United States District Court, E.D. Louisiana
ORDER AND REASONS
ELDON E. FALLON, District Judge.
Before the Court is Plaintiffs' motion to remand to state court. (Rec. Doc. 39). Having considered the parties' briefs and the applicable law, the Court now issues this order.
As Plaintiffs Debra Meyers and Ronald Palermo ("Plaintiffs") allege, they are the adult children of Ronald Dummitt ("Mr. Dummitt"), who died of malignant mesothelioma. From 1960 to 1988, Mr. Dummitt worked as a boiler technician for the U.S. Navy. He served aboard various naval vessels. Plaintiffs allege that Mr. Dummitt was exposed to asbestos at various facilities during his work. Plaintiffs further allege that Mr. Dummitt was exposed to asbestos at various shipyards while his naval vessels were being repaired, maintained, or refitted. Plaintiffs allege that this exposure caused Mr. Dummitt's malignant mesothelioma, resulting in his death.
Plaintiffs filed suit in Louisiana state court seeking damages from a number of Defendants, who allegedly were miners, manufacturers, sellers, users, distributors and/or suppliers of asbestos products and whose actions or omissions caused Mr. Dummitt's exposure. Thereafter, Plaintiffs moved to amend their complaint, seeking to disclaim any cause of action for recovery for wrongful acts that were required by or committed at the direction of a federal officer. Later that same day, before the state court ruled on the motion to amend, Defendant GE ("GE"), joined by other Defendants, removed the case to this Court under the Federal Officer Removal Statute. Defendants asserted that their actions were compelled by federal officers - that is, Navy officials. The next day - after removal - the state court issued an untimely order to grant the motion to amend. Plaintiffs filed a similar motion for leave to amend in this Court, which was granted. Plaintiffs thus filed in this Court a First Amended Complaint with the disclaimer. Plaintiffs note that they agree to be bound by this disclaimer.
Plaintiffs' suit seeks wrongful death damages against Defendants under article 2315.2 of the Louisiana Civil Code. Plaintiffs assert, inter alia, claims of strict liability, design defect, and failure to warn, subject to their asserted disclaimer.
II. PRESENT MOTIONS
A. Plaintiffs' motion to remand
Plaintiffs now move to remand to state court. (Rec. Doc. 39). As an initial matter, Plaintiffs argue that the removing Defendants bear the burden to prove entitlement to federalofficer removal and that all doubts or ambiguities are construed against federal jurisdiction and in favor of remand, particular where the Defendants are private contractors. Specifically, Plaintiffs assert two reasons for remand. First, they argue that they have specifically disclaimed any claim against Defendants with regard to design-defect or strict-liability where Defendants' actions were compelled by federal officers. They note that as Plaintiffs, they are the master of their complaint and that their complaint expressly disclaims the purported causes of action that serve as the basis of Defendants' removal. Second, Plaintiffs argue that Defendants cannot remove on failure to warn because Defendants cannot demonstrate that their failure to warn was compelled by federal officers. Plaintiffs assert that the evidence presented by Defendants, regardless if it shows that the Navy exercised some degree of control of equipment labels and warnings, does not demonstrate that the Navy prevented Defendants from complying with their duties to warn under state law. Rather, Plaintiffs argue, evidence shows that the Navy actually required such warnings. Thus, Plaintiffs argue, Defendants cannot show a causal nexus or a colorable federal contractor defense.
Defendants oppose. Defendants argue that Plaintiffs' disclaimer is ineffective because the disclaimer was not in the petition at the time of removal, the time period when subject matter jurisdiction is assessed. They also argue that the disclaimer is ineffective because it cannot be enforced as a binding disclaimer and effectively would force resolution of the government contractor defense in state court. Additionally, Defendants argue that the government contractor defense should be assessed on the merits at the appropriate time in federal court, noting that it essentially is the heart of the case. Defendants emphasize that they only need to assert a "colorable, " not an "airtight, " defense to establish federal jurisdiction. Defendants argue that the evidence establishes the government's tight control over warnings.
Plaintiffs reply, by leave of Court. (Rec. Doc. 79). They affirm that there are only two remaining claims: (1) failure to warn; and (2) negligence claims against the Shipyard Defendants for failure to provide Mr. Dummitt with a safe place to work. They state that the amended complaint was verified and signed, thus Plaintiffs are bound by the disclaimer. They note that if, hypothetically, they tried to re-assert these disclaimed causes of action, Defendants could remove to federal court again. Plaintiffs also explained that they would file a motion to dismiss, with prejudice, those disclaimed causes of action upon return to state court.
In general, a federal law defense to a state law claim is insufficient to confer federal subject matter jurisdiction for the purposes of removal; however, the Federal Officer Removal Statute provides an exception. 28 U.S.C. §1442(a)(1); Hampton v. Owens-Illinois, 06-10929, 2007 WL 274974, *1 (E.D. La. Jan. 29, 2007) (Africk, J.). The Federal Officer Removal Statute permits the removal of a civil action brought in state court against the United States or an agency or ...