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Boudreaux v. Bossier

United States District Court, E.D. Louisiana

October 24, 2019

EDWARD J. BOUDREAUX, JR.
v.
ALBERT L. BOSSIER, JR., ET AL.

         SECTION: “J” (5)

          ORDER & REASONS

          CARL J. BARBIER UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion to Remand (Rec. Doc. 10) filed by Plaintiff Edward J. Boudreaux Jr., and an opposition thereto (Rec. Doc. 17) filed by Defendants Albert L. Bossier Jr., Huntington Ingalls Incorporated, and Lamorak Insurance Company (collectively, the “Avondale Interests”). Having considered the motion and legal memoranda, the record, and the applicable law, the Court will hold the motion in abeyance and administratively close this case for the reasons set forth herein.

         FACTS AND PROCEDURAL BACKGROUND

         This is an asbestos case. Plaintiff worked at Avondale Shipyards and alleges he was exposed to asbestos while working there as a welder, pipefitter, or laborer from 1963 to 1969.[1] Besides occupational exposure, Plaintiff also alleges he was exposed to asbestos at home from the clothing of his father and brother, who also worked around asbestos, including at Avondale.[2]

         Plaintiff initially filed suit against the Avondale Interests and numerous other defendants in state court on November 29, 2018.[3] He brings only negligence claims against the Avondale Interests.[4] The Avondale Interests removed the case to this Court on August 29, 2019, asserting jurisdiction under 28 U.S.C. § 1442, the federal officer removal statute.[5] Plaintiff's motion to remand is now before the Court on the briefs and without oral argument.

         DISCUSSION

         I. Timeliness of Removal

         Plaintiff contends that removal was untimely because the Avondale Interests had notice that he worked aboard federal vessels while employed at Avondale from his employment and medical records, which they possessed prior to this suit being filed, as well as from Plaintiff's brother's deposition and other documents from a separate lawsuit against them alleging injuries caused by exposure to asbestos. The Avondale Interests assert that removal was timely because it was not apparent from the face of Plaintiff's petition that the case was removable and Plaintiff's deposition transcript, received on July 30, 2019, was the first “other paper” showing that the case was removable.

         Timeliness of removal is governed by 28 U.S.C. § 1446(b), which provides that a notice of removal must be filed “within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief.” 28 U.S.C. § 1446(b)(1). If a case is not initially removable, a defendant may file a notice of removal “within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” § 1446(b)(3).

         “[T]he thirty day time period in which a defendant must remove a case starts to run from defendant's receipt of the initial pleading only when that pleading affirmatively reveals on its face that” the case is removable. Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992); see also Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994). Additionally, “‘the defendant's subjective knowledge cannot convert a case into a removable action.'” Morgan v. Huntington Ingalls, Inc., 879 F.3d 602, 612 (5th Cir. 2018) (citation omitted).

         Here, Plaintiff's petition does not affirmatively reveal that the case is removable, as it contains no statement that he worked on a federal vessel nor any other fact signaling that he worked on a federal enclave or at the direction of a federal officer. Rather, his petition attempted to exclude such claims.[6] Plaintiff's reliance on Parfait v. Huntington Ingalls Inc., No. 19-11958, 2019 WL 4297912 (E.D. La. Sept. 11, 2019), is unavailing because the plaintiff there specifically alleged in his original petition that he was exposed to asbestos while working aboard destroyer escorts (which the court found to be “indisputably federal vessels”) at Avondale. Id. at *7.

         As the Avondale Interests' subjective knowledge cannot make the case removable, the Court must determine when they received an “other paper” from which it was ascertainable that the case was removable. See § 1446(b)(3). Plaintiff contends that his social security records, which the Avondale Interests received on July 3, 2019, also established that the case was removable; however, as Plaintiff did not include these records with his motion to remand, the Court cannot determine whether disclosure of these records established removability.

         Therefore, because the Avondale Interests filed their notice of removal on August 29, 2019, within thirty days of receiving Plaintiff's deposition transcript on July ...


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