Goffner v. Anco Insulations, Inc.

• Decision Date: 01 December 2022
• Docket Number: Civil Action 22-3047
• Parties: WILSON GOFFNER, SR., Plaintiff v. ANCO INSULATIONS, INC., ET AL., Defendants
• Court: U.S. District Court — Eastern District of Louisiana

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WILSON GOFFNER, SR., Plaintiff v. ANCO INSULATIONS, INC., ET AL., Defendants

Civil Action No. 22-3047

United States District Court, E.D. Louisiana

December 1, 2022

SECTION “E” (2)

ORDER AND REASONS

SUSIE MORGAN, UNITED STATES DISTRICT JUDGE

Before the Court is a motion to remand filed by Plaintiff Wilson Goffner, Sr. (“Plaintiff”).^[1] Defendant Huntington Ingalls Incorporated (“Avondale”) filed an opposition.^[2] Plaintiff filed a reply.^[3] Avondale filed a sur-reply.^[4] For the reasons that follow Plaintiff's motion to remand is DENIED.^[5]

BACKGROUND

This personal injury suit is based on Plaintiff's alleged exposure to asbestos. Plaintiff alleges he “suffered exposure to asbestos and asbestos-containing products designed, manufactured, sold and/or supplied and/or maintained, used owned or removed by the defendants, which exposure ultimately resulted in his contract of malignant lung cancer.”^[6] Plaintiff alleges he was employed by Avondale from 1974 to 1997 as a shipfitter, where he handled and was in the vicinity of others handling, asbestos or asbestos-containing products.^[7] On May 8, 2020, Plaintiff was diagnosed with malignant lung cancer “caused in part from asbestos exposure.”^[8]

On February 12, 2021, Plaintiff filed a petition for damages in Civil District Court, Parish of Orleans, State of Louisiana, against several Defendants, including Avondale.^[9]Plaintiff brings a negligence action against Avondale for failure to warn of the dangers of asbestos and for “failing to provide a safe place in which to work free from the dangers of respirable asbestos-containing dust,” i.e., failure to prevent the spread of asbestos.^[10]

Avondale removed Plaintiff's suit to federal court on August 30, 2022.^[11] In its Notice of Removal, Avondale asserts the

Court has subject matter jurisdiction under 28 U.S.C. § 1441 in that the action arises “under the Constitution, laws or treaties of the United States” within the meaning of that statute, and because Avondale was, at all material times, acting under an officer of the United States as set forth in 28 U.S.C. § 1442(a)(1).^[12]

On September 30, 2022, Plaintiff filed the instant motion to remand.^[13] Plaintiff argues remand is warranted because Avondale and its co-defendants “cannot satisfy the ‘colorable' defense prong of the Federal Officer Removal statute.”^[14] Avondale filed an opposition on October 19, 2022.^[15] On October 31, 2022, Plaintiff filed a reply.^[16] Because Plaintiff raised new arguments in his reply-namely that Avondale also failed to satisfy element two, that it acted under the direction of a federal officer-Avondale sought and was granted leave to file a sur-reply, and it did so on November 1, 2022.^[17] The Court held oral argument on the motion on November 7, 2022.^[18]

LEGAL STANDARD

Federal courts are courts of limited jurisdiction and possess only the authority conferred upon them by the U.S. Constitution or by Congress.^[19] “The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.”^[20] Under 28 U.S.C. § 1442, Congress has allowed for the removal of state cases commenced against

[t]he United States or any agency thereof or any 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 or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

The time for removal is set forth in 28 U.S.C. § 1446, which provides:

(b)(3) Except as provided in subsection (c), if the case stated by the initial pleading is not removable, 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.^[21]

...

(g) Where the civil action or criminal prosecution that is removable under section 1442(a) is a proceeding in which a judicial order for testimony or documents is sought or issued or sought to be enforced, the 30-day requirement of subsection (b) of this section and paragraph (1) of section 1455(b) is satisfied if the person or entity desiring to remove the proceeding files the notice of removal not later than 30 days after receiving, through service, notice of any such proceeding.^[22]

Section 1442(a)(1), “is a pure jurisdictional statute in which 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 [Article III] purposes.”^[23] This statute allows federal officers to “remove cases to federal court that ordinary federal question removal would not reach [, ] . . . even if no federal question is raised in the well-pleaded complaint, so long as the officer asserts a federal defense in response.”^[24] Broadly speaking, this statute allows for removal “where a federal official is entitled to raise a defense arising out of his official duties.”^[25] The goal of the statute is to “prevent federal officers who simply comply with a federal duty from being punished by a state court for doing so.”^[26]

Ordinarily, the removing defendant has the burden to establish that federal jurisdiction exists.^[27] However, because § 1442(a) must be liberally construed,^[28] whether federal officer removal jurisdiction exists must be assessed “without a thumb on the remand side of the scale.”^[29]

LAW AND ANALYSIS

The federal officer removal statute authorizes removal when: (1) the defendant is a person within the meaning of the statute (2) the defendant “acted under” the direction of a federal officer; (3) the defendant's complained-of conduct is “connected or associated with” or “related to” a federal directive;^[30] and (4) the defendant has a colorable federal defense.^[31] Plaintiff argued only that Defendant has not demonstrated elements two and four of the federal officer removal statute.^[32] Accordingly, the Court will address each of elements two and four in turn.

I. Element Two: Avondale “Acted Under” the Direction of a Federal Officer.

Plaintiff argues Defendant is unable to establish element two of the federal officer removal statute-that Avondale “acted under” the direction of a federal officer. “In order to satisfy the ‘acting under' requirement, a removing defendant need not show that its alleged conduct was precisely dictated by a federal officer's directive.”^[33] “Instead, the ‘acting under' inquiry examines the relationship between the removing party and the relevant federal officer, requiring courts to determine whether the federal officer ‘exerts a sufficient level of subjection, guidance, or control' over the private actor.”^[34] “For example, courts in [the Fifth] [C]ircuit have held that negligence claims against federal contractors are removable under the federal officer removal statute, even though the negligence was not directed by federal authorities.”^[35] Put another away, to litigate in this Court, Avondale need only show it acted under the direction of a federal officer when it used asbestos-containing products. Under the statute, Avondale need not show the alleged failure to warn and failure to prevent the spread was precisely dictated by a federal officer's directive.

Moreover, as raised by Avondale, “[a] private entity is acting under the direction of a federal officer [for removal purposes] where it ‘fulfilled the terms of a contractual agreement by providing the Government with a product that it used to help conduct a war' and arguably ‘performed a job that, in the absence of a contract with a private firm, the Government itself would have had to perform.”^[36] Likewise, the Fifth Circuit has held “the mere fact that ‘the federal government would have had to build those ships had the defendant not done so' sufficient to satisfy the ‘acting under' requirement.'”^[37]

In Broussard v. Huntington Ingalls, Inc., another section of this Court held Avondale was acting under the direction of a federal officer because “the vessels ‘were being built by Avondale under the detailed supervision and control of one or more officers of the United States . . . and [the plaintiff] was injured due, in part, to asbestos-containing products allegedly installed aboard ships built pursuant to contracts with the U.S. Navy'” and because “the United States government contracted with Avondale to perform a task that the federal government otherwise would itself have had to perform: building ships ‘used to help conduct a war' and to further other national interests.”^[38] The Court finds, for the limited purpose of removal, Avondale was acting under the direction of a federal officer for the same reasons articulated by the Court in Broussard.^[39]

Avondale has provided evidence that it was contracted by the U.S. Navy to build vessels.^[40] Avondale also provided evidence that its government contracts required Avondale to use asbestos.^[41] Further, had Avondale not built the ships, the Government itself likely would have had to perform. Accordingly, Avondale has established element two of the federal officer removal statute.

II. Element Four: Avondale Has a Colorable Federal Defense Under Boyle.

Avondale raises three federal defenses to Plaintiff's claims. First, Avondale raises the government contractor defense established by Boyle v. United Techs. Corp. and its progeny.^[42] Second, it raises the federal defense of derivative sovereign immunity as set forth in Yearsley v W.A. Ross Construction Co. and its progeny.^[43] Finally, Avondale argues it has presented a colorable defense of preemption...