United States District Court, E.D. Louisiana
EDWARD J. BOUDREAUX, JR.
ALBERT L. BOSSIER, JR., ET AL.
ORDER & REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE
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.
AND PROCEDURAL BACKGROUND
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. 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.
initially filed suit against the Avondale Interests and
numerous other defendants in state court on November 29,
2018. He brings only negligence claims against
the Avondale Interests. 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. Plaintiff's motion to remand is now
before the Court on the briefs and without oral argument.
Timeliness of Removal
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.
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).
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).
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. 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.
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.
because the Avondale Interests filed their notice of removal
on August 29, 2019, within thirty days of receiving
Plaintiff's deposition transcript on July ...