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Bondurant v. 3M Co.

United States District Court, E.D. Louisiana

July 17, 2019


         SECTION: “J” (5)

          ORDER & REASONS


         Before the Court is a Motion to Remand (Rec. Doc. 18) filed by Terry BonDurant (“Plaintiff”) and oppositions thereto filed by Defendants General Electric Company (“GE”) (Rec. Doc. 26) and CBS Corporation (“Westinghouse”) (collectively, the “Defendants”) (Rec. Doc. 27). Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that the motion should be DENIED.


         This litigation derives from personal injuries allegedly sustained as a result of exposure to asbestos. Plaintiff alleges that he contracted mesothelioma as a result of being exposed to asbestos in connection with his work as an electrician at various refineries and chemical plants between 1964 and 1979.[1] Plaintiff also worked as a welder aboard the U.S.S. Ticonderoga while serving in the U.S. Navy from 1965 to 1969.[2]

         Plaintiff filed the instant suit against numerous defendants in state court, alleging that each of the named defendants “designed, tested, evaluated, manufactured, packaged, furnished, stored, handled, transported, installed, used, supplied and/or sold asbestos-containing products and equipment” to which Plaintiff was exposed.[3] Plaintiff brings Louisiana state law claims for negligence, strict liability, premises liability, and products liability.[4] Specifically as to GE and Westinghouse, Plaintiff brings failure to warn and design defect claims.[5] However, Plaintiff “specifically disclaims any cause of action” for any injuries caused by exposure on a federal enclave and by any act or omission of, or committed at the direction of, a federal officer.[6]

         GE removed the action to this Court, asserting jurisdiction under 28 U.S.C. § 1442, the federal officer removal statute. GE contends that the Court has federal officer jurisdiction over the dispute because GE provided the Navy with the turbines used on the U.S.S. Ticonderoga and Plaintiff testified in his deposition that he “was exposed to asbestos-containing insulation associated with these turbines.”[7]Westinghouse joined in GE's Notice of Removal and asserted it had independent grounds supporting federal officer removal, namely that it also provided the Navy with turbines for use aboard the U.S.S. Ticonderoga.[8] The Defendants invoke the government contractor defense as the basis for removal.[9] Plaintiff then filed the instant motion to remand.


         Plaintiff contends that remand is appropriate because his original petition “disclaims any cause of action or recovery for any injuries resulting from any exposure to asbestos dust caused by any conduct, action, acts or omissions of any and all federal officers, or committed at the direction of an officer of the United States Government, ” and therefore the federal officer defense is immaterial and not relevant to his claims against GE.[10] Plaintiff further contends that GE has not established that it acted pursuant to a federal officer's direction or that a causal nexus exists between GE's Navy contract and his claims. Specifically, Plaintiff argues that GE has not shown either that the Navy prohibited warnings about asbestos or that GE attempted to provide warnings about asbestos, including by submitting proposed warnings to the Navy for inclusion in manuals, such that the decision not to warn was the Navy's and not GE's.[11]

         The Defendants assert that Plaintiff's disclaimer is ineffective because the well-pleaded complaint rule does not apply to the federal officer removal statute.[12]GE additionally asserts that general jurisdictional waivers, which it contends Plaintiff's is, are not effective to preclude federal officer removal but concedes that specific claim disclaimers are.[13] Westinghouse maintains Plaintiff's claim for injury from asbestos exposure is “indivisible” and therefore his disclaimer is ineffective given that he admitted to being exposed to asbestos associated with Navy turbines.[14]Defendants further contend that Plaintiff fails to address the applicability of the federal officer removal statute to his design defect claims against them, which they assert satisfy all of the requirements for federal officer removal.[15]


         “[F]ederal officer removal under 28 U.S.C. § 1442 is unlike other removal doctrines: it is not narrow or limited.” Texas v. Kleinert, 855 F.3d 305, 311 (5th Cir. 2017). Although the principle of limited federal court jurisdiction ordinarily compels federal courts to resolve any doubt about removal in favor of remand, courts should analyze removal under § 1442(a)(1) “without a thumb on the remand side of the scale.” Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 462 (5th Cir. 2016). Nevertheless, it remains “the defendant's burden to establish the existence of federal jurisdiction over the controversy.” Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 397 (5th Cir. 1998).

         Section 1442 permits, in pertinent part, “any person acting under [an officer] of the United States or of any agency thereof” to remove a state suit to federal court if any of the plaintiff's claims are “for or relating to any act under color of such office.” 28 U.S.C. § 1442(a)(1). To qualify for removal under § 1442(a)(1), a 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 directions, and (4) that a causal nexus exists between its actions under color of federal office and the plaintiff's claims.” Legendre v. Huntington Ingalls, Inc., 885 F.3d 398, 400 (5th Cir. 2018) (internal quotation marks, brackets, and citations omitted). A defense is “colorable” so long as it is not “immaterial and made solely for the purpose of obtaining jurisdiction” or “wholly insubstantial and frivolous.” Zeringue v. Crane Co., 846 F.3d 785, 790 (5th Cir. 2017).

         Even where the defendant can show that it acted pursuant to a federal officer's directions, removal will not be proper unless the defendant can also establish the requisite causal nexus between the defendant's actions under color of federal office and the plaintiff's claims. See Bartel v. Alcoa S.S. Co., 805 F.3d 169, 172-73 (5th Cir. 2015); see also Zeringue, 846 F.3d at 794 (noting that the causal nexus requirement functions to ensure a legitimate federal interest in a matter by limiting the universe of potentially removable claims to those where the specific acts or omissions upon which the plaintiff's claims are based were themselves performed under federal direction). In other words, the defendant must show that the federal ...

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