Case 8:16-cv-03471-MSS-MAP Document 40 Filed 03/21/17 Page 1 of 5 PageID 493 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION ZIECHA NORWILLO, as surviving Spouse and as Personal Representative of the Estate of FRANCIS NORWILLO, and MICHAEL DOUGHERTY, Plaintiffs, v. Case No: 8:16-cv-3471-T-35MAP PURPLE SHOVEL, LLC, SKYBRIDGE TACTICAL, LLC, SKYBRIDGE RESOURCES, LLC, REGULUS GLOBAL, LLC, and REGULUS GLOBAL, INC., Defendants. ORDER THIS MATTER comes before the Court for consideration of Plaintiffs’ Motion to Remand (Dkt. 20), Defendant Skybridge Tactical, LLC’s Response in opposition thereto (Dkt. 30), and Plaintiffs’ Reply (Dkt. 39). Upon consideration of the foregoing, the Court DENIES Plaintiffs’ Motion to Remand (Dkt. 20). BACKGROUND On October 26, 2016, Plaintiffs filed this action against Defendants in state court. (Dkt. 2) That action was styled as Estate of Francis Norwillo et. al., v. Purple Shovel, LLC, et. al., Case No.: 16-CA-009933, in the Circuit Court for the Thirteenth Judicial Circuit in and for Hillsborough County, Florida (“State Action”). (Dkt. 2; see State Action Dkt.) The Complaint asserted causes of action against Defendants under Florida’s Case 8:16-cv-03471-MSS-MAP Document 40 Filed 03/21/17 Page 2 of 5 PageID 494 Wrongful Death Act and under Florida’s common law for negligence and Intentional Infliction of Emotional Distress (“IIED”). (Dkt. 2) The crux of the allegations in the Complaint is that Defendants procured a rocketpropelled grenade for Francis Norwillo and Michael Dougherty to inspect. (Id. at ¶ 17) On June 6, 2015, while Mr. Norwillo was handling the rocket-propelled grenade at a weapons range in Bulgaria, the grenade suddenly exploded without warning. (Id. at ¶ 13) At the time the grenade exploded, Mr. Dougherty was standing next to Mr. Norwillo who was using his phone to record Mr. Norwillo. (Id. at ¶ 14) The explosion killed Mr. Norwillo and severely injured Mr. Dougherty. (Id. at ¶¶ 15-16) Defendants knew that the grenade was manufactured in 1984, along with other grenades, and that its shelf life had expired from degraded and defective components. (Id. at ¶ 18) Defendants knew that the U.S. Government had rejected the use of these same grenades because the grenades were defective, unstable, and dangerous. (Id. at ¶ 19) Despite this knowledge, Defendants procured the grenades and knowingly and willingly placed Mr. Norwillo and Mr. Dougherty in grave danger. (Id. at ¶ 20) After the explosion, Defendants intentionally and knowingly misrepresented, hid, or attempted to conceal facts surrounding Mr. Norwillo’s death from Ms. Ziecha Norwillo. (Id. at ¶ 21) On December 23, 2016, Defendant Skybridge Tactical, LLC (“STL”) removed this matter to federal court based on the contention that it involves federal question jurisdiction under 28 U.S.C. § 1331 and therefore removal is proper under 28 U.S.C. § 1441. STL contends that this action is removable because it, to the extent it is justiciable, requires the “application and interpretation of two federal statutes—the Defense Base Act (“DBA”), 42 U.S.C. §§ 1651 et seq., and the Longshore and Harbor Workers’ Compensation Act 2 Case 8:16-cv-03471-MSS-MAP Document 40 Filed 03/21/17 Page 3 of 5 PageID 495 (“LHWCA”), 33 U.S.C. §§ 901 et seq.—[which] will be of paramount importance in this case” because they allegedly preempt Plaintiff’s state law claims. (Dkt. 1 at 3-4) STL also contends that removal is proper under 28 U.S.C. § 1442(a)(1), which permits federal officers or agencies sued in state court to remove actions to federal court. Specifically, STL contends that Plaintiffs’ claims are based on STL’s actions concerning “‘Operation Inherent Resolve’, a mission to equip and train Syrian rebels in their ongoing military conflict with the Islamic Militant State.” (Dkt. 30 at 1-2) STL contends that its actions at all times were under the direct and detailed control of officers of the United States military pursuant to the terms of Purple Shovel, LLC’s (“Purple Shovel”) contract with the United States military, as well as applicable regulations, directives, and orders governing Skybridge Tactical’s conduct. Skybridge Tactical, as a subcontractor of Purple Shovel was bound by Purple Shovel’s Contract with the United States Military. (Id.) The Court declines to reach the question of whether this action is preempted by the DBA and/or LHWCA or whether the claim is removable under Section 1441. The action is, however, removable under the Federal Officer Removal Statute, i.e. Section 1442(a)(1). “[Title] 28 U.S.C. § 1442(a)(1), the Federal Officer Removal Statute, allows removal of any civil or criminal action against ‘[a]ny officer of the United States or any agency thereof, or person acting under him, for any act under color of such office.’” Magnin v. Teledyne Continental Motors et al., 91 F.3d 1424, 1427 (11th Cir. 1996) (quoting section 1442(a)(1)). “The right of removal ‘is made absolute whenever a suit in a state court is for any act ‘under color’ of federal office, regardless of whether the suit could originally have been brought in a federal court.’” Magnin, 91 F.3d at 1427 (quoting 3 Case 8:16-cv-03471-MSS-MAP Document 40 Filed 03/21/17 Page 4 of 5 PageID 496 Willingham v. Morgan, 395 U.S. 402, 406 (1969)). “The purpose of section 1442(a)(1) is to permit the removal of those actions commenced in state court that expose a federal official to potential civil liability or criminal penalty for an act performed under color of office.” Magnin, 91 F.3d at 1427 (internal quotations, brackets, and ellipses omitted). In their Motion to Remand, Plaintiffs challenge STL’s assertion that the federal officer removal statute applies for failing to establish the factual elements required. This argument fails. Proper removal of an action under section 1442(a)(1) requires the satisfaction of two separate requirements. Magnin, 91 F.3d at 1427. “First, the defendant must advance a colorable defense arising out of his duty to enforce federal law.” Id. (internal quotation marks and brackets omitted) (emphasis added) “Second, the defendant must establish that there is a causal connection between what the officer has done under asserted official authority and the action against him.” Id. (internal quotation marks and brackets omitted) STL satisfies the elements for removal. STL asserts that that it will advance colorable defenses, i.e. preemption and the government contractor defense. In addition, STL has shown that Plaintiffs’ causes of action are connected to its actions in Bulgaria, which were performed pursuant to a military contract and under the direction and control of military officers. In this regard, STL also asserts that its trainings and weaponry used were subjected to numerous federal and military regulations and protocols and were under federal and military oversight. Consequently, Plaintiffs Motion to Remand fails. It is, therefore, ORDERED as follows: 1. Plaintiffs’ Motion to Remand (Dkt. 20) is DENIED. 2. Plaintiffs are DIRECTED to file their responses to Defendants’ motions to 4 Case 8:16-cv-03471-MSS-MAP Document 40 Filed 03/21/17 Page 5 of 5 PageID 497 dismiss (Dkts. 12 and 13) within fourteen (14) days of the date of this Order. DONE and ORDERED in Tampa, Florida, this 21st day of March, 2017. Copies furnished to: Counsel of Record Any Unrepresented Person 5