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Savoie v. Pennsylvania General Insurance Co.

United States District Court, E.D. Louisiana

June 2, 2017

LORITA M. SAVOIE
v.
PENNSYLVANIA GENERAL INSURANCE CO., ET AL

         SECTION: J(3)

          ORDER AND REASONS

          CARL J. BARBIER UNITED STATES DISTRICT JUDGE

         This matter is on remand from the United States Court of Appeals for the Fifth Circuit, which vacated this Court's previous Order and Reasons granting a Motion to Remand (Rec. Doc. 23) filed by Plaintiffs, Lorita Savoie, et al. (“Plaintiffs”). See Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 463, 466 (5th Cir.), cert. denied, 137 S.Ct. 339, 196 L.Ed.2d 262 (2016). In accordance with the Fifth Circuit's directive, this Court now takes up Plaintiffs' Motion to Remand (Rec. Doc. 23) to determine whether Defendants can demonstrate the existence of a colorable federal defense. Both parties have filed supplemental memoranda on the issue. (Rec. Docs. 137 and 138.) Having considered the motion, the parties' submissions, the record, and the applicable law, the Court finds, for the reasons expressed below, that the motion should be DENIED.

         PROCEDURAL HISTORY AND BACKGROUND FACTS

         This matter arises from claims originally filed by Joseph Savoie (“Decedent”), who had contracted mesothelioma, a cancer of the lining of the lung, which is caused by exposure to asbestos. Decedent originally filed this lawsuit in the Civil District Court for the Parish of Orleans, State of Louisiana in August 2014. In his original petition for damages, Decedent alleged that he was exposed to asbestos during the period in which he was employed by Huntington Ingalls, Inc. (“Avondale”)[1] in various positions from approximately 1948 through 1996. Decedent specifically asserts that he was exposed to asbestos on a daily basis, both at the job-site and while he was traveling to and from work with other Avondale employees who carried asbestos on their clothing and persons. In his petition, Decedent included a substantial number of state law causes of action, including but not limited to: failure to warn employees of the dangers associated with asbestos, failure to provide a safe working environment, and strict liability as custodians of the asbestos. (Rec. Doc. 1-1 at 5-6.) Subsequent to filing this lawsuit, Decedent died as a result of his mesothelioma. Plaintiffs, Decedent's surviving wife and children, then filed an amended petition for damages, joining the lawsuit, and seeking survival and wrongful death damages pursuant to Louisiana law.

         Defendants removed the lawsuit to this Court on April 16, 2015, asserting that this Court has subject matter jurisdiction over the matter pursuant to the Federal Officer Removal Statute, 28 U.S.C. § 1442. Plaintiffs then filed a motion to remand, arguing that the Federal Officer Removal Statute does not provide a basis for federal jurisdiction. This Court granted Plaintiffs' motion to remand, finding that Defendants failed to establish that this Court has jurisdiction over Plaintiffs' failure to warn and strict liability claims. Specifically, this Court held that Defendants did not demonstrate that Avondale acted under the direction of a federal officer or that a causal nexus existed between Plaintiffs' claims and Avondale's actions. (Rec. Doc. 30 at 15, 17.)

         Defendants appealed to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit affirmed this Court's order regarding Plaintiffs' failure to warn and negligence claims, but reversed this Court's conclusion regarding Plaintiff's strict liability claims. Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 463, 466 (5th Cir.), cert. denied, 137 S.Ct. 339, 196 L.Ed.2d 262 (2016). The Fifth Circuit found that a causal nexus exists between Plaintiffs' strict liability claims and Avondale's actions under color of federal authority. Id. at 465-66. The case was then remanded to this Court to determine whether Avondale possesses a colorable federal defense.

         Following the Fifth Circuit's ruling, this Court held a telephone conference during which it ordered Avondale to produce certain government contracts upon which it bases its government contractor defense. (See Rec. Doc. 47.) After Avondale produced this information, the Court allowed both parties to submit supplemental briefing on whether Avondale possesses a colorable federal defense. That issue is now before the Court.

         PARTIES' ARGUMENTS

         Plaintiffs argue that Defendants failed to make a colorable showing of a federal defense in both their notice of removal and their original opposition to remand. They argue that Defendants should be precluded from providing any supplemental evidence at this point because the Fifth Circuit's opinion did not indicate that further briefing was necessary. Plaintiffs also argue that Defendants have not demonstrated a colorable federal defense even if supplemental evidence is considered. For instance, Plaintiffs argue that Defendants fail to make a colorable showing that Avondale was required by the federal government to use asbestos because any such requirement would also have mandated that Avondale satisfy safety requirements which Plaintiffs argue Avondale failed to do. Furthermore, Plaintiffs argue that Defendants have not demonstrated that Avondale conformed to government specifications regarding safety. Finally, Plaintiffs argue that Defendants have not established that the government had more knowledge about the hazards of asbestos than Avondale.

         In opposition, Defendants first argue that they should be permitted to provide supplementary evidence because 28 U.S.C. § 1653 is to be broadly construed. Defendants also argue that removal is proper because they have demonstrated all necessary elements of a colorable federal defense.

         LEGAL STANDARD

         A defendant may remove a civil action filed in state court if a federal court would have had original jurisdiction over the action. See 28 U.S.C. § 1441(a). The removing party bears the burden of proving by a preponderance of the evidence that federal jurisdiction exists at the time of removal. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). The jurisdictional facts supporting removal are examined as of the time of removal. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). Ambiguities are construed against removal and in favor of remand, because removal statutes are to be strictly construed. Manguno v. Prudential Prop. & Cas. Ins., 276 F.3d 720, 723 (5th Cir. 2002).

         Federal courts have original jurisdiction over cases which pose a "federal question, " by "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C.A. § 1331 (1980). Courts consider whether a case poses a federal question pursuant to the "well-pleaded complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. ...


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