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Rivera v. Huntington Ingalls Inc.

United States District Court, E.D. Louisiana

September 25, 2018


         SECTION: “H”



         Before the Court is Plaintiff's Motion to Remand (Doc. 9). For the following reasons, the Motion is DENIED.


         This asbestos litigation stems from a wrongful death and survival suit filed in state court by Plaintiff Judith Punch Rivera on behalf of her deceased mother, Dolores Punch.[1] Plaintiff filed her original petition in Louisiana's 34th Judicial District Court in St. Bernard Parish on June 8, 2017, claiming Punch died on August 15, 2011, from mesothelioma she contracted as a result of washing her husband's asbestos-ridden clothing for years.[2] The suit names numerous defendants, including Kaiser Aluminum and Huntington Ingalls, Inc. (“Avondale”).[3] Avondale is the current owner of the company the decedent's husband worked for when he handled asbestos-containing material as a pipefitter and welder at the Avondale shipyard in New Orleans from 1948 to 1960.[4] The decedent's husband, Richard Punch Sr., also worked from 1961 to 1967 at Kaiser Aluminum in Chalmette, Louisiana, in the same type of jobs handling the same kinds of asbestos-containing materials.[5]

         On August 18, 2017, this suit was transferred to the Civil District Court in Orleans Parish.[6] There, on July 6, 2018, Plaintiff filed a first supplemental and amended petition.[7] In it, Plaintiff alleged it was not just the asbestos-covered clothes of decedent's husband, but also those of decedent's son, that caused decedent's mesothelioma.[8] Decedent's son, Richard Punch Jr., worked as a helper and pipefitter at Avondale from 1976 to 1979.[9] Plaintiff alleged state law strict liability and negligent failure to warn, supervise, and train claims against Avondale and other defendants as part of her wrongful death and survival suit.[10]

         On July 18, 2018, Defendant Avondale removed Plaintiffs' suit to this Court under the Federal Officer Removal Statute.[11] In essence, Defendant Avondale argues it is entitled to removal because it only engaged in the conduct underlying Plaintiffs' claims-the use of asbestos-containing products in Avondale's shipbuilding business-because Avondale's contracts with the federal government required it to do so.[12]

         Plaintiff filed a Motion to Remand this case to state court on July 25, 2018, arguing that Defendant Avondale failed to meet the necessary requirements of the Federal Officer Removal Statute.[13] Defendant Avondale opposes.[14] The Court heard Oral Argument in this matter on September 12, 2018.


         Generally, a defendant may remove a civil state court action to federal court if the federal court has original jurisdiction over the action.[15] The burden is on the removing party to show “that federal jurisdiction exists and that removal was proper.”[16] When determining whether federal jurisdiction exists, courts consider “the claims in the state court petition as they existed at the time of removal.”[17]


         Defendant argues this Court has jurisdiction under 28 U.S.C. § 1442(a)(1) (“Federal Officer Removal Statute”). Under the statute, an action commenced in state court “that is against or directed to . . . The United States or any agency thereof or any officer (or any person acting under that officer)” may be removed.[18] Because Avondale is not an agency of the United States, “[t]o remove, [it] 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 directions,' and (4) ‘that a causal nexus exists between [its] actions under color of federal office and the plaintiff's claims.'”[19] Although remand to state court is generally preferred when removal jurisdiction is questionable, courts must broadly construe the Federal Officer Removal Statute, interpreting it liberally to support federal jurisdiction when appropriate.[20] Nevertheless, the statute's scope is “not limitless.”[21]

         I. Avondale Is a “Person” Under the Statute

         Plaintiff does not dispute that Defendant Avondale is a “person” within the meaning of the Federal Officer Removal Statute.[22] As Defendant points out in its Memorandum opposing Plaintiff's Motion, both the Supreme Court and the Fifth Circuit have “long recognized” that the Federal Officer Removal Statute applies both to private persons and corporate entities that assist a federal agency in its official duties.[23] Because Defendant Avondale was a corporate entity lawfully assisting the federal government with building naval ships at the time the key conduct in this suit transpired, [24] the element is satisfied.

         II. Avondale Has a “Colorable Federal Defense”

         The Federal Officer Removal Statute effectively allows defendants to overcome the limits of the well-pleaded complaint rule and establish federal jurisdiction merely by raising a federal defense to state law claims by a plaintiff.[25] To succeed at the removal stage, a defendant need not show a “clearly sustainable” defense.[26] Instead, the defense need only be “colorable.”[27] When interpreting the meaning of “colorable” as used within the Federal Officer Removal Statute, the Fifth Circuit has taken the inverse approach of defining a “non-colorable claim” to shed light on the meaning of a “colorable” one.[28] “[A] non-colorable federal defense is a defense that is immaterial and made solely for the purpose of obtaining jurisdiction or that is wholly insubstantial and frivolous.”[29] Avondale raises as its colorable federal defense the jurisprudential doctrine of government contractor immunity, commonly known as the “contractor defense, ” as established by the Supreme Court in Boyle v. United Techs. Corp.[30] Thus, unless Avondale's contractor defense is wholly insubstantial and frivolous, it will satisfy this element.

         a. The Government Contractor Defense Applies to Plaintiff's Claims

         In general, the government contractor defense as explained in Boyle “provides immunity to contractors for conduct that complies with the specifications of a federal contract.”[31] In Boyle, the Court set forth three elements a defendant must meet to establish the “colorable federal defense” requirement using the government contractor defense.[32] Plaintiff, however, does not address whether Defendant Avondale satisfied the merits of each condition necessary for the defense. Instead, Plaintiff makes general arguments about why the government contractor defense should not apply to her claims.

         First, Plaintiff argues the government contractor defense is applicable only in design or manufacturing defect cases, not failure to warn cases.[33] In support, Plaintiff cites to two cases from the Northern District of California.[34]In relying on these cases, Plaintiff ignores Fifth Circuit law directly on point. In the Fifth Circuit, the government contractor defense applies both to design defect cases and failure to warn cases.[35] Thus, the defense applies to the claims made by Plaintiff in this case.

         Second, Plaintiff argues that the defense does not apply because Plaintiff made her failure to warn claims against only manufacturers and suppliers of asbestos-containing materials, not Avondale, a shipbuilder. Third, Plaintiff argues that the contractor defense only applies when the asbestos-containing materials are military equipment.[36] Plaintiff cites to no cases to support these arguments. For starters, Plaintiff ignores her own petition, which clearly makes negligence and failure to warn claims against “the defendants, ” a term that includes Avondale within its meaning.[37] Beyond that, because Plaintiff provides no support for its contention that the government contract defense only applies when the asbestos-containing materials are military equipment, the Court declines to entertain the argument.

         b. Analyzing the Boyle Conditions

         Although Plaintiff failed to challenge Defendant Avondale's arguments regarding each factor of the Boyle test, this Court must analyze the issue because federal courts cannot create subject-matter jurisdiction where it does not exist. To succeed on the merits of the defense, Avondale must show: (1) the United States approved “reasonably precise specifications” to use asbestos-containing products when building ships for the government; (2) Avondale's ships “conformed” to those specifications; and (3) if Avondale knew about dangers associated with asbestos that the government did not know, Avondale warned the government accordingly.[38] Here, at the removal stage, Avondale need only show the defense is “colorable.”[39] The Court will analyze each Boyle condition separately.

         i. The Government Approved Reasonably Precise Specifications for the Ships' Construction

         To prevail under the government contractor defense, a shipbuilding contractor defendant, like Avondale, must first show that the federal government approved “reasonably precise specifications” for construction of the ships.[40] In other cases like this one, the Fifth Circuit has held that Avondale satisfied this factor because the government's mandatory contract terms required Avondale to build ships with specific asbestos-containing material.[41] Defendant submitted evidence to support the fact that it built ships with asbestos-containing material pursuant to the terms of its contracts with the federal government.[42] Accordingly, Defendants meets this condition.

         ii. The Ships Conformed to the Specifications

         To meet the second condition, Defendant Avondale must show the ships it built conformed to the government's contract specifications requiring the use of asbestos-containing material.[43] There is ample support that Avondale complied with the government's contract specifications.[44] Similar evidence was sufficient to satisfy this condition before the Fifth Circuit.[45] Defendant Avondale meets this condition.

         iii. Avondale Warned the Government of Hazards Presented by the Required Asbestos-Containing Components That Were Known to It but Not the Government

         The third condition requires Defendant Avondale to show it warned the government of any dangers regarding asbestos that it knew of if the government did not also know of those dangers.[46] Defendant submitted affidavit and deposition testimony of a maritime historian, an industrial hygienist, and a retired Assistant Surgeon General of the United States to show Avondale knew no more than the government did about the dangers of asbestos at the time Avondale used asbestos-containing materials in its shipbuilding work.[47] Other sections of this Court have relied on the exact same evidence in finding that Avondale satisfied this third condition of Boyce.[48]Because Avondale need only assert a “colorable” defense, and because Plaintiff does not dispute the merits of Avondale's government contractor defense, this Court finds Avondale has presented sufficient evidence to meet the third Boyle condition. Having satisfied all three Boyle conditions, Avondale successfully asserted the government contractor immunity defense as a “colorable” federal defense to support removal under the Federal Officer Removal Statute.

         III. Avondale “Acted Pursuant to Federal Officers' Directions”

         Plaintiff cites to deposition testimony to support her argument that Defendant Avondale was not acting pursuant to federal direction at the time decedent was exposed to asbestos-containing material.[49] Except for this testimony, Plaintiff offers little beyond repeated conclusory assertions throughout her memoranda to support her argument. Despite these assertions, it is clear that in the Fifth Circuit Defendant Avondale “acted under” federal direction when the relevant asbestos exposure occurred during Avondale's building of ships for the federal government.[50] This element is satisfied.

         IV. A “Causal Nexus” Exists

         The heart of the dispute in this case resides within the “causal nexus” inquiry. To reiterate, to successfully remove under the Federal Officer Removal Statute, a defendant must show that the conduct underlying a plaintiff's claims was caused by the defendant's obedience of orders by the federal government.[51]This is the so-called “causal nexus” requirement. Although the scope of the meaning of “causal nexus” has been subject to much litigation in the Fifth Circuit, [52] the element's meaning as it relates to this case is clear. As a result, the outcome-determinative question before this Court is whether the Court should consider Plaintiff's request to amend her strict liability claims against Avondale-a request not made until after Avondale removed the suit-as part of its analysis of Plaintiff's Motion to Remand.

         a. Strict Liability Claims Satisfy the Causal Nexus Element

         When a plaintiff makes a strict liability claim against Avondale based on Avondale's use of asbestos-containing material pursuant to its obligations under shipbuilding contracts it had with the federal government, the causal nexus element is satisfied.[53] But when the claim is for negligent failure to warn, train, and adopt safety procedures regarding asbestos, “removal . . . [is] inappropriate because the nexus requirement is not met.”[54] The theory underlying the distinction is that just because the government required Avondale to use asbestos-containing material does not mean Avondale was not free to adopt safety measures to protect its employees from handling the dangerous materials. Put succinctly, the government's mandate that Avondale use asbestos did not cause Avondale to fail to warn its employees about the dangers of asbestos. On the contrary, when a plaintiff alleges Avondale is strictly liable for the mere use of asbestos-containing products, it makes more sense to find as a matter of law that the government's mandate to use asbestos caused Avondale's allegedly unlawful behavior.

         b. Plaintiff Makes Strict Liability Claims Against Avondale

         Plaintiff argues that she “did not file claims of strict liability against Avondale and will file a motion to amend her complaint for clarity . . .”[55] But Plaintiff misstates the allegations of her suit. Even in her amended state court petition, Plaintiff alleged the following: “The defendants are obligated in solido, jointly and severally, to the plaintiff, under strict liability and negligence, for their acts and omissions that caused Dolores Punch's malignant mesothelioma.”[56] Avondale is among “the defendants” named in the amended petition.[57] Although Plaintiff now declares simultaneously that she “did not file claims of strict liability against Avondale”[58] and that she “inadvertently stated ‘strict liability' in name only, ”[59] this Court cannot ignore the amended petition's plain language.

         c. Considering Plaintiff's Strict Liability Claims Existing at the Time of Removal, Avondale ...

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