Bourgeois v. Huntington Ingalls Inc.
| Decision Date | 14 May 2020 |
| Docket Number | CIVIL ACTION NO. 20-1002 SECTION M (1) |
| Parties | ROBERT BOURGEOIS II v. HUNTINGTON INGALLS INC., ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
Before the Court is a motion by plaintiff Robert Bourgeois II to remand this matter to the Civil District Court for the Parish of Orleans, State of Louisiana ("CDC").1 Defendants Huntington Ingalls Inc.2 and Albert L. Bossier, Jr.3 (collectively, "Avondale") respond in opposition,4 and Bourgeois replies in further support of his motion.5 Considering the parties' memoranda, the record, and the applicable law, the Court denies the motion to remand.
This is a toxic tort case related to asbestos exposure. In February 2019, Bourgeois was diagnosed with malignant pleural mesothelioma.6 On April 1, 2019, Bourgeois filed this action in the CDC alleging that his cancer was caused by exposure to asbestos.7 In addition to Avondale, Bourgeois names as defendants Travelers Indemnity Company,8 Conagra GroceryProducts Company LLC,9 and several asbestos contractors, suppliers, manufacturers, and professional vendors (collectively, "asbestos supplier defendants").10 Bourgeois alleges that he was exposed to injurious levels of asbestos fibers and dust during his employment at Avondale from May 1973 through January 1974 as a mail dispatcher.11 He alleges that Avondale was negligent in failing to adopt adequate asbestos safety measures that would have prevented his injuries.12 Bourgeois specifically excepts Avondale from the strict liability claims he raises against Conagra and the asbestos supplier defendants.13
On May 21, 2019, the defendants deposed Bourgeois.14 He testified that from May 1973 through January 1974, he worked in Avondale's mail department delivering mail throughout Avondale's main yard, including to the shops and warehouses, such as the insulation and welding departments.15 Bourgeois never boarded any vessels under construction.16
Ten months after Bourgeois's deposition, on March 25, 2020, Avondale removed the suit to this Court pursuant to the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1).17 Avondale alleges that, during the time Bourgeois worked there, the majority of the vessels under construction were United States Navy destroyer escorts and LASH (lighter aboard ship) vesselsthat were built pursuant to contracts with the United States Maritime Administration.18 It further alleges that both of these types of vessels were built under the detailed supervision and control of one or more officers of the United States that required the use of asbestos.19 Thus, Avondale reasons that, if Bourgeois were exposed to asbestos in its main yard from 1973 to 1974, the exposure must be attributable to work being performed on these two types of vessels under the direction of a federal officer, making his claim removable under § 1442(a)(1).20 As for the timing of the removal, Avondale alleges that the removal was filed within 30 days of the Fifth Circuit's February 24, 2020 en banc opinion in Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286 (5th Cir. 2020), which it contends is an order for purposes of 28 U.S.C. § 1446(b) that made this action removable pursuant to Green v. R.J. Reynolds Tobacco Co., 274 F3d 263 (5th Cir. 2001).21
Bourgeois argues that this case should be remanded for four reasons. First, he argues that the removal was untimely because Avondale learned of this case's potential removability when it received the transcript of Bourgeois's May 2019 deposition, but did not file its notice of removal until March 2020.22 Second, Bourgeois argues that the en banc opinion in Latiolais is not an order that made this case removable under § 1446(b) because the narrow exception articulated in Green does not apply.23 Third, Bourgeois argues that Avondale cannot establish the essential elements necessary for removal under § 1442(a)(1) because he did not work on any of the Navyor LASH vessels, and there is no evidence connecting his asbestos exposure to those vessels.24 Finally, he argues that Avondale does not have a colorable federal defense.25
Unsurprisingly, Avondale takes the opposite view on all of these points. First, it argues that the removal was procedurally proper because it was filed within 30 days of the Fifth Circuit's en banc decision in Latiolais, which it contends constitutes an order that first made this action removable.26 Avondale argues that it had no obligation to remove this action earlier because it could not do so successfully under the pre-Latiolais Fifth Circuit jurisprudence which held that asbestos-exposure negligence claims were not removable under the Federal Officer Removal Statute.27 Thus, Avondale contends that its receipt of Bourgeois's deposition transcript did not start the 30-day removal clock.28 Further, Avondale argues that the Green exception applies to qualify the Latiolais decision as an order under § 1446(b) that made this action removable.29 Moreover, Avondale argues that all of the substantive elements of § 1442(a)(1) are satisfied because Latiolois takes a broad view of "relating to" as used in the statute, and the facts of the case show that Bourgeois's alleged asbestos exposure was necessarily related to work done at Avondale under the direction of a federal officer.30 Finally, Avondale argues that it has colorable federal defenses.31
Section 1442(a)(1) makes removable a civil action commenced in a state court against "[t]he 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, in an official or individual capacity, for or relating to any act under color of such office ...." 28 U.S.C. § 1442(a)(1). The statute allows federal officers to remove to federal court cases "that ordinary federal question removal would not reach." Latiolais, 951 F.3d at 290. "In particular, section 1442(a) permits an officer to remove a case even if no federal question is raised in the well-pleaded complaint, so long as the officer asserts a federal defense in the response." Id.
Removals under § 1442(a)(1) are subject to the time limits set forth in 28 U.S.C. § 1446(b). See Morgan v. Huntington Ingalls, Inc., 879 F.3d 602, 607 (5th Cir. 2018). Generally, a civil action must be removed within 30 days after the defendant receives a copy of the initial pleading "setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter." 28 U.S.C. § 1446(b)(1). However, if the case is not removable based on the initial pleading, "a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." Id. § 1446(b)(3) (emphasis added). "The information supporting removal in a copy of an amended pleading, motion, order or other paper ... must be unequivocally clear and certain to start the time limit running." Morgan, 879 F.3d at 608-09 (). For example, the Fifth Circuit has held that "[s]ection 1446(b)(3)'s removal clock begins ticking upon receipt of the deposition transcript" said to constitute the "other paper," and not from the date of the oral deposition. Id. at 612.
Although a deposition transcript unquestionably constitutes "other paper," Avondale's receipt of Bourgeois's deposition transcript did not start the removal clock under § 1446(b)(3) because, in May or June 2019, it was not "unequivocally clear and certain" that the case had become removable. Prior to the Fifth Circuit's February 24, 2020 en banc opinion in Latiolais, a defendant removing a case under § 1442(a)(1) had to show "(1) it [was] a 'person' within the meaning of the statute, (2) it acted 'pursuant to a federal officer's directions,' and (3) it assert[ed] a 'colorable federal defense.'" Latiolais, 951 F.3d at 291 (quoting Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 396-400 (5th Cir. 1998)). The court interpreted the second prong as requiring a "causal nexus" where the defendant had to show that it "acted pursuant to a federal officer's directions and that a causal nexus exist[ed] between the defendants' actions under color of federal office and the plaintiff's claims." Id. (quoting Winters, 149 F.3d at 398). With respect to the "causal nexus" test's application to asbestos cases, another section of this court explained the legal landscape as follows:
Put simply, in the Fifth Circuit, the causal nexus element in [asbestos-exposure] cases is met when a plaintiff seeks to recover from a government contractor on a theory of strict liability but is absent when the theory of recovery is restricted to negligence. For strict liability claims that rest on the mere use of asbestos, a causal nexus is established because the government obligates the defendant to use the allegedly defective product that causes the plaintiff's harm. But asbestos claims alleging negligent failure to warn, train, or implement safety procedures do not give rise to federal jurisdiction when unrebutted evidence shows that the government did nothing to direct the shipyard's safety practices.
Parfait v. Huntington Ingalls Inc., 2019 WL 4297912, at *4 (E.D. La. Sept. 11, 2019) (internal quotation marks and citations omitted).
Courts in the Fifth Circuit held fast to this interpretation of § 1442(a)(1) even after Congress amended the Federal Officer Removal Statute in 2011 by inserting the words "or relating to" before "any act under color of such office." Removal Clarification Act of 2011, Pub. L. No. 112-51, § 2(b)(2), 125 Stat. 545, 545 (2011) ( 28 U.S.C. § 1442(a)(1)) ...
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