

this contention is that Paul had also served part of that period in Hawaii. /d. at 9. Thus, Boeing’s

position hinges on the proposition that “if Mr. Dietrich’s military service were truly at issue, there would

have been a corresponding location of exposure also identified in Kaneohe, Hawaii, where they lived

when Mr. Dietrich was stationed there.” /d.

Boeing’s position is not persuasive. Although the Complaint excluded Boeing from the strict liability

claim, it did include Boeing within the definition of “Product Defendants,” and each such defendant

allegedly negligently manufactured or otherwise offered asbestos-containing products without providing

warnings of their known dangers. Dkt. 1-1 J] 12-13, 18-24. Each also allegedly breached a warranty

that their products were fit for their intended installation or use. /d. | 35. These allegations provided

some notice to Boeing that its products were at issue.

This notice was confirmed in the details of filings and deposition testimony that was provided to, and in

the presence of, Boeing’s counsel well in advance of April 16, 2019, i.e., 30 days prior to removal. By

November 8, 2018, Boeing had been informed that Plaintiff sought to impose, specifically as to Boeing,

“falviation product / premises take home” liability for injuries Plaintiff “incurred between 1948 and 1979”

as the result of “[a]viation manufacture/repair by Connie’s husband” in Lakewood and Long Beach,

California. It was also informed that for the first nine years of that period, Paul was a Marine Corps

aircraft mechanic stationed at various bases, including El Toro Air Station, which is near Lakewood and

Long Beach. Dkt. 1-13 at 84-85; Dkt. 32 at 11. Further, on November 30, 2018, Boeing received Paul’s

military records. Dkt. 32 at 7-8. They showed that he had listed Long Beach as his residence both when

he enlisted and when he was discharged, and that during his service he worked extensively as a

mechanic on specific Douglas aircraft, including while stationed at El Toro. Dkt. 1-2 at 31-32; Dkt. 32 at

7-8. A few weeks later, during depositions in December 2018, Boeing established that Paul had been

stationed at El Toro at the time of his marriage in 1953 (Dkt. 32-4 at 41), that thereafter Paul and

Plaintiff resided in Long Beach or in Hawaii, and that Plaintiff had washed Paul’s uniforms while they

Dame 44 wt AK

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

Case No. LA CV19-04291 JAK (PJWx) Date October 28, 2019

Title Connie Dietrich v. Autozone West, Inc., et al.

lived in El Toro. Dkt. 32-4 at 41, 44-45, 49, 81. Boeing also confirmed that, during Paul’s service, while

he was married to Plaintiff and stationed at El Toro, Paul had worked on Douglas military airplanes. /d.

at 78-82. Finally, no later than April 10, 2019, Boeing again confirmed, through the depositions of

Plaintiff's children, that their father had spent considerable time servicing Douglas-built military aircraft

while he was on active duty. E.g., Dkt. 32-6 at 10-11, 18.

This substantial body of evidence rebuts Boeing’s argument that, although Paul’s military records had

established -- on November 30, 2018 -- that Paul had worked on Douglas aircraft while serving in the

Marines, “there was no indication via production of these records of Plaintiffs intent to expand her

‘premises take home’ claims against Boeing to include her own asbestos exposure from Mr. Dietrich’s

military service.” Dkt. 35 at 9. Boeing’s counsel explored Paul’s service at length during the depositions,

including as to the type of work he did, where he did it, and whether it involved asbestos-containing

airplane parts. See Dkt. 32-4 at 48 (“Q [Boeing’s Counsel]: Do you have any information or knowledge

that while your husband was in the Marine Corps, he had worked on or around any asbestos-containing

aircraft components? A: Yes, he did.”). This evidence contradicts Boeing’s argument that none of the

depositions “provided any testimony rising above hearsay and speculation regarding potential asbestos

exposures from Mr. Dietrich’s military service, and none provided any testimony about Plaintiff's

exposures to asbestos from military aircraft,” as well as Boeing’s contention that only the filings on April

19, 2019 “for the first time alleged that Plaintiff was exposed to asbestos as a result of Paul Dietrich’s

exposure to Boeing aircraft during his time in the U.S. Marine Corps as an airplane mechanic.” Dkt. 35

at 9-10.

As to Boeing’s argument that any take-home claim relating to Paul’s Marine service would necessarily

have identified Plaintiffs Hawaii residence as where she was exposed, and not just her California

home, this is not supported by the evidence. Apart from a period in late 1953 and early 1954, Paul’s

military records are not express as to the dates when he and Plaintiff lived in Hawaii. See Dkt. 1-2 at

60. They do establish, however, that Paul was serving at El Toro between 1955 and 1957, the period

which includes the dates on which Paul is specifically recorded as having booked time as a mechanic

on Douglas-built planes. /d. at 14, 18, 19, 31-33. Although this is not dispositive as to Paul’s having

been exposed to asbestos on Douglas aircraft in Hawaii, it provides a reasonable explanation -- other

than the lack of a Douglas plant in Hawaii, as Boeing has argued -- as to why Plaintiff alleged exposure

only in California.

Boeing relies on Karambelas v. Hughes Aircraft Co., 992 F.2d 971, 975 (9th Cir. 1993), for the

proposition that “removal could never be predicated upon speculation.” Dkt. 35 at 13. However,

Karambelas concerned a defendant who constructed grounds for removal through speculation and

“clever questioning.” /d. This included eliciting some facts suggestive of ERISA preemption at a

deposition, and then removing the action. /d. The Ninth Circuit determined that the matter should have

been remanded because no ERISA claim had ever been brought, and that if the plaintiff had attempted

to do so, the claim would have been so weak as to be sanctionable. /d. at 974. Thus, to reward the

defendant’s attempt to generate preemption grounds would “require us to have a rather pertinacious

desire to increase the jurisdictional reach of the federal courts.” /d. at 975.

Here, by contrast, there is no showing that Boeing sought to invent the grounds for removal, or to force

Plaintiff to provide them unwittingly. More instructive is Eyak Native Village v. Exxon Corp., 25 F.3d

773, 783 (9th Cir. 1994). In Eyak, defendant Aleyska had removed on the basis of a federal question as

Dawns 45 wt AK

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

Case No. LA CV19-04291 JAK (PJWx) Date October 28, 2019

Title Connie Dietrich v. Autozone West, Inc., et al.

to whether certain claims constituted a collateral attack on injunctions which had been obtained

pursuant to federal statute. /d. at 782. Aleyska argued that, until it had received the plaintiff's

preliminary designation of issues for trial, the claims giving rise to the federal question appeared to be

advanced only against a co-defendant. /d. at 783. The Ninth Circuit disagreed, concluding that removal

was untimely because Aleyska had taken much earlier actions that made clear that it “was aware of the

nature of the plaintiffs' claims and their possible connection to Chevron v. Hammond [the case

establishing the injunction] long before the removal notices were filed.” /d. For example, eight months

prior to removal, Alyeska itself sought discovery as to allegations relating to the federal question, and

filed an answer in which it asserted a federal preemption defense. /d. “Although the defense of

preemption does not support removal, the answer indicates that Alyeska was aware at that time of the

nature of the plaintiffs’ claims and their possible connection to Chevron v. Hammond.” Id.

The facts here are similar. Several months before removing the action, Boeing was served with

documents that showed that Plaintiff's claim against it related to a period that began with Paul’s military

enlistment and ran throughout his term of service. They also showed that Plaintiff was alleging take-

home asbestos exposure in a California city where she and Paul had lived more than once during that

same military service. Boeing also had notice that Paul spent his military service working on certain

identified models of Douglas aircraft, and that the laundering of his uniforms during that same period

was an alleged source of Plaintiff's asbestos exposure. These allegations parallel those that the Ninth

Circuit has said are sufficient to give notice to a defendant that there is both a causal nexus between

the claims and a military contractor’s actions under federal direction, and a colorable federal defense.®

Durham, 445 F.3d at 1251 (where a claim was based on allegations of asbestos injury resulting from

work on military aircraft, the second and third prongs of the federal officer removal statute were not

satisfied “[uJntil [the plaintiff] revealed which aircraft he had worked on,” because an aircraft

manufacturer “performs some activities on military bases that are protected by federal contractor

immunity, and others that are not.”). Additionally, as in Eyak, over a period of several months Boeing

engaged in substantial discovery efforts as to the relationship between Plaintiffs claims against it and

Paul’s work as a Marine Corps airplane mechanic. It did so in part through the depositions of Plaintiff

and her children.

Even assuming that a close question were presented as to Boeing’s knowledge of sufficient facts to

support removal prior to April 16, 2019, Eyak suggests that Boeing’s answer to the Complaint -- which it

filed on November 15, 2018 -- tips the balance. In its answer, Boeing stated that “any products

manufactured by Boeing which incorporated asbestos-containing materials alleged to have been a

cause of any disease contracted by Plaintiff were manufactured under and in conformity with the

direction and control of the United States Government,” which had “knowledge superior to that of

Boeing with respect to the potential hazards of asbestos products,” and “accordingly, no liability can be

imposed.” Dkt. 32-2 at 10. It also expressly invoked the colorable federal defenses required for

removal. These included that “such claims are barred by the doctrine known as the ‘Government

Contractor Defense,’ and “that Plaintiffs claims are barred by the derivative sovereign immunity

defense doctrine.” /d. Where “the plain language of . . . the answer is quite broad, and separate

affirmative defenses asserted in the answer refer to [the removal grounds],” the argument that the

The remaining element necessary for federal officer removal is that the party must be a person within the

meaning of the statute; it is not disputed that Boeing is such a person. See Dkt. 32 at 13 (“Plaintiff will assume

that Boeing is a ‘person’ under the federal officer removal statute.”).

Dawns 49 □□ AK

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

Case No. LA CV19-04291 JAK (PJWx) Date October 28, 2019

Title Connie Dietrich v. Autozone West, Inc., et al.

answering party was at the time unaware of the very grounds it was arguing is disingenuous at best.

Eyak, 25 F.3d at 783.

Although both the grounds for removal pursuant to the federal officer removal statute and the

commencement of the 30-day clock may be construed broadly, once “sufficient facts” to support

removal have been provided by the plaintiff, the 30-day window itself “must be strictly complied with.”

U.S. ex rel. Walker v. Gunn, 511 F.2d 1024, 1026 (9th Cir. 1975). Ample facts sufficient to give Boeing

grounds to remove this action were present by late 2018, and certainly prior to April 16, 2019. For these

reasons, the removal on May 16, 2019 was untimely.

2. Remand

“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the

case shall be remanded.” 28 U.S.C. § 1447(c). This case was removed on the basis of the federal

officer removal statute, but where such a petition is untimely, the district court lacks jurisdiction to

decide the merits of the case. Walker, 511 F.2d at 1027. Therefore, remand is warranted.

For the reasons stated in this Order, the Motion is GRANTED insofar as it seeks to remand this action

to the Los Angeles Superior Court.

3. Request for Fees

Plaintiff seeks an award of the attorney’s fees incurred in connection with the Motion. 28 U.S.C.

§ 1447(c) provides that “[a]Jn order remanding the case may require payment of just costs and any

actual expenses, including attorney fees, incurred as a result of the removal.” An award of attorney's

fees and expenses under § 1447(c) is appropriate “only where the removing party lacked an

objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141

(2005). When an objectively reasonable basis for seeking removal exists, a request for attorney’s fees

under Section 1447(c) should be denied. /d. Where there is no objectively reasonable basis, however,

“[t]he appropriate test for awarding fees under § 1447(c) should recognize the desire to deter removals

sought for the purpose of prolonging litigation and imposing costs on the opposing party, while not

undermining Congress’ basic decision to afford defendants a right to remove as a general matter, when

the statutory criteria are satisfied.” /d. at 140.

For the reasons stated above, removal here was not objectively reasonable. Plaintiff also states that

she is suffering from a terminal illness, and that the removal was effected after substantial litigation in

the Superior Court, and shortly before trial — for which Plaintiff had been granted a preference pursuant

to Cal. Code Civ. Proc. § 36 -- was to have commenced. See id. at 6, 22.

Plaintiffs counsel declares that he has spent ten hours researching removal, drafting the Motion and

preparing the supporting materials. Based on an hourly rate of $350, he seeks an award of $3500 in

fees, inclusive of costs. Dkt. 32-1 at 2. Given the thousands of pages filed by Boeing in support of its

removal, ten billable hours in response was reasonable. Moreover, in light of the Court’s familiarity with

hourly rates that are charged within this District, and the quality of the work product that was presented,

an hourly rate of $350 is reasonable.

Davmae 4A wt AK

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

Case No. LA CV19-04291 JAK (PJWx) Date October 28, 2019

Title Connie Dietrich v. Autozone West, Inc., et al.

Accordingly, the request for an award of attorney’s fees and costs is GRANTED. Plaintiff is awarded

$3500. That amount shall be paid within 30 days of the issuance of this Order.

IV. Conclusion

For the reasons stated in this Order, the Motion is GRANTED and the action is remanded to the Los

Angeles Superior Court at its Stanley Mosk Courthouse, Case No. 18STCV00436.

IT IS SO ORDERED.

Initials of Preparer ak

Damen 4E wt AK