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Morgan v. Dow Chemical Co.

United States District Court, M.D. Louisiana

June 21, 2017




         This matter comes before the Court on Plaintiff's Motion to Remand and Request for Attorneys' Fees and Costs (Doc. 9) filed by Plaintiff Curtis Morgan. Defendants Huntington Ingalls Incorporated (f/k/a Northrup Grumman Ship Systems, Inc., f/k/a Avondale Industries, Inc.), J. Melton Garrett, Albert L. Bossier, Jr., and Lamorak Insurance Company, in its capacity as alleged insurer of Avondale Industries, Inc., and its alleged executive officers (collectively, “Avondale”) oppose the motion. (Doc. 53.) Plaintiff has filed a reply. (Doc. 66.) Oral argument is not necessary. The Court has carefully considered the law, the facts in the record, and the arguments and the submissions of the parties and is prepared to rule.

         This Court joins the majority of other courts considering this issue and finds that Avondale was required to remove this suit, not within thirty days of receipt of the transcript of the Plaintiff's deposition, but rather within thirty days of the deposition itself. Avondale failed to do so. As a result, removal was untimely. The Court will thus grant the Plaintiff's motion in part and remand this suit to state court.

         Nevertheless, the Court also finds that Avondale had an objectively reasonable basis for believing that removal was timely. Consequently, Plaintiff's request for costs and expenses will be denied.

         I. Factual and Procedural Background

         A. Plaintiff's State Court Action

         On February 23, 2017, Plaintiff filed a Petition for Damages in the 18th Judicial District Court for the Parish of Iberville. (Doc. 9-16.) Plaintiff named Avondale as a defendant, among others. (Doc. 9-16 at 3.)

         Plaintiff alleges that “[o]n a daily basis during [his] employment” with Avondale, he “was exposed to dangerously high levels of toxic substances, including asbestos, and asbestos containing products . . . in the normal routine course of his work.” (Doc. 9-16 at 4.) Plaintiff further asserts that, “[a]s a result of these exposures to toxic substances, including asbestos, [he] contracted asbestos-related mesothelioma and other related ill health effects, which were first diagnosed on approximately December 21, 2016.” (Id.)

         Plaintiff is dying, and Plaintiff represents that a hearing for a preferential trial setting was scheduled for April 28, 2017. (See Doc. 9-8.) On the day before the hearing, Avondale filed a notice of removal to this Court. (Doc. 1.)

         B. Plaintiff's Deposition

         Earlier in the case, Plaintiff was deposed for an extended period of time beginning on March 9, 2017. (Docs. 9-11, 1-4.) Counsel for Avondale began questioning Plaintiff on March 10, 2017, and later continued on March 20, 2017. (Doc. 9-11 at 4, 9.)

         Plaintiff stated that he had no reason to disagree that he worked for Avondale from February 28, 1966, to August 9, 1966. (Doc. 9-11 at 9.) During that time, he worked as a sheet metal helper. (Id.) Plaintiff testified that all his work for Avondale was at Avondale's main yard and on one vessel, a Lykes vessel. (Doc. 9-11 at 10.) He did not remember any other type of vessel that he worked on other than the one Lykes vessel. (Id.)

         Avondale's attorney then questioned Plaintiff about his alleged work on the USS Huntsville. (Id.) Avondale began its questioning as follows: “Mr. Morgan, I will represent to you, and I'm happy to show them to you, I've got your Avondale records, and during your Avondale employment, it shows that you had six different injuries, minor injuries, working aboard a vessel called the USS HUNTSVILLE.” (Id.)[1] Plaintiff specifically testified that he did not remember that vessel. (Id. (“Q. Do you remember that vessel at all? A. No. I thought I was just on that one, but maybe not.”).) Plaintiff was then asked about specific injuries he allegedly suffered on the USS Huntsville, including dropping hot slag on his shoe and burning his eyes, but none of these incidents reminded him of working on the USS Huntsville. (Doc. 9-11 at 11.)

         Plaintiff was then asked:

Q. So as you sit with us, the only vessel you can recall working on would be the one Lykes vessel?
A. Yes, sir.
Q. But if the records indicate that you had those injuries aboard the HUNTSVILLE, you would agree that you worked on the HUNTSVILLE?
A. Yes, sir. I just don't remember it.


         Plaintiff also provided testimony concerning what exactly he did on the Lykes vessel, such as working in the engine spaces and carrying metal sheets across the top of the ship. (Id.) He also discussed insulators and others cutting and installing wallboards aboard the Lykes vessel. (Doc. 9-11 at 10-13.) Plaintiff stated that he was exposed to the dust generated by these other activities on the Lykes vessel. (Doc. 9-11 at 14.)

         Counsel for Avondale later returned his questioning to the USS Huntsville. He asked whether, as they discussed Plaintiff's work for Avondale, Plaintiff could remember working aboard that ship. (Doc. 9-11 at 15.) Plaintiff stated that he could not and that he remembered working on one Lykes vessel. (Id.) Avondale's attorney then asked Plaintiff if he remembered the “total number of ships” he worked on during his employment with Avondale, and Plaintiff replied: “No, sir. Because it seemed like they were always in the same spot, so I just figured it was the same ship. I'm trying to place them. I don't know.” (Id.) Counsel then asked, “Is it your belief that you worked on more than one ship?”, and Plaintiff replied, “I guess. You said I worked on that other one, so I guess so. Yes sir.” (Id.) Plaintiff was asked later, “And so it's your belief, is it not, that you likewise would have worked around the insulators on the HUNTSVILLE?”, and Plaintiff responded, “Yes, sir.” (Doc. 9-11 at 16.)

         Avondale received a link to the deposition transcript on March 28, 2017. (Doc. 1-5.) Avondale then removed the case on April 27, 2017-thirty days after receiving the transcript and thirty-eight days after Avondale questioned the Plaintiff about his time on the USS Huntsville.

         II. Discussion

         A. Motion to Remand

         1. Removal Standards

         “As ‘the effect of removal is to deprive the state court of an action properly before it, removal raises significant federalism concerns.' ” Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007) (quoting Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365-66 (5th Cir. 1995)). Thus, as a general rule, “[t]he removal statute is . . . to be strictly construed, and any doubt about the propriety of removal must be resolved in favor of remand.” Gasch, 491 F.3d at 281-82 (citing Carpenter, 44 F.3d at 366; Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000)); see also Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing Acuna, 200 F.3d at 339) (“Any ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand.”).

         However, in this case, Avondale has removed under the federal officer removal statute, 28 U.S.C. § 1442. This “statute speaks in broad language allowing the removal of any state case commenced against[, ]” among others, the following:

The United States or any agency thereof or 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 or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 461 (5th Cir.), reh'g denied, reh'g en banc denied, 824 F.3d 468 (5th Cir.), cert. denied, 137 S.Ct. 339, 196 L.Ed.2d 262 (2016) (quoting 28 U.S.C. § 1442(a)(1)). Unlike the general rules governing removal, the following guidelines govern the interpretation of the federal officer removal statute and the review of cases removed under it:

Orders remanding a case to state court are generally not reviewable. See 28 U.S.C. § 1447(d). The statute governing removal procedure provides for only two exceptions: remand orders involving certain civil rights cases, 28 U.S.C. § 1443, and remand orders involving the federal officer removal statute, 28 U.S.C. § 1442. See 28 U.S.C. § 1447(d).
Our unusual ability to review a remand order in this context reflects the importance Congress placed on providing federal jurisdiction for claims asserted against federal officers and parties acting pursuant to the orders of a federal officer. See Watson v. Philip Morris Cos., 551 U.S. 142, 147, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007); Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398 (5th Cir. 1998) (both noting that the Supreme Court has long required “liberal” construction of the statute). The reasons for federal jurisdiction in cases against federal officers and their agents borrow from the rationales for both diversity and federal question jurisdiction. See Watson, 551 U.S. at 150, 127 S.Ct. 2301 (describing the purposes of federal officers' right to remove cases to federal court). As with diversity jurisdiction, there is a historic concern about state court bias. See Id. (“State-court proceedings may reflect ‘local prejudice' against unpopular federal laws or federal officials.” (quoting Maryland v. Soper (No. 1), 270 U.S. 9, 32, 46 S.Ct. 185, 70 L.Ed. 449 (1926))); Willingham v. Morgan, 395 U.S. 402, 405, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969) (“Obviously, the removal provision was an attempt to protect federal officers from interference by hostile state courts.”). As with federal question jurisdiction, there is a desire to have the federal courts decide the federal issues that often arise in cases involving federal officers. See Watson, 551 U.S. at 150, 127 S.Ct. 2301 (emphasizing the importance of “federal officials [having] a federal forum in which to assert federal immunity defenses”); see also 14C Charles Alan Wright & Arthur R. Miller, Federal Practice And Procedure § 3726 (4th ed. 2015) (noting that one of the statute's “basic purposes” is to ensure federal officers have a “federal forum in which to assert federal immunity defenses”). . . .
Before reviewing the district court's finding . . ., we note another manifestation of the statute's “liberal construction” that impacts our analysis. Although the principle of limited federal court jurisdiction ordinarily compels us to resolve any doubts about removal in favor of remand, see Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000), courts have not applied that tiebreaker when it comes to the federal officer removal statute in light of its broad reach, see Watson, 551 U.S. at 147, 127 S.Ct. 2301 (emphasizing the statute's “broad language”). We thus review the district court's decision de novo, without a thumb on the remand side of the scale. See Winters, 149 F.3d at 398 (“[The] right [of removal] is not to be frustrated by a grudgingly narrow interpretation of the removal statute.”); see also Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006) (“We take from [the statute's] history a clear command from both Congress and the Supreme Court that when federal officers and their agents are seeking a federal forum, we are to interpret section 1442 broadly in favor of removal.”); City of Cookeville, Tenn. v. Upper Cumberland Elec. Membership Corp., 484 F.3d 380, 390 (6th Cir. 2007) (the same) (citing Durham ).

Id. at 460-62 (footnote omitted).

         Nevertheless, “such ‘broad language [of § 1442] is not limitless, ' even in a statute that should be afforded a ‘liberal construction[.]' ” Savoie, 817 F.3d at 461 (quoting Watson, 551 U.S. at 147, 127 S.Ct. at 2304-05).[2] Further, “when faced with a motion to remand, it is the defendant's burden to establish the existence of federal jurisdiction over the controversy, ” even when the defendant bases removal on § 1442. Winters, 149 F.3d at 397 (citations omitted).

         2. Removal Procedures Generally

         The procedure for removal is set forth in 28 U.S.C. § 1446, and this statute also prescribes the time limits for removal. Section 1446 provides in relevant part:

. . . [i]f the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty 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. § 1446(b)(3). “[W]here the timeliness of a federal officer's removal is at issue, we extend section 1442's liberal interpretation to section 1446.” Durham, 445 F.3d at 1253 (holding “that a federal officer defendant's thirty days to remove commence when the plaintiff discloses sufficient facts for federal officer removal, even if the officer was previously aware of a different basis for removal”).

         “A discovery response may constitute an ‘other paper' under the federal removal statute, notifying defendant of an action's removability and triggering the 30-day removability period.” Cole ex rel. Ellis v. Knowledge Learning Corp., 416 F.App'x 437, 440 (5th Cir. 2011) (citing S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996); Chapman v. Powermatic, Inc., 969 F.2d 160, 164 (5th Cir. 1992)). “To qualify as an ‘other paper', however, the discovery response must be ‘unequivocally clear and certain', so that defendant may ascertain the action's removability.” Id. (citing Bosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir. 2002)). Thus, in Robinson v. Kmart Corp., No. 11-12, 2011 WL 2790192 (M.D. La. Apr. 28, 2011), report and recommendation adopted, No. 11-12, 2011 WL 2937952 (M.D. La. July 14, 2011), this Court found that “defendant timely removed this matter within thirty days of receipt of plaintiffs' responses to interrogatories and requests for production of documents[, ]” including medical records. Id., 2011 WL 2790192, at *4. Similarly, in Shields v. Washington National Insurance Co., 375 F.Supp.2d 1346 (M.D. Ala. 2005), the “court again conclude[d] that a deposition can, and in this case does, constitute ‘other paper' so that the second removal is timely.” Id. at 1349.

         3. “Other Paper” as Depositions-Live Testimony v. Transcript

         a. The Issue and ...

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