Jackson v. Avondale Indus. Inc.
| Decision Date | 29 June 2020 |
| Docket Number | CIVIL ACTION NO. 20-1005 SECTION "L" (5) |
| Parties | PATRICIA JACKSON v. AVONDALE INDUSTRIES INC. ET AL |
| Court | U.S. District Court — Eastern District of Louisiana |
Pending before the Court is Defendant Hopeman Brothers, Inc.'s ("Hopeman") Motion for Reconsideration, R. Doc. 11. In support of its motion, Hopeman has submitted a Supplemental Brief in Further Support of Hopeman's Motion for Reconsideration and Basis for Federal Court Jurisdiction, R. Doc. 25-3. Plaintiff opposes the motion, R. Doc. 30, and has filed a Motion to Strike Exhibits Submitted by Hopeman in connection with its supplemental brief, R. Doc. 26. Hopeman opposes the motion to strike. R. Doc. 31.
Oral argument was held on Tuesday, June 16, 2020 by telephone. Having considered the parties arguments and the applicable law, the Court now rules as follows.
This case arises out of Plaintiff Patricia Jackson's diagnosis of malignant mesothelioma, which she contends was caused by exposure to asbestos products while employed by Avondale Shipyard between 1970 and 1977. R. Doc. 1-2 ¶ 9. Plaintiff also contends she was exposed to asbestos fibers located on her father's work clothing while he was employed by Avondale between 1962 and 1976. R. Doc. 1-2 ¶ 10. Based on these factual allegations, Plaintiff filed suit against a number of Defendants including Huntington Ingalls Incorporated, Albert L. Bossier, Jr., and Lamorak Insurance Company (collectively, the "Avondale Defendants"), Taylor Seidenbach, International Paper, Eagle, Inc., Liberty Mutual Insurance Company, and Hopeman in state court. R. Doc. 1-2.
The case was removed to federal court on March 25, 2020 by the Avondale Defendants following the United States Court of Appeals for the Fifth Circuit's decision in Latiolais v. Huntington Ingalls, Inc., which altered the standard for removal under 28 U.S.C. § 1442(a), the Federal Officer Removal Statute. Essentially, the Avondale Defendants premised removal on the allegation that Plaintiff's claims against the Avondale Defendants stem from actions taken at the direction of a federal officer—namely, the construction of ships for the United States Navy and the United States Maritime Administration ("MARAD"). R. Doc. 1 at 5.
Shortly after removal, Plaintiff settled her claims against the Avondale Defendants. She accordingly filed a motion to remand challenging the merits of the removal and arguing that irrespective of the merits, the case ought to be remanded because the basis for federal jurisdiction—the federal officer statute—existed only with respect to the Avondale Defendants. R. Doc. 7. Additionally, the Avondale Defendants filed a motion to withdraw the notice of removal, explaining that the claims against them had been settled. R. Doc. 8. Oppositions to Plaintiff's motion to remand were due on May 5, 2020. Receiving no oppositions by May 5, 2020, the Court granted the remand, finding that the basis for removal was no longer applicable as Plaintiff had settled with the removing Avondale Defendants. R. Doc. 9.
Hopeman has filed a motion for reconsideration of the remand order. R. Doc. 11. Hopeman explains that the Avondale Defendants failed to file a Notice of Compliance as required by 28 U.S.C. § 1446, which resulted in Hopeman not being notified of the pendency of the motion to remand or, for that matter, the remand order. R. Doc. 11 at 1. Hopeman argues that this failuredeprived it of the opportunity to oppose the motion to remand, and requests that the Court rescind its May 11, 2020 Order and Reasons to allow the jurisdictional issues to be fully briefed. R. Doc. 11 at 2. Hopeman stresses that like the Avondale Defendants, it has been sued in connection to work completed at the direction of the federal government and accordingly also satisfies the basis for federal officer removal. R. Doc. 11 at 2. Hopeman seeks expedited consideration of this motion on the grounds that Plaintiff has sought an expedited trial in state court. R. Doc. 15.
Because Hopeman's original motion for reconsideration was filed expeditiously to ensure the Court was aware of the filing issues that prevented Hopeman from timely opposing the motion to remand, Hopeman was granted an opportunity to file a supplemental brief addressing the merits of its jurisdictional argument. R. Doc. 24. In its supplemental brief, Hopeman argues it is entitled to federal officer removal under § 1442 in light of Latoilais v. Huntington Ingalls Incorporated, 951 F.3d 286 (5th Cir. 2020). R. Doc. 25-3. Specifically, Hopeman argues it asserts two "colorable federal defenses," namely official and derivative sovereign immunity and the government contractor defense, because the conduct giving rise to Plaintiff's claims against Hopeman is associated with acts performed at the direction of the federal government. Hopeman also asserts that diversity jurisdiction exists.
Plaintiff opposes reconsideration, R. Doc. 23, and has filed a supplemental brief in opposition to the merits of Hopeman's jurisdictional argument, R. Doc. 30. Essentially, Plaintiff argues reconsideration should be denied because 1) Hopeman cannot take advantage of the government contractor defense as it was never a government contractor; 2) Hopeman cannot take advantage of the government contractor defense or derivative sovereign immunity because it cannot show conformity with federal contractual obligations; 3) Hopeman cannot take advantage of the government contractor defense because it has presented no admissible evidence that itwarned the government of the dangers of its asbestos-related work at Avondale; 4) Hopeman's challenged conduct was not taken under color of federal office because Hopeman was not performing work pursuant to a government contract; 5) Hopeman cannot "clearly establish" that it is entitled to the "extraordinary remedy" of reconsideration; 6) the need to prevent manifest injustice weighs against reconsideration as Plaintiff is terminally ill and further delaying this trial presents the risk that Plaintiff may not survive to have her day in court; and 7) Hopeman cannot establish improper joinder to establish diversity jurisdiction because the non-diverse defendants remain viable in this case. R. Doc. 30 at 3.
Plaintiff has filed a Motion to Strike a number of exhibits attached to Hopeman's Supplemental Brief discussing its alleged basis for federal jurisdiction. R. Doc. 26. Specifically, Plaintiff seek to strike the following exhibits:
Essentially, Plaintiff argues that Hopeman must support its entitlement to a federal defense with "competent evidence" that would be considered in a motion for summary judgment context and that the aforementioned exhibits are all inadmissible under the Federal Rules of Civil Procedure and/or the Federal Rules of Evidence. First, Plaintiff objects to the majority of exhibits on the grounds that they do not mention Hopeman and accordingly are irrelevant to the instant case. Second, Plaintiff argues the affidavits and depositions prepared for other cases is inadmissible under Federal Rules of Civil Procedure 32 and Federal Rules of Evidence 804. Plaintiff also specifically objects to the affidavit of Christopher Herfel on the grounds that he is unqualified to testify as an expert and lacks the personal knowledge necessary to testify as a fact witness. Third, Plaintiff argues the exhibits purportedly demonstrating the existence of subcontracts between Avondale and Hopeman lack a foundation, lack authenticity, and are incomplete.
Hopeman opposes the Motion to Strike. As a threshold matter, Hopeman argues that it is not required to support each element of its purported federal defense with "competent proof." R. Doc. 31 at 4. Hopeman argues that removal under the federal officer statute requires only that the federal defense be "colorable," and the courts in the Fifth Circuit have found affidavits, depositions, and contract specifications relevant to the whether a federal defense is colorable. R. Doc. 31 at 5. However, even if "competent proof" is required, Hopeman argues it has...
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