La. United Bus. Ass'n Cas. Ins. Co. v. J & J Maint., Inc.

• Decision Date: 24 September 2015
• Docket Number: No. 15–cv–1769.,15–cv–1769.
• Citation: 133 F.Supp.3d 852
• Court: U.S. District Court — Western District of Louisiana
• Parties: LOUISIANA UNITED BUSINESS ASSOCIATION CAS. INS. CO. v. J & J MAINTENANCE, INC., et al.

133 F.Supp.3d 852

LOUISIANA UNITED BUSINESS ASSOCIATION CAS. INS. CO.

v.J & J MAINTENANCE, INC., et al.

No. 15–cv–1769.

United States District Court, W.D. Louisiana, Lake Charles Division.

Signed Sept. 24, 2015.

Doris Theresa Bobadilla, Christie Laporte Tournet, Galloway Johnson et al., Mandeville, LA, for Louisiana United Business Association Cas. Ins. Co.

W. Evan Plauche, Joseph L. Spilman, III, Hailey McNamara et al., Metairie, LA, Sidney Earl Cook, Jr., Cook Yancey et al., Elizabeth M. Carmody, Shreveport, LA, C. Austin Holliday, Lugenbuhl Wheaton et al., Baton Rouge, LA, R. O'Neal Chadwick, Jr., Andree Braud Leddy, Gregory Brent Odom, II, Chadwick Law Firm, Sara Bussey Dantzler Atty General's Office, Alexandria, LA, for J & J Maintenance, Inc., et al.

MEMORANDUM RULING

KATHLEEN KAY, United States Magistrate Judge.

Before the court is a Motion to Remand [doc. 14] filed on June 26, 2015 by plaintiff Louisiana United Business Association Casualty Insurance Company ("LUBA," "plaintiff") in response to a Notice of Removal [doc. 1] filed on May 7, 2015 by defendant Pride Industries ("Pride"). Pride opposes the motion to remand [doc. 21], and is joined in doing so by other defendants, The Migues Deloach Company ("Deloach") [doc. 22], Entergy Louisiana, LLC ("Entergy Louisiana") [doc. 23], and J & J Maintenance, Inc. ("J & J") [doc. 24] (collectively, "defendants").¹ For the reasons stated below, the plaintiff's motion is hereby DENIED.

I. BACKGROUND

The present case involves the employment of Jonathon West ("West") by Deloach, a subcontractor on the New Shira Dental Clinic remodeling project ("remodeling project") at Fort Polk, Louisiana.² Doc. 1, att. 2, p. 3; Doc. 15, att. 1, p. 53. West was fatally injured at the remodeling project on January 4, 2012, while operating a boom manufactured by Volvo. Doc. 1, att. 2, pp. 3–4. The plaintiff alleges that the boom overextended and struck power lines at the remodeling project. Id. at 4. It also alleges that Entergy Louisiana failed to turn off the power in a timely manner after the accident occurred thus delaying West from receiving medical attention. Id. Finally, it contends that Pride received a work request from the U.S. Army to relocate power lines at the remodeling site but that it performed this work negligently and failed to follow the Army's specifications as to where the lines should be moved. Id. at 25.

Pride maintains that it followed the Army's work request for power line relocations connected to the remodeling project and that it completed this work in line with the specifications provided.³ Doc. 21, att. 1, pp. 1–3. Pride's general manager also states that the Army usually sends a deficiency report to Pride "if the government has an issue or concerns regarding unsatisfactory performance of its requests," and that Pride received no such report relating to this request. Id. at 2.

This action was instituted by the plaintiff, who was workers' compensation insurer for Deloach, on October 1, 2012, in the 30th Judicial District Court, Vernon Parish, Louisiana. Doc. 1, att. 2, pp. 2–3. The plaintiff seeks relief pursuant to:

• Unspecified Louisiana laws "including but not limited to exercising its rights under ... reimbursement, tort, contract, unjust enrichment, and general obligation." Doc. 1, att. 2, p. 3.

• A Louisiana workers' compensation provision, LA.REV.STAT. 23:1101 et seq., relating to suits by the person obligated to pay workers' compensation benefits against a third party who caused the injury. Id. at 3; LA.REV.STAT. 23:1101(b).

The original action named as defendants J & J, Entergy Corporation (Entergy Louisiana substituted in first amended complaint), Volvo, and their respective insurers. Id. at 2–3, 10. In a third party demand served on other counsel of record on December 19, 2012, J & J joined Deloach as a third party defendant. Doc. 15, att. 1, pp. 52–59. The plaintiff joined Pride as a defendant in the same action with a petition served on April 30, 2015. Doc. 1, att. 2, pp. 19–20.

With the consent of the other named defendants, Pride removed the action to this court on May 27, 2015. Doc. 1, pp. 1–2. The plaintiff moved to remand on June 26, 2015. Doc. 14, p. 1. Pride opposes the motion to remand, and was joined by other defendants in doing so.⁴ Doc. 21, p. 1. The plaintiff filed a reply to the defendants' opposition on July 24, 2015. Doc. 28, p. 1.

II. LAW & ANALYSIS

Any civil action brought in a State court of which the district courts have original jurisdiction may be removed to the proper district court. 28 U.S.C. § 1441(a). However, the federal district court must remand the action to state court if it finds that it lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). The removing party bears the burden of showing that removal was procedurally proper and that federal jurisdiction exists. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.1995).

Pride asserts two bases for subject matter jurisdiction in its notice of removal: federal officer removal jurisdiction and federal enclave jurisdiction. The plaintiff challenges the application of both rules to the instant case. It also contends that state law exceptions within federal enclave jurisdiction and limitations on removal under cases arising under workers' compensation laws necessitate remand. We therefore review the plaintiff's challenges to determine whether the matter ought to be remanded to state court for lack of subject matter jurisdiction, with the burden remaining on the defendants to establish that federal jurisdiction exists.

A. Federal Officer Removal Jurisdiction

Section 1442(a) of Title 28, United States Code, provides that an action in state court may be removed to federal court if it is against the U.S. government, including agencies and officers of the government "or any person acting under that officer." In order to justify removal under this statute, a party must show that:

(1) it is a person under the statute's meaning. Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398 (5th Cir.1998).

(2) it acted "under color of office," shown for contractors when they "act pursuant to a federal officer's directions and ... a causal nexus [existed] between the [defendant's] actions under color of federal office and the plaintiff's claims." § 1442(a)(3) ; Winters, 149 F.3d at 398.

(3) it can articulate a "colorable applicability" of a federal defense to the plaintiff's claims. Winters, 149 F.3d at 400 (internal citations omitted).

The plaintiff does not dispute that Pride satisfies the first factor, given the acceptance of corporate entities as private persons. Id. at 398. We therefore turn to the second and third factors.

1. Acting under color of federal office

The plaintiff first asserts that Pride, as a federal contractor, cannot claim that it was acting under color of federal office because (1) it did not act pursuant to federal direction when it moved power lines at the remodeling project and (2) there was no causal nexus between the work completed at federal direction and the plaintiff's claims.

As the plaintiff states, federal direction must be sufficiently detailed to support the idea that there is a "substantial federal interest" involved in the activity. Winters, 149 F.3d at 398 (quoting Winters v. Diamond Shamrock Chem. Co., 901 F.Supp. 1195, 1200–01 (E.D.Tex.1995) ). In Winters, the Fifth Circuit found that government specification of the chemical composition, packaging, and delivery of Agent Orange was a sufficient exercise of control to show federal direction under § 1442(a). 149 F.3d at 399–400. It found that a causal nexus arose between the plaintiff's claims and this government control when the plaintiff alleged that her exposure to trace elements of dioxin in Agent Orange caused her terminal disease. Id. We observe that sufficient federal direction has also been found under § 1442(a) when a private contractor performed maintenance on generators at an Army encampment, based on the fact that this work was done under Army supervision and that the contractor could not expand the scope of its work without authorization. McGee v. Arkel Int'l, LLC, 716 F.Supp.2d 572, 577 (S.D.Tex.2009).

Pride shows the extent of government direction of the work by providing an affidavit from its general manager at Fort Polk and a copy of the work order produced from the Army's request to relocate the power lines. The general manager states that the Army sent Pride a work request "to provide alternate feed to street lights" at the remodeling project and to replace a deteriorating power pole at the site with a new one provided by the government. See supra note 3 and accompanying text. The plaintiff does not dispute the authenticity of this evidence, but instead contends that the level of direction is insufficient § 1442(a).

From our review of the pleadings and evidence, we disagree. The work order shows that the Army, a branch of the federal government, narrowly defined the type of work to be done by Pride and the site at which it was to be performed. The Army also provided some of the material to be used. It exerted control over the work done by Pride through the use of deficiency reports. Accordingly, we find that the defendants have shown sufficient government control over the project.

Turning to the nexus requirement, it is clear that some of the plaintiff's allegations arise from these activities as they relate to placement of the power lines that were later struck by West. We also find from the evidence offered that this work was completed at the Army's direction. We therefore hold that Pride was acting pursuant to federal direction and that there was a causal nexus between these actions and the plaintiff's claims, satisfying the second part of the test articulated in Winters.

2. Colorable Applicability of a Federal Defense

To satisfy the final requirement, the defendants must show that they can raise a federal defense to the plaintiff's claims. Winters, 149 F.3d at 400. As the defendants...