United States District Court, M.D. Louisiana
CURTIS D. MORGAN
DOW CHEMICAL COMPANY,
RULING AND ORDER
W. deGRAVELLES JUDGE
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.
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
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.
Factual and Procedural Background
Plaintiff's State Court Action
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.)
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.)
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.)
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.)
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.)
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.) 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.)
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
A. Yes, sir. I just don't remember it.
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.)
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
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.
Motion to Remand
‘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.”).
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
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).
“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). 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).
Removal Procedures Generally
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”).
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.
“Other Paper” as Depositions-Live Testimony v.
The Issue and ...