Bartel v. Alcoa S.S. Co.

• Decision Date: 04 December 2014
• Docket Number: Civil Action Nos. 14–251–JJB–RLB,14–252–JJB–RLB.
• Citation: 64 F.Supp.3d 843
• Parties: Willard E. BARTEL, as personal representative of the Estate of Silar B. Bishop v. ALCOA STEAMSHIP COMPANY, et al.
• Court: U.S. District Court — Middle District of Louisiana

64 F.Supp.3d 843

Willard E. BARTEL, as personal representative of the Estate of Silar B. Bishop

v.ALCOA STEAMSHIP COMPANY, et al.

Civil Action Nos. 14–251–JJB–RLB

14–252–JJB–RLB.

United States District Court, M.D. Louisiana.

Signed Dec. 4, 2014.

Cameron Ray Waddell, Jody E. Anderman, Waddell Anderman, LLC, Jeffery R. Nicholson, Nicholson Law Firm, L.L.C., Baton Rouge, LA, for Willard E. Bartel.

John A. Bolles, Kevin Jacob Lavie, Meredith W. Blanque, Robert J. Barbier, Phelps Dunbar LLP, Janet Wessler Marshall, Johnson Johnson Barrios & Yacoubian, Aaron Benjamin Greenbaum, Salvador Joseph Pusateri, Pusateri Barrios Guillot & Greenbaum, Brett D. Wise, Elizabeth S. Wheeler, Nora Bolling Bilbro, Liskow & Lewis, New Orleans, LA, Annette N. Peltier, Phelps Dunbar, Baton Rouge, LA, for Alcoa Steamship Company, et al.

RULING

JAMES J. BRADY, District Judge.

The court has carefully considered the petition, the record, the law applicable to this action, and the Report and Recommendation of United States Magistrate Judge Richard L. Bourgeois, Jr. dated November 6, 2014 (doc. no. 50). The defendants filed an objection which restates their prior argument. The Magistrate Judge's application of the law is correct.

The court hereby approves the report and recommendation of the magistrate judge and adopts it as the court's opinion herein. Accordingly, the plaintiff's Motion to Remand is GRANTED and this matter is REMANDED to the 19th Judicial District Court for the Parish of East Baton Rouge, State of Louisiana.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

RICHARD L. BOURGEOIS, JR. United States Magistrate Judge.

Before the Court is a consolidated action in which two separate defendants have removed the same action filed in state court pursuant to two different removal statutes:

28 U.S.C. § 1441 and 28 U.S.C. § 1442. The court has consolidated these actions for adjudication. Plaintiff has filed two Motions to Remand respectively addressing each basis for removal.¹ Both of these motions are opposed. (Bartel I, R. Docs. 47, 48) (Bartel II, R. Docs. 36, 37). Based on the record and the applicable law as set forth below, Plaintiff's motions should be granted and the action should be remanded to state court.

I. BACKGROUND

William E. Bartel (Plaintiff), personal representative of the Estate of Silas B. Bishop (Decedent), filed the underlying state court action on March 12, 2014 in the 19th Judicial District Court for the Parish of East Baton Rouge, Louisiana. (Bartel I, Petition, R. Doc. 1–1). Plaintiff alleges that between 1941 and 1985, Decedent was employed by the following Defendants: Alcoa Steamship Company, Inc.; Amerada Hess Corp.; American President Lines Ltd.; BP Corp. North American, Inc., individually, and/or as successor-in-interest to American Oil Co., and Amoco Shipping Co.; Amoco Shipping Company; Central Gulf Lines, Inc., individually and/or as successor-in-interest to Central Gulf Stream Corporation; Central Gulf Steamship Corporation; Crowley Marine Services, Inc., as successor by merger to Delta Steamship Lines, Inc., f/k/a Mississippi Shipping Co., Inc.; Delta Steamship Lines Inc.; Empire Transport Inc.; Farrell Lines Incorporated f/k/a American South African Lines; Hess Oil & Chem. Corp., Inc.; James River Transport Inc.; Chas. Kutz & Company, individually and/or as successor-in-interest to Keystone Shipping Company & Keystone Tankship Corporation; Keystone Shipping Company; Marine Navigation Company; Crowley Maritime Corp., individually and/or as successor-in-interest to Marine Transport Lines, Inc.; Marine Transport Lines, Inc.; Mathiasen Tanker Ind. Inc.; Matson Navigation Co. Inc.; National Bulk Carriers Inc.; Ogden Leader Transport Inc.; Pan Atlantic Steamship Co.; Sea–Land Service Inc.; Wabash Transport Inc.; and Waterman Steamship Corporation. (Petition, ¶¶ 2, 7–32). Plaintiff alleges that Decedent contracted and died of mesothelioma

as a result of asbestos exposure on vessels owned or operated by Defendants. (Petition, ¶¶ 33–46). Plaintiff brings causes of action for recovery against Defendants under both the Jones Act, 46 U.S.C. § 30104 (Petition, ¶¶ 47–48), and general maritime law (Petition, ¶¶ 49–53). Plaintiff alleges that Defendants failed to warn Decedent of the presence of, and dangers associated with, asbestos on those vessels, failed to provide him with a safe workplace, and failed to provide adequate training, supervision, and protective equipment to Decedent and the other crewmembers for the handling of asbestos and asbestos-containing products. (Petition, ¶¶ 39, 47, 51, 52). Plaintiff did not demand a jury trial.

American President Lines, Ltd. (APL) filed a Notice of Removal on April 25, 2014. (Bartel II, R. Doc. 1). APL alleges that the Court has jurisdiction over the Plaintiff's action pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1).² APL alleges that while he was its employee between 1951 and 1993, Decedent worked on one vessel that APL operated for the U.S. Navy, Military Sealift Command (“MSC”): the USNS YUKON. (Bartel II, R. Doc. 1 at 2). APL attached a copy of the U.S. Maritime Administration's Vessel Status Card for this vessel providing that it was delivered to “Maritime Administration” in March 1986 and returned to the MSC for “Navy Mobilization” in March 1990. (Bartel II, R. Doc. 1–2).

Hess Corporation (Hess) also filed a Notice of Removal on April 25, 2014. (Bartel I, R. Doc. 1). The remaining served Defendants consented to the removal. (Bartel I, R. Doc. 2).³ Hess alleges that the Court has subject matter jurisdiction over Plaintiff's claims under the admiralty jurisdiction statute, 28 U.S.C. § 1333(1) (saving to suitors clause), and that removal is proper pursuant to 28 U.S.C. § 1441 (removal of civil actions).

On May 23, 2014, Plaintiff moved to remand this action to state court. (Bartel I, R. Doc. 39; Bartel II, R. Doc. 27). Plaintiff asserts that removal is improper because (1) his Jones Act claims are non-removable pursuant to 28 U.S.C. § 1445(a), (2) his general maritime law claims are non-removable pursuant to the “saving to suitors” clause of 28 U.S.C. § 1333(1), and (3) APL cannot establish the “causal nexus” requirement for removal pursuant to the federal officer removal statute, 28 U.S.C. § 1442.

II. ARGUMENTS OF THE PARTIES

A. Removal Pursuant to 28 U.S.C. § 1441

Plaintiff's primary argument for remand of the removal made pursuant to 28 U.S.C. § 1441 is that his Jones Act claims are made non-removable pursuant to 28 U.S.C. § 1445(a). (Bartel I, R. Doc. 39–1 at 2). Plaintiff argues that because his general maritime claims arise out of the same operative facts as his Jones Act claims, the entire action is non-removable. (Bartel I, R. Doc. 39–1 at 3–4). Plaintiff further argues that nothing in the 2011 amendments to 28 U.S.C. § 1441 permits the court to exercise removal jurisdiction under his general maritime claims, while severing and remanding his Jones Act claims. (Bartel I, R. Doc. 39–1 at 4–5).

Plaintiff also argues that his general maritime claims are not removable to federal court. (Bartel I, R. Doc. 39–1 at 5–9). Plaintiff argues that the “saving to suitors” clause in the admiralty jurisdiction statute is the historical basis for non-removability of general maritime claims. (Bartel I, R. Doc. 39–1 at 5–9). Accordingly, despite decisions holding otherwise by this court, the 2011 amendments to 28 U.S.C. § 1441 did not make general maritime claims removable. (Bartel I, R. Doc. 39–1 at 5–9).

Several Defendants filed an Opposition arguing that in light of the 2011 amendments to 28 U.S.C. § 1441, this Court has held that general maritime claims are removable and the assertion of Jones Act claims does not prevent the removal of actions in which general maritime claims are alleged. (Bartel I, R. Doc. 47 at 3–6). These same arguments are raised, in more detail, in the Opposition separately filed by Hess. (Bartel I, R. Doc. 48). Hess further argues that if the Jones Act claims cannot be removed, then they should be severed and remanded pursuant to either 28 U.S.C. § 1441(c) or Rule 21 of the Federal Rules of Civil Procedure. (Bartel I, R. Doc. 48 at 10). In neither Opposition, however, do Defendants argue that Plaintiff has fraudulently pled the Jones Act claims or has otherwise waived any challenges to the removal of the Jones Act claims.

B. Removal Pursuant to 28 U.S.C. § 1442

Plaintiff makes the same arguments discussed above, in less detail, with regard to remand of the removal made pursuant to 28 U.S.C. § 1442. (Bartel II, R. Doc. 27–1 at 3–4). Plaintiff further argues that removal is also improper pursuant to 28 U.S.C. § 1442 because Defendants cannot demonstrate that they have acted under the direction of a federal officer acting under “color of office” or that there is a “causal nexus” between acts committed under federal direction and the substance of the plaintiff's claims. (Bartel II, R. Doc. 27–1 at 2, 5).

APL filed an Opposition⁴ acknowledging that the “Plaintiff's argument as to Jones Act non-removability does bring into focus a tension between 28 U.S.C. § 1442 and 28 U.S.C. § 1445(a).” (Bartel II, R. Doc. 36 at 2). APL nevertheless asserts that removal is proper pursuant to 28 U.S.C. § 1442(a)(1). APL argues that all of the requirements for federal officer removal are satisfied, namely that (1) it is a “person” for purposes of removal; (2) it was acting “under color of federal authority” at the time of the alleged tort; (3) it has a colorable federal defense; and (4) there is a “causal nexus” between the alleged tort and the governmental responsibilities assumed by the officer or agent at issue. (Bartel II, R. Doc. 36 at 3–8). APL does not argue, however, that Plaintiff has fraudulently pled the Jones Act claims or has otherwise waived any challenges to the removal of the Jones Act claims.

In a separately filed Opposition, Hess further argues that that there is case law suggesting that an action may be removed pursuant to § 1442 despite the presence of...