United States District Court, E.D. Louisiana
ORDER AND REASONS
filed a motion to remand, alleging removal of the case was
untimely. Rec. Doc. 12. Additionally, plaintiff alleges the
requirements for federal officer removal are not satisfied.
Id. Defendant timely filed a response in opposition.
Rec. Doc. 19. For the reasons discussed below, IT IS
ORDERED that the motion to remand shall be
HELD IN ABEYANCE and
ADMINISTRATIVELY CLOSED until the Fifth
Circuit renders a decision in Latiolais v. Huntington
Ingalls, Inc., 918 F.3d 406 (5th Cir.), reh'g en
banc granted, 923 F.3d 427 (5th Cir. 2019).
BACKGROUND AND PROCEDURAL HISTORY
an asbestos case. Plaintiff filed a complaint, alleging
negligence, in Civil District Court for the Parish of
Orleans, naming the Avondale Interest as defendants. Rec.
Doc. 1-1. Plaintiff alleges that defendants' negligence
in failing to warn its employees of the risks of asbestos
exposure and defendants' further negligence in its
failure to implement proper safety procedures in handling
asbestos resulted in the plaintiff contracting
asbestos-related lung cancer due to personal contact with the
plaintiff's former spouse, Edward Boudreaux. Rec. Doc.
1-1 at 19. Edward Boudreaux was an employee of defendant,
Avondale. Id. Plaintiff was deposed on June 12,
2019. Rec. Doc. 1-2. He was deposed on July 10, 2019, July
11, 2019, August 21, 2019 and August 22, 2019. Rec. Doc. 1.
Defendants received transcripts of Edward Boudreaux's
July 10, 2019 and July 11, 2019 deposition on July 30, 2019.
Rec. Doc. 1-5. Defendants filed a notice of removal on
September 29, 2019 asserting the district court had
jurisdiction because defendants were acting under an officer
of the United States as set forth in 28 U.S.C. §1442.
Rec. Doc. 1 at 2. Defendants assert the case became
removeable after the defendants received transcript of Edward
Boudreaux's deposition in which Mr. Boudreaux testified
that he worked on several U.S. Navy vessels. Rec. Doc. 1 at
filed the instant motion to remand claiming that
defendants' removal notice was procedurally deficient
because it was untimely and the requirements of federal
officer removal had not been satisfied. Rec. Doc. 12-1.
Defendants filed a response in opposition stating that their
notice of removal was timely filed within thirty days of the
point at which it became clear that plaintiff's claims
were related to exposure to asbestos on federal vessels. Rec.
Doc. 19 at 7. Additionally, defendants' response in
opposition assert the court has jurisdiction pursuant to 28
U.S.C. §1442 and request the court hold plaintiff's
motion to remand in abeyance pending the Fifth Circuit's
ruling in Latiolais v. Huntington Ingalls, Inc.
civil action over which the district courts of the United
States have original jurisdiction is brought in a State
Court, it “may be removed by the defendant or
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.” 28 U.S.C. § 1441(a).
Defendants must file a notice of removal pursuant to 28
U.S.C. §1446. Generally,
“[t]he notice of a removal of a civil action or
proceeding shall 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 upon
which such action or proceeding is based, ”
28 U.S.C. § 1446(b)(1).
“if the case stated by the initial pleading is not
removable, a notice of removal may be filed 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.”
28 U.S.C. § 1446(b)(3).
removing party bears the burden of showing that removal was
proper, and any ambiguities are to be strictly construed in
favor of remand. See Manguno v. Prudential Prop. ...