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Boyd v. Boeing Co.

United States District Court, E.D. Louisiana

July 14, 2015



JAY C. ZAINEY, District Judge.

Before the Court is a Motion to Remand, or, Alternatively, To Sever and Remand the State-Law Based Claims Against the Other Defendants (Rec. Doc. 17) filed by plaintiffs Patsy S. Boyd, Wayne P. Boyd, Wheldon J. Boyd, and Elizabeth Legasse, as the heirs of Wheldon J. Boyd, Sr. ("Boyd"). Defendants The Boeing Company ("Boeing") and United Technologies Corporation ("UTC") have each filed an opposition to the motion. The motion, set for hearing on March 11, 2015, is before the Court on the briefs without oral argument.


The instant case was originally filed by Plaintiffs in the 25th Judicial District Court for the Parish of Plaquemines, Louisiana. Plaintiffs allege that the decedent contracted malignant mesothelioma as a direct and proximate result of having inhaled, ingested, or otherwise been exposed to asbestos. Decedent was diagnosed with mesothelioma on December 3, 2013 and died on March 30, 2014. According to Plaintiffs, decedent's asbestos exposure occurred during his time as a civilian flight mechanic at the "Belle Chasse Air Force Base" ( i.e., Naval Air Station Joint Reserve Base New Orleans) from "the early 1950s through []1979." During this time, decedent worked on F-100 and F-102 jets assembled by a company now incorporated into Boeing with engines developed by a division of UTC. Plaintiffs allege that the engine and other component parts of the plane contained asbestos, in addition to parts of the hangars in which the planes were stored. Plaintiffs allege that Defendants knew or should have known of the dangers presented by asbestos, but failed to warn decedent about such dangers and even actively concealed the dangers. Defendant Boeing was served with Plaintiffs' Petition on December 8, 2014, and filed its Notice of Removal (Rec. Doc. 1) with this Court on January 7, 2015.

In the Petition, Plaintiffs allege that the "products mined, manufactured, sold, distributed, supplied, and/or used by these defendants were defective" due to: 1) the mining, manufacture, sale, supply, distribution and use of products that are unreasonably dangerous, or unreasonably dangerous per se; 2) the mining, manufacture, sale, supply, distribution and use of products that possess inherent and known properties that make them unreasonably dangerous by presenting high potential for causing serious injury, such as respiratory disease, cancer, and other health problems to the [decedent] who would be foreseeably exposed to them []as a result of their intended use; 3) lack of warning or of sufficient warning of the hazards these products would present in the course of their normal foreseeable use or intended use; 4) lack of safety instructions or of sufficient safety instructions for eliminating or reducing the health risks associated with the intended use of these products; 5) failure of [D]efendants to inspect these products to assure sufficiency and adequacy of warnings and safety cautions; 6) failure to test or adequately test these products for defects or hazards they could present to the intended or foreseeable users; 7) failure to truthfully report or adequately report the results of product testing and medical studies associated with foreseeable hazards of these products by intended or foreseeable users; 8) failure to properly design these products when the nature of the product did not require use of asbestos mineral or where alternate, equally suitable substances were readily available; 9) defects in the composition and construction of these products; 10) failure to recall these products mined, manufactured, sold, distributed and/or supplied; 11) failure to properly package these products so that they could be safely transported, handled, stored or disposed of; 12) overwarranting the safety of these products that were manufactured, sold, supplied and/or used by Defendants; and 13) liability to Petitioner in strict liability for things in their garde, possession, custody or control, pursuant to article 2317 of the Louisiana Code of Civil Procedure that have caused harm to Petitioner.

Plaintiffs conclude that these defects and Defendants' negligence were the proximate causes of decedent's injuries.

Via the instant motion, Plaintiffs move to remand this case to state court. Plaintiffs urge that the Court lacks subject matter jurisdiction over this case because Defendants cannot meet the requirements for removal set forth in 28 U.S.C. § 1442(a)(1). In the alternative, Plaintiffs seek to have their state law claims against the other defendants severed and remanded.


Federal courts are courts of limited jurisdiction. Howery v. Allstate Insurance Co., 243 F.3d 912, 916 (5th Cir. 2001) (citing Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). The Court must assume that a suit lies outside this limited jurisdiction until jurisdiction is established. Id. When a case is removed from state court, the removing party bears the burden of showing that federal jurisdiction exists and that removal was proper. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing DeAguilar v. Boeing Co., 47 F.3d 1404 (5th Cir. 1994); Jernigan v. Ashland Oil Inc., 989 F.2d 812 (5th Cir. 1993) (per curiam); Willy v. Coastal Corp., 855 F.2d 1160 (5th Cir. 1988)).

Given that Boeing removed the suit to this court, [1] it bears the burden of establishing a basis for federal subject matter jurisdiction. Any doubt regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction and in favor of remand. Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)(citing Willy, 855 F.2d at 1164). Defendant has invoked jurisdiction under 28 U.S.C. § 1442(a)(1), asserting that at the time of the alleged failure to warn, Boeing was acting under the direction and control of the United States Government.

28 U.S.C. § 1442(a)(1), the federal officer removal statute, provides that removal is permitted in any case in which the defendant 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, sued in an official or individual capacity for 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 statute is designed to protect officers of the federal government, who when acting pursuant to authority granted them under federal law, run afoul of the laws of a state. Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 397 (5th Cir.1998) (quoting Willingham v. Morgan, 395 U.S. 402 (1969)). One of the most important functions of this right of removal is to allow a federal court to determine the validity of an asserted official immunity defense. Id. The Supreme Court has held that this right is "not to be frustrated by a grudgingly narrow interpretation of the removal statute"; its broad construction and the unique purpose of the statute require that it be "liberally construed." Willingham, 395 U.S. at 407; State of La. v. Sparks, 978 F.2d 226, 232 (5th Cir.1992) (noting Supreme Court requirement of liberal interpretation for over two decades); Watson v. Philip Morris Companies, Inc. 551 U.S. 142 (2007) (quoting Colorado v. Symes, 286 U.S. 510 (1932)).


Federal officer removal is appropriate where 1) the defendant is a "person" within the meaning of the statute; 2) the defendant acted pursuant to a federal officer's directions when committing the acts that allegedly give rise to the injury at issue; and 3) the defendant can assert a colorable defense. Winters, 149 F.3d at 397 (quoting Willingham, 395 U.S. 402).

The parties do not dispute that Boeing, as a corporation, is a person within the meaning of ...

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