Neal v. Avondale Indus.
| Decision Date | 25 September 2020 |
| Docket Number | CIVIL ACTION NO. 20-172-BAJ-RLB |
| Parties | BARRY J. NEAL v. AVONDALE INDUSTRIES, INC., ET AL. |
| Court | U.S. District Court — Middle District of Louisiana |
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
Signed in Baton Rouge, Louisiana, on September 25, 2020.
/s/_________
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
Before the Court is Plaintiff's Motion to Remand. (R. Doc. 13). The motion is opposed by the Avondale Defendants and Hopeman Brothers, Inc. ("Hopeman"). (R. Doc. 31; see R. Docs. 28, 29). Plaintiff filed a Reply. (R. Doc. 40). The Avondale Defendants filed a Sur-Reply. (R. Doc. 41). Hopeman filed a Sur-Reply. (R. Doc. 48). The Avondale Defendants and Hopeman submitted Notices of Additional Authority. (R. Docs. 53, 54).
On or about May 9, 2019, Barry J. Neal ("Plaintiff") brought this action in the 19th Judicial District Court, East Baton Rouge Parish, Louisiana, alleging that he contracted lung cancer, in part, as a result of direct exposure to asbestos while employed by Avondale Shipyards, Inc. from 1969 to 1972. (R. Doc. 1-2, "Petition"). In relevant part, Plaintiff alleges negligence claims against 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") and Lamorak Insurance Company ("Lamorak")1 (hereafter "the Avondale Defendants"). (Petition ¶¶ 2, 14, 34-41).
On September 18, 2019, Plaintiff testified at his deposition that he worked at Avondale as a welder helper and a tacker welder on new construction of Lykes cargo ships and was exposedto asbestos dust while working in close proximity to other workers installing pipe installation and to Hopeman employees installing wallboard for vessels. (R. Doc. 1-3).
On March 23, 2020, the Avondale Defendants removed this action, asserting that the Court has subject matter jurisdiction based on the federal officer removal statute, 28 U.S.C. § 1442(a). (R. Doc. 1). In support of removal, the Avondale Defendants state that on February 24, 2020, the Fifth Circuit decision Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286 (5th Cir. Feb. 24, 2020) overruled various decisions requiring a "causal nexus" test and held that negligence claims under Section 1442(a) are now removable. (R. Doc. 1 at 4). The Avondale Defendants assert that the Notice of Removal was timely filed under 28 U.S.C. § 1446(b)(3) because removal was within 30 days of the receipt of the Latiolais decision, which was the first "other paper" received by the Avondale Defendants making Plaintiff's negligence suit removable to federal court. (R. Doc. 1 at 4). The Avondale Defendants also cite Green v. R.J. Reynolds Tobacco Co., 274 F.3d 263, 266-68 (5th Cir. 2001) in support of the timeliness of removal. (R. Doc. 1 at 4). The Avondale Defendants also assert that they satisfy all requirements for removal under Section 1442(a), including asserting three colorable federal defenses: that plaintiffs' claims are pre-empted and barred by the Longshore Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901, et seq.; that plaintiffs' claims are barred by government contractor immunity as established by Boyle v. United Technologies Corp, 487 U.S. 500 (1988); and that plaintiffs' claims against are barred by the derivative sovereign immunity as set forth in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940). (R. Doc. 1 at 5-10).
On April 21, 2020, Plaintiff filed the instant Motion to Remand, arguing that the removal was untimely under 28 U.S.C. § 1446(b)(3) and that removal was improper under 28 U.S.C. § 1442(a). (R. Doc. 13).
In support of remand, Plaintiff first argues that the removal was untimely because it was not within thirty days of the Avondale Defendants' receipt of Plaintiff's September 18, 2019 deposition transcript, which Plaintiff characterizes as an "other paper" from which the Avondale Defendants could ascertain that the action was removable because the testimony provided that Plaintiff was exposed to asbestos in connection with work on vessels allegedly built at the direction of the federal government. (R. Doc. 13-1 at 6-7). Plaintiff further argues that the involuntary-voluntary rule was violated because the basis of removal was not a voluntary amendment by the plaintiff. (R. Doc. 13-1 at 7-8). Plaintiff further argues that the Latiolais decision does not constitute an "other paper" under 28 U.S.C. § 1446(b)(3) as asserted in the Notice of Removal, and the Green decision, which affirmed the re-removal of an action following an intervening order addressing a pertinent legal issue in a different action, is inapplicable or distinguishable. (R. Doc. 13-1 at 8-11). Plaintiff further argues that the federal officer removal statute is inapplicable to provide subject matter jurisdiction because the Avondale Defendants are incapable of demonstrating a colorable federal defense to Plaintiff's state law negligence claims and there is no independent subject matter jurisdiction under the LHWCA. (R. Doc. 13-1 at 11-33). Finally, Plaintiff argues that his disclaimer in Paragraph 14 of the Petition effectively disclaims federal officer jurisdiction. (R. Doc. 13-1 at 33).
In opposition, the Avondale Defendants argue that the Latiolais decision changed the law to provide that removal is allowed under the federal officer removal statute where the plaintiff only asserts negligence claims. (R. Doc. 31 at 17-20). The Avondale defendants argue that Plaintiff's deposition did not start the removal clock and the "voluntary-involuntary" rule does not apply. (R. Doc. 31 at 20). The Avondale Defendants further argue that the Latiolais decisionwas an "order or other paper" under Section 1446(b)(3), and removal was otherwise proper even if the Latiolais decision was not an "order or other paper" under Section 1446(b)(3). (R. Doc. 31 at 20-26). The Avondale Defendants further argue that all substantive elements of the federal officer removal statute are satisfied, including the requirement of a colorable federal defense. (R. Doc. 31 at 27-54). Finally, the Avondale Defendants argue that Plaintiff's disclaimer of jurisdiction is ineffective. (R. Doc. 31 at 55-58). In its joinder to the Avondale Defendants' opposition, Hopewell argues that that it is also entitled to a federal forum under the federal officer removal statute for the same reasons asserted by Avondale. (R. Doc. 28).
In reply, Plaintiff reiterates that the Avondale Defendants' removal was untimely and that the Avondale Defendants and Hopeman have failed to raise a colorable federal defense. (R. Doc. 40).
In sur-reply, the Avondale Defendants address Plaintiff's argument that they have not presented any "on point" authority supporting their timeliness position. (R. Doc. 41). In contrast, Hopeman argues that it has asserted colorable federal defenses in support of federal officer removal. (R. Doc. 48). The Avondale Defendants and Hopewell also submitted lists of various decisions from the Eastern District of Louisiana denying motions to remand under similar circumstances. (R. Docs. 53, 54).
The federal officer removal statute provides for the removal of a civil action against "[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office. . . ." 28 U.S.C. § 1442(a)(1). The purpose of this removal statuteis to protect the lawful activities of the federal government from undue state interference. See Mesa v. California, 489 U.S. 121, 126 (1989). Section 1442(a) serves to overcome the "well-pleaded complaint" rule that would otherwise preclude removal even if a federal defense is asserted. See id. at 136. Unlike the general removal provision, which is strictly construed in favor of remand, the federal officer removal statute is liberally construed in favor of removal. Watson v. Philip Morris Cos. Inc., 551 U.S. 142, 147-48 (2007); Willingham v. Morgan, 395 U.S. 402, 406 (1969).
To remove an action under Section 1442(a), a defendant must show: "(1) it has asserted a colorable federal defense, (2) it is a 'person' within the meaning of the statute, (3) that has acted pursuant to a federal officer's directions, and (4) the charged conduct is connected or associated with an act pursuant to a federal officer's directions." Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 296 (5th Cir. 2020).2 The Court has reviewed the Avondale Defendants' arguments in support of a finding that removal was proper under the federal officer removal statute. (R. Doc. 31 at 27-54). Given that the right to removal under the federal officer removal statute is liberally construed, the Court finds no basis for remanding the action for failing to meet the requirements under 28 U.S.C. § 1442(a)(1).
Plaintiff argues that removal was improper under the federal officer removal statute...
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