United States District Court, E.D. Louisiana
ORDER AND REASONS
ANN VIAL, LEMMON UNITED STATES DISTRICT JUDGE
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.
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
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.
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
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
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.
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
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
(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). 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, ...