United States Court of Appeals For the Seventh Circuit
Civil Procedure — jurisdiction
Where the defendant has a colorable government contractor defense, the case should not have been remanded to state court.
“Like the use-of-asbestos claim, the exhibits attached to CBS’s Rule 59(e) motion establish a colorable argument for the defense. First, the Navy controlled the content and placement of warnings. Gate’s affidavit states the ‘Navy had precise specifications as to the nature of any communication affixed to equipment supplied by Westinghouse to the Navy,’ and ‘Westinghouse would not have been permitted . . . to affix any type of warning . . . beyond those required by the Navy, without prior discussion with, and approval by, the Navy.’ (Ex. A ¶ 31.) Instead, the Navy supplied its own instruction manuals with precautions. (Id. at ¶ 32.) The actual MilSpecs confirm the Navy’s control over the inclusion of warnings. See (Ex. E § 3.4). Next, CBS complied with the Navy’s warning requirements (by affixing none) because the Navy prohibited warnings. Admiral Horne stated that the MilSpecs ‘addressed the instructions considered essential by the Navy to warn individuals working with that equipment and material about potential hazards,’ and they did not include warnings about asbestos. (Ex. B ¶¶ 29-30.) Finally, the third element in Oliver mirrors the third Boyle requirement, which as explained above, CBS satisfies because there is nothing CBS knew about asbestos that the Navy did not. As such, CBS has a colorable defense for the failure- to-warn claims as well.”
Reversed and Remanded.
Appeal from the United States District Court for the Southern District of Illinois, Murphy, J., Flaum, J.