United States District Court, E.D. Louisiana
ORDER AND REASONS
MARTIN L. C. FELDMAN, District Judge.
Before the Court is the plaintiffs' motion to remand. For the reasons that follow, the motion is DENIED.
This lawsuit arises from alleged property damage caused by construction of the Dwyer Road Intake Canal in New Orleans. The plaintiffs, who are individual residents of New Orleans, brought this proposed class action in Orleans Parish Civil District Court against Hill Brothers, the Sewerage & Water Board of New Orleans, Richard C. Lambert Consultants, Blue Iron, and various unnamed insurers. Hill Brothers, who had been contracted by the U.S. Army Corps of Engineers, removed the case on June 14, 2013, pursuant to 28 U.S.C. § 1442(a)(1), because it alleged a government contractor immunity defense. Other parties were added to the case after removal.
In April 2014, Magistrate Judge North ordered that the parties submit briefing about the governmental immunity defense and its implications for subject matter jurisdiction; the plaintiffs did not move for remand. Magistrate North set a discovery schedule, and several months later, the plaintiffs moved for partial summary judgment as to Hill Brothers' governmental immunity defense. Seven weeks ago, before recusing herself from the case, Judge Berrigan denied without prejudice the plaintiffs' attempt to dismiss Hill Brothers' government contractor immunity defense, finding that the plaintiffs had "significant gaps" in evidentiary support. The Court found that adjudication of the merits of Hill Brothers' defense "should be postponed until the parties have conducted further discovery."
After Judge Berrigan's recusal, the case was re-allotted to this Section of the Court, and the pending evidentiary hearing on the motion to certify class was cancelled. The plaintiffs were instructed to re-submit their motion in accordance with the page limit provided by the Local Rules and to include as exhibits all evidence they wished the Court to consider, and a briefing schedule was set. The plaintiffs later asked for an extension of the briefing schedule, stating that they needed more time to prepare the exhibits. The Court granted the request, only to discover that perhaps the extra time was in fact sought for the filing of this motion to remand.
The Federal Officer Removal Statute, 28 U.S.C. § 1442, permits the removal of any civil or criminal action brought in state court when the defendant in the matter is:
The 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, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
28 U.S.C. § 1442(a)(1). The Fifth Circuit has recognized that the purpose of removal pursuant to this statute is to "ensure a federal forum in any case where a federal official is entitled to raise a defense arising out of his official duties, " and that "this right is not to be frustrated by a grudgingly narrow interpretation of the removal statute." Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387, 398 (5th Cir. 1998). The removing defendant has the burden of establishing the existence of federal jurisdiction. Id. at 398. Removal under § 1442(a)(1) is proper only when the defendant: (1) is a "person" within the meaning of the statute, (2) who acted under color of federal authority when he committed the acts that allegedly led to the plaintiffs' injuries, and (3) has a "colorable federal defense." Mesa v. California, 489 U.S. 121 at 131-32 (1989); Winters, 149 F.3d at 398.
The plaintiffs contend that remand is proper because Hill Brothers did not strictly comply with the specifications of the U.S. Army Corps of Engineers. Hill Brothers and several other parties submit that this Court has subject matter jurisdiction, that Hill Brothers can easily make a showing of a "colorable federal defense, " and that the plaintiffs misstate the requirements of § 1442(a)(1). The Court agrees.
A. Person under § 1442(a)(1)
Corporate entities may qualify as persons under 28 U.S.C. § 1442. Winters, 149 F.3d at 398. At all relevant times, Hill Brothers was a corporation. Moreover, the plaintiffs make no argument ...