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Sheppard v. Liberty Mutual Insurance Co.

United States District Court, E.D. Louisiana

January 24, 2017


         SECTION “R” (3)



         Plaintiff Jesse Frank Sheppard moves, for the second time, to remand this case to the Civil District Court for the Parish of Orleans. Because jurisdiction in this Court remains proper under the Outer Continental Shelf Lands Act (OCSLA), Sheppard's motion is denied.

         I. BACKGROUND

         This suit was originally filed in the Civil District Court for the Parish of Orleans.[1]Defendant Mosaic Global Holdings Inc. removed to this Court on March 22, 2016.[2] In his complaint, Sheppard alleges that he worked “in various positions” for Mosaic's predecessor company, Freeport Sulphur Company.[3] During his time at Freeport, Sheppard was allegedly exposed to asbestos “[o]n a daily basis.”[4] Sheppard asserts that this exposure caused him to develop asbestos-related cancer, lung cancer, and/or mesothelioma.[5] Although Sheppard stopped working for Freeport in the early- to mid-1990s, [6] Sheppard's asbestos-related ailments were first diagnosed in October 2015.[7]

         In addition to Freeport/Mosaic, Sheppard sues several defendants involved in the manufacture, distribution, and sale of asbestos-containing products that Sheppard allegedly encountered in the course of his work.[8] Sheppard also brings claims against insurance companies that allegedly provided coverage to defendants for asbestos-related claims and withheld information from Sheppard about the danger of asbestos.[9]

         Sheppard brings claims for “negligence, intentional tort, fraud, and strict liability, ” and alleges that all defendants are “jointly, severally, and in solidio liable.”[10] He seeks damages for, among other things, physical and mental pain, loss of life, loss of income, and medical expenses.[11]

         In its notice of removal to this Court, Mosaic invoked the federal Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1331, et seq.[12] OCSLA provides a broad jurisdictional grant over “cases and controversies arising out of, or in connection with . . . any operation conducted on the outer Continental Shelf.” 43 U.S.C § 1349(b)(1). To support jurisdiction under this statute, Mosaic pointed to Sheppard's allegations that he was exposed to asbestos at Mosaic's Freeport facility, which is located on the Outer Continental Shelf.[13]

         Sheppard responded by moving to amend his complaint to remove any allegations regarding the Caminada facility.[14] Magistrate Judge Knowles denied Sheppard's motion, and found that Sheppard's proposed amendments were both futile and sought in bad faith.[15] The Court later denied Sheppard's appeal of Magistrate Judge Knowles' decision.[16] The Court also denied Sheppard's motion to remand to state court. In doing so, the Court found that “Sheppard's allegation that he suffered daily exposure to asbestos while working at Caminada, and that this exposure led to his illness, is sufficient to invoke federal jurisdiction under OCSLA.”[17]

         On the same day that it denied Sheppard's motion to remand, the Court granted Mosaic's motion to dismiss certain of Sheppard's claims for failure to plead fraud with particularity as required by Federal Rule of Civil Procedure 9(b). In doing so, the Court found that Sheppard's failure to meet the requirements of Rule 9(b) may have reflected a mere pleading defect, rather than a more fundamental problem with his claims.[18]Accordingly, the Court dismissed Sheppard's fraud claim without prejudice, and gave Sheppard leave to amend the facts supporting this claim.[19]

         Sheppard filed an amended complaint on December 9, 2016.[20] Undaunted by the Court's earlier order on this exact issue, Sheppard amended his complaint to remove the Caminada allegations.[21] Sheppard now moves, once again, for remand.[22]


         Unless a federal statute expressly provides otherwise, a defendant may remove a civil action filed in state court to federal court if the federal court would have had original jurisdiction over the case. 28 U.S.C. § 1441(a). The removing party “bears the burden of showing that federal jurisdiction exists and that removal was proper.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013) (citing Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)). In assessing whether removal was appropriate, the Court is guided by the principle, grounded in notions of comity and the recognition that federal courts are courts of limited jurisdiction, that “removal statute[s] should be strictly construed in favor of remand.” Manguno, 276 F.3d at 723 (citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)).

         III. ...

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