1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EDWARD A. HALOWELL, et al., Case No. 21-cv-07647-HSG

8 Plaintiffs, REMAND ORDER 9 v. Re: Dkt. No. 70

10 ARMSTRONG INTERNATIONAL, INC., et al., 11 Defendants. 12 13 Plaintiffs filed this complaint in Alameda County Superior Court. Dkt. No. 1, Ex. 1. On 14 September 29, 2021, Defendant Crosby Valve, LLC (“Crosby”) removed the case, asserting 15 federal officer jurisdiction under

(a)(1) (the “Federal Officer Removal Statute”). 16 Dkt. No. 1 (“Notice of Removal”). The Federal Officer Removal Statute allows removal of a case 17 if a defendant demonstrates that “(a) it is a ‘person’ within the meaning of the statute; (b) there is a 18 causal nexus between [defendant’s] actions, taken pursuant to a federal officer’s directions, and 19 plaintiff’s claims; and (c) it can assert a ‘colorable federal defense.’” Durham v. Lockheed Martin 20 Corp.,

(9th Cir. 2006) (citations omitted); see also Leite v. Crane Co., 749

, 1120 (9th Cir. 2014). In its Notice of Removal, Crosby asserted the federal defense 22 that “it was acting under the direction of the United States Navy . . . in the design, manufacture, 23 and sale of its valves” that are the subject of the Plaintiffs’ allegations. See Dkt. No. 1 at 4. 24 Less than two weeks after filing its Notice of Removal, Crosby withdrew its defense that it 25 was acting under the direction of a federal officer. See Dkt. No. 30 at 2.1 More specifically, 26 1 On October 8, 2021, the parties represented that Crosby had filed a notice of withdrawal of its 27 Notice of Removal on October 7, 2021. Dkt. No. 30 at 2. This was false. Only on November 5, 1 Crosby represented to the Court that it had “withdrawn its assertion of the federal-officer defense” 2 and “will no longer assert the federal officer defense in this action.” Id. Via a stipulation and 3 proposed order, Plaintiffs and Crosby requested that the case be remanded to state court. Dkt. No. 4 30 at 3.2 Plaintiffs also later filed an ex parte application for a “sua sponte” order remanding the 5 case. Dkt. No. 70. 6 Notwithstanding the odd machinations engaged in by the parties here, the Court finds that 7 remand is appropriate under

(c) because the Federal Officer Removal Statute 8 requires the defendant to assert a “‘colorable’ federal defense,” and Crosby has disavowed and 9 withdrawn its federal officer defense in this case. See Leite, 749 F.3d at 1120, 1122-1124 10 (citations omitted); Dkt. No. 30 at 2. 11 In its ex parte application, Plaintiffs also request that Defendant Flowserve US, Inc. 12 (“Flowserve”) be required to pay their attorney’s fees. Dkt. No. 70 at 2. Under

1447(c), when remanding a case a Court “may require payment of just costs and any actual 14 expenses, including attorney fees, incurred as a result of the removal.”

(c). The 15 Court finds in its discretion that payment of Plaintiffs’ attorney’s fees by Flowserve is not 16 warranted. The joint post-removal maneuvering by Plaintiffs and Crosby directly led to these 17 drawn-out proceedings and, as Plaintiffs themselves point out, Flowserve “did not join in the 18 initial removal.” See Dkt. No. 70 at 5. It appears to the Court that Plaintiffs and Crosby could 19 have avoided this entire odyssey by discussing the issue before removal rather than waiting until 20 the case was before this Court and creating a needlessly messy jurisdictional question. 21 Accordingly, the Court ORDERS this case REMANDED to Alameda County Superior 22 Court. The Court DENIES Plaintiff’s ex parte application for attorney’s fees. The Clerk is 23 2 The Court directed the other defendants to submit any response to the stipulation and proposed 24 order seeking remand. See Dkt. No. 31. The only defendant to object was Flowserve, which made a perfunctory objection that “Mr. Halowell’s claimed exposure to Defendant’s products stem [sic] 25 from his time in the US Navy between 1963 and 1967.” Dkt. No. 38. Plaintiffs and Crosby, at the Court’s direction, filed supplemental briefs responding to Flowserve’s objection. See Dkt. Nos. 26 68, 69. Having reviewed all of the responses, the Court finds that all Defendants need not consent to remand. The Federal Officer Removal Statute allows a single defendant to remove a case 27 unilaterally without obtaining the consent of any other defendants. Ely Valley Mines, Inc. v. 1 directed to remand the case, terminate all pending motions, and close the file. 2 IT IS SO ORDERED. 3 Dat e d : 11/8/2021 4 ______________________________________ HAYWOOD S. GILLIAM, JR. 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27