Free Notice of Removal - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CYNTHIA PARLIN, Individually, and in her Capacities as Surviving Spouse of Samuel Parlin, And As Executrix of the Estate of Samuel Parlin, Deceased, Plaintiffs, v. DYNCORP INTERNATIONAL INC., et al., Defendants. : : : : : : : : : : : :

Civil Action No.

Jury of 12 Demanded

NOTICE OF REMOVAL PLEASE TAKE NOTICE that named Defendants DynCorp International Inc. and DynCorp International LLC (hereinafter collectively referred to as "Defendants"), by and through their attorneys, Smith, Katzenstein & Furlow LLP, hereby remove the above-captioned matter to this Honorable Court pursuant to 28 U.S.C. §§ 1441 and 1442(a)(1) and submit this Notice of Removal pursuant to 28 U.S.C. § 1446. In support of this removal, Defendants state the following: 1. On or about January 16, 2008, Plaintiff Cynthia Parlin, individually and in her

capacities as surviving spouse of Samuel Parlin and executrix of the estate of Samuel Parlin, Deceased, filed a Complaint in the Superior Court of the State of Delaware, In and For New Castle County, captioned Parlin v. DynCorp International, Inc., et al., Civil Action No. 08C-01-136 FSS. See Exhibits A and B (copies of Service of Process on defendants DynCorp International Inc. and DynCorp International LLC) (hereinafter referred to as the "Complaints"). 2. Defendants. In the Complaints, Plaintiff alleges Survival and Wrongful Death Actions against

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3.

This action arises out of the death of Samuel Parlin, who allegedly died on January

16, 2006, as a result of injuries sustained from an Improvised Explosive Devise ("IED") while traveling in Baghdad, Iraq. Complaints, ¶ 1. It is further alleged that Mr. Parlin was working as an International Police Liaison Officer ("IPLO") at Baghdad International Airport and the Baghdad Police Academy in support of the United States Department of State Civilian Police ("CIVPOL") mission in Iraq. Id. 4. It is alleged that Defendants contracted with the U.S. Department of State "to provide

services, including to recruit, select, equip, and deploy civilian police officers in support of a CIVPOL mission to help the government of Iraq develop a modern, indigenous police force to maintain peace and stability." Complaints, ¶ 6. 5. It is alleged that Defendants and Does 1 through 10 subcontracted with DynCorp

International FZ-LLC ("DI-FZ") "to hire personnel and provide service in support of the CIVPOL contract." Complaints, ¶ 8. 6. It is alleged that Mr. Parlin was employed at all times relevant by DI-FZ.

Complaints, ¶ 9. 7. It is alleged that DI-FZ properly secured coverage for Mr. Parlin under the Defense

Base Act ("DBA"), 42 U.S.C. § 1651, and that therefore, Defendants do not have "the immunities of an employer under the DBA or [the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 904(a)]." Complaints, ¶¶ 10-11. 8. It is alleged that Defendants presented cost proposals to the U.S. Department of State

"for security purchases and personnel below what they knew or should have known would be required for adequate security." Complaints, ¶ 21. It is further alleged that "such misrepresentation

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regarding security purchases and personnel was intentionally made to induce the [U.S.] Department of State to award defendants DYNCORP, DI LLC, and DOES the CIVPOL contracts on defendants' mistaken belief the DBA would shield them and their subcontractor from liability for any harm which resulted from intentionally providing inadequate security and/or directing individuals such as Samuel Parlin to perform dangerous acts, such as travel through Baghdad." Complaints, ¶ 22. 9. It is alleged that Defendants supplied Mr. Parlin with "inadequate resources and

personnel," "maintained a culture of indifference to the security of IPLOs and other individuals," and "frequently under-equipped and under-manned the 'SHARK' teams charged with travel security." Complaints, ¶¶ 23-24. 10. It is alleged that "travel through any area of Baghdad was extremely dangerous," that

"Defendants routinely failed to evaluate thoroughly the risk/benefit of proposed travel throughout Iraq," and that "Defendants routinely ordered travel even when wholly unrelated to mission success." Complaints, ¶¶ 26-27. 11. It is alleged that after Mr. Parlin's death, the U.S. Army investigated Defendants'

management and security practices. Complaints, ¶ 39. I. REMOVAL BASED UPON FEDERAL QUESTION JURISDICTION 12. 28 U.S.C. § 1441(a) provides that "any civil action brought in a State court of which

the district courts of the United States have original jurisdictional, may be removed by the defendant or the defendants, to the district court of the United States for the district . . . embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded."

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A.

To The Extent Plaintiff's Claims Are Justiciable, The Interpretation And Application Of Federal Statutes Will Determine The Viability Of Plaintiff's Claims; Thus, Federal Question Jurisdiction Is Appropriate 28 U.S.C. § 1441(b) provides that "[a]ny civil action of which the district courts have

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original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties." 14. Plaintiff's Complaint clearly demonstrates that the application and interpretation of

two federal statutes--the DBA, 42 U.S.C. §§ 1651 et seq., and the LHWCA, 33 U.S.C. §§ 901 et seq.--will be of paramount importance in this case. Consequently, because the viability of Plaintiff's claims depends upon the interpretation and application of federal statutes, federal question jurisdiction is entirely appropriate in this case and removal pursuant to 28 U.S.C. §§ 1441(a) and (b) is proper. See Nauert v. Ace Props. & Cas. Ins. Co., 2005 WL 2085544, at *3 (D. Colo.) (holding that the DBA and LHWVA pre-empt state law) (Ex. F). B. To The Extent Plaintiff's Claims Are Justiciable, Controlling Authority For Plaintiff's Claims Is Most Likely To Be Found In Federal U.S., International Treaties And/Or Conventions, And/Or Iraqi Laws; Thus, Federal Question Jurisdiction Is Appropriate Drawing parallels from the recent promulgation of federal criminal liability standards

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for private security contractors like Mr. Parlin, the adjudication of Plaintiff's civil claims should rest upon the interpretation and application of U.S. law, international treaties or conventions, and/or Iraqi law. Thus, removal pursuant to 28 U.S.C. §§ 1441(a) and (b) is proper. 16. There is no basis for applying Delaware state law to this case. For tort claims,

Delaware courts follow "the principle of lex loci delicti, and [have] appl[ied] the law of the place of the injury." Deutschman v. Beneficial Corp., 132 F.R.D. 359, 379 (D. Del. 1990) (citation omitted). As alleged in the Complaints, Mr. Parlin, a resident of the State of Georgia, died in Iraq -4-

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while he was working as a contractor to the U.S. Department of State in support of the U.S. Government's CIVPOL mission. Applying the principle observed by Delaware state courts, the law of Iraq would apply to Plaintiff's tort claims. 17. It is public knowledge that there is international, Iraqi, and U.S. government

oversight of private contractors working in Iraq in support of U.S. and coalition military and reconstruction efforts. Accordingly, it has been suggested, particularly with respect to criminal liability, that private contractors "to the coalition forces in Iraq operate under three levels of legal authority: (1) the international order of the laws and usages of war and resolutions of the United Nations Security Council;1 (2) U.S. law; and (3) Iraqi law, including orders of the CPA that have not been superceded."2 Congressional Research Service, Private Security Contractors in Iraq: Background, Legal Status, and Other Issues, Order Code RL32419, at 11 (July 2007). The CRS does not provide clear guidance as to the legal authority applicable to civil lawsuits for personal injuries for private contractors working for the United States Government in Iraq. However, in light of the recent promulgation of federal criminal liability standards for private contractors in Iraq, it is reasonable to conclude that federal standards should likewise govern civil liability. To that end, as demonstrated below, there have been recent federal efforts to promulgate standards to address the

1 For example, the international law of armed conflict and non-international armed conflict may be relevant in Iraq. The applicable international law will also depend upon whether the private contractors are "combatants" or "mercenaries." Congressional Research Service, Private Security Contractors in Iraq: Background, Legal Status, and Other Issues, Order Code RL32419, at 12-15 (July 2007). 2 Iraqi law includes orders issued by the Coalition Provisional Authority ("CPA") "prior to the hand-over of sovereignty to the Iraqi Interim Government that have not been rescinded or superceded." Congressional Research Service, Private Security Contractors in Iraq: Background, Legal Status, and Other Issues, Order Code RL32419 at 1517 (July 2007). Pursuant to CPA Order Number 17 (revised as of June 27, 2004), "[c]ontractors shall not be subject to Iraqi laws or regulations in matters relating to the terms and conditions of their Contracts." Id.

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issues raised in this lawsuit, which signify that federal (which may include treaties and/or other international conventions), rather than state, law should be applied to this case. C. Plaintiff's Allegations Raise "Uniquely Federal Interests"; Thus, To The Extent Her Claims Are Justiciable And In The Absence Of Federal Statutes Or Regulations, Federal Common Law Should Be Developed And Applied To Plaintiff's Claims This Court has original jurisdiction under 28 U.S.C. § 1331 because Plaintiff's claims

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are based upon substantial questions of federal law and implicates significant federal issues. See Grable & Sons Metals Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 312 (2005). 19. It is obvious that there are no state or federal standards by which this Court could

evaluate Plaintiff's claims that Defendants, inter alia, allegedly failed to provide basic security to IPLOs; failed to purchase, maintain and make available adequate weaponry, armor vehicles, and other supplies; and failed to establish and/or to abide by reasonable precautions to minimize travel in Iraq during enemy hostilities. See Complaints, ¶ 40. However, because the events underlying this lawsuit occurred in Iraq while Mr. Parlin was working as a contractor for the U.S. Department of State in support of its international CIVPOL program, Plaintiff has clearly raised issues that implicate "uniquely federal interests." Boyle v. United Techs. Corp., 487 U.S. 500, 504 (1988). 20. The "uniquely federal interests" implicated by this case are articulated by Plaintiff's

own allegations. To that end, the Complaints makes allegations regarding the integrity of the federal procurement process (see Complaints, ¶¶ 19-22); expenditures of federal taxpayer money on contractors by the U.S. Government (see Complaints, ¶¶1, 5, 13-18); the relationship between private contractors and the U.S. Military (see Complaints, ¶¶ 1, 27, 39); the level of protection and security provided to private contractors working in Iraq (see Complaints, ¶¶ 1, 13-25); and the dangerous conditions in Iraq (see Complaints, ¶¶ 26-27, 30, 32, 37, 38). -6-

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21.

In addition, the "uniquely federal interest" is demonstrated by the intent of the U.S.

Departments of Defense and State to develop laws and promulgate regulations addressing some or all of the issues raised in this Complaints, as well as their agency oversight and deployment of private contractors. In a "Memorandum of Agreement (MOA) between the Department of Defense and the Department of State on USG Private Security Contractors"3 that was executed on December 5, 2007 (a copy of which is attached hereto as Exhibit C), the U.S. Departments of Defense and State agreed to "jointly develop, implement, and follow core standards, policies, and procedures for the accountability, oversight, and discipline of [private security contractors]," which will include a "clear legal basis for holding [U.S. Government] private security contractors accountable under U[.]S[.] law." See Exhibit C at 1. This MOA indicates that the two federal executive agencies will develop and implement federal standards in Iraq covering their private security contractors regarding unity of effort, rules for the use of force, authority to process and carry firearms, movement coordination and control, serious incident response and investigation, contract management and language, and legal accountability (under U.S. law). See Exhibit C, Annex A. If there is a clear legal basis for determining liability here, then it clearly implicates the same federal interest the U.S. Departments of Defense and State are evaluating as part of the MOA. 22. The "uniquely federal interests" at issue in this matter is also demonstrated by the

number of bills recently introduced by congressional members to establish federal standards and oversight of contractors in Iraq and other locations. For instance, on February 16, 2007, Senator Barack Obama (D-IL) introduced the Transparency and Accountability in Military and Security

3 A copy of this MOA can be found at http://www.defenselink.mil/pubs/pdfs/Signed%20MOA%20Dec%205% 202007.pdf.

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Contracting Act of 2007, which directs the Chairman of the Joint Chiefs of Staff to issues rules of engagement for contractor personnel, to establish hiring, training and equipment standards to private contractors,4 and to coordinate communications between U.S. Armed Forces and contractor personnel.5 See Transparency and Accountability in Military and Security Contracting Act of 2007, S. 674, 100th Cong., § 6 (2007) (attached hereto as Exhibit D). A similar bill, sponsored by Representative David Price (D-NC), was introduced in the House of Representatives on January 10, 2007, and has been referred to the House Subcommittee on Crime, Terrorism, and Homeland Security. See Transparency and Accountability in Security Contracting Act of 2007, H.R. 369, 100th Cong., § 3 (2007) (attached hereto as Exhibit E). See also MEJA Expansion and Enforcement Act of 2007, H.R. 2740, 100th Cong., § 2 (2007) (proposing to extend the Military Extraterritorial Jurisdiction Act to contractors employed abroad to hold them criminally liable for certain acts); Security Contractor Accountability Act of 2007, S. 2147, 110th Cong., § 2 (2007) (same). 23. The "uniquely federal interests" can also be found in the investigatory committee

hearings by the Committee on Oversight and Government Reform of the U.S. House of Representatives. These hearing have discussed and investigated some or all of the issues raised in this Complaints, including, among other issues, the level of security and protective equipment issued to contractors, the necessity of traveling in Iraq, and the threats faced by contractors while performing their duties in Iraq. See Hearings on Blackwater USA: Hearing Before the H. Comm.
4

Senator Obama's bill specifically provides: "The head of each agency awarding a covered contract shall issue guidance (appropriate for the agency) on equipment used for private security functions under covered contracts with the agency, including appropriate uniforms and levels of body armor and equipment armor, and a recommended list of rearmorers and weapons and armor manufacturers for complying with such guidelines." Transparency and Accountability in Military and Security Contracting Act of 2007, S. 674, 100th Cong. § 6(b)(2) (2007). Section 6(c)(2)(F) of Senator Obama's bill provides that the Theater Security Contract Coordinating Officer must, among other things, "as appropriate, communicate up-to-date information about the security environment that may be relevant to contractor personnel." Id. at § 6(c)(2)(F).
5

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on Oversight and Government Reform, 110th Cong. 3-9 (Preliminary Transcript October 2, 2007) (statement of Rep. Waxman, Chairman); Iraqi Reconstruction: Reliance on Private Military Contractors and Status Report; Hearing Before the H. Comm. on Oversight and Government Reform, 110th Cong. 1-9 (February 7, 2007) (statement of Rep. Waxman, Chairman). 24. In summary, based upon the overwhelming federal interest in the issues raised in this

lawsuit, it is evident that this Court should defer to federal, rather than state, interests when reviewing this case. However, to the extent that Plaintiff's claims are justiciable, there are currently no federal or state laws or regulations specifically governing the allegations in this case, including the appropriate amount of protection to be afforded private contractors in Iraq or when travel in Iraq is permissible. Assuming that this case is justiciable, this Court should conclude that the overwhelming federal interest tips the balance of equities clearly in favor of developing and applying a federal common law. 25. Accordingly, Defendants submit that removal pursuant to 28 U.S.C. § 1441 is proper

in this case. See Grable & Sons Metals Prods., 545 U.S. at 312. II. REMOVAL BASED UPON FEDERAL OFFICER REMOVAL STATUTE 26. The Court has original jurisdiction over this civil action pursuant to 28 U.S.C. §

1442(a)(1), which provides that a civil action originally filed in a State court may be removed if it is against the "United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office." As recognized by the Court of Appeals for the Third Circuit and this District Court, the federal officer removal statute is to be broadly construed. Megill v.

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Worthington Pump, Inc., 1999 WL 191565, at *2 (D. Del.) (citing Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1262 (3d Cir. 1994)) (Ex. G). 27. Defendants satisfy the criteria necessary for federal officer removal. See Feidt v.

Owens Corning Fiberglas Corp., 153 F.3d 124, 127 (3d Cir. 1998). In applying the criteria, Defendants are not required to establish "an airtight case on the merits in order to show the required causal connection." Jefferson County v. Acker, 527 U.S. 423, 432 (1999) (holding that such a high threshold would defeat the purpose of the removal statute and accepting the "theory of the case" as an "adequate threshold showing that the suit is for an act under color of office") (quotations and citations omitted). Moreover, if Defendants have "sufficiently put in issue the questions of official justification and immunity[,] the validity of their defenses should be determined in the federal courts." Willingham v. Morgan, 395 U.S. 402, 409 (1969) (holding that "[t]his is exactly what the removal statute was designed to accomplish"). 28. Defendants are "persons" acting under an officer of the United States or an agency

thereof sued in an official or individual capacity for any act under color of such office. Megill, 1999 WL 191565, at *3 (citation omitted). Defendants are being sued because they were acting under federal authority and direction in accordance with their contracts with the U.S. Department of State. 29. Plaintiff's Complaint demonstrates that her claims are based upon Defendant's

conduct acting under a federal office. The Complaints allege that Defendants entered into contractual agreements with the U.S. Department of State that "included requirements provided by the Department of State for defendants to follow as they recruited, selected, equipped, and deployed civilian police officers from the United States" and "included provisions relating to employee safety, including, but not limited to, requirements that the general contractor and any subcontractors

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maintain a minimal standard of security described by the contract, and requirement that such contractors take all steps necessary to ensure the safety of IPLOs." Complaints, ¶¶ 15-16. 30. Defendants will raise colorable federal defenses, including the Government

Contractor Defense established in Boyle v. United Techs. Corp., 487 U.S. 500, 504-505 (1988). In Boyle, the United States Supreme Court held that tort liabilities arising out of the performance of a federal government contract and "the civil liability of federal officials for actions taken in the course of their duty" are areas of "uniquely federal interests" that are "so committed by the Constitution and laws of the United States to federal control that state law is pre-empted" and replaced by federal common law. Defendants are entitled to immunity with respect to the tort claim alleged in this case because: (1) the U.S. Government and/or the U.S. Armed Forces established the criteria for recruiting, selecting, and equipping IPLOs, and established a minimum standard of security (see Complaints, ¶¶ 14, 16); (2) Defendants complied with the U.S. Government and/or the U.S. Armed Forces' requirements; and (3) Defendants were not aware of dangers posed by the criteria issued by the U.S. Government and/or U.S. Armed Forces for recruitment or the provision of security. 31. Defendants also intend to raise the political question doctrine as a federal defense.

The issues raised in the Complaints involve a textually demonstrable constitutional commitment of the issues to the other branches of government, as demonstrated by recent legislative bills directing the establishment of standards to regulate private contractors, congressional hearings searching for standards by which to measure federal government oversight of private contractors, and the MOA between the U.S. Departments of Defense and State memorializing the executive agencies' intent to promulgate regulations and standards regarding private contractors. See supra ¶¶ 21-23. In

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addition, as made evident by the congressional hearings and various government reports, there are no judicially discoverable and manageable standards to guide the Court's adjudication of this survival and wrongful death claim. In that regard, Plaintiff is asking this Court to decide, among other things, the amount of protection Defendants should have provided Mr. Parlin as he carried out his duties as an IPLO, whether Mr. Parlin should have been traveling in Baghdad, the amount of danger or threat that would have been acceptable to permit travel in Baghdad, and whether there was sufficient coordination between Defendants and the U.S. military regarding safety on the roads. Recognizing the extraordinary complexity of the situation, Congress and the U.S. Departments of Defense and State are reviewing these issues in a still unrealized attempt to establish manageable standards. 32. Defendants will assert a federal defense based upon two federal statutes--the

exclusivity of remedies as established by the DBA, 42 U.S.C. § 1651, et seq., and the LHWCA, 33 U.S.C. §§ 901, et seq. 33. There is a causal connection between Plaintiff's claim and Defendant's actions

performed under color of federal office. As alleged in the Complaints, Defendants were acting in furtherance of their contractual obligations with the U.S. Government and/or U.S. Armed Forces to recruit civilian police officers in support of the U.S. CIVPOL mission in Iraq when Mr. Parlin was killed by an IED. 34. Accordingly, because Defendants have satisfied all of the criteria set forth in Feidt,

removal pursuant to the federal removal statute is proper.

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III.

DEFENDANTS HAVE PROPERLY REMOVED THIS ACTION PURSUANT TO 28 U.S.C. § 1446 35. All named Defendants, DynCorp International Inc. and DynCorp International LLC,

have been served in this action. 36. 37. 38. All named Defendants consent to this removal. None of the named Defendants has filed a responsive pleading in this matter. Copies of all process, pleadings, and orders served on Defendants are attached to this

Notice of Removal and undersigned counsel certifies that a copy of this Notice of Removal will be served promptly on Plaintiff and filed with the Clerk of the Superior Court of the State of Delaware in and for New Castle County. WHEREFORE, Defendants DynCorp International Inc. and DynCorp International LLC hereby remove the above-captioned action from the Superior Court of the State of Delaware, In and For New Castle County, to the U.S. District Court for the District of Delaware. SMITH, KATZENSTEIN & FURLOW LLP Of Counsel: Robert B. Wallace Kevin P. Farrell Yoora Pak WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP The Colorado Building 1341 G Street, N.W., 5th Floor Washington, DC 20005 (202) 626-7660 (202) 628-3606 (facsimile) /s/ Robert K. Beste Robert K. Beste, III (No. 3931) Post Office Box 410 Wilmington, Delaware 19899 (302) 652-8400 (302) 652-8405 (facsimile) [email protected]

Attorneys for Defendants,
DynCorp International Inc., and DynCorp International LLC February 19, 2008

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EXHIBIT F

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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2005 WL 2085544 (D.Colo.) (Cite as: Not Reported in F.Supp.2d)

Nauert v. Ace Properties and Cas. Ins. Co. D.Colo.,2005. Only the Westlaw citation is currently available. United States District Court,D. Colorado. Charles Jason NAUERT, Plaintiff, v. ACE PROPERTY AND CASUALTY INSURANCE COMPANY; Esis, Inc., a Pennsylvania Corporation, Defendants. No. 104CV02547WYDBNB. Aug. 27, 2005. John Gregory Walta, J. Gregory Walta, PC, Colorado Springs, CO, for Plaintiff. Brandon Roy Ceglian, Montgomery Kolodny Amatuzio & Dusbabek, LLP-Denver Colorado, Denver, CO, for Defendants. ORDER DANIEL, J. *1 THIS MATTER is before the Court on Defendants' Amended Consolidated Motion to Dismiss Plaintiff's Claims for Relief and to Strike Portions of Plaintiff's Complaint ("Motion to Dismiss"), filed January 18, 2005, and Plaintiff's Response, filed February 7, 2005. For the reasons set forth below the Court GRANTS Defendants' Motion to Dismiss as to Plaintiff's first claim alleging insurance bad faith and his second claim alleging violations of the Colorado Consumer Protection Act. The Court DENIES as moot Defendants' Motion to Dismiss to the extent it requests certain allegations of the Complaint be stricken as immaterial, impertinent and scandalous. I. BACKGROUND Plaintiff brings this action as a compensation claimant under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (1988) ( "LHWCA"), and seeks to recover compensatory

and punitive damages against Defendants Ace Property and Casualty Company ("ACE") and ESFN1 IS, Inc. (collectively "ACE") arising out of Defendants' alleged bad faith handling of Nauert's federal workers' compensation claim. Pursuant to allegations in his complaint, Plaintiff sustained a work-related injury to his ankle and foot on December 13, 2003 while working at an American military base in Kosovo when he stepped on a large rock. Compl., at ¶ 2. He states he filed a prompt report and was returned to Colorado on January 1, 2004 for medical treatment. Id., ¶ 5. Plaintiff avers ACE has at all relevant times contracted to provide workers' compensation coverage for Plaintiff under the LHWCA. Plaintiff also claims that despite verification by ACE's doctors that he was disabled by an on-the-job-injury, ACE denied Plaintiff's claim was work-related, and refused to pay him disability payments or for his medical care.Id., at ¶ 8. Nauert alleges Defendants' conduct caused him financial hardship, loss of enjoyment of life, and impairment of psychological and physical function. Id., at ¶ 5. FN1. Defendant ESIS, Inc., ("ESIS") is wholly owned and controlled by ACE and serves as a third-party adjuster on ACE/ CIGNA claims. Plaintiff filed suit on October 29, 2004, asserting an insurance bad faith claim and a claim that ACE violated the Colorado Consumer Protection Act, C.R.S. § 6-1-101, et seq., by violating the Colorado Unfair Claims-Deceptive Practices Act, C.R.S. § 10-3-1104(1). Defendants' Motion to Dismiss, filed Pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(6), 12(f) and 12(g), asserts Plaintiff's complaint must be dismissed because his first claim is preempted by the LHWCA, and Plaintiff lacks standing to assert his second claim under the Colorado Consumer Protection Act. In the alternative, Defendants request portions of Plaintiff's complaint be stricken as immaterial, impertinent and scandalous. I address the parties' arguments below.

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II. LEGAL ANALYSIS A. Introduction When a party moves to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the attack can be either a facial attack to the allegations or a factual attack. Osborn v. United States, 918 F.2d 724, 729 n. 6 (10th Cir.1990). A facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. Holt v. U.S., 46 F.3d 1000, 1002 (10th Cir.1995) (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990)). In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true. Id. Here, I find Defendants' Motion to Dismiss raises a facial attack, as this Court need not look beyond the allegations contained in the complaint. Holt, 46 F.3d at 1002. Accordingly, I find Defendants' 12(b)(1) motion to dismiss does not need to be converted into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion. Id. *2 When evaluating a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), the court " `must accept all the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff.'"David v. City and County of Denver, 101 F.3d 1344, 1352 (10th Cir.1996) (quoting Gagan v. Norton, 35 F.3d 1473, 1474 n. 1 (10th Cir.1994))."A complaint may be dismissed pursuant to FED. R. CIV. P 12(b)(6) only `if the plaintiff can prove no set of facts to support a claim for relief.'"Id. (quoting Jojola v. Chavez, 54 F.3d 488, 490 (10th Cir.1995)). Pursuant to the Federal Rules, if a court considers matters outside of the pleadings, a motion to dismiss pursuant to Rule 12(b)(6) should be treated as a motion for summary judgment. Here, Defendants attached numerous documents to their Motion to Dismiss, including a complaint and order in a related case. Similarly, Plaintiff referenced and attached to his response, ACE and ESIS website materials and affidavits from other lawyers. In ruling upon Defendants' Motion to Dismiss, I do not consider these

outside matters submitted by the parties and, therefore, I do not find it necessary to treat their motion as one for summary judgment under Fed.R.Civ.P. 12(b). B. Preemption by the Defense Base Act and the LHWCA I first address Defendants' argument that this court lacks subject matter jurisdiction to hear Plaintiff's insurance bad faith claim because it is preempted by the Defense Base Act ("DBA") and the LHWCA. Defendants argue this claim falls under the LHWCA because, as Plaintiff admits, the alleged injury occurred while Plaintiff was employed as a security guard at an American military base in Kosovo. Defendants further claim that because Plaintiff alleges injury at an overseas United States military base, his claim arises first under the DBA, 42 U.S.C. §§ 1651-54, which expressly incorporates the LHWCA as follows: The DBA provides, "[e]xcept as herein modified, the provisions of the [LHWCA] ... shall apply in respect to injury or death of any employee engaged in any employment-at any military, air, or naval base acquired after January 1, 1940, by the United States from any foreign government; or upon any lands occupied or used by the United States for military or naval purposes in any Territory or possession outside the continental United States. 42 U.S.C. § 1651(a)(1)-(2). Accordingly, Defendants assert exclusivity proFN2 FN3 visions within the DBA and the LHWCA preempt all state law claims against the "employer or insurer for damages arising out of a delay in payment or a failure to pay worker's compensation benefits."Mot., at 6. FN2. (c) Liability as exclusive."The liability of an employer ... under this chapter shall be exclusive and in place of all other liability of such employer, ... coming within the purview of this chapter under the

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workmen's compensation law of any State, Territory, or other jurisdiction, irrespective of the place where the contract of hire of any such employee may have been made or entered into."42 U.S.C. § 1651(c). FN3. (a) Employer liability; failure of employer to secure payment of compensation."The liability of an employer prescribed in § 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, ... except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, ... may elect to claim compensation under the chapter, or to maintain an action at law or in admiralty for damages on account of such injury or death."33 U.S.C. § 905(a) Plaintiff, on the other hand, argues the LHWCA's "straight-forward" exclusivity provision neither expressly preempts state law, nor presents an actual conflict with similar state workers' compensation regulations. Pl.'s Resp., at 3. Plaintiff further contends this Court should apply Colorado common law in determining whether ACE acted in bad faith when adjusting Nauert's claim, because the majority of facts occurred in Colorado, including his hiring, medical treatment, claims adjustment, and this lawsuit. Plaintiff avers that under Colorado common law, exclusivity provisions like the one found in the LHWCA, do not apply to bad faith claims adjusting where the injury and the damages claimed were not sustained within the FN4 scope of employment. Accordingly, Plaintiff contends ACE's liability does not stem from his work-related injury, but arises from injuries caused by ACE outside the workplace and after employment ceased when ACE intentionally refused to pay for Plaintiff's medical treatment. Pl.'s Resp., at 4. Lastly, Plaintiff argues that even under the DBA and LHWCA, an insurance carrier who engages in bad faith claims adjusting can be held accountable in tort. Martin v. Travelers Insurance Co., 497 F.2d

329 (1st Cir.1974) (insurance company may be sued in tort for "misdeeds committed in connection with payment of compensation under the [LHWCA]"). FN4. To support his claim that bad faith is a separate tort from those barred by workers' compensation exclusivity, Plaintiff cites to Travelers Ins. Co. v. Savio, 706 P.2d 1258 (Colo.1985), but erroneously quotes language that does not appear in that case. See Pl.'s Resp., at 4 (Plaintiff quotes the following language: "occurred after the compensable injury and the damages claimed were not sustained within the scope of employment."). *3 Upon my review of the parties' arguments and of pertinent federal circuit law, I find the LHWCA preempts state law regarding actions for bad faith handling of LHWCA claims. Responding to Plaintiff's argument that there is no express federal preemptive decree, I find the plain language of the DBA provides otherwise. 42 U.S.C. § 1651(c) ("[t]he liability of an employer ... shall be exclusive and in place of all other liability of such employer, ... coming within the purview of this chapter under the workmen's compensation law of any State").FN5 Plaintiff's claim that Colorado common law should apply because Nauert was hired in Colorado also runs counter to language within the same DBA provision, which plainly states, an employer's liability is exclusive "irrespective of the place where the contract of hire of any such employee may have been made or entered into."Id. FN5. Plaintiff does not appear to deny Defendants' assertion that the DBA exclusivity clause governs in this case. See generally, Kalama Services, Inc. v. Director, Office of Workers' Compensation, 354 F.3d 1085, 1090 (9th Cir.2004) (noting the purpose of the DBA in extending LHWCA coverage, is to provide worker's compensation coverage for employees working outside the continental United States).

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Moreover, I find the legislative history of the LHWCA and the DBA makes clear Congress' intent to preempt state law. The LHWCA was established in 1927, "as a uniform national program of workers compensation benefits for longshore and harbor workers which could not be constitutionally provided by the States."Texas Employers' Ins. Ass'n v. Jackson, 820 F.2d 1406, 1411-1412 (5th Cir.1987). The later established DBA, together with the LHWCA, provide a certain fixed recovery for employees injured on the job without regard to the employer's fault, but also "precludes the assertion of various common-law defenses that had frequently resulted in the denial of any recovery for disabled laborers."Potomac Elec. Power Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, 449 U.S. 268, 281, 101 S.Ct. 509, 66 L.Ed.2d 446 (1980). Given this framework and the exclusivity language of the LHWCA, I find Congress intended to preempt potentially conflicting state law so as to preserve its apparent objective of providing "uniform protection" to employees inFN6 jured on the job. See Atkinson v. Gates, McDonald & Co., 665 F.Supp. 516, 520 (S.D.Miss.1987). FN6. Accordingly, I find Plaintiff's reliance upon Colorado case law for the proposition that the LHWCA should not bar bad faith claims in this action is inappropriate. See Travelers Ins. Co. v. Savio, 706 P.2d 1258, 1264 (Colo.1985) (holding the Colorado Worker's Compensation Act did not bar a common law claim for bad faith). I next address the issue of whether Plaintiff's bad faith claim lies within the purview of the LHWCA. Plaintiff avers an insurance company can be sued in tort under the LHWCA because the LHWCA's penalty provisions do not represent the exclusive remedy for bad faith adjusting. Pl.'s Resp., at 4-5. I disagree. The LHWCA by its terms contemplates nonpayment or delay in payment of benefits and provides claimants a remedy for such nonpayment in the form of a penalty. Section 914(f) of the LHWCA, for example, provides for broad pen-

alties against employers who delay in making payments, so that if compensation, payable under the terms of an award, is not paid within ten days, a twenty (20) percent penalty is added to the amount of compensation due. 33 U.S.C. § 914(f) (1988). The LHWCA also allows a successful claimant an award of attorney's fees and expenses. Id., § 928. Most significantly, in 1984 Congress amended the LHWCA at 33 U.S.C. § 931 to enhance the criminal penalties for arbitrary withholdings from a misdemeanor to a felony, increasing the maximum fine to $10,000 and the maximum imprisonment to five years. Barnard v. Zapata Haynie Corp., 975 F.2d 919, 921 (1st Cir.1992). As other Circuit Courts have acknowledged, I find the LHWCA's comprehensive remedial framework for nonpayment or delay in payment of benefits and the "conflict therewith which necessarily flows from any state penalty scheme respecting failure to pay LHWCA benefits which differs from the scheme of the LHWCA," convinces me that Plaintiff's state law claims are preempted. Barnard, 975 F.2d at 921 (citing Atkinson v. Gates, McDonald & Co., 838 F.2d 808, 812 (5th Cir.1988)). *4 The court in Atkinson further reasoned that the statutory penalty "inferentially, but nonetheless plainly, also provides that the penalty shall not be any different amount, and that liability for it shall not vary according to anything, such as good or bad faith ...".Atkinson, 838 F.2d at 812;see also Hall v. C & P Tel. Co., 809 F.2d 924 (D.C.Cir.1987) (finding state tort claim based on employer's intentional refusal to make timely compensation payments preempted by exclusivity and late payment provisions of LHWCA); Sample v. Johnson, 771 F.2d 1335, 1347 (9th Cir.1985) (holding state wrongful refusal to pay claim barred by exclusivity and penalty provisions of LHWCA, cert. denied,475 U.S. 1019, 106 S.Ct. 1206, 89 L.Ed.2d 319 (1986)); Daley v. Aetna Casualty & Sur. Co., 61 Ohio App.3d 721, 573 N.E.2d 1128, 1130 (1988) (intent to preempt state actions for bad faith and intentional infliction of emotional distress based on employer's termination of benefits "is ap-

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parent both from the pervasiveness of the federal regulation and the likelihood of conflicts between state and federal law."). As for Plaintiff's claim Martin v. Travelers Insurance Company, 497 F.2d 329 (1st Cir.1974), "rejected the argument that the LHWCA's penalty provisions are the exclusive remedy for bad faith adjusting," I find the cases are distinguishable. Pl.'s Resp., at 5. The Martin court made clear, "the crux of the complaint here is the insurer's callous stopping of payment without warning when it should have realized that acute harm might follow. A stop payment on a sizable compensation check which may have been deposited and drawn upon carries the obvious possibility of embarrassment and distress." Martin, 497 F.2d at 331. Unlike Martin, the facts in the case at bar relate solely to ACE's refusal to pay benefits. Despite Plaintiff's best efforts to convince the Court this case is similar to Martin because ACE's alleged conduct was "egregious" and because ACE "completely fabricated" its claim that Plaintiff's injuries were not work related, I find Defendants' actions, in the end, amount to nothing more than a refusal to make payments. Pl.'s Resp., at 6. Under such facts, I find Martin is not applicable and the LHWCA is Plaintiff's exclusive remedy against ACE. As Defendants aptly point out, other federal and circuit courts addressing the same issue have rejected Martin, or limited its holding to its unique facts. Indeed, even the First Circuit distinguished its 1974 holding, stating "we find Martin to be inapposite to the facts alleged here," which relate solely to a refusal to pay benefits. Barnard, 975 F.2d at 920-21. The court in Atkinson and Sample made similar findings. See Atkinson, 838 F.2d at 813 (limiting Martin to "a situation where the plaintiff's recovery would not depend on a determination that he was owed compensation under the LHWCA or that the defendant violated the LHWCA"); Sample, 771 F.2d at 1347 (distinguishing Martin from cases involving the "ordinary refusal

to pay" and limiting decision to "where a carrier deliberately stops payments already made, when it should have known that acute harm might follow"). *5 For all of the foregoing reasons, I find Plaintiff's first claim alleging insurance bad faith is preempted by the LHWCA and should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1). C. Standing to Assert a Claim Pursuant to the Colorado Consumer Protection Act In his second claim for relief, Nauert states ACE "committed deceptive trade practices" entitling Plaintiff to relief under the Colorado Consumer Protection Act ("CCPA"), C.R.S. § 6-1-101, et seq., by violating the following provisions of the Colorado Unfair Claims-Deceptive Practices Act ("UCDPA") set forth in C.R.S. § 10-3-1104(1)(h): (II). Failing to acknowledge and act reasonably, promptly upon communications with respect to claims arising under insurance policies; (VI). Not attempting in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear; (VII). Compelling insureds to institute litigation to recover amounts due under insurance policy by offering substantially less than the amounts ultimately recovered in the actions brought by the insured; or ... (XIV). Failing to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts and applicable law for denial of the claim.... Compl., at 5. Defendants assert these allegations fail to state a claim under the CCPA because they fail to allege that ACE engaged in a deceptive trade practice as enumerated in the CCPA, and fail to allege that the conduct had a significant public impact, as required by Colorado case law. Thus, Defendants contest the first and third elements of the test for CCPA applicability as set forth in Hall v. Walter, 969 P.2d 224, 235 (Colo.1998) ("[t]o prove a private cause of ac-

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tion under the CCPA, a plaintiff must show: (1) that the defendant engaged in an unfair or deceptive trade practice; (2) that the challenged practice occurred in the course of defendant's business, vocation, or occupation; (3) the challenged practice significantly impacts the public as actual or potential consumers of the defendant's goods, services, or property; (4) that the plaintiff suffered injury in fact to a legally protected interest; and (5) that the challenged practice caused the plaintiff's injury). The Hall court stated the first step in proving a CCPA claim "requires the plaintiff to establish conduct by the defendant that constitutes a deceptive trade practice."Hall, 969 P.2d at 224, 234. The Colorado supreme court specifically referenced § 6-1-105 as "identifying and defining deceptive trade practices."Id. at 234.Here, I find Plaintiff's conclusory statement, ACE "committed deceptive trade practices" because he violated provisions of the UCDPA does not meet this burden, as none of the UCDPA provisions which were allegedly violated by Defendants appears in § 6-1-105. I further find no language in the CCPA providing that a UCDPA violation constitutes a per se violation of the CCPA. See Coors v. Security Life of Denver Insurance Company, 91 P.3d 393, 401 (Colo.App.2003). Moreover, Plaintiff does not inform the Court, even after he was given the opportunity to do so in his opposition to Plaintiff's Motion, how the UCDPA violations might implicate or resemble any of the deceptive trade practices identified in § 6-1-105. Instead, Plaintiff merely copies the language contained in claim two of his complaint into his response and avers he "has gone to great lengths to satisfy the four-part test spelled out in Coors v. Security Life of Denver Ins.,Co., 91 P.3d 393, 398 (Colo.App.2003) and Rhino Linigns USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 FN7 P.3d 142 (Colo.2003)...". Resp., at 8. Lastly, to the extent Plaintiff relies upon Showpiece Homes Corp. v. Assurance Co. of America, 38 P.3d 47, 52 (Colo.2001), to support his contention he may look outside § 6-1-105 for a deceptive trade practice, I find such argument is without merit. See Coors, 91

P.3d at 401 (finding "Showpiece Homes did not hold that other conduct not enumerated in § 6-1-105 may constitute a deceptive trade practice under the CCPA"). FN7. Although Plaintiff asserts the test enunciated in Coors and Rhino Linings only has four parts, I find it is the same five-part test stated by the Hall court, which requires a showing by the Plaintiff that "the defendant engaged in an unfair or deceptive trade practice."See Coors, 91 P.3d at 398;Rhino Linigns USA, Inc., 62 P.3d at 146-47. *6 In addition to showing defendant engaged in an unfair or deceptive trade practice identified in § 6-1-105, Plaintiff must also satisfy the third Hall element by demonstrating ACE's alleged conduct "significantly impacts the public as actual or potential consumers of the defendant's goods, services, or property."Hall, 969 P.2d at 235. The Colorado supreme court outlined the relevant considerations to determine whether a challenged practice significantly impacts the public within the context of a CCPA claim. These considerations include (1) the number of consumers directly affected by the challenged practice, (2) the relative sophistication and bargaining power of the consumers affected by the challenged practice, and (3) evidence that the challenged practice has previously impacted other consumers or has the significant potential to do so in the future. Martinez v. Lewis, 969 P.2d 213, 222 (Colo.1998). Here, even assuming arguendo Nauert could demonstrate ACE, his employer and the purchaser of the insurance, was a relatively unsophisticated consumer to the transaction, I find Nauert does not allege a significant impact upon the public from the alleged deceptive practices. Rather, the only alleged impact is on Nauert, who claims ACE wrongfully denied his claim on the basis it was not work-related. Pl.'s Compl., at 3. As such, I find the alleged wrong is private in nature and does not affect the public. See Rhino Linigns USA, Inc. v. Rocky

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Mountain Rhino Lining, Inc., 62 P.3d 142 (Colo.2003) (" `the [CCPA] is intended to reach practices of the type which affect consumers generally and is not available as an additional remedy to redress a purely private wrong.'") (internal citation omitted). As to Plaintiff's assertion he has "buttressed the allegation of his complaint" by submitting portions of the ACE and ESIS websites and various affidavits, attached as Exhibits A through F to Plaintiff's response, I find I do not need to consider such exhibits, as they do not demonstrate the required significant public impact. At most, the affidavits of other lawyers who have been involved with lawsuits involving ACE would only demonstrate there are other instances where ACE has denied claims. As set forth in Rhino Linings, and Coors, supra, such evidence does not demonstrate a significant public impact required to establish a CCPA claim. See Rhino Linings USA, Inc., 62 P.3d at 150 (no record to justify a finding of significant public impact where three of some 550 dealers were potentially affected by the alleged practice); Coors, 91 P.3d at 399 (overcharging on insurance premiums to 200 of 20,000 customers did not rise to the level of broad public impact). Lastly, I find Plaintiff's reliance upon Showpiece Homes for the proposition that a claimant under the CCPA need not make a showing of public impact, is misplaced. Coors makes clear "the holding in Showpiece Homes is limited to the conclusion that insurance companies and insurance transactions will be covered by the CCPA if the requirements of Hall are met."Coors, 91 P.3d at 401. *7 Having found Plaintiff's second claim fails to establish two necessary elements for a private cause of action under the CCPA, I find this claim should be dismissed for failure to state a claim upon which relief can be granted.Fed.R.Civ.P. 12(b)(6) III. CONCLUSION

For the foregoing reasons, it is ORDERED that Defendants' Amended Consolidated Motion to Dismiss Plaintiff's Claims for Relief and to Strike Portions of Plaintiff's Complaint, filed January 18, 2005, is GRANTED IN PART AND DENIED IN PART. It is GRANTED to the extent it requests Plaintiff's first and second claims for relief be dismissed and DENIED AS MOOT to the extent it requests certain allegations in Plaintiff's Complaint be stricken. It is FURTHER ORDERED this case is dismissed. D.Colo.,2005. Nauert v. Ace Properties and Cas. Ins. Co. Not Reported in F.Supp.2d, 2005 WL 2085544 (D.Colo.) END OF DOCUMENT

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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 1999 WL 191565 (D.Del.) (Cite as: 1999 WL 191565 (D.Del.))

Only the Westlaw citation is currently available. United States District Court, D. Delaware. David E. MEGILL and Jenny Lee W. Megill, his wife, Plaintiffs, v. WORTHINGTON PUMP, INC., et al., Defendants. No. CIV. A. 98-76-SLR. March 26, 1999. Robert Jacobs, Esquire, Vincent J.X. Hedrick, II, Esquire, of Jacobs & Crumplar, Wilmington, Delaware, attorneys for plaintiffs. Christian J. Singewald, Esquire, of White & Williams, Wilmington, Delaware, attorneys for defendant Worthington Pump, Inc. MEMORANDUM OPINION ROBINSON, District J. I. INTRODUCTION *1 Plaintiffs David E. Megill and Jenny Lee W. Megill brought suit against numerous defendants in the Superior Court of the State of Delaware in and for New Castle County. In their complaint, it is alleged that plaintiff David E. Megill was exposed to asbestos and asbestos-containing products and that plaintiffs were injured thereby. The complaint contains allegations that Worthington Pump, Inc. ("Worthington") and other defendants were at all times pertinent directly or indirectly engaged in the mining, manufacturing, distribution, sales, licensing, leasing, installation, removal or use of asbestos and asbestos-containing products. They were also engaged in the development, manufacture, distribution, sales, licensing or leasing of equipment procedures and/or technology necessary to mine, manufacture, sell, distribute, install, remove and the use of asbestos and asbestos-containing products. (D.I.2, Ex. A, 8) Plaintiffs further allege that [t]he defendants were negligent in conducting the

above activities in that despite the fact that the defendants knew or should have known that asbestos exposure could result in serious injury, disease and/or death they: (a) Failed to substitute, suggest, promote or require the substitution of materials other than asbestos; (b) Failed to adequately warn all the potential victims of asbestos including the plaintiff as well as other users, bystanders, household members and members of the general public of the risks of asbestos; (c) Failed to adequately test, research and investigate asbestos and/or its effects prior to sale, as to use, and/or exposure of the plaintiff and others similarly situated; (d) Failed to adequately package, distribute and use asbestos in a manner which would minimize the escape of asbestos fibers therefore adding to the exposure of the plaintiff and others similarly situated; (e) Failed to take adequate steps to remedy the above failure, including but not limited to recall of asbestos and asbestos products, to conduct research as to how to cure or minimize asbestos injuries, to distribute asbestos so as to render it safe or safely remove the asbestos now in place. (D.I.2, Ex. A, 13) Through preliminary discovery, defendant Worthington determined that plaintiff David Megill was exposed to its products while working on board United States Navy vessels. Based on this information, Worthington filed a notice of removal in February 1998 pursuant to 28 U.S.C. § 1442(a)(1), which provides in relevant part that [a] civil action ... commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) The United States or any agency thereof or any officer (or any person acting under that of-

© 2008 Thomson/West. No Claim to Orig. US Gov. Works.

Case 1:08-cv-00107-JJF Document Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 1999 WL 191565 (D.Del.) (Cite as: 1999 WL 191565 (D.Del.))

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ficer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office .... *2 Plaintiffs responded thereto by filing a motion to remand. Following limited discovery, briefing was completed. For the reasons stated below, plaintiffs' motion to remand (D.I.5) shall be granted. II. FACTS The relevant facts of record are not in dispute. Defendant Worthington supplied various pumps to the U.S. Navy for use on naval vessels. As averred by John P. McAdams, all Navy combat vessel equipment, including Worthington pumps, were built according to U.S. Navy and Military specifications under the supervision of Naval officers and civilian employees. Such equipment was approved for installation aboard these vessels exclusively by the Navy and its designated officers and employees. (D.I.2, Ex. G, 13) According to the military specifications included in the record, asbestos was specifically mentioned twice: 1) paragraph 3.2.8 provides that "[a]ll packing and gaskets shall be in accordance with Drawing B-153" which, in turn, specifies "asbestos metallic cloth, sheet" and "asbestos metallic cloth, gasket;" and 2) paragraph 3.3.9.14 provides that "[p]ump casing joints shall be made up using compressed asbestos sheet gaskets." (See, e.g., D.I. 2, Ex. D to Ex. F and Ex. A to Ex. G) The court has discerned no evidence that the specifications address the issues of product research (aside from quality assurance and performance testing), packaging, labels, and warnings as they relate to asbestos. Similarly, there is no