United States District Court, E.D. Louisiana
STEPHEN R. LEGENDRE ET AL
HUNTINGTON INGALLS INC. ET AL
ORDER AND REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE
the Court is plaintiffs' motion to remand. For the following
reasons, the Court grants the motion and remands this matter
to state court.
over half a century, asbestos-prized for its durability and
high-heat resistance-was widely used in shipyards. Mary Jane
Wilde's father, husband, and brother worked in shipyards
which meant that they were exposed to asbestos on the job.
Jane, however, never worked in a shipyard. But that did not
stop her from developing and then ultimately dying from
mesothelioma. Before she passed away, Mary Jane filed suit in
Louisiana state court against the shipyards where her
relatives worked. Her suit alleged that she was exposed to
asbestos each night when her relatives returned home from the
shipyard and that those exposures caused her mesothelioma.
Ingalls (“Avondale”), a defendant in Mary
Jane's lawsuit, tried to remove her case to this Court on
the basis of federal officer removal jurisdiction.
See Wilde v. Huntington Ingalls, Inc., No.
15-1486, Dkt. 1 (E.D. La. 2015). 28 U.S.C. § 1442(a)
permits a defendant to remove “[a] civil action . . .
commenced in a State court and that is against or directed to
. . . 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.” In order to remove a case under
federal officer removal jurisdiction, a defendant must
“show (1) that it is a person within the meaning of the
statute, (2) that it has a colorable federal defense, (3)
that it acted pursuant to a federal officer's directions,
and (4) that a causal nexus exists between its actions under
color of federal office and the plaintiff's
claims.” Zeringue v. Crane Co., 846 F.3d 785,
789 (5th Cir. 2017) (internal quotation marks and alterations
based its removal on the allegation that the U.S. Maritime
Commission required Avondale to build ships with asbestos
parts. Avondale suggested that it had a colorable federal
contractor defense on the grounds that the United States
government was responsible for the presence of asbestos at
the shipyard. See Wilde v. Huntington Ingalls, Inc.,
No. 15-1486, 2015 WL 2452350, at *1-8 (E.D. La. 2015).
Fallon found that insufficient to justify removal. In
particular, Judge Fallon observed that Mary Jane's claims
against Avondale did “not hinge on the fact that
Avondale possessed asbestos, as the mere possession of
asbestos did not allegedly cause [her] injury, but [she]
rather claims that Avondale's failure to properly handle
the asbestos material caused her injury.” Id.
at *7. Therefore, Judge Fallon found that Avondale could not
demonstrate a sufficient causal nexus to support removal
because Avondale could not demonstrate a causal relationship
between the government's requirement that Avondale use
asbestos and Avondale's supposedly-lax safety protocols.
Id. at *6 (no causal nexus on failure to warn
claims); id. at *7 (no causal nexus on remaining
appealed the remand order to the Fifth Circuit. But the Fifth
Circuit refused to intercede. The Fifth Circuit determined
that Avondale could not demonstrate a likelihood of success
on appeal because Avondale had shown neither a causal nexus
nor a colorable federal defense. See Wilde v. Huntington
Ingalls, Inc., 616 F. App'x 710, 714-17 (5th Cir.
2015). In response to Avondale's argument that Judge
Fallon misinterpreted Mary Jane's complaint to center on
Avondale's handling of asbestos (rather than the
possession of asbestos), the Fifth Circuit noted that Mary
Jane's characterization of her claims was binding due to
the uncontroversial application of judicial estoppel.
Id. at 715 & n.28 (“This concession binds
Wilde in this and future litigation.”). The case was
then remanded to state court.
Jane's case settled after remand. The settlement,
however, purported to preserve the ability of Mary Jane's
survivors to bring a wrongful death claim.
brings us to the case presently before this Court. Mary
Jane's surviving brothers-the Legendres-filed a wrongful
death lawsuit in Louisiana state court. As with Mary
Jane's prior lawsuit, the brothers' wrongful death
claim seeks to recover from Avondale because it “failed
to properly handle and control the asbestos which was in
[its] care, custody, and control.” R. Doc. No. 1-1, at
4 ¶ 10. As the brothers' briefing explains, the
have not alleged liability on the part of Avondale from mere
use of asbestos. In fact, mere use of asbestos does not
give rise to liability on the part of Avondale,
especially in a case where the allegations involve exposure
to a family member of an Avondale employee whose exposure
results not from the fact that Avondale used asbestos on its
property but because Avondale did not provide ...