United States District Court, E.D. Louisiana
DIANE PITRE, ET AL.
HUNTINGTON INGALLS, INC., ET AL.
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
the Court is plaintiffs' motion to remand to state court,
Defendants Huntington Ingalls, Inc. and Lamorak Insurance
Company's motion for review of the Magistrate Judge's
order granting plaintiffs leave to amend their
complaint. For the following reasons, the Court
denies both motions.
case arises out of alleged asbestos exposure at Avondale
Shipyard in Avondale, Louisiana. Stewart Pitre worked as a
pipefitter for Avondale Shipyard from 1963 to
1972. Mr. Pitre developed lung cancer, allegedly
as a result of exposure to asbestos at Avondale Shipyard, and
passed away on July 15, 2016.
April 6, 2017, Mr. Pitre's wife and children filed an
action in state court for wrongful death and
survival. Plaintiffs named numerous defendants,
including Huntington Ingalls, Inc. (Avondale) and Foster
Wheeler, LLC. Plaintiffs' original petition
included, among other causes of action, failure to warn and
other negligence claims against Avondale, and strict products
liability and failure to warn claims against Foster
Wheeler.Foster Wheeler allegedly produced boilers
with asbestos-containing insulation that Mr. Pitre came into
contact with aboard vessels at Avondale.On June 30, 2017,
plaintiffs filed a first amended petition adding Occidental
Chemical Corporation as a defendant, and asserting strict
liability claims against both Avondale and Occidental
27, 2017, Chester Rodrigue, a former coworker of Mr.
Pitre's, testified in a deposition that he worked with
Mr. Pitre on Destroyer Escorts built by
Avondale. Avondale and its alleged insurer,
Lamorak Insurance Company, removed this case to federal court
on July 24, 2017. Avondale and Lamorak argue that they are
entitled to remove this matter under 28 U.S.C. §
1442(a)(1) because plaintiffs' claims are for or related
to acts performed under color of federal office while
Avondale was acting under the authority of an officer of the
United States. The notice of removal asserts that
removal is timely because it came within 30 days of Mr.
Rodrigue's testimony, which provided the first notice
that Mr. Pitre's alleged injuries were connected to
asbestos-containing materials on Destroyer Escorts built by
Avondale for the U.S. Navy. See 28 U.S.C. §
August 23, 2017, plaintiffs requested leave to file an
amended complaint to delete their strict liability claims
against Avondale. Magistrate Judge North granted
plaintiffs leave to amend. Avondale and Lamorak Insurance
now appeal Judge North's decision. Plaintiffs
oppose defendants' appeal, and move to remand this action
to state court.
federal officer removal statute permits an officer of the
United States, “or any person acting under that
officer, ” to remove to federal court a civil action or
criminal prosecution brought against them “in an
official or individual capacity, for or relating to any act
under color of such office . . . .” 28 U.S.C. §
1442(a)(1). The party asserting jurisdiction under this
statute bears the burden of establishing that federal
jurisdiction exists. Winters v. Diamond Shamrock Chem.
Co., 149 F.3d 387, 397 (5th Cir. 1998).
purpose of the federal officer removal provision is to
protect the lawful activities of the federal government from
undue state interference. See Willingham v. Morgan,
395 U.S. 402, 405-06 (1969). Because the federal government
“can act only through its officers and agents, ”
it has a strong interest in ensuring that the states do not
hinder those officers in the execution of their duties.
Id. at 406-07 (quoting Tennessee v. Davis,
100 U.S. 257, 263 (1880)). The federal officer removal
statute “authorizes removal of the entire case even
though only one of its controversies might involve a federal
officer or agency.” IMFC Prof. Servs. of Fla. v.
Latin Am. Home Health, Inc., 676 F.2d 152, 158 (5th Cir.
Unit B 1982).
of its broad language and unique purpose, the federal officer
removal statute has been interpreted to operate somewhat
differently from the general removal provision. Unlike the
general removal statute, which must be “strictly
construed in favor of remand, ” Manguno v.
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723
(5th Cir. 2002), the federal officer removal provision must
be liberally construed. Watson v. Philip Morris Co.,
Inc., 551 U.S. 142, 147 (2007). A case against a federal
officer may be removed even if a federal question arises as a
defense rather than as a claim apparent from the face of the
plaintiff's well-pleaded complaint. See Jefferson
County, Ala. v. Acker, 527 U.S. 423, 431 (1999).
Additionally, removal under § 1442(a)(1) does not
require the consent of codefendants. See Humphries v.
Elliott Co., 760 F.3d 414, 417 (5th Cir. 2014).
Appeal of Magistrate Judge's Order
Judge North granted plaintiffs leave to amend their complaint
to remove strict liability claims against
Avondale. Avondale and Lamorak Insurance appeal
this decision, arguing that plaintiffs' amendment is
improper. Magistrate judges are empowered to
“hear and determine” certain non-dispositive
pretrial motions, including a motion for leave to amend. 28
U.S.C. § 636(b)(1)(A); see also PYCA Indus., Inc. v.
Harrison Co. Waste Water Mgmt. Dist., 81 F.3d 1412, 1421
n.11 (5th Cir. 1996). If a party is dissatisfied with a
magistrate judge's ruling, it may appeal to the district
court. Fed.R.Civ.P. 72(a). When a timely objection is raised,
the district court will “modify or set aside any part
of the order that is clearly erroneous or is contrary to
law.” Id.; see also 28 U.S.C. §
636(b)(1)(A). The Court reviews the magistrate judge's
“factual findings under a clearly erroneous standard,
while legal conclusions are reviewed de novo.”
Moore v. Ford Motor Co., 755 F.3d 802, 806 (5th Cir.
2014) (internal citation omitted). A factual “finding
is ‘clearly erroneous' when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948).
order granting plaintiffs leave to amend their complaint is
not clearly erroneous or contrary to law. Courts will
“freely give leave [to amend] when justice so
requires.” Fed.R.Civ.P. 15(a). The Court considers
multiple factors in determining whether it is appropriate to
grant leave, including “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” Foman v.
Davis, 371 U.S. 178, 182 (1962).
and Lamorak Insurance appear to argue that plaintiffs'
amendment is in bad faith because it is intended to defeat
federal jurisdiction, and that the amendment is futile
because it cannot destroy federal jurisdiction. Plaintiffs
represent that the addition of strict liability claims
against Avondale in the first amended petition was an
inadvertent error. Plaintiffs explain that they requested
leave to amend in state court to add a new defendant,
Occidental Chemical Corporation, and never requested leave to
add new claims against Avondale. But plaintiffs
acknowledge that their second amended complaint is intended
to support their motion to remand.
magistrate judge could reasonably have concluded that
plaintiffs' amendment seeks to correct a good faith
error, and was not made in bad faith. Plaintiffs are dropping
substantive claims against Avondale that they might otherwise
have pursued, and are not engaging in merely superficial
manipulation of the pleadings to defeat federal jurisdiction.
See Enochs v. Lampasas Co., 641 F.3d 155, 160 (5th
Cir. 2011) (noting that a “motion to amend [the]
complaint to delete the federal claims is not a particularly
egregious form of forum manipulation, if it is manipulation
at all”). Avondale relies on the Fifth Circuit's
unpublished opinion in Bouie v. Equistar Chemicals,
L.P., 188 F. App'x 233 (5th Cir. 2006), to argue
that plaintiffs' amendment should be
disallowed. But the Bouie court held only
that the district court did not abuse its discretion in
denying leave to amend after finding futility and bad faith,
not that a complaint can never be amended to remove federal
claims. Id. at 238-39.
asserts that plaintiffs' amendment is futile because it
cannot destroy federal jurisdiction. Federal question
jurisdiction under the federal officer removal statute arises
out of the existence of a federal defense in the notice of
removal. See Mesa v. California, 489 U.S. 121, 136
(1989). If a case is properly removed, the Court acquires
supplemental jurisdiction over nonfederal claims. See
IMFC Prof. Servs. of Fla., 676 F.2d at 158-59; see
also Wilde v. Huntington Ingalls, Inc., 616 F. App'x
710, 715 n.24 (5th Cir. 2015). Thus, the post-removal
“elimination of the federal officer from a removed case
does not oust the district court of jurisdiction (except
where there was no personal jurisdiction over the
officer).” See IMFC Prof. Servs. of Fla., 676
F.2d at 159.
Court nevertheless has discretion to relinquish supplemental
jurisdiction and remand to state court if an amended
complaint eliminates the federal question in a case. See
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 346, 357
(1988); see also Sewell v. Sewerage & Water Bd. of
New Orleans, 697 F. App'x 288, 291, 293 (5th Cir.
2017). Magistrate Judge North thus correctly concluded that
it is within the Court's discretion to consider an
amended complaint within the context of a motion to
remand. See Carnegie-Mellon Univ., 484
U.S. at 357 (explaining that the “district court can
consider whether the plaintiff has attempted to manipulate
the forum” when deciding whether remand is
appropriate). That the amended complaint does not
automatically destroy federal jurisdiction weighs in favor,
rather than against, permitting amendment. Cf. Hensgens
v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987)
(explaining that courts should scrutinize an amendment that
would destroy federal jurisdiction more closely than an
the Court finds no error in Magistrate Judge North's
order granting plaintiffs leave to amend their complaint.
Avondale and Lamorak Insurance's appeal is denied.
Motion to Remand
argue that, in light of the amended complaint, the Court
lacks subject matter jurisdiction and this case must be
remanded to state court.But, as explained above, the
Court's jurisdiction is based on the notice of removal,
not the amended complaint. See IMFC Prof. Servs. of
Fla., 676 F.2d at 159; see also Bartel v. Alcoa S.S.
Co., Inc., 805 F.3d 169, 172 n.2 (5th Cir. 2015).
Although an amended complaint deleting federal claims may
permit a discretionary remand, it does not destroy federal
jurisdiction over a validly removed case. Here, the Court
finds that remand is not justified. Avondale's notice of
removal is valid, and the Court properly acquired
jurisdiction over this matter. Further, Foster Wheeler was
not affected by plaintiffs' amended complaint, and
remains entitled to a federal forum under the federal officer
Jurisdiction at Removal
removed this case to federal court based on its work as a
military contractor. The Fifth Circuit has adopted a
three-part test to determine whether a government contractor
may invoke 28 U.S.C. § 1442(a)(1). The contractor must
show that: (1) it is a “person” within the
meaning of the statute; (2) it acted pursuant to a federal
officer's directions, and a causal nexus exists between
its actions under color of federal office and the
plaintiffs' claims; and (3) it has a colorable federal
defense to the plaintiffs' claims. Winters, 149
F.3d at 398-400.
first amended state court petition, which formed the basis
for removal, names Avondale and Occidental Chemical
Corporation as “Premises
Defendants.” The amended petition asserts a strict
liability claim against the Premises Defendants under
Louisiana Civil Code article 2317 for Mr. Pitre's
injuries as a result of asbestos exposure. Avondale
argues that it is a person under the statute, it was acting
under an officer of the United States, the use and
installation of asbestos-containing materials was required by
its contracts with the U.S. Navy, and it has colorable
federal defenses to plaintiffs' claims under both
Boyle v. United Technologies Corp., 487 U.S. 500
(1988), and the Longshore and Harbor Workers'
precedent strongly supports Avondale's right to remove
this matter based on plaintiffs' strict liability claims
for asbestos exposure. Under nearly identical factual
circumstances, the Fifth Circuit held that Avondale is a
person within the meaning of the statute, and that it
satisfied the causal nexus requirement between its work as a
military contractor and the plaintiffs' strict liability
claims for asbestos exposure under Louisiana Civil Code
article 2317. See Savoie v. Huntington Ingalls,
Inc., 817 F.3d 457, 462, 463-66 (5th Cir. 2016). The
Savoie court found a sufficient causal relationship
because “[t]he strict liability claims rest on the mere
use of asbestos, and that use at the shipyard was pursuant to
government directions via contract specifications.”
Id. at 465; see also Winters, 149 F.3d at
evidence before the Court indicates that the U.S. Government
required the use of asbestos at Avondale for most of the time
period between 1963 and 1972 when Mr. Pitre was employed
there. Avondale submits the affidavits of Commander Thomas
McCaffery, Edward Blanchard, and Danny Joyce. McCaffery, a
retired Commander in the U.S. Navy (Reserve), attests that
the contracts between Avondale and the U.S. Government to
build warships specified the materials that could be used in
the construction of U.S. Navy ships. He further represents
that, until mid-1969, all approved pipe insulation products
for use on pipes whose normal operating temperature exceeded
370 degrees Fahrenheit contained asbestos.
a former supervisor and vice-president at Avondale, attests
that all aspects of work on federal vessels at Avondale were
performed under the close and detailed surveillance of the
U.S. Navy and other federal agencies. Further,
Blanchard states that federal inspectors retained ultimate
decision-making authority over all construction, and that
every component installed on a Navy vessel had to be on the
Navy's list of qualified products. Joyce, a
former industrial hygienist at Avondale, represents that he
has reviewed the contracts and specifications pertaining to
the construction of federal vessels at
Avondale. He states that federal inspectors
monitored the site to ensure that the supplies used were
those required by the contracts and specifications, including
asbestos-containing insulation and other asbestos-containing
noted above, Chester Rodrigue's deposition testimony
indicates that Mr. Pitre worked on Destroyer Escorts built by
Avondale for the U.S. Navy. The Court finds that Avondale
has shown a sufficient causal nexus between Avondale's
actions under color of federal office and plaintiffs'
strict liability claims for use of asbestos. Because Avondale
satisfies the causal nexus standard as it was applied by the
Fifth Circuit in Savoie, 817 F.3d 457 and
Winters, 149 F.3d 387, the Court need not address
Avondale's argument that the 2011 amendments to the
federal officer removal statute created a less demanding
causal nexus requirement.
has also presented a colorable defense of federal contractor
immunity. The federal defense need only be colorable, not
clearly sustainable, and a federal “officer need not
win his case before he can have it removed.” See
Willingham, 395 U.S. at 406-07; see also Acker,
527 U.S. at 432. The Fifth Circuit has explained that
“a non-colorable federal defense is a defense that is
immaterial and made solely for the purpose of obtaining
jurisdiction or that is wholly insubstantial and
frivolous.” Zeringue v. Crane Co.,
846 F.3d 785, 790 (5th Cir. 2017). Federal contractors are
immune from suit when “(1) the United States approved
reasonably precise specifications; (2) the equipment
conformed to those specifications; and (3) the supplier
warned the United States about the dangers in the use of the
equipment that were known to the supplier but not to the
United States.” Boyle, 487 U.S. at 512.
outlined above, Avondale has provided evidence that the U.S.
Navy required it to comply with precise specifications,
including the use of asbestos-containing pipe
insulation. Avondale's affidavits also indicate
that federal monitors ensured that vessels built by Avondale
conformed to contract specifications. See
Miller v. Diamond Shamrock Co., 275 F.3d 414, 420 (5th
Cir. 2001) (explaining that evidence of inspections, and
“[a]cceptance and use of an item following its
production can establish that the item conformed to its
the evidence suggests that the U.S. Government was at least
as knowledgeable about the dangers of asbestos as Avondale.
Joyce attests that Avondale did not have any information
regarding the hazards of asbestos that was not known by the
federal government, including the U.S. Navy. Avondale also
offers the deposition testimony of Dr. Richard Lemen, a
retired Assistant Surgeon General of the United States, who
testified that the U.S. Public Health Service collected and
reviewed scientific literature on asbestos beginning in the
Fifth Circuit has held that a U.S. Navy contractor had a
colorable federal defense against a strict liability claim
for asbestos exposure when evidence existed that military
specifications required the use of asbestos, and the Navy had
as much or more knowledge about the dangers of asbestos
exposure as the contractor. See Zeringue, 846 F.3d
at 791-92. This case presents similar circumstances, and the
Court finds that Avondale has stated a colorable defense of
federal contractor immunity to plaintiffs' strict
liability claims. See Savoie v. Penn. Gen. Ins. Co.,
No. 15-1220, 2017 WL 2391264, at *6-7 (E.D. La. 2017)
(holding that Avondale presented a colorable defense of
federal contractor immunity to strict liability claims for
asbestos exposure). Because the Court finds a colorable
federal contractor immunity defense under Boyle, it
need not reach Avondale's argument that it also has a
colorable federal defense under the Longshore and Harbor
Workers' Compensation Act.
do not seriously contest that their strict liability claims
against Avondale are removable under 28 U.S.C. §
1442(a)(1). Plaintiffs instead maintain that their
strict liability allegations against Avondale were brought in
error, and have since been deleted in the amended
complaint.As discussed above, a good faith error
may justify granting leave to amend. But plaintiffs'
error does not create a jurisdictional defect in the notice
of removal. Accordingly, the Court finds that Avondale's
notice of removal is valid and that federal jurisdiction
exists over this matter.
Claims Against Foster Wheeler
argue that, even if the Court properly acquired jurisdiction,
the amended complaint has removed the federal question in
this case and the Court has discretion to remand the
remaining state law claims. But, although plaintiffs'
amended complaint deleted the strict liability claims as to
Avondale, plaintiffs continue to press strict liability
claims against Foster Wheeler. Foster Wheeler asserts in its
opposition to the motion ...