Cloyd v. KBR, Inc.
| Decision Date | 04 May 2021 |
| Docket Number | Civil Action No. H-20-3714 |
| Citation | 536 F.Supp.3d 113 |
| Parties | Kevin CLOYD, et al., Plaintiffs, v. KBR, INC., Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Marcus Raymond Spagnoletti, State Bar Information, Eric Jonathan Rhine, Spagnoletti Law Firm, Houston, TX, for Plaintiffs.
Daniel L. Russell, Jr., Pro Hac Vice, Raymond B. Biagini, Pro Hac Vice, Covington & Burling LLP, Washington, DC, Susan D. Noe Wilson, Schouest, Bamdas, Soshea & BenMaier, PLLC, Houston, TX, for Defendant.
Three employees of a contractor working on an American military base in Iraq have sued the contractor's parent company, alleging that it is responsible for the injuries they received when Iranian ballistic missiles struck the base in January 2020. The threshold issues are whether the claims belong in federal court and whether there are viable claims at all. The plaintiffs ask the court to remand to state court; the defendant asks the court to dismiss the claims.
Based on the pleadings, the record, and the applicable law, the court finds no basis to remand, and denies the motion to dismiss. The denial of the motion to dismiss is without prejudice to the defendant's ability to reurge the arguments, if appropriate, in a motion for summary judgment, after discovery targeted and limited to the Defense Base Act and combatant-activity defenses. Discovery on these defenses will end August 27, 2021. The defendant may file a motion for summary judgment no later than September 17, 2021. The court will hear oral argument on the motion on October 27, 2021, by Zoom.
The reasons for these rulings are set out below.
The complaint alleges that in January 2020, Iran launched ballistic missiles at the United States Army forward operating base in Al Asad, Iraq. (Docket Entry No. 1-1 at ¶¶ 5.1, 5.36). The attack was allegedly in retaliation for the killing of General Qassem Soleimani. (Id. at ¶ 5.2). Kevin Cloyd, Nickalandra Witherspoon, and Lucille Andrade were employed by Service Employees International and working at the Al Asad base when the attack occurred. (Id. at ¶¶ 5.38, 5.39). They sustained significant injuries. (Id. at ¶¶ 5.37, 5.38).
Service Employees International performed services for the U.S. Army under the Logistics Civil Augmentation Program (LOGCAP) IV contract. (Docket Entry No. 1-5 at ¶¶ 4–9). KBR owns Service Employees International. (Docket Entry No. 3-1 at 1 n.1). The plaintiffs allege that KBR was not a party to the LOGCAP IV contract. (Docket Entry No. 1-1 at ¶ 4.3). KBR submitted a declaration by Michael Flanagan, the Vice President of Government Solutions at KBR, stating that the U.S. Army had "awarded" the LOGCAP IV contract to KBR. (Docket Entry No. 1-5 at ¶ 4). The plaintiffs allege that KBR supervised the Service Employees International employees working under the LOGCAP IV contract. (Docket Entry No. 1-1 at ¶ 5.39).
The plaintiffs sued KBR in Texas state court for negligence and gross negligence, alleging that KBR was "aware of the heightened risk of a strike in the face of escalating regional violence," but "left [the] Plaintiffs and the other employees of Service Employees International ... at the base, in direct risk of substantial harm." (Id. ). The plaintiffs allege that KBR negligently failed to "evacuate contractors" or "provide security measures," such as "communication of safety information and status updates, a means of evacuating Iraq when conditions became unreasonably dangerous, and protection from violent attacks." (Id. at ¶ 6.3).
KBR removed to federal court under the federal-officer removal statute, the plaintiffs moved to remand, and KBR moved to dismiss. (Docket Entry Nos. 1, 3). Because the record supports federal jurisdiction, remand is denied. KBR argues that either the Defense Base Act or the combatant-activities exception to the Federal Tort Claims Act preempt the plaintiffs’ claims. Because, on the current record, the court cannot reliably determine whether either defense is preemptive as KBR argues, the motion to dismiss is also denied.
"A party may remove an action from state court to federal court if the action is one over which the federal court possesses subject matter jurisdiction." Manguno v. Prudential Prop. & Cas. Ins. Co. , 276 F.3d 720, 723 (5th Cir. 2002) (citing 28 U.S.C. § 1441(a) ). "The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper." Id. (quotation and citations omitted). "To determine whether jurisdiction is present for removal," the court considers "the claims in the state court petition as they existed at the time of removal." Id. (citation omitted). The Fifth Circuit construes the statute in favor of remand and construes ambiguities against the removing party. Id.
The Federal Officer Removal Statute states:
28 U.S.C. § 1442(a)(1).
"Federal officers may remove cases to federal court that ordinary federal question removal would not reach." Latiolais v. Huntington Ingalls, Inc. , 951 F.3d 286, 290–91 (5th Cir. 2020). Section 1442(a) permits "any officer ... of the United States or ... person acting under [him or her]," 28 U.S.C. § 1442(a)(1), to remove an action, even if the plaintiff's complaint raises no federal question, so long as the officer asserts a "colorable federal defense," Latiolais , 951 F.3d at 291. As the Supreme Court has explained, "the raising of a federal question in the officer's removal petition ... constitutes the federal law under which the action against the federal officer arises for Art. III purposes." Mesa v. California , 489 U.S. 121, 136, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989). The Court has consistently urged courts to avoid "a narrow, grudging interpretation of § 1442(a)(1)." Willingham v. Morgan , 395 U.S. 402, 407, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969) ; Arizona v. Manypenny , 451 U.S. 232, 242, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981) ; Jefferson County v. Acker , 527 U.S. 423, 431, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999).
Rule 12(b)(6) allows dismissal if a plaintiff fails "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). A complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Rule 8 "does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).
To withstand a Rule 12(b)(6) motion, a complaint must include "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Lincoln v. Turner , 874 F.3d 833, 839 (5th Cir. 2017) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). "Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (alteration in original) (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). "A complaint ‘does not need detailed factual allegations,’ but the facts alleged ‘must be enough to raise a right to relief above the speculative level.’ " Cicalese v. Univ. Tex. Med. Branch , 924 F.3d 762, 765 (5th Cir. 2019) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). "Conversely, when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should be exposed at the point of minimum expenditure of time and money by the parties and the court." Cuvillier v. Taylor , 503 F.3d 397, 401 (5th Cir. 2007) (alterations omitted) (quoting Twombly , 550 U.S. at 558, 127 S.Ct. 1955 ).
A court reviewing a motion to dismiss under Rule 12(b)(6) may consider "(1) the facts set forth in the complaint, (2) documents attached to the complaint, and (3) matters of which judicial notice may be taken under Federal Rule of Evidence 201." Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co. , 920 F.3d 890, 900 (5th Cir. 2019).
To remove under § 1442(a), KBR must show that "(1) it is a ‘person’ within the meaning of the statute, (2) it acted ‘pursuant to a federal officer's directions,’ ... (3) it asserts a ‘colorable federal defense,’ " and (4) there is " ‘a causal nexus’ between the defendant's acts under color of federal office and the plaintiff's claims." Latiolais , 951 F.3d at 292 (citation omitted).
KBR satisfies the first prong. See Winters v. Diamond Shamrock Chem. Co. , 149 F.3d 387, 398 (5th Cir. 1998) ().
KBR also meets the second prong, which is liberally construed. See Ruppel...
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