Legal Case Summary

the Ross. More on your honor. I'm Michael J. Ross on behalf of Appellant Cranko, your honors. The central question presented in this appeal is whether a plaintiff can manipulate the allegations in a complaint post-removable and thereby support a remand of a case removed on federal officer grounds where it's undisputed that the removing defendant had a colorable federal defense at the time of removal. We suggest that the answer to that question should be no. And that that is made most clear perhaps by this court's 1994 decision in the Jameson V. Wiley case that we cited in our brief. Your honors. The plaintiff challenges the reviewability of the order remanding this case to Cranko. And that's the June 6th order of the district court. There are two orders in an issue here, the June 6th order and an earlier order in March, March 7th. So you don't appeal from the March order? We appeal one portion of that order, Judge Wynn. In that order, the district court did two things. She held that Cranko had a colorable federal defense and she refused to remand the claims against Cranko, but she severed and remanded the claims against Cranko's co-defendants. And we argue that that was an abusive discretion, that second part of the order, the severance decision. And then we separately challenged the June 6th order where the district court remanded essentially what was the rest of the case, the claims against Cranko. When did you appeal from the March order? It was within 30 days after the June 6th order, Your Honor

. We did not file an interlocatory appeal or any appeal within 30 days of March 7th. Turning to the question of, a plaintiff challenges the reviewability of both the March 7 order and the June 6th order. I'd like to briefly address the June 6th order, Your Honors. In 2011, Congress amended 28 USC 1447D to make reviewable any order remanding a case removed on federal officer grounds. Under 28 USC 1442, this civil action was removed on federal officer grounds and every claim in it was removed on federal officer grounds. So we suggest that order, the June 6th order certainly is reviewable. As far as the March 7th severance order, Your Honor, that was an interlocatory order as to Cranko whenever it was entered because the federal action went on as to Cranko. We suggest that that interlocatory order emerged with the June 6th final order as to Cranko for purposes of a pellet review and that's why we can appeal it although we did not file an appeal within 30 days of March 7th. What made it interlocatory? Your Honor, it was interlocatory because although it ended the claims against the Code of Finance in federal court, the federal court proceedings went on against Cranko. The district court held that the case should not be remanded as to Cranko. Plain of claims for strict liability and negligence would continue in the district of Maryland against Cranko. And therefore, at that point in time as to Cranko, it was interlocatory. That's our argument, Your Honor. Turning to the merits of the district court's decision to remand this case as to Cranko, Your Honor, the June 6th order. A 20A USC 1442A1, Guaranteed Federal Officers and those acting in their direction, the right to have state law claims asserted against them, heard and tried in federal court. Cranko exercised that right here by removing this case to the district of Maryland. Cranko was a contractor to the U

.S. government, specifically the Department of the Navy during World War II and in the years thereafter. What was the basis of removal under the Federal Office of Statute? Did it relate specifically to the fact that the Navy had this contract with regard to just vows? Yes, Your Honor, in a sense, the gaskets came in the valves. The Navy purchased valves and the allegation here is also gaskets from Cranko. Those purchases were made. So, if you were maintaining that that was part of the cost contract to the gaskets with the Navy, or with two separate things. No, the gaskets the Navy purchased from Cranko came in the valves. And let me say that there is a dispute about this, Your Honor. The parties dispute the extent to which Cranko supplied gaskets to the Navy separately from its valves. We say there were approved lists of gaskets suppliers and Cranko wasn't on those lists. So to the extent Cranko supplied a gasket to the Navy, it was inside of a valve. The Navy said when you ship these valves to us, we want to gask it in it and often it was asbestos containing, pursuant to these specifications and a piece of packing. And that's the source. Well, that seems to suggest it was part of the approved list except you saying it was all part of one unit, the valves and the gaskets together. That doesn't seem to be your argument below. In fact, when the council was asked specifically as to whether the gaskets were part of this is where we don't know, of course, and we'll check it out. And ultimately made a statement that the valves were included

. So that's the separation of the valves and the gaskets here. That is what council stated below, Your Honor. He said that we hadn't briefed that issue and he wasn't prepared to take a position on it. I mean, subsequently, and I don't fault him for that, subsequently we offered to the district court in our briefing in opposition to this notice of abandoning the valve claims that we could maintain a colorable federal defense even if just gaskets were involved. Help me. Help me understand. As I understand it, there doesn't appear to be any dispute that the case was initially properly removed. I think that's right, Your Honor. So the question is, what happens once it's all removed? Can it be severed at that point? Yes. So and the district court appears to have assumed that it could remand a portion of the properly removed case for lack of subject management jurisdiction. Yes. I think that's what the district court held. I don't understand. Your Honor. Well, that was going to be my question. Help me understand how you can, um, remand a part of, help me understand the basis for the district court's remand and your response to the propriety of that remand order. So the district court indicated in its, in its March 7 order that it had subject matter jurisdiction, removal jurisdiction under the federal officer statute with respect to the valve claims here, which we, we say there's no, there's no distinction

. This is a distinction without a difference. Valve, gasket, their strict liability and negligence claims. Well, you can only, as I think the statute reads, you can only remove actions. Yes. This is exactly right, Your Honor. That's exactly right. You don't remove claims and leave. Exactly. That's exactly right. The district court said she had, the district judge had supplemental jurisdiction over the quote unquote, gasket claims. But then in the June order, the district court remanded the quote unquote, gasket claims for lack of subject matter jurisdiction entirely under 1447 C. That doesn't seem to square it us. And regardless, even accepting this valve, gasket distinction, I think the critical thing here is it's undisputed that at the time of removal, subject matter jurisdiction existed. The crank, oh, had a colorable federal defense under Jameson V. Wiley. That case makes it very clear that removal jurisdiction under 20, a U. S

. E. 1442 is mandatory, not discretionary. That's the language of the opinion and the irrespective of any change in events. Yes, Your Honor. Yes, Judge D. Yes. Even if, in Jameson V. Wiley, in fact, there was a hearing, the judge held a hearing post removal after finding the federal defense colorable, determined this defendant does not have a valid federal defense and remanded it. Isn't that the difference here? I don't, I just not a case in which the court made a determination that there's not a valid federal defense. What happened here is the disclaimer comes about, which effectively gets rid of this claim. And Judge, when that, that doesn't sort of put it in more of a amendment sort of vein where, once that occurs and it relates back, then you have nothing when it relates back. That's the problem that I see with this case that differentiates it from Jameson. Judge, when I would suggest that whatever happens post removal that may lead to the rejection of the federal defense, which is what happened here, the district court said, in March, you have it. And as of June, now that this amendment has been made, you don't have it anymore. Whatever happens under Jameson V. Wiley, that should not support a remand. What are you defending if you, if it relates back to the initial claim on a rule 15 amendment, what's there to defend? Well, your honor, we're still defending the same essential claims that were there at the beginning, which is Mr

. Joyner, worked with Cranko Vals and the gaskets that were in them and that he was exposed to asbestos. But you're doing that now under state law that the federal defense has gone away. Your honor, we, as I said earlier, we contend we have a federal defense, even accepting this distinction. We can assert a federal defense and we would attempt to assert it in a tropic state. In a good way, you waited too long to make that rather, and I agree, rather fine distinction between vals and gaskets. Let me ask you this. I mean, if the plaintiff had filed an affirmative claim under federal law and then decided to dismiss that claim, that would be his or her right, correct? That's correct, and that would allow then for a remand back to the state court. Under 1367, yes. Why the difference? Why does it matter that we're dealing with a defense here as opposed to an affirmative claim? 13, well, the difference here on our 1367 deals with claims for which there's supplemental jurisdiction, state law claims involving supplemental jurisdiction. Here, there were no claims against Cranko that got into the district court because of supplemental jurisdiction. The district court had original jurisdiction over the claims because of this colorable federal defense as of March 7, and under 1447, which was the 1447C, which was the statute that the district court cited, the question is to whether subject matter jurisdiction exists is answered at the time of removal. I mean, that's what Jameson V. Wiley holds. That's what the Supreme Court held in free, port V. MacMorken. But it doesn't prevent a remand for lack of subject-murdered jurisdiction. Does it? If it's determined to not exist at the time of removal, then yes

. And going one other point, Judge Diaz, if the plaintiff had dismissed Cranko under 1367C III, for instance, if all of the federal claims, and here we're dealing with the federal defense to little awkward, but if they had all been dismissed, there would be authority to remand under 1367C III. But that's not what happened. That's our contention here. What do you say, have? The plaintiff manipulated allegations in an effort to get back the board involved more and dismissed this claims with respect to the vow. No, I don't think so, Your Honor. They disclaimed these vow claims, but it's our contention that there's really no effect to that, because the vow doesn't expose anybody to asbest as any way. But that's the fact that you'll issue. Yes, Your Honor. Yes, and at a minimum, if the district court found that this distinction, this vow-gasket distinction that the plaintiff was making could defeat the federal defense or defeated our federal defense, should have at least permitted us an opportunity to make that case, to put on some evidence. I noted that in the March 7 order, the district court noted that the federal defense can be detailed in the notice of removal, the pleadings, other papers filed by the removing defendant. But the standard was very different in June. It wasn't in your notice of removal, you're going back to state court. Could I just follow up? There are two things, two questions actually. The harm, if you go back to state court and wood doesn't maintain, doesn't abide by its prospective waiver. You get to reassert the defense and remove. That's what the district court indicated. No, are you disagree with that? No, we agree with that

. Okay. So there would appear to be at least a plausible exit ramp to one of the problems that you foresee. The other difficulty that I'm wrestling with is, when did you make the distinction in the federal government contract with defense between the valves and the gasket? It was in response to the notice of abandonment, Your Honor. That was when the distinction was maintained. And the district court decided that that was untimely. That's right. I was having a little bit of difficulty with that because I didn't see why the time limit in 1446B matters in that context because that time limit only addresses the requirements for removal. That's right, Your Honor. Of course, I'll ask opposing counsel, but it doesn't seem to me that that time limit that's right, Your Honor. Constrained your ability to add. And if you look at some of the, yes, Your Honor, and if you look at some of the cases arising in this context like Willingham V Morgan, the Supreme Court actually noted in that case that the critical allegations supporting the federal defense weren't in the notice of removal. We're in a later filing and it's still reviewed them to see if the defense existed. And we submit the district court should have done that here. Turning very, very briefly to the severance order, Your Honor, the March 7th order severing the claims against the court defendants, we agree that the district court now to get there, you've stated rather conclusory that that was an in a locatory order. Yes, Your Honor. What made it in a locatory seems like everything was taking care. What you are arguing is that entire case should be in the federal court, but did not allow that

. What's not final about that? My understanding of why that would be in a locatory, Your Honor, was because the case proceeded against Cranko. Much if summary judgment had been denied to Cranko, proceedings went on in federal court. It was only after this here our final judgment, which is the remand order of June 6th was issued that Cranko had a right to appeal this earlier in a locatory order. That's my argument, Your Honor. But your argument in March was that the entire case belongs here. Yes, it was Your Honor. And it wasn't there. So it was pretty final at least in so far as that issue. It's to the co-defendants, yes, Your Honor. And to you, I mean it was pretty final when it separated the case and sent it back, you said the entire case belongs here. We did Your Honor. And you didn't appeal. And that was clear. That's right, Your Honor. I've noticed that I'm out of time, Your Honor. We have some time for a rebuttal. Okay, thank you

. Miss Batters, am I pronouncing it correctly? The court jocke on Batters on behalf of Plain of Apalee. I think to frame the issues before the court, it's important to step back and look at what this case is. And this isn't as best as case. It's a run of the mill products liability case. And it's a case as to crane that initially involved two separate and distinct products. Well, it's not exactly one of the mills. But it's not just one of the things that implicates parts that were manufactured according to military specifications. I mean, that makes it slightly, that contributes slightly to the difficulty that we're having here because that's what gives rise to the government contract of defense. Certainly, and with respect to the asbestos exposures that we in this particular area of the law see, this is a routine and a run of the mill case in that what we have an issue or products, some of which may give rise to federal defense. And I understand the distinction your honor is pointing to my points more specifically to the panel's questions and certainly clearly the lower courts determination and plaintiffs position that the products that issue that relate to crane or two separate and distinct products. There is the valve product and there is the craneite gaskets, the gasket product. And what's important in looking at that issue is I heard a lot of glossing over my counsel with respect to well, we don't really think we sold the gaskets to the Navy. So we went really articulated federal officer defense on that basis when we remove, but I mean, really the gaskets and the valves are all combined. Plain of theory of the case with respect to what plane of intense to pursue at this point and has been made clear by the amendment complaint is that we are pursuing crane strictly for crane gaskets. And what the court should know is that throughout the country the position crane takes with respect to the products that issue valves and gaskets is that they are so separate and distinct. Is this in the record? Yes, it is in the record that they are so separate and distinct that they are entitled to judgment as a matter of law as to their valves in a given case, but, but will not seek to positive really has to gaskets because it goes so far as to claim crane that a different set of law applies their liability for valves. As compared to the gaskets and I don't want to go too far field, but I wanted to frame for the court the products that are of issue and then from there where the district courts findings stemmed and then where we find ourselves today. So your claim is limited to the gaskets in isolation from any other component part of the ship even if it includes a valve. Correct. I absolutely well, let me back up on what on that. That's the problem. I mean, that's the well, the testimony of Mr. Joyner is that he routinely use crane. So the night sheet gaskets during the course of his repairs to not only flanges, valves, pumps, etc. It was essentially a an off the shelf, fundable product that could be used in all different types of equipment. So no, the claim here is not that crane would not be responsible for gasket exposures resulting from Mr. Joyner's use of its crane, I cheat gaskets. But what we're saying is we're not pursuing crane for any of his exposures to crane valves. And why that's important is again, because it's a product's liability case, Mr. Joyner's injury is one that is the result of contributing factors. But each product, the burden rest with plaintiff to establish contributed to the point that we meet the Lorman, the Balbo's, the Dixon standard with respect to specific causation. And so I hope that's distilled. The panel's question, but the reason I highlight that is because what we have before the court is not an appeal of the March 7th order by the lower court finding that there were gasket claims and there were valve claims. And in assessing the colorability of cranes removal, which was premise strictly on the valve product, the valve claims, the court concluded crane had met its colorability requirements determined that she was going to exercise primary subject matter jurisdiction over the valves

. So your claim is limited to the gaskets in isolation from any other component part of the ship even if it includes a valve. Correct. I absolutely well, let me back up on what on that. That's the problem. I mean, that's the well, the testimony of Mr. Joyner is that he routinely use crane. So the night sheet gaskets during the course of his repairs to not only flanges, valves, pumps, etc. It was essentially a an off the shelf, fundable product that could be used in all different types of equipment. So no, the claim here is not that crane would not be responsible for gasket exposures resulting from Mr. Joyner's use of its crane, I cheat gaskets. But what we're saying is we're not pursuing crane for any of his exposures to crane valves. And why that's important is again, because it's a product's liability case, Mr. Joyner's injury is one that is the result of contributing factors. But each product, the burden rest with plaintiff to establish contributed to the point that we meet the Lorman, the Balbo's, the Dixon standard with respect to specific causation. And so I hope that's distilled. The panel's question, but the reason I highlight that is because what we have before the court is not an appeal of the March 7th order by the lower court finding that there were gasket claims and there were valve claims. And in assessing the colorability of cranes removal, which was premise strictly on the valve product, the valve claims, the court concluded crane had met its colorability requirements determined that she was going to exercise primary subject matter jurisdiction over the valves. She concluded as to the gaskets, she had supplemental jurisdiction crane gaskets supplemental jurisdiction, just like she had supplemental jurisdiction of all the other defendants products in the case that did not number one seek the benefit of a federal forum and did not assert a 1442 removal as a basis of jurisdiction. If I can, let me tell you the conceptual difficulty I'm having and perhaps you can help me wrestle with it. Let's start with just bedrock removal principle. You remove cases, you remove actions, you don't remove claims. So the whole case comes up to federal court. You also get to establish the bases. We have allowed removing defendants to set out the bases for the removal jurisdiction after the removal. In other words, once the cases removed, the time limit for removal goes away, the time limit for removal doesn't apply to the assertion of bases of federal jurisdiction after the cases removed. Then we have case law that says that. Well, I think what we need to do with this juncture is we need to look at the statutory scheme and Congress's intent and I actually know if you would if you would just answer my question. Is there a point at which you take issue. I thought what I was saying was fairly well established in our precedent that you remove cases, not claims, and that once the case is removed, the bases. The statement of bases and I can give you a page site in some of our cases for that proposition, don't have to be asserted subject to the time limitation that apply to removal. There's a strict time limit within which one can remove. Yes, Your Honor. But that time limit as we have held that once as I understand it, that time limit doesn't come into play for identifying all of the bases. I'm not quite sure in other words what was wrong with crane identifying a federal contractor defense with respect to

. She concluded as to the gaskets, she had supplemental jurisdiction crane gaskets supplemental jurisdiction, just like she had supplemental jurisdiction of all the other defendants products in the case that did not number one seek the benefit of a federal forum and did not assert a 1442 removal as a basis of jurisdiction. If I can, let me tell you the conceptual difficulty I'm having and perhaps you can help me wrestle with it. Let's start with just bedrock removal principle. You remove cases, you remove actions, you don't remove claims. So the whole case comes up to federal court. You also get to establish the bases. We have allowed removing defendants to set out the bases for the removal jurisdiction after the removal. In other words, once the cases removed, the time limit for removal goes away, the time limit for removal doesn't apply to the assertion of bases of federal jurisdiction after the cases removed. Then we have case law that says that. Well, I think what we need to do with this juncture is we need to look at the statutory scheme and Congress's intent and I actually know if you would if you would just answer my question. Is there a point at which you take issue. I thought what I was saying was fairly well established in our precedent that you remove cases, not claims, and that once the case is removed, the bases. The statement of bases and I can give you a page site in some of our cases for that proposition, don't have to be asserted subject to the time limitation that apply to removal. There's a strict time limit within which one can remove. Yes, Your Honor. But that time limit as we have held that once as I understand it, that time limit doesn't come into play for identifying all of the bases. I'm not quite sure in other words what was wrong with crane identifying a federal contractor defense with respect to. Yes, okay, and I think the important thing that we need to look at is 1442 certainly a defendant may invoke 1442, but in order for the court to determine whether jurisdiction properly rests because again, we're removing state law based claims to federal court based on a defense. The court has to establish and determine based on what's presented to it, whether or not that removal was culpable as to a as to the defense as to the products at issue. And I understand that yes, there are certainly cases that reflect that defendants or parties are free, given leave to to amend their notice of removal to proper supplemental information to support it. But I'm unaware of a situation where you would have a defendant removing failing to meet the colorability requirement. But the district court found that it met the colorability requirement and as I understand it, there was no dispute that the case was properly removed. The difficulty really that I'm having is thinking of claims and trying to make sure we don't confuse them with cases or causes of action. Sure, I understand your honor and what I was trying to under question and if I can just step back, I think we do have to look at the statutory scheme and what we have with our federal court which are courts of limited jurisdiction. And we have a number of statutes we can look at to give us guidance with respect to what what is this new exception, quite frankly that exists for a 1442, remand appellate review. And we look at the confines within which this exception comes in. We know the courts in 1441 now are prohibited from exercising supplemental or pendant jurisdiction over other claims that are removed as a tag along basis with 1441. So this is the situation where you have somebody or case that involves a federal claim, not a defense of federal claim and other state law claims. Congress made very clear no longer does it read that the court, the federal court may remand the state law claims. It reads the court shall. There is no more discretion. So that gives us some guidance with respect to how jurisdiction should be exercised on the heels of all that we look at where we have an amendment under 1447 that does accept out a 1442 removal. But what I would profit of the court here, we don't have a lot of case law because it's new. It's an unusual situation and factually here, the defendant offered this new basis for removal as I understood it in response to your amended claim that you're now you're only going to you have now decided that you're only going to focus on the gaskets and so claims that oh well

. Yes, okay, and I think the important thing that we need to look at is 1442 certainly a defendant may invoke 1442, but in order for the court to determine whether jurisdiction properly rests because again, we're removing state law based claims to federal court based on a defense. The court has to establish and determine based on what's presented to it, whether or not that removal was culpable as to a as to the defense as to the products at issue. And I understand that yes, there are certainly cases that reflect that defendants or parties are free, given leave to to amend their notice of removal to proper supplemental information to support it. But I'm unaware of a situation where you would have a defendant removing failing to meet the colorability requirement. But the district court found that it met the colorability requirement and as I understand it, there was no dispute that the case was properly removed. The difficulty really that I'm having is thinking of claims and trying to make sure we don't confuse them with cases or causes of action. Sure, I understand your honor and what I was trying to under question and if I can just step back, I think we do have to look at the statutory scheme and what we have with our federal court which are courts of limited jurisdiction. And we have a number of statutes we can look at to give us guidance with respect to what what is this new exception, quite frankly that exists for a 1442, remand appellate review. And we look at the confines within which this exception comes in. We know the courts in 1441 now are prohibited from exercising supplemental or pendant jurisdiction over other claims that are removed as a tag along basis with 1441. So this is the situation where you have somebody or case that involves a federal claim, not a defense of federal claim and other state law claims. Congress made very clear no longer does it read that the court, the federal court may remand the state law claims. It reads the court shall. There is no more discretion. So that gives us some guidance with respect to how jurisdiction should be exercised on the heels of all that we look at where we have an amendment under 1447 that does accept out a 1442 removal. But what I would profit of the court here, we don't have a lot of case law because it's new. It's an unusual situation and factually here, the defendant offered this new basis for removal as I understood it in response to your amended claim that you're now you're only going to you have now decided that you're only going to focus on the gaskets and so claims that oh well. The contractor difference exists with respect to those two I mean it was it seems to have been almost an iterative process with the two of you responding. Tailoring if you will your claims and amendments to the others. I don't think that's the case here when we moved to have been the with respect that has to have been what you did when you suddenly decided oh no we're just dealing with gaskets. Well with respect I understand your point with respect to that yes we are the masters of our complaint and we have sought and decided there should be clear as well and you are perfectly entitled and crane is not appealing leave for the amendment and it's not asking this court to reinstate our valve claims as to it for liability that's absolutely correct I wasn't really disputing that or. Criticizing what you do and I do want to answer your question your honor because I think it's I here's where my answer comes this is not a situation where for the first time when we decided to amend our complaint and seek lead to do that we identified for crane the fact that we were pursuing them for two different products gaskets and valves we're talking about an order from March 6th by the lower court. That found those were two distinct and separate products we saw the moment this case was removed we said as that orders in a lock. And I don't believe it is your honor. Why not? Well at that time what the court did it was very final the court demanded all claims except saying he's asking today what he was asking for back then which is that the entire case would be in federal court correct and and and certainly with respect to the courts ruling on March 6th any and all cross claims that had existed as to crane at that time we're sent back that's a final action. It's just as you said you're on the whole they were asking the whole case stay the lower court severed it I absolutely don't believe this is an interlocatory order as of March 6th such that there's been any time or tolling with respect to the time the appeal should be brought more importantly. I don't want to go too far field and I want to come back to judge Duncan's question as well but with respect to what happened on June 6th an interlocatory appeal or an interlocatory order I should say such that it would told the appeal. Well presupposes that what happened at the later time June 6th was final as to crane well it's not final as to crane the court made very clear as judge Duncan pointed out that if we were to reassert any claims with respect to valves as to crane and state court this case would be removed this was an amendment to a complaint this was not a dismissal with prejudice as the relation back and somebody back here. In what way you're on I'm sorry in the amendment to the complaint the fact that it related back. Well I think that related back to the March 7th order I don't think it relates back in that respect I think that they're they're very separate whether we had sought to amend and maybe this will help you answer the question if we had not sought to amend the complaint then crane clearly would have been out of time they needed to appeal the March 6th order within 30 days. And are amending the complaint does has nothing to affect that and and assuming the court doesn't agrees with crane that it was an interlocatory order in March the only way they get the benefit of to lean such that they would be able to appeal now is if in fact the June 6th order was a final order and I would I would offer the court it's not an amendment to a complaint and if I may judge Duncan did you have a question or probably go ahead. Okay going back to your question was a very important question we've got to look at this case as it stands before the court. What is not on appeal before this court is the judges finding on March 6th that Crane's notice of removal and that Crane's removal based on all the supplemental information that was considered by the lower court and allowed into the record to the point that we court allow defendants to do this. The only product they stated served as primary jurisdiction under 1442 was the valve

. The contractor difference exists with respect to those two I mean it was it seems to have been almost an iterative process with the two of you responding. Tailoring if you will your claims and amendments to the others. I don't think that's the case here when we moved to have been the with respect that has to have been what you did when you suddenly decided oh no we're just dealing with gaskets. Well with respect I understand your point with respect to that yes we are the masters of our complaint and we have sought and decided there should be clear as well and you are perfectly entitled and crane is not appealing leave for the amendment and it's not asking this court to reinstate our valve claims as to it for liability that's absolutely correct I wasn't really disputing that or. Criticizing what you do and I do want to answer your question your honor because I think it's I here's where my answer comes this is not a situation where for the first time when we decided to amend our complaint and seek lead to do that we identified for crane the fact that we were pursuing them for two different products gaskets and valves we're talking about an order from March 6th by the lower court. That found those were two distinct and separate products we saw the moment this case was removed we said as that orders in a lock. And I don't believe it is your honor. Why not? Well at that time what the court did it was very final the court demanded all claims except saying he's asking today what he was asking for back then which is that the entire case would be in federal court correct and and and certainly with respect to the courts ruling on March 6th any and all cross claims that had existed as to crane at that time we're sent back that's a final action. It's just as you said you're on the whole they were asking the whole case stay the lower court severed it I absolutely don't believe this is an interlocatory order as of March 6th such that there's been any time or tolling with respect to the time the appeal should be brought more importantly. I don't want to go too far field and I want to come back to judge Duncan's question as well but with respect to what happened on June 6th an interlocatory appeal or an interlocatory order I should say such that it would told the appeal. Well presupposes that what happened at the later time June 6th was final as to crane well it's not final as to crane the court made very clear as judge Duncan pointed out that if we were to reassert any claims with respect to valves as to crane and state court this case would be removed this was an amendment to a complaint this was not a dismissal with prejudice as the relation back and somebody back here. In what way you're on I'm sorry in the amendment to the complaint the fact that it related back. Well I think that related back to the March 7th order I don't think it relates back in that respect I think that they're they're very separate whether we had sought to amend and maybe this will help you answer the question if we had not sought to amend the complaint then crane clearly would have been out of time they needed to appeal the March 6th order within 30 days. And are amending the complaint does has nothing to affect that and and assuming the court doesn't agrees with crane that it was an interlocatory order in March the only way they get the benefit of to lean such that they would be able to appeal now is if in fact the June 6th order was a final order and I would I would offer the court it's not an amendment to a complaint and if I may judge Duncan did you have a question or probably go ahead. Okay going back to your question was a very important question we've got to look at this case as it stands before the court. What is not on appeal before this court is the judges finding on March 6th that Crane's notice of removal and that Crane's removal based on all the supplemental information that was considered by the lower court and allowed into the record to the point that we court allow defendants to do this. The only product they stated served as primary jurisdiction under 1442 was the valve. Okay but then the question is why shouldn't they have been allowed to amend that notice to include the gaskets. In response to your attempting to carve out the piece of the allegation that was problematic for you it didn't occur out of the blue. Well I think it's because council for Crane during the hearing before the court when the court very very clearly said Crane I'm hearing about two products valves and gaskets. Do you contend that you have a colorable federal defense as to the gaskets and Crane says we're not taking a position on that and Crane concedes that there's two products that issue we have jurisdiction based on the valves. But it didn't need to to delineate at that point once as I read it and perhaps the timeline is wrong but as I read it. You had already amended your complaint to carve out the gaskets and the question I think judge yes was asking or at least if he isn't I am. Why should Crane not have been in response to your amendment be allowed to address the additional bases for removal. Oh that's not what happened your honor just timeline wise to clarify we sought leave to amend Crane for the first time in response to our requests for leave to amend cited gaskets as the basis of primary federal jurisdiction. Then yes then we amend the complaint there's been no request for a 1653 leave to supplement or otherwise amend the notice to reflect on the basis. Well it wouldn't even be in the notice of removal. And I guess that's where I do have a difficulty squaring what the purpose of the limited jurisdiction the federal court is and the exception is to 1442. Well it's been sort of a moving target all of the filings have had that characteristic they tend to morph sure and it goes back to my initial inquiry about what gets removed and what gets removed is the case the action all of it all of its little bells and whistles and the fact that Crane said in the notice of removal that it could assert. A federal contractor defense came up with the case. And in the language of the statutes pretty clear it is except I guess what the concern would be then if we have a situation we have a defendant at issue that didn't manufacture more than one product. So I think if we kind of step back and look at what this will essentially open the door if we read the statute to say that a defendant who invokes a 1442 jurisdictional basis for removal it's going to be permitted years down the road to invoke it as to an entirely separate product. I think that just really opens the flood gate is quite frankly with respect to a pellet review and I can't believe that the statutory scheme that we look at and that has been very clearly set forth with respect to these courts is trying to open that door and I understand that the concern would be because it's a federal defense the substantive analysis or review of a lower courts determination as to whether there's a colorable defense. The defense should be reviewable that's why it's accepted out but we're talking about timing and a defendant not after being given repeated opportunities to articulate

. Okay but then the question is why shouldn't they have been allowed to amend that notice to include the gaskets. In response to your attempting to carve out the piece of the allegation that was problematic for you it didn't occur out of the blue. Well I think it's because council for Crane during the hearing before the court when the court very very clearly said Crane I'm hearing about two products valves and gaskets. Do you contend that you have a colorable federal defense as to the gaskets and Crane says we're not taking a position on that and Crane concedes that there's two products that issue we have jurisdiction based on the valves. But it didn't need to to delineate at that point once as I read it and perhaps the timeline is wrong but as I read it. You had already amended your complaint to carve out the gaskets and the question I think judge yes was asking or at least if he isn't I am. Why should Crane not have been in response to your amendment be allowed to address the additional bases for removal. Oh that's not what happened your honor just timeline wise to clarify we sought leave to amend Crane for the first time in response to our requests for leave to amend cited gaskets as the basis of primary federal jurisdiction. Then yes then we amend the complaint there's been no request for a 1653 leave to supplement or otherwise amend the notice to reflect on the basis. Well it wouldn't even be in the notice of removal. And I guess that's where I do have a difficulty squaring what the purpose of the limited jurisdiction the federal court is and the exception is to 1442. Well it's been sort of a moving target all of the filings have had that characteristic they tend to morph sure and it goes back to my initial inquiry about what gets removed and what gets removed is the case the action all of it all of its little bells and whistles and the fact that Crane said in the notice of removal that it could assert. A federal contractor defense came up with the case. And in the language of the statutes pretty clear it is except I guess what the concern would be then if we have a situation we have a defendant at issue that didn't manufacture more than one product. So I think if we kind of step back and look at what this will essentially open the door if we read the statute to say that a defendant who invokes a 1442 jurisdictional basis for removal it's going to be permitted years down the road to invoke it as to an entirely separate product. I think that just really opens the flood gate is quite frankly with respect to a pellet review and I can't believe that the statutory scheme that we look at and that has been very clearly set forth with respect to these courts is trying to open that door and I understand that the concern would be because it's a federal defense the substantive analysis or review of a lower courts determination as to whether there's a colorable defense. The defense should be reviewable that's why it's accepted out but we're talking about timing and a defendant not after being given repeated opportunities to articulate. I mean the timing aspect of it as you pointed out earlier at that February hearing for the judge did specifically asked the council are we talking about gaskets of owls and the answer is pretty solid there the council said we never never said it was on this qpl list we we don't in so far as the gaskets and essentially said if this was all about gaskets we would no sought removal it in say. We don't get that explicitly but it's right there in terms of how the differentiation when the court wanted to know because as you said being libel for one of the products the vowels does not necessarily mean you allow both in terms of the gaskets from our understanding that's correct. There are two different products which is an interesting position but that being the case and from from the Navy and from a federal contractors perspective that qpl list controls and the vowels clearly were there they gave the notice based on the vowels so then when they come back in response and see well it looks like no longer do we have a federal defense which is really was here if you take away the valves and you don't think the gaskets are not going to be a good choice. There's no federal defense so if there's no federal defense the nakes say well but we see there's no federal defense and we have gaskets too in contradiction to the statements they made at the February or a hearing so while the judge could have said timing is it it wasn't just timing it was the context in which it was done to indicate there's really nothing here. Yes, Your Honor and that was why when to judge Duncan's question I had wanted to bring us back to where we were on March 7th and the fact that finding by the court was is not appeal. I just and factually and I'll ask Mr. Ross my recollection of the record which could so easily be wrong is that the that crane had never taken had relied on the vowels because it did not it did not take a position on the gaskets because it didn't need you and you're saying that you think it definitively crane definitively. Yes, Your Honor and was not allowed to respond after you changed me after you opted out of the one that you thought was problematic so as far as you're concerned. And subject matter jurisdiction no longer existed. Correct and it's best for crane the court would have to make a determination and best for crane if this was even reviewable whether to exercise supplemental jurisdiction which is clearly an abuse of discretion. And you you positive this parade of horribles and I'm not sure that it really is accurate with respect to sand bagging I guess because ultimately the notice of removal has to be timely if it's not and they can't get into federal court. The way in which the defense is phrase is something that the district court can handle in by virtue of the not of motions to conform the pleadings and the like so I think that can be resolved but I don't know that you ever answered judge Duncan's question with respect to judge Blake's decision to not allow as a matter of statute. The defendant in this case to tailor the military contract to defend some of the gas gets you seem to be. You seem to determine that she was bound by as a matter of statute not to allow that change is that right. I think it is right because I think that what we look at when we look at removal the absolutely necessary antecedent to removal is. A setting forth that you timely assert at the defense and establish the colorability of that defense and when you have a product liability. They did that

. I mean the timing aspect of it as you pointed out earlier at that February hearing for the judge did specifically asked the council are we talking about gaskets of owls and the answer is pretty solid there the council said we never never said it was on this qpl list we we don't in so far as the gaskets and essentially said if this was all about gaskets we would no sought removal it in say. We don't get that explicitly but it's right there in terms of how the differentiation when the court wanted to know because as you said being libel for one of the products the vowels does not necessarily mean you allow both in terms of the gaskets from our understanding that's correct. There are two different products which is an interesting position but that being the case and from from the Navy and from a federal contractors perspective that qpl list controls and the vowels clearly were there they gave the notice based on the vowels so then when they come back in response and see well it looks like no longer do we have a federal defense which is really was here if you take away the valves and you don't think the gaskets are not going to be a good choice. There's no federal defense so if there's no federal defense the nakes say well but we see there's no federal defense and we have gaskets too in contradiction to the statements they made at the February or a hearing so while the judge could have said timing is it it wasn't just timing it was the context in which it was done to indicate there's really nothing here. Yes, Your Honor and that was why when to judge Duncan's question I had wanted to bring us back to where we were on March 7th and the fact that finding by the court was is not appeal. I just and factually and I'll ask Mr. Ross my recollection of the record which could so easily be wrong is that the that crane had never taken had relied on the vowels because it did not it did not take a position on the gaskets because it didn't need you and you're saying that you think it definitively crane definitively. Yes, Your Honor and was not allowed to respond after you changed me after you opted out of the one that you thought was problematic so as far as you're concerned. And subject matter jurisdiction no longer existed. Correct and it's best for crane the court would have to make a determination and best for crane if this was even reviewable whether to exercise supplemental jurisdiction which is clearly an abuse of discretion. And you you positive this parade of horribles and I'm not sure that it really is accurate with respect to sand bagging I guess because ultimately the notice of removal has to be timely if it's not and they can't get into federal court. The way in which the defense is phrase is something that the district court can handle in by virtue of the not of motions to conform the pleadings and the like so I think that can be resolved but I don't know that you ever answered judge Duncan's question with respect to judge Blake's decision to not allow as a matter of statute. The defendant in this case to tailor the military contract to defend some of the gas gets you seem to be. You seem to determine that she was bound by as a matter of statute not to allow that change is that right. I think it is right because I think that what we look at when we look at removal the absolutely necessary antecedent to removal is. A setting forth that you timely assert at the defense and establish the colorability of that defense and when you have a product liability. They did that. But they did that as to their voucher honor. And that sort of they did that is it just go it's a chicken or the egg they did that is the vows because you are arguing both the it has really the positions of both parties have evolved in response to the others filings and I there's certainly no problem with that but it appears as the district court just said okay at this point. I'm not letting anybody else change the position even though. The cases is. The case has been removed on the basis of a colorable federal defense and can only be. Remanded for lack of subject manager. And I guess the parade of horbles would be to the some that's the way in which it were to proceed then we've been in a situation where the federal court will have expended much time and effort in. Proceeding through discovery and getting prepared a tricase only to come to dispositive motions have a motion for some rejuvenation. Staining on the plaintiffs behalf that there's no way under any factual circumstance whatsoever that crane will be able to. Proceed under a government contract or defense as to gaskets and we're back to. Limit jurisdiction the courts and the efficiency and that's why I would believe that you'd have to establish. At the outset the basis of your removal and. And do it and do you have any authority at all for that proposition. I have the authority your honor with just respect to what the statutory scheme is setting forth in the fact that 1446. Any cases I look to see if there's anything that it addressed this but I guess because it's so new there is nothing directly on point so did I so thank you for validating my research efforts. I do have one I do actually have just it is a very I hesitate to use the term boilerplate because it's getting technical but. Do all these gasket claims refer to the gaskets in the valves

. But they did that as to their voucher honor. And that sort of they did that is it just go it's a chicken or the egg they did that is the vows because you are arguing both the it has really the positions of both parties have evolved in response to the others filings and I there's certainly no problem with that but it appears as the district court just said okay at this point. I'm not letting anybody else change the position even though. The cases is. The case has been removed on the basis of a colorable federal defense and can only be. Remanded for lack of subject manager. And I guess the parade of horbles would be to the some that's the way in which it were to proceed then we've been in a situation where the federal court will have expended much time and effort in. Proceeding through discovery and getting prepared a tricase only to come to dispositive motions have a motion for some rejuvenation. Staining on the plaintiffs behalf that there's no way under any factual circumstance whatsoever that crane will be able to. Proceed under a government contract or defense as to gaskets and we're back to. Limit jurisdiction the courts and the efficiency and that's why I would believe that you'd have to establish. At the outset the basis of your removal and. And do it and do you have any authority at all for that proposition. I have the authority your honor with just respect to what the statutory scheme is setting forth in the fact that 1446. Any cases I look to see if there's anything that it addressed this but I guess because it's so new there is nothing directly on point so did I so thank you for validating my research efforts. I do have one I do actually have just it is a very I hesitate to use the term boilerplate because it's getting technical but. Do all these gasket claims refer to the gaskets in the valves. No okay and in fact crane co would argue at summary judgment if the valve we were pursuing valves that they're not responsible for that under a bare metal defense. No matter I didn't I it was just a yes or no technical question to which I did not know the answer any vent to get thank you very much. Let me ask one other question for regard to the gaskets because it's interesting that crane now potentially saying that there is a federal defense to the gaskets claim. It has been established by the district court and here that if it goes back to the district court and a federal district and you bring up to Val you can bring that they can bring that back. What happens if it goes back and it turns out or are they able to assert a federal defense based upon some facts they now say well it does appear that is there and in so far as the gaskets are are they prohibited from bringing that defense in the district court that would bring it back to the federal court. Well the case has been back in state court for well over 30 days so certainly with we look at it from that perspective of 1446 they're out of time the case has been remanded and is actively being mitigated in state court. They're out of time with respect to what I think is the more global question. Let me make sure I understand that when it goes back to state court. They were in a position where they could have asserted this federal defense them and sought the same remedy of having it removed but they did not act within the 30 days to do so. That's correct and that's that what what I was scared to ask what time would they be out of that the district court remanded the case on June 6th and it was effectively before there was no stay requested of this court of any other proceedings. There was no stay requested in the state. What's the operative time I'm sorry it's 30 days from the date of women. Under that theory I would argue if they believe they it's a little complicated wasn't an argument I just was trying to pass it in factually you said they'd be out of time and I just wanted to clarify assuming the district court cannot already found them out of time under the 1446 analysis that was done at the lower court. Yes they would have at most. But the Senate would be a proper removal 30 days from the time it was sent back to the state court. But to return to my initial question if even if we say this is properly remanded the time on this issue notwithstanding the opportunity to assert that defense would still exist in the state court and it could get the same remedy by bringing it back if they're able to establish such a defense. Correct and that's where we go right back to the now center 1442 with colorability and we would offer they can't because of your honors points they say they weren't even on the qpl

. No okay and in fact crane co would argue at summary judgment if the valve we were pursuing valves that they're not responsible for that under a bare metal defense. No matter I didn't I it was just a yes or no technical question to which I did not know the answer any vent to get thank you very much. Let me ask one other question for regard to the gaskets because it's interesting that crane now potentially saying that there is a federal defense to the gaskets claim. It has been established by the district court and here that if it goes back to the district court and a federal district and you bring up to Val you can bring that they can bring that back. What happens if it goes back and it turns out or are they able to assert a federal defense based upon some facts they now say well it does appear that is there and in so far as the gaskets are are they prohibited from bringing that defense in the district court that would bring it back to the federal court. Well the case has been back in state court for well over 30 days so certainly with we look at it from that perspective of 1446 they're out of time the case has been remanded and is actively being mitigated in state court. They're out of time with respect to what I think is the more global question. Let me make sure I understand that when it goes back to state court. They were in a position where they could have asserted this federal defense them and sought the same remedy of having it removed but they did not act within the 30 days to do so. That's correct and that's that what what I was scared to ask what time would they be out of that the district court remanded the case on June 6th and it was effectively before there was no stay requested of this court of any other proceedings. There was no stay requested in the state. What's the operative time I'm sorry it's 30 days from the date of women. Under that theory I would argue if they believe they it's a little complicated wasn't an argument I just was trying to pass it in factually you said they'd be out of time and I just wanted to clarify assuming the district court cannot already found them out of time under the 1446 analysis that was done at the lower court. Yes they would have at most. But the Senate would be a proper removal 30 days from the time it was sent back to the state court. But to return to my initial question if even if we say this is properly remanded the time on this issue notwithstanding the opportunity to assert that defense would still exist in the state court and it could get the same remedy by bringing it back if they're able to establish such a defense. Correct and that's where we go right back to the now center 1442 with colorability and we would offer they can't because of your honors points they say they weren't even on the qpl. Thank you. Your honor thank you very briefly that true that when this was remanded to the state court you didn't seek a stay of that remain and and you did not assert a federal defense. We saw that as a state court and the state court and the state court of proceedings and your honor we did not remove the case again we decided we wanted a decision from this court we didn't want to jerk the case back to the state so the claim is properly in the state court at the moment. Yeah should you could you have asserted that defense doing that time period. I think that we asserted we could have I think we asserted the defense before the court here shouldn't you if you maintain that you have a federal defense against gasket wouldn't that of that would have taken care of this lawsuit if the if it was determined that in fact you had a federal defense. You wouldn't need to be up here now that may be true your honor although somehow I suspect we would find our way back. Oh it's the same issue you're going to I want to dwell on that well second I'll try to understand that how are you coming back if you go well you may come back to to argue at that point as the weather the court properly removed it but at least in terms of the remand the claim is there and you didn't get a stay of it being there. You have to assert the defense is in state courts state courts about a way very competent places the track cases. Yes. Yes. We try them all the time. So is there is state court and all you got to do is to probably a very simple thing is say we have a federal defense against this gas which is something you didn't do which is consistent with the fact that you didn't do it when you sought the removal which is consistent with the fact that at the February hearing you said that's never never been a part of your claim because it's not on the q pls so it's you're you're conduct and not doing is very consistent what's inconsistent is the is the asserted in the day. Oh by the way we have this claim against the gasses. Your Honor I bow in on on in on on in the federal court and not do it in the state court but we assert this defense in the state court your honor not against the gasses. You're taxing my brain it certainly isn't in the record here whether we have a pure gasket claim or not. When did you do that when did you assert the claim against the gasses of federal defense in the gasses in the state court when it was remanded when did you do that. You know your honor I off the top of my head I cannot think of a time when cranko in a case involving only gaskets and not valves said in a state court we should get summary judgment or what have you on the basis of the gasses

. I'm just looking at your language says crane is never has a different position with regard to that gasket because it was never never on a navies q pl and should never have been used. That is our evidence your honor but the point that we made to the district court here is look if it's going to be accepted that this gasket was in use not on that list and you're not part of this contract and how you would going to remove it if it's nothing but gasses because Mr. jointers says even though it wasn't on the list it was there and our our view is it couldn't have been there unless it qualified unless it complied with military specifications it couldn't have happened. Your honor very briefly I don't think the jurisdictional inquiry should be a product by product analysis it should not we don't analyze products we analyze case exactly for all on the fact that there was a colorable federal defense at the time of removal here meant the case should have stayed in federal court the fact that the parties have such a vigorous dispute about these gaskets means the case should stay in federal court. Cranko should have an opportunity to make that defense since neither side really address severance your honor and I'm almost out of time I'm going to rely on my briefing for for the merits of our arguments to why the district court aired or abused its discretion in severing and remand unless the court has any other questions. Thank you very much we will come down and greet council and proceed directly to the next case. yo