United States District Court, E.D. Louisiana
ORDER & REASONS
J. BARBIER, UNITED STATES DISTRICT JUDGE
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.
AND PROCEDURAL BACKGROUND
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. Plaintiff also worked as a welder aboard
the U.S.S. Ticonderoga while serving in the U.S.
Navy from 1965 to 1969.
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. Plaintiff brings Louisiana state law
claims for negligence, strict liability, premises liability,
and products liability. Specifically as to GE and Westinghouse,
Plaintiff brings failure to warn and design defect
claims. 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
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.”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. The Defendants invoke the government
contractor defense as the basis for removal. Plaintiff then
filed the instant motion to remand.
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. 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.
Defendants assert that Plaintiff's disclaimer is
ineffective because the well-pleaded complaint rule does not
apply to the federal officer removal statute.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. 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.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
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).
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).
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 ...