PHILIP A. BRIMMER, District Judge.
This matter is before the Court on Plaintiff's Motion to Remand and Brief in Support [Docket No. 7] filed by plaintiff Jerry DeVaul; the Motion to Strike Declaration of Keith Scranton [Docket No. 36] filed by defendants TK Mining Services L.L.C., David Schaaf, and Keith Buhrdorf ("TK Mining"); and the Motion Requesting Oral Argument and Evidentiary Hearing on Plaintiff's Motion to Remand [Docket No. 39] filed by TK Mining.
This case arises out of an incident that occurred on October 15, 2011 in which Mr. DeVaul, while working at a mine owned by defendant TK Mining, was hit by a scooptram and lost both of his legs as a result. Mr. DeVaul filed this case on August 20, 2013 in the District Court for Las Animas County, Colorado. Docket No. 3 at 1. TK Mining removed the case to this Court on September 26, 2013. Docket No. 1. TK Mining asserts that removal is proper under 28 U.S.C. § 1442(a) because, at all relevant times, it was acting under the order of the United States Department of Labor, Mine Safety and Health Administration ("MSHA"). Docket No. 1 at 2, ¶ 3.
The following factual allegations are set forth in the first amended complaint ("complaint"). At the time of the accident on October 15, 2011, TK Mining owned the scooptram. Docket No. 4 at 5, ¶ 47. On October 19 and 20, 2011, the MSHA tested the scooptram and found that it had several mechanical problems. Id. at 6-7, ¶ 66. After the MSHA completed its testing, TK Mining "retained ownership and control" of the scooptram. Id. at 7, ¶ 68.
On November 23, 2011, TK Mining was sent a letter stating that Mr. DeVaul was represented by counsel and demanding that TK Mining preserve the scooptram without modifying it as the scooptram had evidentiary value in possible upcoming litigation. Docket No. 4 at 7-8, ¶¶ 69-70. After receiving this letter, TK Mining modified the scooptram without first notifying Mr. DeVaul or permitting him to inspect the scooptram. Id. at 8, ¶¶ 71-72, 74. TK Mining did not keep sufficiently detailed records to document the changes it made to the scooptram following the accident. Id. at ¶ 73. In addition, TK Mining lost records regarding this modification when it moved its mining operations following the accident. Id. at ¶ 76.
Mr. DeVaul alleges that TK Mining intentionally and negligently spoliated evidence by modifying the scooptram despite the fact that it was on notice of the scooptram's relevance to Mr. DeVaul's potential legal claims. He further alleges that TK Mining's actions constitute extreme and outrageous conduct. Docket No. 4 at 20, ¶¶ 216-25. Mr. DeVaul seeks general and special damages, including medical bills and lost wages. Id. at 20.
Plaintiff argues that there is no basis for federal jurisdiction because the complaint concerns only modifications that TK Mining undertook after the MSHA had returned the machine to TK Mining's ownership and control. Docket No. 4 at 7-8, ¶¶ 68-71; Docket No. 7 at 5; Docket No. 31. TK Mining responds that remand is unwarranted because the Notice of Removal articulates a colorable federal defense, namely, that TK Mining modified the scooptram under the order and authority of the MSHA, which preempts conflicting state law. Docket No. 16 at 4-5.
Under 28 U.S.C. § 1442(a)(1), state law claims brought against private individuals or entities are removable to federal court upon a showing that (1) the private entity was acting under the direction of a federal officer when engaging in the challenged conduct; (2) the entity has a colorable federal defense to the plaintiff's claims; and (3) there is a causal connection between the activities carried out under federal authority and the conduct underlying the state court claims. Vandeventer v. Guimond, 494 F.Supp.2d 1255, 1263 (D. Kan. 2007) (citing Freiberg v. Swinerton & Walberg Prop. Servs., Inc., 245 F.Supp.2d 1144, 1149 (D. Colo. 2002)). Private actors removing cases under § 1442 "bear a special burden of establishing the official nature of their activities." Freiberg, 245 F.Supp.2d at 1150. The requirement that a private party show it was acting under federal authority "typically involves subjection, guidance, or control" as well as "an effort to assist, or to help carry out, the duties or tasks of the federal superior." Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 151-52 (2007) (internal citations omitted) (emphasis in original). Mere compliance with a generally applicable law, rule, or regulation is not sufficient to meet this standard. Id.
Section 1442(a) is notable in two respects. First, the well-pleaded complaint rule does not apply; removal jurisdiction may be established on the basis of a federal defense as set forth in a notice of removal. William W. Schwarzer, A. Wallace Tashima, & James W. Wagstaffe, Prac. Guide Fed. Civ. Proc. Before Trial (Nat. Ed. 2013) Ch. 2D-4, § 2:2863. Second, a defendant may remove a case under § 1442(a) without the consent of the other defendants. See Akin v. Ashland Chemical Co., 156 F.3d 1030, 1034 (10th Cir. 1998). "As long as any defendant is [able to remove the claims against it under § 1442(a)], the entire case is removable to federal court, even if the other defendants could not have removed the case." Id. at Ch. 2D-4, § 2:2890.
A colorable federal defense need not be a "sustainable defense"; that is, a defendant "need not win his case before he can have it removed." Willingham v. Morgan, 395 U.S. 402, 407 (1969). Rather, "the purpose of the statute is to secure that the validity of the defense will be tried in federal court." Isaacson v. Dow Chem. Co., 517 F.3d 129, 139 (2d Cir. 2008). In assessing whether a party has asserted a colorable federal defense, "no determination of fact is required but it must fairly appear from the showing made that petitioner's claim is not without foundation and is made in good faith." State of Colorado v. Symes, 286 U.S. 510, 519 (1932).
Under the Mine Improvement and New Emergency Response Act of 2006 (the "MINER Act"), 30 U.S.C. § 801 et seq., a mine operator "who fails to correct a violation for which a citation has been issued under section 814(a)... within the period permitted for its correction may be assessed a civil penalty of not more than $5, 000 for each day during which such failure or violation continues." 30 U.S.C. § 820(b)(1). The MINER Act preempts state laws that conflict with ...