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Legendre v. Huntington Ingalls Inc.

United States District Court, E.D. Louisiana

April 25, 2017


         SECTION I



         Before the Court is plaintiffs' motion[1] to remand. For the following reasons, the Court grants the motion and remands this matter to state court.


         For 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.

         Mary 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.

         Huntington 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 omitted).

         Avondale 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).

         Judge 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 claims).

         Avondale 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.

         Mary 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.

         That 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 brothers

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 ...

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