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Lucas v. Boh Bros. Construction Co., LLC

United States District Court, E.D. Louisiana

January 10, 2020


         SECTION: "A" (3)



         The 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 denied.

         I. Background

         Elihu 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.

         It is 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).

         Lucas 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.

         II. Discussion

         Title 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).

         To 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.[1] 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)).

         The 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.[2] 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.[3] 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 ...

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