United States District Court, E.D. Louisiana
JAMES A. LATIOLAIS
HUNTINGTON INGALLS INCORPORATED,
VAN MEERVELD, MAGISTRATE JUDGE
ORDER AND REASONS
D. ENGELHARDT, UNITED STATES DISTRICT JUDGE
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
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.
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.
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
(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
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.
Defendant is a “Person”
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