Williams v. Lockheed Martin Corp.

• Decision Date: 09 March 2021
• Docket Number: No. 18-31162,18-31162
• Parties: Tarsia WILLIAMS; Breck Williams, Plaintiffs–Appellants, v. LOCKHEED MARTIN CORPORATION, individually and as successor-in-interest to Martin Marietta, Incorporated, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

990 F.3d 852

Tarsia WILLIAMS; Breck Williams, Plaintiffs–Appellants,

v.LOCKHEED MARTIN CORPORATION, individually and as successor-in-interest to Martin Marietta, Incorporated, Defendant–Appellee.

No. 18-31162

United States Court of Appeals, Fifth Circuit.

FILED March 9, 2021

Caleb Didriksen, Erin Bruce Saucier, Attorneys, Didriksen, Saucier & Woods, P.L.C., New Orleans, LA, for Plaintiffs - Appellants.

David Kirk Groome, Jr., Esq., Robert E. Kerrigan, Deutsch Kerrigan, L.L.P., New Orleans, LA, Brian Thomas Clark, Guy Patrick Glazier, Glazier, Yee, L.L.P., San Francisco, CA, for Defendant - Appellee.

Before OWEN, Chief Judge, and WILLETT and OLDHAM, Circuit Judges.

BY THE COURT:

IT IS ORDERED that this court, on its own motion, hereby grants panel rehearing of the decision filed on August 19, 2019; and

IT IS FURTHER ORDERED that the petition for rehearing en banc is denied; and

IT IS FURTHER ORDERED that the prior opinion is hereby withdrawn; and

IT IS FURTHER ORDERED that, in replacement of the withdrawn order, the attached substitute opinion be filed forthwith.

PRISCILLA R. OWEN, Chief Judge:

Frank Williams, Jr., filed suit in Louisiana state court against his former employer, Lockheed Martin Corporation (Lockheed Martin), seeking to recover damages for asbestos-related injuries. Williams's only children, Breck and Tarsia Williams (Plaintiffs), were substituted as plaintiffs after Frank Williams's death. Lockheed Martin removed the case asserting federal officer removal jurisdiction. The district court granted summary judgment in favor of Lockheed Martin and issued sanctions against Plaintiffs’ counsel for improper ex parte communications. Plaintiffs challenge the district court's subject-matter jurisdiction, the summary judgment, various discovery orders, and the imposition of sanctions. We affirm the district court's judgment.

I

This appeal is part of a larger action involving these plaintiffs and twenty-four defendants.¹ We recite only the facts relevant to the case against Lockheed Martin. Frank Williams filed suit in the Civil District Court for the Parish of Orleans, alleging his malignant mesothelioma

resulted from exposure to asbestos while he was employed by Lockheed Martin's predecessor, Martin Marietta Corporation. For ease of reference, we will refer to both corporations as Lockheed Martin. Williams worked for Lockheed Martin at the NASA-owned Michoud Assembly Facility from 1974 to 1993.

Williams asserted multiple theories of liability, including strict liability, negligence, and intentional tort. In a deposition near the time of his death, Williams alleged that he worked on NASA "rockets" while employed by Lockheed Martin, and he believed those rockets contained asbestos. Lockheed Martin claimed that the only NASA products it manufactured at Michoud during Williams's employment were the External Fuel Tanks (EFTs) of the Space Shuttle Program. Based on this information, Lockheed Martin removed the action to the United States District Court for the Eastern District of Louisiana (district court) on the ground of federal officer removal jurisdiction under 28 U.S.C. § 1442(a)(1). Subsequently, the Judicial Panel on Multidistrict Litigation transferred the action to the In re: Asbestos Products Liability Litigation , MDL No. 875, pending in the United States District Court for the Eastern District of Pennsylvania (MDL court).

While the matter was pending in the MDL court, Williams's children, Tarsia and Breck Williams, were substituted as plaintiffs following their father's death. Plaintiffs amended the complaint to include survival and wrongful death claims. They then filed a motion to remand based on untimeliness of removal and lack of subject-matter jurisdiction, which was denied. Plaintiffs later renewed their motion to remand, which was also denied. In the latter motion, Plaintiffs disclaimed the EFTs as a potential source of asbestos and instead focused on asbestos allegedly present in the buildings at Michoud.

The MDL court granted summary judgment in favor of Lockheed Martin, determining that there was no evidence that Williams was exposed to asbestos prior to the date that asbestos exposure became covered by the Louisiana Worker's Compensation Act (LWCA). In accordance with the LWCA's exclusive remedy provision, the MDL court determined that the LWCA provided the only avenue for Plaintiffs’ claims. The district court also imposed $10,000 in sanctions against Plaintiffs’ attorney, Caleb Didriksen, for an ex parte conversation he initiated with a current Lockheed Martin employee.

The case was transferred back to the district court for resolution as to the remaining active defendants, and the district court entered judgment in Lockheed Martin's favor. Plaintiffs then filed a third motion to remand, which the district court denied. After the district court entered final judgment as to each defendant, Williams filed this appeal challenging the district court's subject-matter jurisdiction, the summary judgment in favor of Lockheed Martin, various discovery orders, and the imposition of sanctions against Caleb Didriksen.

This panel previously dismissed this appeal for lack of appellate jurisdiction for the reasons set forth in the related case Williams v. Taylor Seidenbach, Inc .² Plaintiffs filed for en banc rehearing in that case, and we subsequently granted en banc rehearing in Taylor Seidenbach and determined that we had jurisdiction to hear the appeals.³ Based on that en banc decision, we grant panel rehearing and substitute this opinion for the prior dismissal order.

II

We first address Plaintiffs’ contention that removal was improper and thus this court lacks subject-matter jurisdiction. Generally, questions of federal law in MDL-transferred cases are governed by the law of the transferee circuit.⁴ The district court followed this rule and applied Third Circuit law. Because neither party has challenged the district court's holding on this point, we assume without deciding that the district court was correct and apply Third Circuit law.⁵

Lockheed Martin removed based on federal officer removal jurisdiction after Williams's deposition testimony revealed possible asbestos exposure from his work on the EFTs. Federal officer removal jurisdiction is available to persons acting under an agency of the United States who assert a colorable federal defense.⁶ Plaintiffs did not allege in their complaint that the EFTs were in any way involved in Williams's asbestos exposure at Lockheed Martin, and they now disclaim any previous assertion that the EFTs were involved in the alleged asbestos exposure, asserting that Williams's deposition testimony was mistaken. On appeal, Plaintiffs make several arguments challenging the district court's subject-matter jurisdiction on this basis.

As part of their argument for lack of subject-matter jurisdiction, Plaintiffs assert that removal was improper because the district court was not permitted to look beyond the allegations in the complaint at the time of removal. There is some debate among courts as to whether a district court is limited to the allegations in the complaint, whether it is limited to the complaint and the notice of removal, or whether it can look at the full state-court record at the time of removal.⁷ The majority view is that the district court can consider the full record to determine removability.⁸ The Third Circuit has not held explicitly which of the differing views it would apply. But in a case with facts nearly identical to this one, the Third Circuit implicitly affirmed the district court's reliance on information outside of the complaint.⁹

In Papp v. Fore-Kast Sales Co. , a tort case based on alleged workplace asbestos exposure, defendant Boeing asserted that it was not aware that plaintiff Papp was making a claim relating to Boeing's role as a federal contractor until Papp's deposition.¹⁰ During that deposition, Boeing learned for the first time that Papp's allegations related to her work on a specific aircraft that Boeing had produced for the United States military.¹¹ The Third Circuit determined that the thirty-day timeline for removal began on the date Papp was deposed because the complaint itself did not inform Boeing that all elements of federal jurisdiction were present.¹² In evaluating the removal claim, the Papp court looked not only to the complaint, but also to the facts alleged in the notice of removal, which included Papp's deposition testimony.¹³

Here, we face essentially the same scenario, though not in the context of a timeliness challenge. Lockheed Martin did not become aware that Williams was claiming asbestos exposure from work involving the EFTs until his deposition. Lockheed Martin should not be deprived of a federal forum simply because Williams did not specify in his complaint that he believed the EFTs to be a possible source of asbestos exposure. We conclude that the district court properly considered the full state-court record as it existed at the time of removal.¹⁴

Plaintiffs also argue that even if the district court could consider the full record at the time of removal, this case does not meet the requirements for removal under § 1442(a). "Unlike the general removal statute, the federal officer removal statute is to be ‘broadly construed’ in favor of a federal forum."¹⁵ A defendant must meet four requirements to properly remove a case under § 1442(a)(1) :

(1) [the defendant] is a "person" within the meaning of the statute; (2) the [plaintiff's] claims are based upon the [defendant's] conduct "acting under" the United States, its agencies, or its officers; (3) the [plaintiff's] claims against [the defendant] are "for, or relating to" an act under color of federal office; and (4) [the defendant] raises a colorable federal defense to the [plaintiff's] claims.¹⁶

Lockheed Martin easily meets the first two requirements. First, Lockheed Martin, "a corporation, is in legal fact a person."¹⁷ Second, this is an "archetypal case" of a...