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Blouin v. Huntington Ingalls Inc.

United States District Court, E.D. Louisiana

June 19, 2017

VICTOR J. BLOUIN SR.,
v.
HUNTINGTON INGALLS INC.,

         SECTION: "A" (3)

          ORDER

          JAY C. ZAINEY UNITED STATES DISTRICT JUDGE

         The following motion is before the Court: Motion to Remand (Rec. Doc. 7) filed by Plaintiffs, Victor Blouin, Sr., Victor Blouin, Jr., and Nicole C. Blouin, individually and as the statutory heirs of Ruth E. Blouin. Defendant Huntington Ingalls Inc. (“Avondale”) opposes the motion. The motion, submitted for consideration on May 3, 2017, is before the Court on the briefs without oral argument. For the reasons stated herein, the motion is GRANTED.

         I. BACKGROUND

         Plaintiffs initiated this action in state court against Avondale and others asserting survival and wrongful death claims as the heirs and statutory wrongful death beneficiaries of Ruth E. Blouin. Ms. Blouin contracted mesothelioma and allegedly died as a result of the disease. Plaintiffs allege that Ms. Blouin's mesothelioma was caused in part by exposure to asbestos while laundering the work clothes of her husband, Victor J. Blouin, Sr.[1] Mr. Blouin was employed at Avondale from April 1972 to August 1972, where he was exposed to asbestos while working as an electrician on two government vessels. The crux of the claims against Avondale is that Avondale failed in its duties under state law to warn of the hazards of asbestos and failed to implement any of the many industrial hygiene and engineering safeguards then known to lessen or eliminate asbestos exposure. Plaintiffs do not assert claims against Avondale based on the theory of strict liability. (Rec. Doc. 7-1, Memo in Support at 4).

         No party suggests that the initial pleadings put Avondale on notice that the case was removable.[2] Importantly, the factual allegations did not link the Blouines' exposure to any vessels being built by Avondale under contracts with the United States government. (Rec. Doc. 1, Notice of Removal ¶ 4). But on February 17 and 20, 2017, Victor Blouin, Sr. was deposed. Mr. Blouin testified that during his short time with Avondale he worked aboard only two ships-a destroyer escort and a Coast Guard cutter, both of which were United States government ships. (Rec. Doc. 7-19, Blouin deposition at 52-53).

         Avondale's counsel received the deposition transcript from the court reporter on March 2, 2017. (Rec. Doc. 1-5, Thornhill affidavit). Avondale filed its notice of removal on March 28, 2017.

         Plaintiffs now move to remand the case to state court. First, Plaintiffs contend mesothelioma case. that the removal was untimely because Avondale waited more than 30 days from the date of Mr. Blouin's deposition to file its notice of removal. Second, Plaintiffs contend that this case does not meet the standard for removability under 28 U.S.C. § 1442, the federal officer removal statute. The Court considers each of these contentions in turn.

         II. LAW AND ANALYSIS

         A. Timeliness

         Title 28 U.S.C. § 1446 governs the procedural aspects of removal, including timeliness. Again, no party suggests that the initial pleadings (or any of the pleadings for that matter) put Avondale on notice that the case was removable. Therefore, the removal in this case was governed by ' 1446(b)(3). Section 1446(b)(3) provides that

[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order, or other paper from which it may first be ascertained that the case is one which is or has become removable.

28 U.S.C.A. § 1446(b)(3) (West Supp. 2016) (emphasis added). Thus, pursuant to the foregoing plain language of ' 1446(b)(3), the timeliness of the removal in this case turns on whether Avondale removed the case within 30 days of receipt of a copy of "an amended pleading, motion, order, or other paper” from which it could "first be ascertained" that the case was removable. The “other paper” that Avondale relies upon is the transcript of Victor J. Blouin, Sr.'s discovery deposition. But because the deposition testimony itself gave Avondale actual notice of its asserted basis for removal, Plaintiffs contend that the 30-day time clock was triggered on February 17, 2017, and expired on March 19, 2017, [3] well before Avondale removed the case. Avondale takes the position, however, that the plain language of the statute does not trigger the 30-day period for removal unless the defendant receives something in writing, which means that only the deposition transcript itself could trigger the 30-day countdown imposed by § 1446(b)(3). Thus, resolution of Plaintiffs' first challenge to the removal turns on the legal question of whether the 30-day period for removal was triggered when Mr. Blouin testified at his deposition or whether it was triggered when Avondale received the deposition transcript from the court reporter.

         In Huffman v. Saul Holding Ltd., 194 F.3d 1072 (10th Cir. 1999), the Tenth Circuit squarely addressed the issue of whether the giving of the deposition testimony itself or the receipt of the court reporter's transcript constituted “other paper” for purposes of triggering § 1446(b)(3)'s 30-day deadline. The Huffman court, after observing that the majority of federal district courts have not required receipt of an actual written document, held that it was the deposition testimony not the court reporter's transcript that triggered removal. Id. at 1078. In so holding, the court explained that deposition testimony stands on equal footing with written forms of discovery, such as interrogatories and requests for information. Id. Further, the rules of civil procedure do not impose a deadline for producing a transcript of a deposition so the date of receipt of a transcript may be subject to manipulation. Id.

         Other non-controlling cases have reached a similar result. See, e.g., In re Vioxx Prods. Liab. Litig., No. MDL 1657, 2005 WL 3542885 (E.D. La. Nov. 23, 2005) (Fallon, J.); Campos v. Housland, Inc., 824 F.Supp. 100 (S.D. Tex. 1993); King v. Kayak Manufacturing Corp., 688 F.Supp. 227 (N.D. W.Va. 1988) (finding that the district court's oral ruling from the bench and not receipt of the court's written order triggered removability).

         The Court notes that this case does not present a factual scenario where the removing party actually learns of removability or first ascertains it upon receiving a deposition transcript from a court reporter. The facts that rendered the case removable were revealed to all parties on February 17, 2017, the date of Mr. Blouin's deposition. Avondale was not only represented at Mr. Blouin's deposition, its counsel questioned Mr. Blouin at length, and in particular about the government vessels at issue. Counsel's questions touched upon factual inquiries pertinent to a potential federal defense and federal officer removal. (Rec. Doc. 7-19, Blouin deposition at 52-53). Avondale had “unequivocally clear and certain” evidence at that point regarding removability, see ...


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