Copeland v. 3M Company

Background

The order concerns four individual but consolidated cases involving plaintiffs Jaterka, Viseca, Russell Nisbet, Vaughn Scher, and Mustafa Sultan. The plaintiffs wore Combat Arms Earplugs, Version 2, manufactured by 3M Company and Aearo Technologies LLC. They alleged that the earplugs were defective because they did not receive instructions to fold back the third flange or warnings that the earplugs could be ineffective without that step. They alleged hearing loss and/or tinnitus and brought state-law failure-to-warn claims in Minnesota state court.

Removal and Earlier Proceedings

3M removed the cases to federal court, asserting several grounds for federal subject-matter jurisdiction, meaning the court’s legal power to hear the cases. Those grounds included a federal contractor defense, the combatant activities exception, and federal-enclave jurisdiction for claims involving injuries allegedly arising in Iraq and Afghanistan. The plaintiffs moved to remand, meaning to return the cases to state court.

The Eighth Circuit had previously held, in a related proceeding, that 3M could establish a potentially valid federal contractor defense when plaintiffs obtained the earplugs through the military. It sent the matter back for this court to determine which plaintiffs, if any, acquired their earplugs through the military. The court also stated that its earlier rulings prevented 3M from asserting the federal contractor defense, combatant activities exception, and federal-question jurisdiction for claims arising in Iraq and Afghanistan as new grounds for removal in these cases.

Analysis

A defendant seeking removal bears the burden of showing federal jurisdiction. Ordinarily, a federal defense to a state-law claim does not create federal jurisdiction. But the federal-officer removal statute allows removal when the defendant plausibly alleges that it acted under a federal officer’s direction and raises a colorable, or legally plausible, federal defense.

The court held that collateral estoppel, also called issue preclusion, barred 3M from relitigating the combatant activities and federal-enclave jurisdiction arguments because those issues had already been litigated and rejected in earlier proceedings. The court then considered the federal contractor defense.

3M relied on differences in the earplugs’ packaging and argued that the plaintiffs did not allege buying the version packaged for the military. The court found that 3M offered no evidence showing that the military version was sold only to the military. The record instead indicated that Nisbet and Scher received earplugs from their civilian employer, KBR; Sultan received them from his civilian employer, L3 Intelligent Solutions; Jaterka testified that he received them at an airstrip; and Viseca testified that a civilian employee of the U.S. State Department handed them to him. Scher’s testimony that he also bought earplugs at a store in Iraq did not establish that he bought them from the military.

The court concluded that 3M had not shown, even to the required plausible level, that the plaintiffs obtained their earplugs from the military. It therefore held that 3M had not established a colorable federal contractor defense and that the court lacked subject-matter jurisdiction over the claims.

Disposition

Judge John R. Tunheim granted the plaintiffs’ motions to remand in all four actions: Copeland, No. 20-cv-1490; Nisbet, No. 20-cv-1769; Scher, No. 20-cv-1771; and Sultan, No. 20-cv-1747. The opinion addressed federal jurisdiction and the location of the cases, not whether the plaintiffs’ failure-to-warn claims were valid.