1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 KEITH GEMAEHLICH, et al., Case No. 22-cv-07518-CRB

11 Plaintiffs,

ORDER GRANTING MOTION TO

12 v.

REMAND

13 AIR & LIQUID SYSTEMS CORPORATION, et al., 14 Defendants. 15 Plaintiffs Betty and Keith Gemaehlich (together, the “Gemaehlichs”) bring this 16 motion to remand their case back to Alameda Superior Court. See Mot. (dkt. 56). The 17 Gemaehlichs’ complaint alleges that Keith Gemaehlich’s mesothelioma was caused, at 18 least in part, by his work with and around products containing asbestos manufactured and 19 supplied by various defendants, during his service in the U.S. Navy between 1960 and 20 1964. See Compl. (dkt. 1-1). Defendant John Crane Inc. (“JCI”) removed the case to 21 federal court, arguing that removal was proper under the federal officer removal statute, 28 22 U.S.C. § 1442(a)(1), because “to the extent JCI supplied asbestos-containing basket and 23 packing material” to the Navy, it did so “pursuant to military procurement contracts with 24 the United States Government and in compliance with detailed design, testing, and labeling 25 specifications issued and approved by the Government.” Notice of Removal (dkt. 1) at 9. 26 Instead of arguing against removal on the merits, the Gemaehlichs stipulated to 27 dismiss JCI from this action, which the Court granted. See dkts. 49, 61. Defendant 1 Crosby Valve then opposed the Gemaehlichs’ motion to remand, similarly arguing that the 2 valves it supplied to the Navy at that time strictly conformed to the Navy’s specifications. 3 See Opp’n (dkt. 74). The Gemaehlichs then stipulated to dismiss Crosby Valve, which the 4 Court also granted. See dkts. 77, 106.1 The Gemaehlichs therefore contend that, because 5 the two defendants who asserted removal jurisdiction have been dismissed,2 the Court 6 should, in its discretion, decline supplemental jurisdiction over the state-law claims in this 7 action and remand the case back to Alameda Superior Court. The Court agrees, and 8 finding this case suitable for resolution without oral argument under Civil Local Rule 7- 9 1(b), VACATES the hearing scheduled on April 21, 2023, and GRANTS the 10 Gemaehlichs’ motion to remand. 11 “It is the general rule that an action may be removed from state court to federal 12 court only if a federal district court would have original jurisdiction over the claim in suit.” 13 Jefferson County v. Acker, 527 U.S. 423, 430 (1999) (citing 28 U.S.C. § 1441(a)). Under 14 this default rule, a federal defense does not generally qualify a case for removal. Id. at 15 430–31. This case, removed pursuant to the federal officer removal statute, constitutes an 16 exception to that “well-pleaded complaint” rule. See 28 U.S.C. § 1442(a). Under Section 17 1442(a)(1), an action may be removed by “any officer (or any person acting under that 18 officer) of the United States or of any agency thereof, in an official or individual capacity, 19 for or relating to any act under color of such office . . . .” 28 U.S.C. § 1442(a)(1). “A 20 party seeking removal under § 1442 must demonstrate that (a) it is a ‘person’ within the 21 meaning of the statute; (b) there is a causal nexus between its actions, taken pursuant to a 22 federal officer’s directions, and plaintiff’s claims; and (3) it can assert a ‘colorable federal 23 defense.’” Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006) 24 (quoting Acker, 527 U.S. at 431). 25

26 1 In that stipulation, Crosby Valve also withdrew its opposition. See dkt. 77. 27 2 While other defendants have appeared and answered, no defendant (other than Crosby Valve) 1 Courts have recognized, however, that when the party asserting removal jurisdiction 2 is dismissed from the action, while the court retains jurisdiction over the pendent state-law 3 claims remaining in the action, it may exercise its discretion to remand the case back to 4 state court. See 28 U.S.C. § 1367(c); Watkins v. Grover, 508 F.2d 920, 921 (9th Cir. 5 1974) (reversing and remanding a dismissal for lack of subject matter jurisdiction because 6 the federal defendants were dismissed, but instructing the district court on remand to 7 “decide whether to hear the suit on its merits or, in its discretion, to remand the suit to the 8 state court from which it was removed”). Particularly where “there has been no substantial 9 commitment of judicial resources to the nonfederal claims it is . . . akin to making the tail 10 wag the dog for the District Court to retain jurisdiction.” Murphy v. Kodz, 351 F.2d 163, 11 167–68 (9th Cir. 1965) (internal quotation marks and citation omitted); see also Mellis v. 12 Asbestos Corp. Ltd., 13-cv-3449, 2013 WL 4805746, at *2 (N.D. Cal. Sept. 9, 2013) 13 (exercising its discretion to remand a similar case “[g]iven the early stage of this 14 litigation”). 15 The Court exercises its discretion to remand this case back to Alameda Superior 16 Court. The Gemaehlichs bring only state-law tort claims, which clearly “substantially 17 predominate” in this action. See Compl.; 28 U.S.C. § 1367(c)(2). The only two 18 defendants to assert removal jurisdiction have been dismissed. See dkts. 61, 106. Though 19 many other defendants have appeared in this case and might assert a federal officer 20 defense, none consented to JCI’s removal, joined Crosby Valve’s (now withdrawn) 21 opposition to remand, or filed their own oppositions to the Gemaehlichs’ motion to 22 remand. Because the party asserting removal jurisdiction bears “the burden of proving by 23 a preponderance of the evidence that the colorable federal defense and causal nexus 24 requirements have been met,” see Leite v. Crane Co., 749 F.3d 1117, 1121–22 (9th Cir. 25 2014), and none of the other defendants have even sought to do so, the Court is not 26 inclined to retain jurisdiction on the off chance that another remaining defendant asserts a 27 federal officer defense at some point in the litigation. Finally, the complaint was only filed 1 || granting the parties’ stipulations to dismiss JCI and Crosby Valve, this is the Court’s first 2 action in this case. Therefore, “there has been no substantial commitment of judicial 3 resources” to this case, and remand is proper under 28 U.S.C. § 1367(c). Murphy, 351 4 || F.2d at 167-68. 5 For the foregoing reasons, the Gemaehlichs’ motion to remand is GRANTED. 6 IT IS SO ORDERED. 7 Dated: April 5, 2023 am

CHARLES R. BREYER

8 United States District Judge 9 10 11 12

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