Crocker v. Borden, Inc.
| Decision Date | 06 May 1994 |
| Docket Number | Civ. A. No. 94-1303 to 94-1313. |
| Parties | Joseph CROCKER, Louis Duplantis, Roman Duronsolet, Sr., Arthur Evans, Willie Jackson, Nelson Laborde, Dean Mefferd, Colbert Ordoyne, Lester Plaisance, Louis Rodriguez v. BORDEN, INC., et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Stephen Barnett Murray, Murray Law Firm, New Orleans, LA, Mitchell Harry Tyner, Wm. Roberts Wilson, Jr., P.A., New Orleans, LA, Ronald C. Morton, New Orleans, LA, for Joseph Crocker.
Michael T. Cali, Darryl J. Foster, Randall A. Fish, Lemle & Kelleher, New Orleans, LA, for Borden, Inc., Owens-Corning Fiberglas Corp.
James Stephen Thompson, William G. Argeros, Allen Lewis Smith, III, Porteous, Hainkel, Johnson & Sarpy, New Orleans, LA, for Fibreboard Corp.
Robert Emmett Kerrigan, Jr., Arthur Wendel Stout, III, William Claudy Harrison, Jr., Lisa Cutitto Winter, Janet L. MacDonell, Gary Barkley Roth, Deutsch, Kerrigan & Stiles, New Orleans, LA, for Flexitallic Inc., GAF Corp.
Maria I. O'Byrne Stephenson, Earl N. Vaughan, Lisa Carol Matthews, Catherine Irvin Chavarri, Law Offices of Maria I. O'Byrne Stephenson, New Orleans, LA, Thomas W. Tyner, Aultman, Tyner, McNeese & Ruffin, Hattiesburg, MS, for Garlock Inc., Anchor Packing Co.
Richard L. Forman, Walter G. Watkins, Jr., Ronald D. Collins, John D. Cosmich, Forman, Perry, Watkins & Krutz, Jackson, MS, John Randall Santa Cruz, New Orleans, LA, for Owens Illinois, Inc., Uniroyal, Inc.
James Stephen Thompson, William G. Argeros, Allen Lewis Smith, III, Porteous, Hainkel, Johnson & Sarpy, New Orleans, LA, Henry G. Garrard, III, Rikard L. Bridges, Michael C. Daniel, Blasingame, Burch, Garrard & Bryant, P.C., Athens, GA, for Pittsburgh Corning Corp.
Maria I. O'Byrne Stephenson, Earl N. Vaughan, Lisa Carol Matthews, Catherine Irvin Chavarri, Law Offices of Maria I. O'Byrne Stephenson, New Orleans, LA, for Rock Wool Mfg. Co.
Andrew Lane Plauche, Jr., Plauche, Maselli & Landry, New Orleans, LA, for American Motorists Ins. Co.
Rebecca Ann Bush, Ashley Carter Plunkett, Adams & Reese, New Orleans, LA, for A.W. Chesterton Co.
Samuel Milton Rosamond, III, Boggs, Loehn & Rodrigue, New Orleans, LA, for Commercial Union Ins. Co.
Geoffrey Powell Snodgrass, Christovich & Kearney, New Orleans, LA, for Highlands Ins. Co.
Kaye N. Courington, Woodley, Williams, Fenet, Boundreau & Brown, New Orleans, LA, for Hopeman Bros. Inc.
Ralph Shelton Hubbard, III, Gordon Peter Wilson, Lugenbuhl, Burke, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, for Travelers Ins. Co.
James C. Gulotta, Jr., Mary L. Dumestre, Dane S. Ciolino, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, LA, for Certain Underwriters of Lloyds.
Sean Francis O. Murphy, McGuire, Woods, Battle & Boothe, McLean, VA, Godfrey Bruce Parkerson, Barbara Lee Arras, Patricia A. Lynch, Phelps Dunbar, New Orleans, LA, Michael A. Abel, Waller T. Dudley, McGuire, Woods, Battle & Boothe, Richmond, VA, for Westinghouse Elec. Corp.
ORDER AND REASONS
These ten civil actions were removed from state court by Westinghouse Electric Corporation ("Westinghouse"), a third-party defendant to a third-party claim by defendant/third-party plaintiff Owens-Corning Fiberglas ("OCF"), pursuant to 28 U.S.C. § 1442(a)(1), the federal officer removal statute. Plaintiffs filed a motion to remand all actions and sought expedited hearing on the motion inasmuch as these actions are scheduled for trial in the state court on June 13, 1994, approximately one month hence. The Court granted expedited review, heard oral argument, and allowed all interested parties to file supplemental memoranda. Parties objecting to the remand included third-party defendant Westinghouse, defendant/third-party plaintiff OCF, defendant Flexitallic, and third-party defendants GAF Corporation and Dana Corporation.
The plaintiffs, Joseph Crocker, Louis Duplantis, Roman Duronset, Sr., Arthur Evans, Willie Jackson, Nelson Laborde, Dean Mefferd, Colbert Ordoyne, Lester Plaisance, and Louis Rodriguez, were all workers who asserted state law damage claims against several defendants arising out of their exposure to asbestos-containing products at Avondale Shipyards. This group of ten plaintiffs are part of a larger group of approximately 3,000 asbestos plaintiffs with claims pending in state court against the same group of defendants. While initially 28 defendants were named, plaintiffs filed a superceding complaint focusing on the five defendants whose products they contend were the major sources of asbestos exposure to the workers. Plaintiff's counsel stated in oral argument, without apparent contradiction, that OCF products constitute about 70% of the asbestos to which plaintiffs were exposed. The asbestos plaintiffs are arranged in "flights" for trial and this group of ten plaintiffs constitutes "Flight 2". Flight 1 consisted of seven plaintiffs whose cases have already been tried in state court. Prior to trial of the first seven cases, however, the trial court severed the third party claims, which not yet been tried. These cases were filed near the end of 1991 and thus have been pending for approximately two years. There was no federal subject matter jurisdiction over the main demand at the time the suit was filed and throughout the first year of its pendency, and thus, under 28 U.S.C. § 1446(b), the main demand was not removable.
Plaintiffs did not initially sue Westinghouse as a direct defendant. OCF filed a third-party demand against Westinghouse as to the Flight 2 cases on January 31, 1994. Plaintiffs adopted the allegations of OCF's third-party petition, but expressly disavowed any claims against Westinghouse based on exposure to asbestos contained in marine turbines. On April 20, 1994, OCF sent a letter to Westinghouse, advising that exposure to marine turbines would be pursued in the third-party action for contribution. Based upon that letter, Westinghouse timely removed these ten actions to this court pursuant to 28 U.S.C. § 1446(b).
Plaintiffs thereafter filed a timely motion to remand on the grounds that:
(1) Westinghouse is not entitled to invoke the removal statute cited in the Notice of Removal, 28 U.S.C. Sect. 1442(a)(1), since (a) Westinghouse is not an "officer of the United States or any agency thereof" within the meaning of the statute, (b) Westinghouse is not entitled to the benefit of the federal contractor defense on which it relies as a basis for federal jurisdiction, (2) there is no federal jurisdiction over the main demand, (3) there is no pendent party jurisdiction over the main demand under the circumstances of this case, and, (4) even if applicable, it is within the court's discretion to remand the main demand, and failure to do so would constitute an abuse of discretion under the circumstances of this case.
Plaintiffs' Motion to Remand, p. 1. The Court shall discuss each basis for remand seriatim.
Westinghouse premises the removal of this entire action, both main demand and third-party claim, on the federal officer removal statute. That statute, 28 U.S.C. § 1442(a)(1) provides, in pertinent part:
(emphasis added) 28 U.S.C.A. § 1442 (West 1994). In order to qualify as a federal officer, or "person" acting under him, the removing party must "(1) demonstrate that it acted under the direction of a federal officer, (2) raise a federal defense to the plaintiffs' claims and (3) demonstrate a causal nexus between plaintiffs' claims and acts it performed under color of federal office." Mesa v. California, 489 U.S. 121, 131-132, 109 S.Ct. 959, 966, 103 L.Ed.2d 99 (1989); Pack v. AC and S, Inc., 838 F.Supp. 1099, 1101 (D.Md.1993).
The preliminary issue to be resolved is whether Westinghouse qualifies as a "person" acting under a federal officer who is entitled to invoke the removal provisions of 28 U.S.C. § 1442(a)(1). Plaintiff argues that under International Primate Protection League v. Administrators of Tulane Educational Fund, 500 U.S. 72, 111 S.Ct. 1700, 114 L.Ed.2d 134 (1991), a corporation is not a "person" within the meaning of the statute. To be certain, International Primate Protection League did hold that an agency is not a "person" under § 1442(a)(1). 500 U.S. at 83-84, 111 S.Ct. at 1707-1708. Notwithstanding, the question is whether Westinghouse, a private corporation, not an agency, is a "person" for purposes of § 1442(a)(1). The reasoning of the district courts in Pack v. AC and S, Inc., 838 F.Supp. 1099, 1102-1103 (D.Md. 1993) and Ryan v. Dow Chemical Co., 781 F.Supp. 934, 946 (E.D.N.Y.1992), persuades this Court that a purely legal "person", such as a corporation, "could be engaged in activities that amount to the implementation of a federal policy under the direction of a government officer", that § 1442(a)(1) was enacted to protect. Thus, Westinghouse qualifies as a "person" who may be entitled to remove as a federal officer if it meets the three requirements set forth in Mesa.
To satisfy the showing required in Mesa, Westinghouse had submitted the affidavit of James M. Gate, Manager of Design Verification of the Marine Division of Westinghouse Electric Corporation, and a marine engineer for Westinghouse since 1953. Exhibit C to Memorandum of Westinghouse in Opposition to Motion to Remand, dated April 19, 1994. Mr. Gates states that Westinghouse manufactured and supplied main propulsion turbines and other equipment for 30 United States Naval vessels built at Avondale Shipyards during the 1960s and 1970s. He further states that:
During all aspects of Westinghouse naval turbine work (i.e., design, construction,...
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