Dempster v. Lamorak Ins. Co.
| Decision Date | 07 January 2019 |
| Docket Number | CIVIL ACTION CASE NO. 18-6158 SECTION: "G"(1) |
| Parties | CALLEN DEMPSTER v. LAMORAK INSURANCE CO., et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
In this litigation, Plaintiff Callen L. Dempster ("Plaintiff") alleges that he suffered exposure to asbestos and asbestos-containing products that were designed, manufactured, sold, and/or supplied by a number of Defendant companies while Plaintiff was employed by Defendant Avondale Industries, Inc. ("Avondale").1 After Defendants Huntington Ingalls Incorporated, Albert Bossier, Jr., J. Melton Garret, and Lamorak Insurance Company removed the suit from state court under the federal officer removal statute, Plaintiff filed the pending Motion to Remand.2 Having considered the motion, the memoranda in support and in opposition, the record, and the applicable law, the Court will grant the motion and remand this case to the Civil District Court for the Parish of Orleans, State of Louisiana.
In this litigation, Plaintiff alleges that he was employed by Avondale from 1962 to 1994.3 During that time, Plaintiff avers that he was exposed to asbestos and asbestos-containing products in various locations and work sites, resulting in Plaintiff breathing in asbestos fibers and later developing asbestos-related cancer.4 Plaintiff asserts strict liability and negligence claims against various Defendants.5 Specifically, Plaintiff alleges 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 [Plaintiff] 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.6
Plaintiff filed a "Petition for Damages" in the Civil District Court for the Parish of Orleans, State of Louisiana, on March 14, 2018.7 Defendants Huntington Ingalls Incorporated, Albert Bossier, Jr., J. Melton Garret, and Lamorak Insurance Company (the "Avondale Interests")removed the case to this Court on June 21, 2018.8 Avondale Interests allege 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)."9 In particular, Avondale Interests contend that Plaintiff stated during his deposition on April 23, 2018, that he worked on Navy Destroyer Escorts while he was employed at Avondale.10 According to the Avondale Interests, Leroy Rome ("Mr. Rome"), who was also employed by Avondale during the entire time that Plaintiff was employed there, swore in an affidavit that "he and other insulators were 'exposed to asbestos by working with or around asbestos-containing materials while working on DE vessels,' that he knew that [Plaintiff] worked on the same DEs that he did because 'I [Rome] would leave instructions for the night crew, which included [Plaintiff],' and that the duties of Avondale insulators included work with asbestos-containing products."11
Avondale Interests argue that they are either corporations or individuals and therefore are "persons" within the meaning of 28 U.S.C. § 1442(a)(1).12 Avondale Interests further assert that Plaintiff worked on the Navy Destroyer Escorts pursuant to contracts between Avondale and the United States government.13 Moreover, Avondale Interests aver that the use of the asbestos-containing materials, from which Plaintiff's causes of action arise, was required by the contractual provisions and design specifications mandated by the Federal Government, and that the FederalGovernment oversaw the construction process to ensure compliance.14 Therefore, Avondale Interests contend that they were "acting under" an "officer . . . of the United States or [an] agency thereof" within the meaning of Section 1442(a)(1), as it was performing a task that the Federal Government would otherwise have had to perform, i.e. building ships "used to help conduct a war" and "to further other national interests."15
Additionally, Avondale Interests assert "two colorable federal defenses" to Plaintiff's claims in the Notice of Removal: (1) that Plaintiff's claims are barred under the doctrine of government contractor immunity established by the Supreme Court in Boyle v. United Technologies Corporation; and (2) that Plaintiff's claims are preempted and barred by the exclusive remedy provisions of the Longshore and Harbor Workers' Compensation Act ("LHWCA").16
On June 22, 2018, Plaintiff filed the instant Motion to Remand.17 On July 2, 2017, Defendant Foster Wheeler, LLC ("Foster") filed a Motion to Join the Avondale Interests' Notice of Removal,18 which the Court granted.19 On July 3, 2018 Foster filed an opposition to the Motion to Remand on July 3, 2018.20 On July 5, 2018, the Avondale Interests also filed an opposition to the Motion to Remand.21
With leave of Court, Plaintiff filed a reply brief in further support of the Motion to Remand on July 12, 2018.22 With leave of Court, Foster filed a sur-reply in support of opposition to the Motion to Remand on July 16, 2018.23 With leave of Court, Plaintiff filed a reply memorandum in further support of the Motion to Remand on July 30, 2018.24 With leave of Court, Plaintiff filed a Supplemental Memorandum in Support of the Motion to Remand on 85.25 With leave of Court, Defendants filed a Supplemental Opposition to the Motion to Remand on 86.26
In the instant motion,27 Plaintiff argues that remand of this case is proper, as: (1) Avondale Interests' removal was untimely; (2) there is no evidence that Plaintiff was exposed to asbestos on a federal vessel; (3) the Fifth Circuit has consistently held that negligence claims do not warrant federal officer removal; (4) Avondale Interests were not "acting under" the direction of a federal officer; (5) Avondale Interests have not established a colorable federal contractor defense; and (6) Avondale Interests' LHWCA defense does not provide an independent basis for removal, and, regardless, the LHWCA supplements state law remedies rather than supplanting them.28
Plaintiff first argues that Avondale Interests' Notice of Removal is untimely.29 Plaintiff contends that Avondale Interests' basis for removal is that Plaintiff worked aboard Destroyer Escorts built by the United States Navy, which Plaintiff revealed in his April 23, 2018, deposition.30 Plaintiff asserts that removal is untimely because Avondale Interests did not remove the case until two months after the deposition, longer than the 30 days to file a notice of removal allowed under 28 U.S.C. § 1446.31
Next, Plaintiff asserts that the Motion to Remand should be granted because Avondale Interests have failed to show that Plaintiff was exposed to asbestos on a government vessel, and thus "no federal interest is implicated."32 Plaintiff asserts that he only worked for a short time on government ships and only worked with rubber piping and fiberglass, never coming into contact with asbestos.33 Further, Plaintiff asserts that Mr. Rome, his coworker whose testimony is cited by Avondale Interests, did not have personal knowledge of the type of material Plaintiff used on these ships because Mr. Rome worked the day shift, while Plaintiff worked the night shift.34
Plaintiff argues that Avondale Interests' claims do not warrant removal because the claims against Avondale Interests are specifically based on negligence, not strict liability.35 Plaintiff highlights that his claims do not rely on Avondale Interests' possession of asbestos, rather the claims rely on Avondale Interests' improper handling of asbestos.36
Plaintiff alleges that the "Fifth Circuit has routinely rejected assertions that...negligent acts form the basis for federal officer removal."37 Plaintiff cites multiple cases where the Fifth Circuit remanded similar claims, some of which also involved Avondale as a defendant.38 Plaintiff also highlights that this Court has remanded similar claims against Avondale, including in Templet v. Huntington Ingalls, Inc., a case that was subsequently affirmed by the Fifth Circuit.39
Plaintiff asserts that Avondale Interests' "federal officer removal" argument fails.40 Plaintiff outlines the law laid out in 28 U.S.C. § 1442(a)(1), which requires Avondale Interests show that: (1) it is a "person" as defined in Section 1442; (2) it acted pursuant to a federal officer's directions and a causal nexus exists between those actions and Plaintiff's claims; and (3) it has a"colorable federal defense" to the claims asserted.41 Plaintiff argues that there is no causal nexus between a federal officer and Plaintiff's claims.42
In examining the causal nexus, Plaintiff identifies that the "challenged conduct" at issue in this case is not Federal Government action, but Avondale Interests' negligent "failure to take protective measures and failure to warn."43 Plaintiff asserts that Avondale Interests have no support for the claim that the Federal Government compelled Avondale to not warn or protect Plaintiff from the dangers of asbestos.44 Plaintiff argues that it is insufficient for Avondale...
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