United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE.
following motion is before the Court: Motion to
Remand (Rec. Doc. 6) filed by Plaintiff, Elihu
Lucas. Defendant, Boh Bros. Construction Co., LLC, opposes
the motion. The motion, submitted for consideration on
January 8, 2020, is before the Court on the briefs without
oral argument. For the reasons stated herein, the motion is
Lucas has sued Boh Bros. Construction Co., LLC for injuries
that he sustained while riding his bicycle on May 19, 2017,
on Louisiana Avenue in New Orleans, Louisiana. At the time of
the incident Boh Bros. was performing work on a road and
drainage reconstruction project along Louisiana Avenue. Boh
Bros. was cutting and trimming nearby trees so that cranes
could be used to lift large drainage pipes into place. (Rec.
Doc. 1-1, First Supp. & Amend. Pet. ¶ 3). Boh Bros.
employed an off-duty constable to direct traffic near the
work area and to warn and prevent passersby from entering the
dangerous work area. (Id. ¶ 4). According to
Lucas, he was riding his bicycle along Louisiana Avenue when
a large limb fell from a tree and struck him. Lucas claims
that there were no verbal or visual warnings to indicate that
Boh Bros. was cutting trees in the area. (Id. ¶
5). Lucas was taken to the emergency room and he claims
significant personal injuries (and bicycle damage) as a
result of the incident. Lucas initiated this suit against Boh
Bros. in the Civil District Court for the Parish of Orleans.
undisputed that Boh Bros. was on Louisiana Avenue trimming
trees that day as part of its performance of a federal
drainage improvement contract with the United States Army
Corps of Engineers. Boh Bros. removed the case under the
auspices of the federal officer removal statute, 28 U.S.C.
§ 1442(a)(1). The federal defense upon which Boh Bros.
relies is the government contractor defense. (Rec. Doc. 1,
Notice of Removal ¶ 2).
now moves to remand the case to state court contending that
this case does not meet the standard for removability under
the federal officer removal statute.
28, § 1442, entitled Federal Officers or Agencies Sued
or Prosecuted, states in relevant part:
(a) A civil action or criminal prosecution
that is commenced in a State court and that is against or
directed to any of the following may be removed by them to
the district court of the United States for the district and
division embracing the place wherein it is pending:
(1) The United States or any agency thereof
or any officer (or any person acting under that officer) of
the United States or of any agency thereof, in an official or
individual capacity, for or relating to any act under color
of such office or on account of any right, title or authority
claimed under any Act of Congress for the apprehension or
punishment of criminals or the collection of the revenue.
28 U.S.C. § 1442(a)(1).
qualify for removal under § 1442(a)(1), the removing
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 or under 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. IntegraNet Phys. Res., Inc. v. Tex.
Indep. Prov., LLC, 945 F.3d 232, 238 (5th
Cir. 2019) (citing Zeringue v. Crane Co., 846 F.3d
785, 789 (5th Cir. 2017); Legendre v.
Huntington Ingalls, Inc., 885 F.3d 398, 400
(5th Cir. 2018)).
Court discerns little controversy in the first and third
requirements for federal officer removal. Boh Bros. is a
“person” for purposes of the statute, and it was
acting under the Corps' directions when it performed work
on the drainage project at issue. The point of contention
arises with respect to whether Boh Bros. has a colorable
federal defense to Lucas's claims, and whether the causal
nexus requirement for federal officer removal is satisfied in
this case. The specific federal defense alleged in the notice
of removal is the doctrine of government contractor immunity
established in Boyle v. United Technologies Corp.,
487 U.S. 500 (1988), and its progeny. 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 ...