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MCCORMICK v. C.E. THURSTON & SONS

May 23, 1997

HUGH B. McCORMICK, III, Ancillary Administrator, and EDANA COCHRAN, Personal Representative of the Estate of Paul C. Cochran, deceased, Plaintiffs
v.
C.E. THURSTON & SONS, INC., Defendant.



The opinion of the court was delivered by: MACKENZIE

ORDER AND OPINION

 This matter came before the Court pursuant to Plaintiffs' motion to remand. Plaintiffs argue that neither of the grounds stated in Defendant's notice of removal properly establish federal jurisdiction over the instant action. After hearing argument in the matter and duly considering the parties' submissions, this Court agrees. Accordingly, Plaintiffs' motion to remand is hereby GRANTED.

 I.

 This action arose out of the alleged wrongful death of Paul C. Cochran, a former navy officer allegedly exposed to asbestos while serving aboard the USS NIMITZ. As a result of his exposure, Mr. Cochran apparently contracted mesothelioma that eventually proved fatal. His wife, Edana Cochran, through her ancillary administrator, has brought suit against C.E. Thurston & Sons, the distributor of asbestos products aboard the NIMITZ. Her claim was filed pursuant to the Jones Act, the Death on the High Seas Act and the general maritime law alleging liability for a failure to warn.

 The action was originally filed in the Circuit Court for the City of Newport News. Defendant filed a notice of removal claiming, in the alternative, that federal jurisdiction was appropriate under the "federal enclave" clause of the U.S. Constitution, or pursuant to 28 U.S.C. § 1442 that provides for "federal officer" removal.

 II.

 When a party attempts to remove a case from state court pursuant to 28 U.S.C. § 1441(a), they incur the burden of establishing proper jurisdiction within the federal system. See Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). As stated by the Fourth Circuit, "the burden of establishing federal jurisdiction is placed upon the party seeking removal." Id. (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 66 L. Ed. 144, 42 S. Ct. 35 (1921)). And "because removal raises significant federalism concerns, [a court] must strictly construe removal jurisdiction. Id. (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 85 L. Ed. 1214, 61 S. Ct. 868 (1941)). Finally, "if federal jurisdiction is doubtful, a remand is necessary." Id. (citing In re Business Men's Assur. Co. of America, 992 F.2d 181, 183 (8th Cir. 1993).

 III.

 In their motion to remand, Plaintiffs' argument is twofold. First, Plaintiffs argue that federal jurisdiction does not exist, as alleged in the notice of removal, under the "federal enclave" provision of the United States Constitution. Second, they argue that federal jurisdiction is also not proper, as alleged, pursuant to the "federal officer" provisions of 28 U.S.C. § 1442.

 A. "Federal Enclave" Jurisdiction

 To begin, federal enclave jurisdiction grows out of Article I, section 8, clause 17 of the United States Constitution which provides:

 
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places Purchased by the Consent of the Legislature of the State in which the Same shall be, for other Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful buildings.

 Accordingly, suits regarding property purchased in the manner stated above are to occur in the federal courts of the United States.

 However, Plaintiffs argue that this "federal enclave" provision of the Constitution applies only to lands owned by the United States. Thus, contrary to the contentions of Defendant, a navy vessel, ...


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