Rivera v. Huntington Ingalls, Inc.
| Decision Date | 25 September 2018 |
| Docket Number | CIVIL ACTION NO: 18-6795 SECTION: "H" |
| Parties | JUDITH PUNCH RIVERA v. HUNTINGTON INGALLS, INC. ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
Before the Court is Plaintiff's Motion to Remand (Doc. 9). For the following reasons, the Motion is DENIED.
This asbestos litigation stems from a wrongful death and survival suit filed in state court by Plaintiff Judith Punch Rivera on behalf of her deceased mother, Dolores Punch.1 Plaintiff filed her original petition in Louisiana's 34th Judicial District Court in St. Bernard Parish on June 8, 2017, claiming Punch died on August 15, 2011, from mesothelioma she contracted as a result ofwashing her husband's asbestos-ridden clothing for years.2 The suit names numerous defendants, including Kaiser Aluminum and Huntington Ingalls, Inc. ("Avondale").3 Avondale is the current owner of the company the decedent's husband worked for when he handled asbestos-containing material as a pipefitter and welder at the Avondale shipyard in New Orleans from 1948 to 1960.4 The decedent's husband, Richard Punch Sr., also worked from 1961 to 1967 at Kaiser Aluminum in Chalmette, Louisiana, in the same type of jobs handling the same kinds of asbestos-containing materials.5
On August 18, 2017, this suit was transferred to the Civil District Court in Orleans Parish.6 There, on July 6, 2018, Plaintiff filed a first supplemental and amended petition.7 In it, Plaintiff alleged it was not just the asbestos-covered clothes of decedent's husband, but also those of decedent's son, that caused decedent's mesothelioma.8 Decedent's son, Richard Punch Jr., worked as a helper and pipefitter at Avondale from 1976 to 1979.9 Plaintiff alleged state law strict liability and negligent failure to warn, supervise, and train claims against Avondale and other defendants as part of her wrongful death and survival suit.10
On July 18, 2018, Defendant Avondale removed Plaintiffs' suit to this Court under the Federal Officer Removal Statute.11 In essence, DefendantAvondale argues it is entitled to removal because it only engaged in the conduct underlying Plaintiffs' claims—the use of asbestos-containing products in Avondale's shipbuilding business—because Avondale's contracts with the federal government required it to do so.12
Plaintiff filed a Motion to Remand this case to state court on July 25, 2018, arguing that Defendant Avondale failed to meet the necessary requirements of the Federal Officer Removal Statute.13 Defendant Avondale opposes.14 The Court heard Oral Argument in this matter on September 12, 2018.
Generally, a defendant may remove a civil state court action to federal court if the federal court has original jurisdiction over the action.15 The burden is on the removing party to show "that federal jurisdiction exists and that removal was proper."16 When determining whether federal jurisdiction exists, courts consider "the claims in the state court petition as they existed at the time of removal."17
Defendant argues this Court has jurisdiction under 28 U.S.C. § 1442(a)(1) ("Federal Officer Removal Statute"). Under the statute, an action commenced in state court "that is against or directed to . . . The United Statesor any agency thereof or any officer (or any person acting under that officer)" may be removed.18 Because Avondale is not an agency of the United States, "[t]o remove, [it] must show: '(1) that it is a person within the meaning of the statute, (2) that it has 'a colorable federal defense,' (3) that it 'acted pursuant to a federal officer's directions,' and (4) 'that a causal nexus exists between [its] actions under color of federal office and the plaintiff's claims.'"19 Although remand to state court is generally preferred when removal jurisdiction is questionable, courts must broadly construe the Federal Officer Removal Statute, interpreting it liberally to support federal jurisdiction when appropriate.20 Nevertheless, the statute's scope is "not limitless."21
Plaintiff does not dispute that Defendant Avondale is a "person" within the meaning of the Federal Officer Removal Statute.22 As Defendant points out in its Memorandum opposing Plaintiff's Motion, both the Supreme Court and the Fifth Circuit have "long recognized" that the Federal Officer Removal Statute applies both to private persons and corporate entities that assist a federal agency in its official duties.23 Because Defendant Avondale was a corporate entity lawfully assisting the federal government with building naval ships at the time the key conduct in this suit transpired,24 the element is satisfied.
The Federal Officer Removal Statute effectively allows defendants to overcome the limits of the well-pleaded complaint rule and establish federal jurisdiction merely by raising a federal defense to state law claims by a plaintiff.25 To succeed at the removal stage, a defendant need not show a "clearly sustainable" defense.26 Instead, the defense need only be "colorable."27 When interpreting the meaning of "colorable" as used within the Federal Officer Removal Statute, the Fifth Circuit has taken the inverse approach of defining a "non-colorable claim" to shed light on the meaning of a "colorable" one.28 "[A] non-colorable federal defense is a defense that is immaterial and made solely for the purpose of obtaining jurisdiction or that is wholly insubstantial and frivolous."29 Avondale raises as its colorable federal defense the jurisprudential doctrine of government contractor immunity, commonly known as the "contractor defense," as established by the Supreme Court in Boyle v. United Techs. Corp.30 Thus, unless Avondale's contractor defense is wholly insubstantial and frivolous, it will satisfy this element.
In general, the government contractor defense as explained in Boyle "provides immunity to contractors for conduct that complies with the specifications of a federal contract."31 In Boyle, the Court set forth three elements a defendant must meet to establish the "colorable federal defense"requirement using the government contractor defense.32 Plaintiff, however, does not address whether Defendant Avondale satisfied the merits of each condition necessary for the defense. Instead, Plaintiff makes general arguments about why the government contractor defense should not apply to her claims.
First, Plaintiff argues the government contractor defense is applicable only in design or manufacturing defect cases, not failure to warn cases.33 In support, Plaintiff cites to two cases from the Northern District of California.34 In relying on these cases, Plaintiff ignores Fifth Circuit law directly on point. In the Fifth Circuit, the government contractor defense applies both to design defect cases and failure to warn cases.35 Thus, the defense applies to the claims made by Plaintiff in this case.
Second, Plaintiff argues that the defense does not apply because Plaintiff made her failure to warn claims against only manufacturers and suppliers of asbestos-containing materials, not Avondale, a shipbuilder. Third, Plaintiff argues that the contractor defense only applies when the asbestos-containing materials are military equipment.36 Plaintiff cites to no cases to support these arguments. For starters, Plaintiff ignores her own petition, which clearly makes negligence and failure to warn claims against "the defendants," a termthat includes Avondale within its meaning.37 Beyond that, because Plaintiff provides no support for its contention that the government contract defense only applies when the asbestos-containing materials are military equipment, the Court declines to entertain the argument.
Although Plaintiff failed to challenge Defendant Avondale's arguments regarding each factor of the Boyle test, this Court must analyze the issue because federal courts cannot create subject-matter jurisdiction where it does not exist. To succeed on the merits of the defense, Avondale must show: (1) the United States approved "reasonably precise specifications" to use asbestos-containing products when building ships for the government; (2) Avondale's ships "conformed" to those specifications; and (3) if Avondale knew about dangers associated with asbestos that the government did not know, Avondale warned the government accordingly.38 Here, at the removal stage, Avondale need only show the defense is "colorable."39 The Court will analyze each Boyle condition separately.
To prevail under the government contractor defense, a shipbuilding contractor defendant, like Avondale, must first show that the federal government approved "reasonably precise specifications" for construction of the ships.40 In other cases like this one, the Fifth Circuit has held that Avondale satisfied this factor because the government's mandatory contract terms required Avondale to build ships with specific asbestos-containingmaterial.41 Defendant submitted evidence to support the fact that it built ships with asbestos-containing material pursuant to the terms of its contracts with the federal government.42 Accordingly, Defendants meets this condition.
To meet the second condition, Defendant Avondale must show the ships it built conformed to the government's contract specifications requiring the use of asbestos-containing material.43 There is ample support that Avondale complied with the government's contract specifications.44 Similar evidence was sufficient to satisfy this condition before the Fifth Circuit.45 Defendant Avondale meets this condition.
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