U.S. District Court for the Southern District of Illinois

In Leopold v. Air, plaintiff Debra Leopold filed an asbestos action in the Circuit Court for the Third Judicial Circuit, Madison County, Illinois. Defendant Goulds Pumps, LLC removed the case to the U.S. District Court for the Southern District of Illinois pursuant to the provisions of 28 U.S.C. § 1442(a)(1) with only one defendant, Carrier Corporation joining in the motion. In response, the plaintiff filed a motion to remand. No objections were filed to the motion.

28 U.S.C. § 1442(a)(1) allows the removal of a case when a defendant is sued for acts undertaken at the direction of a federal officer. It allows for “any officer … of the United States or … person acting under” them to remove actions “for or relating to any act under color of such office.” Ruppel v. CBS Corp., 701 F.3d 1176, 1180 (7th Cir. 2012) (citing 28 U.S.C. § 1442(a)(1)). The component referencing “under color of office” contains a requirement that defendants must have a colorable federal defense to the plaintiff’s action. Mesa v. California, 489 U.S. 121, 132-34, 109 S. Ct. 959, 103 L. Ed. 2d 99 (1989). This creates an exception to the well-pleaded complaint rule, and section 1442(a)(1) permits the removal of the entire case, even if the federal officer defense may not apply to all the claims.

In the case at bar, the court outlined the three circumstances under which remand is inappropriate: (1) if the statute of limitations would bar the refiling of claims in state court; (2) if substantial judicial resources have already been spent on the litigation; or (3) if the outcome of the claims is obvious. The court concluded that, when none of these exceptions existed, remand is preferable due to the state’s compelling interest in enforcing its own laws. Additionally, the court notes a specific preference for remand in asbestos litigation when only one defendant out of many removes the case based on a federal defense, as is the case in Leopold. The only basis for federal jurisdiction in this case was the federal defense of Goulds and Carrier, who were dismissed from the case on December 4, 2023, leaving the remaining defendants who have not raised the federal officer removal statute as a defense, identified another basis for federal jurisdiction, nor objected to remand. Therefore, the court holds that the remaining claims are governed by state law and thus, the plaintiff’s motion to remand was granted.

Read the full decision here.