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Brown v. Avondale Industries, Inc.

United States District Court, E.D. Louisiana

June 11, 2018

GREGORY BROWN
v.
AVONDALE INDUSTRIES, INC., F/K/A NORTHROP GRUMAN SHIP SYSTEMS, INC., N/K/A HUNTINGTON INGALLS INCORPORATED, ET AL.

         SECTION: "S" (5)

          ORDER AND REASONS

          MARY ANN VIAL, LEMMON UNITED STATES DISTRICT JUDGE

         IT IS HEREBY ORDERED that Plaintiff's Motion to Remand (Doc. #8) is GRANTED and this matter is REMANDED to the Civil District Court, Parish of Orleans, State of Louisiana.

         BACKGROUND

         This matter is before the court on a motion to remand filed by plaintiff, Gregory Brown. Brown argues that this matter must be remanded to the Civil District Court, Parish of Orleans, State of Louisiana because this court lacks subject matter jurisdiction.

         Brown suffers from lung cancer, which he alleges was caused by occupational exposure to asbestos. Brown alleges that he was exposed to asbestos when he worked as a cleanup man, tacker, and insulator helper at Avondale Shipyard intermittently from 1967 to 1971. Avondale Shipyard was owned and operated by defendant, Avondale Industries, Inc. f/k/a Northrop Grumman Ship Systems, Inc. n/k/a Huntington Ingalls Incorporated ("Avondale"). Brown also alleges that he was exposed to asbestos while employed by Fibrelite Corporation, Oubre & Labat, and Koppers Performance Chemicals, Inc. from 1965 to 1978.

         On November 29, 2017, Brown filed this action against Avondale, and several other defendants seeking damages for various causes of action related to his alleged exposure to asbestos. The defendants are categorized as either "Employer/Premises Owner/Executive Officers" or "Supplier/Manufacturer/Seller/Contractor." Brown alleges a negligence cause of action against Avondale and its executive officers, and strict liability and negligence causes of action against the other defendants in the "Employer/Premises Owner/Executive Officers" category and all of the defendants in "Supplier/Manufacturer/Seller/Contractor" category.

         Brown was deposed on March 14 and 15, 2018. He testified about working aboard numerous vessels at Avondale where he was exposed to asbestos. Brown testified that he worked aboard a "big ship, " but did not know what type of vessel it was. Brown did not testify specifically that he was exposed to asbestos while working aboard any ships belonging to the United States Navy or the United States Coast Guard.

         On April 27, 2018, Avondale removed this case to the United States District Court for the Eastern District of Louisiana pursuant to the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1). Avondale alleges that it was acting under the authority of an officer of the United States because the government required it to use asbestos on its ships. Brown filed a motion to remand arguing that the Federal Officer Removal Statute is not implicated because he does not assert strict liability claims against Avondale for using asbestos. Rather, he alleges that Avondale was negligent for failing to warn its employees of the risks of asbestos exposure and failing to implement safety procedures for handling asbestos, which was not controlled by the government. Brown argues that the applicable precedent of the United States Court of Appeals for the Fifth Circuit dictates that this case must be remanded.

         ANALYSIS

         "'Federal officer removal under 28 U.S.C. § 1442 is unlike other removal doctrines: it is not narrow or limited.'" Legendre v. Huntington Ingalls, Inc., 885 F.3d 398, 400 (5th Cir. 2018) (quoting State v. Kleinert, 855 F.3d 305, 311 (5th Cir. 2017)). The defendant has the burden of establishing the existence of federal jurisdiction. Id. (quoting Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 397 (5th Cir. 1998)). The Federal Officer Removal Statute provides, in pertinent 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). To remove an action under this statute, the defendant must show: "(1) that it is a person within the meaning of the statute, (2) that it has a colorable federal defense, (3) that it acted pursuant to a federal officer's direction, and (4) that a causal nexus exists between [its] actions under color of federal office and the plaintiff's claims." Legendre, ...


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