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Caballero v. Avondale Industries, Inc.

United States District Court, E.D. Louisiana

December 19, 2019

CARRIE MAE CABALLERO
v.
AVONDALE INDUSTRIES, INC., ET AL

         SECTION "B"(4)

          ORDER AND REASONS

         Plaintiff 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).

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         This is 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 5.

         Plaintiff 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.

         LAW AND ANALYSIS

         Timeliness of Removal

         If a 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).

         However,

“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).

         The 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. ...


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