Dempster v. Lamorak Ins. Co., CIVIL ACTION CASE NO. 20-95
| Decision Date | 28 January 2020 |
| Docket Number | CIVIL ACTION CASE NO. 20-95 |
| Citation | 435 F.Supp.3d 708 |
| Parties | Callen DEMPSTER, et al. v. LAMORAK INSURANCE CO., et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Callen L. Dempster, pro se.
Erin Helen Boyd, Blue Williams, LLP, Metairie, LA, for Defendants.
SECTION: "G"(1)
ORDER AND REASONS
Before the Court is Plaintiffs Louise Ella Simon Dempster, Tanna Faye Dempster, Steven Louis Dempster, Janet Dempster Martinez, Marla Dempster Loupe, Callen Dempster, Jr., Annette Dempster Glad, and Barnett Dempster's (collectively, "Plaintiffs") "Emergency Motion to Remand."1 In this litigation, Plaintiffs allege that Decedent Callen L. Dempster ("Decedent") was exposed to asbestos and asbestos-containing products that were designed, manufactured, sold, and/or supplied by a number of Defendant companies while Decedent was employed by Defendant Huntington Ingalls Incorporated (f/k/a Northrop Grumman Shipbuilding, Inc., f/k/a Northrop Grumman Ship Systems, Inc., f/k/a Avondale Industries, Inc., and f/k/a Avondale Shipyards, Inc.) ("Avondale").2 After Avondale removed the suit from state court for a second time under the federal officer removal statute, Plaintiffs filed the pending "Emergency Motion to Remand"3 and an "Ex Parte Motion for Expedited Hearing and for Emergency Ruling."4 On January 13, 2020, the Court granted the motion to expedite and set the motion to remand for expedited hearing, with oral argument.5 Having considered the motion, the memoranda in support and in opposition, the arguments presented during oral argument, the record, and the applicable law, the Court denies the motion to remand.
In this litigation, Plaintiffs allege that Decedent was employed by Avondale from 1962 to 1994.6 During that time, Plaintiffs aver that Decedent was exposed to asbestos and asbestos-containing products in various locations and work sites, resulting in Decedent breathing in asbestos fibers and later developing asbestos-related cancer.7 Plaintiffs assert strict liability and negligence claims against various Defendants.8 Specifically, Plaintiffs allege that:
All asbestos companies had care, custody, and control of the asbestos, which asbestos was defective and which presented an unreasonable risk of harm, which asbestos resulted in the injury of [Decedent] and for which these defendants are liable under Louisiana law. However, with regard to Avondale and its executive officers, they are liable because they failed to properly handle and control the asbestos which was in their care, custody, and control. Petitioners are not alleging that Avondale and its executive officers are liable for the mere use of asbestos; rather, Avondale and its executive officers are liable for the misuse of asbestos, including but not limited to the failure to warn of the hazardous nature and dangers of asbestos and for the failure to take and implement reasonably safe and industrial hygiene measures, failure to train, and failure to adopt safety procedures for the safe installation and removal of asbestos.9
Decedent filed a "Petition for Damages" in the Civil District Court for the Parish of Orleans, State of Louisiana, on March 14, 2018.10 Defendants Huntington Ingalls Incorporated, Albert Bossier, Jr., J. Melton Garret, and Lamorak Insurance Company (the "Avondale Interests") removed the case to the United States District Court for the Eastern District of Louisiana for the first time on June 21, 2018.11 In the first notice of removal, Avondale Interests alleged that removal was proper because this is an action "for or relating to conduct under color of federal office commenced in a state court against persons acting under one or more federal officers within the meaning of 28 U.S.C. § 1442(a)(1)."12
On January 7, 2019, this Court remanded the case to the Civil District Court for the Parish of Orleans.13 The Court found that Defendants presented no evidence that Decedent came into contact with asbestos aboard a government vessel, and thus, no federal interest was implicated.14 Alternatively, even accepting Defendants' argument that Decedent came into contact with asbestos aboard a government vessel as true, the Court did not find that the necessary causal nexus existed between Federal Government action and Decedent's claims.15 This determination was based on the fact that Decedent brought negligence claims, rather than strict liability claims, against Avondale Interests.16 Defendants did not appeal the January 7, 2019 Order.
Decedent passed away on November 24, 2018, and a First Supplemental and Amending Petition for Damages was filed in state court substituting Decedent's heirs as Plaintiffs on January 17, 2019.17 Trial was scheduled to begin before the state trial court on January 13, 2020.18 The amended petition does not purport to assert any strict liability claims against Avondale.19
On January 9, 2020, Avondale removed the case to the United States District Court for the Eastern District of Louisiana for a second time.20 In the second notice of removal, Avondale once again alleges that removal is proper because this is an action "for or relating to conduct under color of federal office commenced in a state court against persons acting under one or more federal officers within the meaning of 28 U.S.C. § 1442(a)(1)."21 In the second notice of removal, Avondale contends that the jury interrogatories, jury charges, and Pre-Trial Order recently filed by Plaintiffs in state court directly contradict Decedent's prior representation in federal court that he was not asserting strict liability claims against Avondale.22 Following the second removal, the case was randomly allotted to Section "R."
On January 10, 2020, Plaintiffs filed an "Emergency Motion to Remand"23 and an "Ex Parte Motion for Expedited Hearing and for Emergency Ruling."24 On January 13, 2020, this Court was first informed of the second removal and accepted transfer of the case pursuant to Local Rule 3.1.1.25 On January 13, 2020, the Court granted the motion to expedite and set the motion to remand for expedited hearing, with oral argument, on January 17, 2020 at 9:30 AM.26 On January 15, 2020, Avondale filed an opposition to the motion to remand.27 On January 17, 2020, Plaintiffs filed a reply memorandum.28
In the instant motion, Plaintiffs argue that Avondale has improperly removed this matter to federal court for a second time.29 Plaintiffs note that the notice of removal was filed on Thursday, January 9, 2020, just one full working day before the state court trial of this matter was scheduled to begin on January 13, 2020.30 Plaintiffs assert that "Avondale's removal was done solely to obtain a continuance of the trial in state court."31 Plaintiffs note that Avondale had filed a motion to continue the trial, which was set to be heard on January 10, 2020.32 According to Plaintiffs, the main argument for the trial continuance was that there was a pending writ before the Louisiana Supreme Court, but on January 8, 2020, the Louisiana Supreme Court denied the writ application eliminating the basis for a continuance.33 Therefore, Plaintiffs speculate that Avondale removed the case "[k]nowing that a denial of its motion to continue was imminent due to the Louisiana Supreme Court's writ decision."34
Plaintiffs argue that "[n]either the facts of this case nor the allegations of plaintiffs' petition have changed" since this Court first remanded the case.35 Plaintiffs assert that they have not amended the petition to allege a strict liability claim against Avondale.36 However, even if they had, Plaintiffs contend that such an amendment would not warrant removal because the facts of this case have not changed.37 Plaintiffs point to this Court's prior finding that there was no evidence that Decedent was even exposed to asbestos on a government vessel.38 Thus, Plaintiffs assert it would not matter whether they have alleged negligence and/or strict liability because the federal officer removal statute only applies to exposure on government vessels.39
Furthermore, Plaintiffs submit that they have not changed their allegations and are not alleging strict liability against the Avondale Interests.40 Plaintiffs note that Avondale focuses on a Joint Pre-Trial Outline that was submitted to the state court jointly by all parties, wherein the parties stated that one of the issues of fact was whether defendants were strictly liable.41 Plaintiffs contend that this portion of the Joint Pre-Trial Outline was not aimed at Avondale but at the other defendants against whom Plaintiffs have alleged strict liability.42 Plaintiffs assert that they "are unaware of any law which would even allow a party to expand upon the allegations of his petition through a Joint Pre-Trial Outline."43
Next, Plaintiffs note that Avondale focuses on certain proposed jury charges and jury interrogatories Plaintiffs circulated to all parties in this matter.44 Plaintiffs contend that they inadvertently included a strict liability jury charge.45 Plaintiffs submit that the inadvertent inclusion of strict liability statements in their proposed jury charges and jury interrogatories do not change the allegations made in the petitions.46 According to Plaintiffs, "[t]he fact that Avondale relies so heavily upon ‘proposed’ jury charges and jury interrogatories shows that Avondale's real motive behind the filing of this second motion to remand is to obtain a trial continuance."47
Plaintiffs further note that they conceded in the last motion to remand that the claims against Avondale Interests involve negligence, not strict liability.48 Plaintiffs assert that such a concession binds them in this and future litigation.49 Therefore, Plaintiffs contend that this matter must be remanded to state court because the Joint Pre-Trial Outline, proposed jury charges, and proposed jury interrogatories do...
To continue reading
Request your trial
-
Neal v. Ameron Int'l Corp.
...required to be built according to certain specifications, so that they could be used in a time of war. Dempster v. Lamorak Insurance Co. , 435 F. Supp. 3d 708, 725 (E.D. La. 2020). Given that the evidence presented establishes that had the Lykes ships that Plaintiff worked on not been built......
-
Jackson v. Avondale Indus. Inc.
...considering removal under § 1442(a). See, e.g. , Latiolais , 951 F.3d at 296 ; Zeringue , 846 F.3d at 791 ; Dempster v. Lamorak Ins. Co. , 435 F.Supp.3d 708, 725–26 (E.D. La. 2020) ; Laurent v. City of New Orleans , No. CIV.A. 14-2022, 2014 WL 5410654, at *3 (E.D. La. Oct. 23, 2014). Federa......
-
Gehant v. Air & Liquid Sys., Corp.
...Dec. 4, 2014), aff'd sub nom. Bartel v. Alcoa S.S. Co., 805 F.3d 169 (5th Cir. 2015) (partially overruled on other grounds) and Dempster, 435 F.Supp.3d at 720, both citing Winters, 149 F.3d at [28] See 28 U.S.C. § 1447(c), and see, e.g., City of Walker v. Louisiana through Dep't of Transpor......
-
Reulet v. Lamorak Ins. Co.
...required to be built according to certain specifications, so that they could be used in a time of war. Dempster v. Lamorak Insurance Co., 435 F. Supp. 3d 708, 725 (E.D. La. 2020). Given that the evidence presented establishes that had the Lykes ships that Plaintiff worked on not been built,......