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Melancon v. Lamorak Insurance Co.

United States District Court, E.D. Louisiana

January 19, 2018

MELANCON ET AL
v.
LAMORAK INSURANCE COMPANY ET AL.

         SECTION I

          ORDER & REASONS

         Before the Court is Plaintiff's motion to remand. R. Doc. 36. Defendants respond in opposition. R. Doc. 53. Having heard oral argument, read the parties' briefs, and reviewed the applicable law, the Court now issues this Order & Reasons.

         I. BACKGROUND

         Plaintiffs Sandra Melancon, widow of Tyrone Melancon, and Lynn Melancon, daughter of Tyrone Melancon, filed this case in the Civil District Court of Orleans and allege that Tyrone Melacon, their husband and father, was exposed to asbestos when he worked for Avondale Shipyard. This exposure, Plaintiffs allege, resulted in Tyrone Melancon contracting mesothelioma. In their petition, Plaintiffs assert the following theories of recovery: negligence and failure to warn.

         On November 13, 2017, Defendants J Melton Garrett, Lamorak Insurance Company, Huntington Ingalls Incorporated (Avondale Shipyard's successor), and Albert Bossier, Jr. (together “Huntington Ingalls”) removed the case to this Court under the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1). In support of its Notice of Removal, Huntington Ingalls states that in deposition testimony given for another case Tyrone Melancon said that he worked on Navy Destroyer Escorts and Coast Guard Cutters. Therefore, Huntington Ingalls asserts that this Court has jurisdiction pursuant to the Federal Officer Removal Statute because Huntington Ingalls was “acting under an officer of the United States or an agency thereof” when it built the Destroyer Escorts and Cutters in question. R. Doc. 1 at 4-5. Additionally, Huntington Ingalls claims two federal defenses: 1) government contractor immunity and 2) pre-emption and bar under the provisions of the Longshore and Harbor Workers' Compensation Act (“LHWCA”). R. Doc. 1 at 6.

         II. PENDING MOTION

         a. Plaintiffs' Motion to Remand (R. Doc. 36)

         Plaintiffs argue that this Court does not have jurisdiction pursuant to the Federal Officer Removal Status and avers that this Court, along with other Eastern District and Fifth Circuit Judges, have rejected identical removal arguments put forth by these and other defendants. R. Doc. 36-1 at 2-5. Moreover, Plaintiffs note that Courts have rejected Federal Officer Removal arguments for military shipbuilders based solely on evidence that the military required contactor-builders to follow military plans and specifications. R. Doc. 36-1 at 6.

         Looking to the specific facts of this case, Plaintiffs claim that “Avondale controlled all of the activities in regard to the construction of commercial and Navy vessels” and “government inspectors had absolutely no control over nor did they direct the Avondale safety department.” R. Doc. 36-1 at 15. Rather, Plaintiffs allege that “[t]he Navy was a customer just like any other customer of Avondale.” R. Doc. 36-1 at 15. Based on these facts, Plaintiffs argue that Huntington Ingalls cannot meet the requirements for Federal Officer Removal. Additionally, Plaintiffs cite the deposition of former Navy ship inspector at the Avondale Shipyards, Felix Albert, who testified that “[t]he United States government inspectors neither monitored nor enforced safety regulations. On the job safety during the construction of vessels for the United States government was the responsibility of Avondale Shipyards' safety department.” R. Doc. 36-1 at 15.

         b. Defendants' Response (R. Doc. 53)

         Huntington Ingalls opposes the motion. R. Doc. 53. Huntington Ingalls argues that this case is removable on three grounds: 1) plaintiffs' allegations of strict liability, 2) plaintiffs' negligence claims, and 3) plaintiffs' strict products liability claim against Co-Defendant Foster Wheeler. R. Doc. 53 at 10.

         Huntington Ingalls alleges that Plaintiffs have brought a strict liability claim against it because in paragraph 14 of the complaint there are care, custody, and control allegations similar to those held by the Fifth Circuit to allege strict liability claims. R. Doc. 53 at 17. Huntington Ingalls argues that these claims relate to its conduct under color of federal office. R. Doc. 53 at 20. Huntington Ingalls also argues that the “relating to” element is satisfied by Plaintiffs' negligence claims under the new test for this element. R. Doc. 53 at 21. Huntington Ingalls argues that under Zeringue v. Crane Co., 846 F.3d 785 (5th Cir. 2017), the 2011 amendment to the federal officer removal statute created a new, broader test that merely requires an association or connection with the federal office. R. Doc. 53 at 22, 27. Huntington Ingalls further avers that the facts here are different from those in Bartel v. Alcoa S.S. Co., 805 F.3d 169 (5th Cir. 2015), because here the Navy and Coast Guard required Huntington Ingalls to use asbestos and maintained oversight of the projects. R. Doc. 53 at 26.

         Finally, Huntington Ingalls argues that this case is properly removed based on strict liability claims against Co-Defendant Foster Wheeler. R. Doc. 53 at 43. Huntington Ingalls argues that there are strict liability claims against Foster Wheeler for use of asbestos in boilers that were installed on U.S. Navy vessels. R. Doc. 53 at 44. Huntington Ingalls further argues that Foster Wheeler meets all of the requirements of the federal officer removal statute. R. Doc. 53 at 45-47. Finally, Huntington Ingalls argues that it does not matter than Foster Wheeler has withdrawn its notice of removal because jurisdiction is determined at the time of removal. R. Doc. 53 at 47. For these reasons, Huntington Ingalls asks the Court to deny Plaintiffs' motion for remand. R. Doc. 53.

         III. LAW & ANALYSIS

         a. ...


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