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Latiolais v. Huntington Ingalls Inc.

United States District Court, E.D. Louisiana

May 4, 2018


         SECTION: N(1)




         Presently before the Court is Plaintiff James A. Latiolais' Motion to Remand (Rec. Doc. 9) pursuant to 28 U.S.C. § 1447(c) for lack of subject matter jurisdiction. Defendant Huntington Ingalls Incorporated (f/k/a Northrop Grumman Shipbuilding, Inc., f/k/a Northrop Grumman Ship Systems, Inc., f/k/a Avondale Industries, Inc., f/k/a Avondale Shipyards, Inc.) ("Avondale") opposes the motion (Rec. Doc. 12). Both parties filed additional supporting and reply memoranda (Rec. Docs. 27, 29, 45, and 46). Having considered the extensive submissions of the parties, the record, and the applicable law, IT IS ORDERED that the motion is GRANTED for the reasons stated herein.


         Plaintiff James Latiolais suffers from mesothelioma, which he alleges was caused by his occupational exposure to asbestos while working aboard the USS TAPPAHANNOCK as a machinist at Avondale Shipyard. Rec. Doc 9-2. On September 29, 2017, the plaintiff brought this suit in the Civil District Court, Parish of Orleans, against four defendants, including alleged manufacturers, suppliers, and installers of asbestos products, as well as the shipyard wherein those products were used - Defendant Huntington Ingalls, Inc. (“Avondale”). Id. In his Petition, Latiolais alleges that Avondale, and other defendants, exposed him to asbestos and asbestos-containing products, failed to warn him of the hazards of asbestos, and failed to protect him from exposure to asbestos. Id. at pp. 6-11. Notably, Plaintiff's claims against Avondale sound only in negligence, not strict liability. Id.

         James Latiolais' deposition was taken on October 10, 2017. During that deposition, Latiolais discussed his potential exposure to asbestos during his time working for the U.S. Navy aboard the USS TAPPAHANNOCK, while it was being recommissioned at Avondale shipyard. In his testimony, Latiolais indicated that he did not interact with Avondale employees, nor did he do any work for Avondale. Rec. Doc. 12-1 at pp. 21, 61. Based on this deposition testimony revealing the “limited contact” between Latiolais and Avondale, Avondale removed the suit to this Court on November 3, 2017, pursuant to the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1). Rec. Doc. 12 at p. 2; see also Rec. Doc. 2. The plaintiff has moved to remand. Rec. Doc. 9.


         Generally, removal statutes are “strictly construed in favor of remand.” St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock Port, Inc., LLC, 809 F.Supp.2d 524, 529-30 (E.D. La. 2011) (quoting Manguno v. Prudential Property & Casualty Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)). However, because of its broad language and unique purpose, the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1), must be liberally interpreted. Id. (citing Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 147 (2007)). The statute provides, in relevant part:

(a) A civil action or criminal prosecution that is commenced in a State court and that is against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) 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...

28 U.S.C. § 1442(a)(1) (2012). While this statute is to be interpreted liberally, the removing defendant still bears the burden of establishing a basis for federal jurisdiction. Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387, 397 (5th Cir. 1998). In Winters, the Fifth Circuit articulated a three-part test for determining whether federal officer removal is justified: (1) the defendant is a “person” within the meaning of the statute; (2) the defendant “acted pursuant to a federal officer's directions and that a causal nexus exists between the defendants' actions under color of federal office and the plaintiff's claims;” (3) the defendant can assert a “colorable federal defense.” Id. at 398-400.

         (1) Defendant is a “Person”

         Here, the plaintiff does not dispute that Defendant Avondale is a “person, ” as contemplated by the meaning of the statute. Moreover, “the Supreme Court has long recognized that the removal statute also applies to private persons and corporate entities ‘who lawfully assist the federal officer in the performance of his official duty.'” Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 461 (5th Cir. 2016) (quoting ...

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