United States District Court, E.D. Louisiana
VICTOR J. BLOUIN SR.,
HUNTINGTON INGALLS INC.,
ZAINEY UNITED STATES DISTRICT JUDGE
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.
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. 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).
party suggests that the initial pleadings put Avondale on
notice that the case was removable. 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).
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,
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.
LAW AND ANALYSIS
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,
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.
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
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).
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 ...