Dempster v. Lamorak Insurance Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CALLEN DEMPSTER, et al. CIVIL ACTION

VERSUS CASE NO. 20-95

LAMORAK INSURANCE CO., et al. SECTION: “G”(1)

ORDER AND REASONS

Before the Court is Plaintiffs Louise Ella Simon Dempster, Tanna Faye Dempster, Steven

Louis Dempster, Janet Dempster Martinez, Marla Dempster Loupe, Callen Dempster, Jr., Annette

Dempster Glad, and Barnett Dempster’s (collectively, “Plaintiffs”) “Emergency Motion to

Remand.”1 In this litigation, Plaintiffs allege that Decedent Callen L. Dempster (“Decedent”) was

exposed to asbestos and asbestos-containing products that were designed, manufactured, sold,

and/or supplied by a number of Defendant companies while Decedent was employed by Defendant

Huntington Ingalls Incorporated (f/k/a Northrop Grumman Shipbuilding, Inc., f/k/a Northrop

Grumman Ship Systems, Inc., f/k/a Avondale Industries, Inc., and f/k/a Avondale Shipyards, Inc.)

(“Avondale”).2 After Avondale removed the suit from state court for a second time under the

federal officer removal statute, Plaintiffs filed the pending “Emergency Motion to Remand”3 and

an “Ex Parte Motion for Expedited Hearing and for Emergency Ruling.”4 On January 13, 2020,

1 Rec. Doc. 4.

2 See Rec. Doc. 1-2; Rec. Doc. 1-8. In particular, Plaintiffs bring claims against Lamorak Insurance Company,

Huntington Ingalls Inc., Albert Bossier, Jr., J. Melton Garrett, Eagle, Inc., Bayer Cropscience, Inc., Foster-Wheeler

LLC, General Electric Co., Hopeman Brothers, Inc., McCarty Corporation, Taylor-Seidenbach, Inc., CBS

Corporation, Uniroyal, Inc., International Paper Company, Houston General Insurance Company, Berkshire Hathaway

Specialty Insurance Company, Northwest Insurance Company, United Stated Fidelity and Guaranty Company, Fist

State Insurance Company, The American Insurance Company, Louisiana Insurance Guaranty Association, and the

Traveler’s Indemnity Company. Rec Doc. 1-8 at 2–3.

3 Rec. Doc. 4.

4 Rec. Doc. 5.

the Court granted the motion to expedite and set the motion to remand for expedited hearing, with

oral argument.5 Having considered the motion, the memoranda in support and in opposition, the

arguments presented during oral argument, the record, and the applicable law, the Court denies the

motion to remand.

I. Background

A. Factual Background

In this litigation, Plaintiffs allege that Decedent was employed by Avondale from 1962 to

1994.6 During that time, Plaintiffs aver that Decedent was exposed to asbestos and asbestos-

containing products in various locations and work sites, resulting in Decedent breathing in asbestos

fibers and later developing asbestos-related cancer.7 Plaintiffs assert strict liability and negligence

claims against various Defendants.8 Specifically, Plaintiffs allege that:

All asbestos companies had care, custody, and control of the asbestos,

which asbestos was defective and which presented an unreasonable risk of harm,

which asbestos resulted in the injury of [Decedent] and for which these defendants

are liable under Louisiana law. However, with regard to Avondale and its executive

officers, they are liable because they failed to properly handle and control the

asbestos which was in their care, custody, and control. Petitioners are not alleging

that Avondale and its executive officers are liable for the mere use of asbestos;

rather, Avondale and its executive officers are liable for the misuse of asbestos,

including but not limited to the failure to warn of the hazardous nature and dangers

of asbestos and for the failure to take and implement reasonably safe and industrial

hygiene measures, failure to train, and failure to adopt safety procedures for the

safe installation and removal of asbestos.9

5 Rec. Doc. 8.

6 Rec. Doc. 1-2 at 5.

7 Id.

8 Id. at 7–8.

9 Id.

B. Procedural Background

Decedent filed a “Petition for Damages” in the Civil District Court for the Parish of

Orleans, State of Louisiana, on March 14, 2018.10 Defendants Huntington Ingalls Incorporated,

Albert Bossier, Jr., J. Melton Garret, and Lamorak Insurance Company (the “Avondale Interests”)

removed the case to the United States District Court for the Eastern District of Louisiana for the

first time on June 21, 2018.11 In the first notice of removal, Avondale Interests alleged that removal

was proper because this is an action “for or relating to conduct under color of federal office

commenced in a state court against persons acting under one or more federal officers within the

meaning of 28 U.S.C. § 1442(a)(1).”12

On January 7, 2019, this Court remanded the case to the Civil District Court for the Parish

of Orleans.13 The Court found that Defendants presented no evidence that Decedent came into

contact with asbestos aboard a government vessel, and thus, no federal interest was implicated.14

Alternatively, even accepting Defendants’ argument that Decedent came into contact with asbestos

aboard a government vessel as true, the Court did not find that the necessary causal nexus existed

between Federal Government action and Decedent’s claims.15 This determination was based on

the fact that Decedent brought negligence claims, rather than strict liability claims, against

Avondale Interests.16 Defendants did not appeal the January 7, 2019 Order.

10 Id. at 2-3

11 Case No. 18-6158, Rec. Doc. 1 at 2.

12 Id.

13 Case No. 18-6158, Rec. Doc. 89.

14 Id. at 31.

15 Id.

16 Id. at 36–37.

Decedent passed away on November 24, 2018, and a First Supplemental and Amending

Petition for Damages was filed in state court substituting Decedent’s heirs as Plaintiffs on January

17, 2019.17 Trial was scheduled to begin before the state trial court on January 13, 2020. 18 The

amended petition does not purport to assert any strict liability claims against Avondale.19

On January 9, 2020, Avondale removed the case to the United States District Court for the

Eastern District of Louisiana for a second time.20 In the second notice of removal, Avondale once

again alleges that removal is proper because this is an action “for or relating to conduct under color

of federal office commenced in a state court against persons acting under one or more federal

officers within the meaning of 28 U.S.C. § 1442(a)(1).”21 In the second notice of removal,

Avondale contends that the jury interrogatories, jury charges, and Pre-Trial Order recently filed

by Plaintiffs in state court directly contradict Decedent’s prior representation in federal court that

he was not asserting strict liability claims against Avondale.22 Following the second removal, the

case was randomly allotted to Section “R.”

On January 10, 2020, Plaintiffs filed an “Emergency Motion to Remand”23 and an “Ex

Parte Motion for Expedited Hearing and for Emergency Ruling.”24 On January 13, 2020, this Court

was first informed of the second removal and accepted transfer of the case pursuant to Local Rule

17 Rec. Doc. 1-8.

18 Rec. Doc. 1-12.

19 Rec. Doc. 1-8.

20 Rec. Doc. 1.

21 Id. at 2.

22 Id. at 4–5.

23 Rec. Doc. 4.

24 Rec. Doc. 5.

3.1.1.25 On January 13, 2020, the Court granted the motion to expedite and set the motion to

remand for expedited hearing, with oral argument, on January 17, 2020 at 9:30 AM.26 On January

15, 2020, Avondale filed an opposition to the motion to remand.27 On January 17, 2020, Plaintiffs

filed a reply memorandum.28

II. Parties= Arguments

A. Plaintiffs’ Motion to Remand

In the instant motion, Plaintiffs argue that Avondale has improperly removed this matter

to federal court for a second time.29 Plaintiffs note that the notice of removal was filed on Thursday,

January 9, 2020, just one full working day before the state court trial of this matter was scheduled

to begin on January 13, 2020.30 Plaintiffs assert that “Avondale’s removal was done solely to

obtain a continuance of the trial in state court.”31 Plaintiffs note that Avondale had filed a motion

to continue the trial, which was set to be heard on January 10, 2020.32 According to Plaintiffs, the

main argument for the trial continuance was that there was a pending writ before the Louisiana

Supreme Court, but on January 8, 2020, the Louisiana Supreme Court denied the writ application

eliminating the basis for a continuance.33 Therefore, Plaintiffs speculate that Avondale removed

25 Rec. Doc. 7.

26 Rec. Doc. 8.

27 Rec. Docs. 9, 12.

28 Rec. Docs. 10, 14.

29 Rec. Doc. 4-1 at 1.

30 Id.

31 Id.

32 Id. at 2.

33 Id.

the case “[k]nowing that a denial of its motion to continue was imminent due to the Louisiana

Supreme Court’s writ decision.”34

Plaintiffs argue that “[n]either the facts of this case nor the allegations of plaintiffs’ petition

have changed” since this Court first remanded the case.35 Plaintiffs assert that they have not

amended the petition to allege a strict liability claim against Avondale.36 However, even if they

had, Plaintiffs contend that such an amendment would not warrant removal because the facts of

this case have not changed.37 Plaintiffs point to this Court’s prior finding that there was no evidence

that Decedent was even exposed to asbestos on a government vessel.38 Thus, Plaintiffs assert it

would not matter whether they have alleged negligence and/or strict liability because the federal

officer removal statute only applies to exposure on government vessels.39

Furthermore, Plaintiffs submit that they have not changed their allegations and are not

alleging strict liability against the Avondale Interests.40 Plaintiffs note that Avondale focuses on a

Joint Pre-Trial Outline that was submitted to the state court jointly by all parties, wherein the

parties stated that one of the issues of fact was whether defendants were strictly liable.41 Plaintiffs

contend that this portion of the Joint Pre-Trial Outline was not aimed at Avondale but at the other

34 Id.

35 Id. at 3.

36 Id.

37 Id.

38 Id.

39 Id.

40 Id.

41 Id. at 3–4.

defendants against whom Plaintiffs have alleged strict liability.42 Plaintiffs assert that they “are

unaware of any law which would even allow a party to expand upon the allegations of his petition

through a Joint Pre-Trial Outline.”43

Next, Plaintiffs note that Avondale focuses on certain proposed jury charges and jury

interrogatories Plaintiffs circulated to all parties in this matter.44 Plaintiffs contend that they

inadvertently included a strict liability jury charge.45 Plaintiffs submit that the inadvertent inclusion

of strict liability statements in their proposed jury charges and jury interrogatories do not change

the allegations made in the petitions.46 According to Plaintiffs, “[t]he fact that Avondale relies so

heavily upon ‘proposed’ jury charges and jury interrogatories shows that Avondale’s real motive

behind the filing of this second motion to remand is to obtain a trial continuance.”47

Plaintiffs further note that they conceded in the last motion to remand that the claims

against Avondale Interests involve negligence, not strict liability.48 Plaintiffs assert that such a

concession binds them in this and future litigation.49 Therefore, Plaintiffs contend that this matter

must be remanded to state court because the Joint Pre-Trial Outline, proposed jury charges, and

proposed jury interrogatories do not affect this Court’s prior ruling that removal was not proper.50

42 Id. at 4.

43 Id.

44 Id.

45 Id.

46 Id.

47 Id.

48 Id.

49 Id. at 5 (citing Wilde v. Huntington Ingalls, Inc., 616 F. App’x 710, 714–17 (5th Cir. 2015)).

50 Id.

Finally, Plaintiffs submit that the federal officer removal arguments have already been addressed

by the Court on the facts as they exist in this case, but out of an abundance of caution, Plaintiffs

adopt all arguments made in the first motion to remand and subsequent reply briefs.51

B. Avondale’s Opposition to the Motion to Remand

In the opposition memorandum, Avondale asserts that this case was properly removed to

this Court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1).52 First, Avondale

argues that the removal is procedurally proper because: (1) the notice of removal was timely filed

and (2) Plaintiffs’ pretrial filings properly form a basis for removal.53 Next, Avondale contends

that the three-part inquiry for federal officer removal is met because: (1) it is a “person” within the

meaning of the statute; (2) it acted pursuant to a federal officer’s directions, and a causal nexus

exists between its actions under color of federal office and Plaintiffs’ strict liability claims; and (3)

it has three colorable federal defense to Plaintiffs’ claims.54 Accordingly, Avondale argues that the

Court should deny the Motion to Remand.

1. Avondale Asserts the Removal was Procedurally Proper

a. Timeliness of Removal

Avondale asserts that it timely removed this case to federal court on January 9, 2020 within

30 days of the filing of Plaintiffs’ Pre-Trial Order, jury interrogatories, and jury charges.55

Avondale contends that these pleadings were the first “other paper” from which Avondale could

ascertain that this case had become subject to removal based on Plaintiffs’ intention to pursue strict

51 Id.

52 Rec. Doc. 12.

53 Id. at 15–18.

54 Id. at 19–35.

55 Id. at 16.

liability claims against Avondale.56

b. Avondale Argues Pretrial Filings Properly Form the Basis for Removal

Avondale contends that the pretrial filings can properly form the basis for removal pursuant

to 28 U.S.C. § 1446(b)(3), which recognizes that the receipt of “other paper” may form the basis

of a removal.57 In support, Avondale cites district court cases holding that pretrial filings constitute

“other paper” upon which a defendant may base a removal.58 According to Avondale,

“[d]isallowing removal on the basis of Plaintiffs ‘other paper’ that clearly inserts strict liability

claims into this case would sanction Plaintiffs’ scheme to circumvent Avondale’s removal

rights.”59

Additionally, Avondale notes that Plaintiffs admit that the jury interrogatories, jury

charges, and Pre-Trial Order inject strict liability claims against Avondale, although Plaintiffs

argue the inclusion was inadvertent.60 Avondale asserts that the inclusion of the strict liability

claims was not inadvertent, “as those claims are made repeatedly and in exacting detail.”61

Furthermore, even if the inclusion was inadvertent, Avondale contends that the assertion of strict

liability claims against Avondale can establish subject matter jurisdiction.62

Finally, Avondale contends that past litigation tactics of Plaintiffs’ counsel show that the

56 Id.

57 Id. at 17.

58 Id. (citing Laber v. United Steel, 126 F.Supp.3d 934 (N.D. Ohio Aug. 27, 2015); Parker v. County of

Oxford, 224 F.Supp.2d 292, 294 (D. Me. Oct. 9, 2002); Janis v. Workhorse Custom Chassis, LLC, 2012 WL 2597935,

at **2–6 (N.D. Ill. Jul. 5, 2012); Hurst v. Nissan North America, Inc., 2013 WL 65466 (W.D. Mo. Jan. 4, 2013);

Leboeuf v. Texaco, 9 F. Supp. 2d 661, 664–65 (E.D. La. 1998)).

59 Id. at 17–18.

60 Id. at 18.

61 Id.

62 Id. (citing Pitre v. Huntington Ingalls, Inc., No. CV 17-7029, 2017 WL 6033032 (E.D. La. Dec. 6, 2017)).

inclusion of strict liability claims was intentional. In support, Avondale cites a prior case involving

Plaintiffs’ counsel, where counsel stated that the plaintiff had not plead strict liability claims while

the case was pending in federal court, but after remand argued for the inclusion of strict liability

claims before the state court.63 For these reasons, Avondale asserts that the second removal was

procedurally proper.

2. Avondale Contends the Three-Part Test for Federal Officer Removal is Met

a. Avondale is a Person

Avondale contends it is undisputed that Avondale is a “person” under the federal officer

removal statute.64 Therefore, Avondale asserts the first element is satisfied.65

b. “Acting Under” Color of Federal Office and Causal Nexus Requirement

Next, Avondale contends that the second element is satisfied because it acted pursuant to

a federal officer’s directions, and a causal nexus exists between its actions under color of federal

office and Plaintiffs’ strict liability claims.66

i. Acting Under Color of Federal Office

Avondale argues that Decedent’s alleged asbestos exposures aboard the Lykes vessels

implicate a federal interest necessary to form the basis of a federal officer removal because the

Lykes vessels were partially financed by the government and were to be used in time of war.67

According to Avondale, the Lykes vessels that Decedent worked aboard were built according to

63 Id. at 19–21.

64 Id. at 25.

65 Id.

66 Id. at 15–20.

67 Rec. Doc. 1 at 3; Rec. Doc. 12 at 12.

certain specifications so they could be utilized in a time of war.68 Importantly, Avondale contends

that one of these specifications “required the use of some asbestos-containing materials.”69

Therefore, Avondale argues that it was acting under federal control when it built the Lykes vessels

because it “was building ships used to help conduct a war and in the absence of its contract with

Avondale, the government itself would have had to build those vessels.”70

ii. “Causal Nexus” Requirement

Avondale asserts that it is undisputed that strict liability claims against Avondale are

sufficient to satisfy the causal nexus requirement.71 Avondale contends that because Decedent

alleges exposure between 1962 to 1994, before Louisiana abolished strict liability, pre-1996

Louisiana law governs.72 Avondale argues that under the former version of Article 2317 of the

Louisiana Civil Code, strict liability claims rest on the mere use of asbestos.73 Here, Avondale

contends, use at the shipyard was pursuant to government directions via contract specifications.74

As such, Avondale argues that this case is materially indistinguishable from Savoie v. Huntington

Ingalls, Inc., where the Fifth Circuit held that the plaintiffs’ former Article 2317 strict liability

claim satisfied the requirements for federal officer removal.75

Additionally, Avondale argues that Plaintiffs make strict products liability claims against

68 Rec. Doc. 12 at 13–14.

69 Id. at 14 (citing Rec. Doc. 12-1).

70 Id. at 25–27.

71 Id. at 22.

72 Id.

73 Id.

74 Id.

75 Id. (citing Savoie v. Huntington Ingalls, Inc., 817 F.3d 457 (5th Cir. 2016)).

Avondale under Louisiana’s unreasonably dangerous per se doctrine, which is also a form of strict

liability.76 Avondale contends that Plaintiffs seek to hold Avondale liable as a professional vendor,

which subjects Avondale to strict products liability.77 In support of their claims, Avondale notes

that Plaintiffs designated testimony from Decedent indicating that Avondale fabricated or

manufactured asbestos blankets.78 Avondale asserts that this was a strategic decision by Plaintiffs

because Avondale has raised a contributory negligence defense which would bar recovery on

Plaintiffs’ negligence claims.79 Thus, Avondale asserts that Plaintiffs have evidenced a clear and

strategic effort to hold Avondale liable for the “mere use” of asbestos.80

c. Colorable Federal Defenses

Finally, Avondale argues that it has asserted three colorable federal defenses to Plaintiffs’

claims.81 First, Avondale contends that Plaintiffs’ claims are barred by the derivative sovereign

immunity defense.82 Second, Avondale asserts that Plaintiffs’ claims are barred under the

government contractor immunity defense.83 Third, Avondale avers that the Longshore Harbor

Workers’ Compensation Act (“LHWCA”) preempts Plaintiffs’ state law claims.84 Therefore,

Avondale asserts that the motion to remand should be denied as jurisdiction properly rests with

76 Id. at 22–23 (citing Halphen v. Johns-Manville Sales Corp., 484 So. 2d 110, 113–14 (La. 1986))

77 Id. at 24.

78 Id.

79 Id.

80 Id. at 25.

81 Id. at 27–45.

82 Id. at 28–32.

83 Id. at 32–36.

84 Id. at 36–45.

this Court.85

i. Derivative Sovereign Immunity

Avondale argues that Plaintiffs’ claims are barred by the derivative sovereign immunity

defense established in Yearsley and its progeny.86 Avondale first argues that MARAD, the federal

agency in this case, had the authority to enter into the contract with Avondale and that therefore,

this authority was validly conferred by an act of Congress.87 Avondale next contends that it

complied with the terms of the contract, which in part, required the use of asbestos containing

materials.88 In sum, Avondale argues that Plaintiffs have not controverted the Yearsley defense.89

ii. Government Contractor Immunity

Next, Avondale argues that Plaintiffs’ claims are barred under the government contractor

immunity defense.90 To prevail under this defense, Avondale argues it must show “(1) that the

government approved reasonably precise specifications for the construction of the ships; (2) that

the ships conformed to those specifications; and (3) that the contractor warned the government of

any hazards presented by the asbestos-containing components the government required that were

known to the contractor but unknown to the government.”91 With regard to the first factor,

Avondale contends that contracts executed between Avondale and the United States government

established the terms by which Avondale was to construct the vessels upon which Decedent

85 Id. at 45.

86 Id. at 28–32.

87 Id. at 29–30.

88 Id. at 30–31.

89 Id. at 31–32.

90 Id. at 32–36.

91 Id. at 32 (citing Boyle v. United Technologies Corp., 487 U.S. 500, 511 (1988)).

worked.92 With regard to the second factor, Avondale argues that it complied with the reasonably

precise specifications the government imposed in the shipbuilding operation.93 With regard to the

third factor, Avondale contends that it submitted affidavits of maritime historians who attest that

Avondale had less knowledge and information about the hazards of asbestos than the United States

government.94 Therefore, Avondale contends that Plaintiffs’ claims are barred under the

government contractor immunity defense.95

iii. Preemption by the LHWCA

Finally, Avondale argues that one or more of Plaintiffs’ claims are preempted or barred by

the LHWCA.96 Avondale asserts that Decedent worked on the Lykes vessels while they were in

the water, and therefore he is covered by the LHWCA.97 Avondale argues that the applicable law

is determined at the time the disease manifests itself, and here Decedent was not diagnosed with

lung cancer until 2017.98 Under the current version of the LHWCA, Avondale contends, Plaintiffs’

state law tort action against Avondale, Decedent’s employer, is barred.99

C. Plaintiffs’ Arguments in Further Support of the Motion to Remand

In reply, Plaintiffs argue that (1) removal is untimely; (2) even if Plaintiffs alleged strict

liability, this Court has already ruled that Decedent was not exposed to asbestos on a government

92 Id. at 32–33.

93 Id. at 34.

94 Id. at 35.

95 Id. at 36.

96 Id.

97 Id. at 44.

98 Id. at 38.

99 Id. at 36.

vessel; (3) Plaintiffs have not alleged strict liability against Avondale; (4) no federal interest is

implicated with regard to exposure on non-government vessels; (5) Avondale does not have a

colorable federal defense in this case.100

First, Plaintiffs argue that removal is untimely.101 Plaintiffs contend that Avondale based

its removal on Decedent’s exposure to asbestos aboard the Lykes vessels, which Decedent testified

about on April 23, 2018.102 Therefore, Plaintiffs assert “any argument regarding Lykes vessels

implicating a federal interest would be untimely.”103

Second, Plaintiffs contend that even if Plaintiffs have alleged strict liability against

Avondale, this Court has already ruled that Decedent was not exposed to asbestos on a government

vessel.104 Plaintiffs argue that the issue of whether Decedent came in contact with asbestos aboard

a government vessel was already decided the first time this matter was removed.105 Plaintiffs assert

that this Court already determined that Decedent did not come into contact with asbestos aboard a

government vessel, and that therefore, no federal interest is implicated.106 Plaintiffs argue that if

Avondale disagreed with this Court’s prior holding, it should have appealed the decision to

remand.107

100 Rec. Doc. 14.

101 Id. at 1.

102 Id.

103 Id.

104 Id. at 2–4.

105 Id. at 2.

106 Id. at 2–3 (citing Dempster v. Lamorak Ins. Co., 2019 U.S. Dist. LEXIS 2118, *12 (E.D. La. 2019)).

107 Id. at 3–4.

Third, Plaintiffs contend that they have not alleged strict liability against Avondale.108

Plaintiffs argue that while the proposed jury charges and jury interrogatories include strict liability

references, those claims are against other parties, not Avondale.109 Plaintiffs assert that in the Fifth

Circuit, the information supporting removal must be unequivocally clear and certain and that here,

the documents relied upon by Avondale supporting removal are not clear.110 Plaintiffs argue that

the proposed interrogatories, proposed jury charges and Joint Pre-Trial Outline do not alter the

allegations set forth in the petition, which Plaintiffs argue do not assert strict liability claims.111

Fourth, Plaintiffs assert that no federal interest is implicated with regard to exposure on

non-government vessels.112 Plaintiffs contend that this Court previously held that no federal

interest is implicated and that therefore, res judicata applies.113 Plaintiffs argue that there is no

evidence indicating that Decedent was exposed to asbestos aboard any government vessel.114

Plaintiffs contend that Decedent was only exposed to asbestos aboard Lykes vessels, which

Plaintiffs contend are not government vessels.115 Furthermore, Plaintiffs contend that the Lykes

Brothers chose to build the vessels as part of the CDS program in order to save money, and that

such a discretionary decision pertaining to a commercial vessel does not warrant federal officer

108 Id. at 4.

109 Id.

110 Id. at 5 (citing Morgan v. Huntington Ingalls, 879 F.3d 602 608-609 (5th Cir. 2018).

111 Id. at 5–6.

112 Id. at 9.

113 Id.

114 Id.

115 Id. at 9–10.

removal because no federal interests is implicated.116

Fifth and lastly, Plaintiffs argue that Avondale does not have a colorable federal defense in

this case.117 Plaintiffs first contend that Avondale’s arguments regarding derivative sovereign

immunity and government contractor defense are inapplicable because the challenged conduct at

issue here is the failure to warn, train in the proper use of asbestos, and adopt procedures for safe

handling.118 Finally, Plaintiffs argue that their state law claims are not preempted by the LHWCA

because a plaintiff may pursue state tort remedies if there is concurrent jurisdiction.119

III. Legal Standard

Pursuant to 28 U.S.C. § 1442(a)(1), a civil action commenced in state court against “[t]he

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” may be removed to federal court. The purpose of the federal officer

removal statute is to protect the Federal Government from undue state interference of its lawful

activities.120 Before Section 1442(a)(1) was amended in 2011, a person acting under a federal

officer could only remove a case to federal court if the state lawsuit was “for any act under color

of such office;” after the 2011 amendment, Section 1442 allows removal of a state suit “for or

relating to any act under color of such office.”121 According to the Fifth Circuit, “[t]he plain

116 Id. at 10–11.

117 Id. at 11–17.

118 Id. at 11–12.

119 Id. at 15.

120 See Mesa v. California, 489 U.S. 121, 126 (1989); Bartel v. Alcoa Steamship Co., 64 F. Supp. 3d 843,

852–53 (M.D. La. 2014), aff’d sub nom. Bartel v. Alcoa S.S. Co., 805 F.3d 169 (5th Cir. 2015); St. Bernard Port,

Harbor & Terminal Dist. v. Violet Dock Port, Inc., LLC, 809 F. Supp. 2d 524, 529 (E.D. La. 2011) (Vance, J.).

121 28 U.S.C. § 1442(a)(1) (emphasis added); Zeringue v. Crane Co., 846 F.3d 785, 793 (5th Cir. 2017)

(discussing the 2011 amendment).

meaning of the added language broadens the scope of the statute as the ordinary meaning of [the

phrase ‘relating to’] is a broad one—‘to stand in some relation; to have bearing or concern; to

pertain; refer; to bring into association with or connection with.’”122

Unlike the general removal statute, which must be strictly construed in favor of remand,

the federal officer removal statute’s language must be liberally interpreted.123 Nonetheless, its

“broad language is not limitless.”124 It is the removing party’s burden to establish the existence of

federal jurisdiction over the controversy.125 An order remanding a case to state court that was

removed pursuant to the federal officer removal statue is appealable under 28 U.S.C. § 1447(d)

and is reviewed de novo by the Fifth Circuit, “without a thumb on the remand side of the scale.”126

The Fifth Circuit has adopted a three-part inquiry to determine whether a government

contractor qualifies as a “person acting under [a federal] officer” who is sued “in an official or

individual capacity, for or relating to any act under color of such office.”127 The contractor must

prove that: (1) it is a “person” within the meaning of the statute; (2) it acted pursuant to a federal

officer’s directions, and a causal nexus exists between its actions under color of federal office and

the plaintiff’s claims; and (3) it has a colorable federal defense to the plaintiff’s claims.128

122 Zeringue, 846 F.3d at 793 (quotation marks omitted).

123 Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 147 (2007); Winters v. Diamond Shamrock Chem.

Co., 149 F.3d 387, 398 (5th Cir. 1998) (“Furthermore, this right is not to be frustrated by a grudgingly narrow

interpretation of the removal statute.”); Bartel, 64 F. Supp. 3d at 852–53; St. Bernard Port, Harbor & Terminal Dist.,

809 F. Supp. 2d at 529.

124 Watson, 551 U.S. at 147; Winters, 149 F.3d at 397.

125 Winters, 149 F.3d at 397; St. Bernard Port, Harbor & Terminal Dist., 809 F. Supp. 2d at 530.

126 Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 460 (5th Cir. 2016).

127 Id at 461; St. Bernard Port, Harbor & Terminal Dist., 809 F. Supp. 2d at 529.

128 Winters, 149 F.3d at 397; Savoie, 817 F.3d at 461-62; St. Bernard Port, Harbor & Terminal Dist., 809 F.

Supp. 2d at 529.

IV. Analysis

On January 7, 2019, this Court remanded the case to the Civil District Court for the Parish

of Orleans.129 The Court found that Defendants presented no evidence that Decedent came into

contact with asbestos aboard a government vessel, and thus, no federal interest was implicated.130

Alternatively, even accepting Defendants’ argument that Decedent came into contact with asbestos

aboard a government vessel as true, the Court did not find that the necessary causal nexus existed

between Federal Government action and Decedent’s claims. 131 This determination was based on

the fact that Decedent brought negligence claims, rather than strict liability claims, against

Avondale Interests.132 Defendants did not appeal the January 7, 2019 Order.

In the second notice of removal, Avondale once again alleges that removal is proper

because this is an action “for or relating to conduct under color of federal office commenced in a

state court against persons acting under one or more federal officers within the meaning of 28

U.S.C. § 1442(a)(1).”133 In the second notice of removal, Avondale contends that the jury

interrogatories, jury charges, and Pre-Trial Order recent filings by Plaintiffs in state court directly

contradict Decedent’s prior representation in federal court that he was not asserting strict liability

claims against Avondale.134 Before deciding whether the three-part test for federal officer removal

is met, the Court must consider the procedural issues raised: (1) whether the notice of removal was

timely filed and (2) whether Plaintiffs’ pretrial filings were a proper basis for this second removal.

129 Case No. 18-6158, Rec. Doc. 89.

130 Id. at 31.

131 Id.

132 Id. at 36–37.

133 Rec. Doc. 1 at 2.

134 Id. at 4–5.

A. Procedural Issues

1. Timeliness of Removal

Avondale asserts that it timely removed this case to federal court on January 9, 2020 within

30 days of the filing of Plaintiffs’ Pre-Trial Order, jury interrogatories, and jury charges.135

Avondale contends that these pleadings were the first “other paper” from which Avondale could

ascertain that this case had become subject to removal based on Plaintiffs’ intention to pursue strict

liability claims against Avondale.136 In response, Plaintiffs argue that the removal was untimely.137

Plaintiffs contend that Avondale based its removal on Decedent’s exposure to asbestos aboard

Lykes vessels, which Decedent testified about on April 23, 2018.138 Therefore, Plaintiffs assert

“any argument regarding Lykes vessels implicating a federal interest would be untimely.”139

28 U.S.C. § 1446(b) governs the time limitations for removal of a case to federal court.140

Generally, a notice of removal must be filed within 30 days of the defendant receiving a copy of

the initial pleading.141 Yet, if the case is not originally removable, but it later becomes removable,

a party may file a notice of removal within 30 days after the defendant receives “a copy of an

amended pleading, motion, order or other paper from which it may first be ascertained” that the

135 Rec. Doc. 12 at 16.

136 Id.

137 Rec. Doc. 14 at 1.

138 Id.

139 Id.

140 28 U.S.C. § 1446(c) provides that for removal based on diversity of citizenship, a case may not be removed

pursuant to 28 U.S.C. § 1446(b)(3) more than 1 year after commencement of the action, unless the district court finds

that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action. Here, removal is not

based on diversity, and therefore the 1-year time limitation does not apply.

141 28 U.S.C. § 1446(b)(1).

case is removable.142 “The information supporting removal in a copy of an amended pleading,

motion, order or other paper . . . must be unequivocally clear and certain to start the time limit

running.”143

Here, the jury interrogatories, jury charges, and Pre-Trial Order evidence an intent to hold

Avondale liable under a theory of strict liability contrary to Decedent’s representations when the

case was first removed. These pretrial filings were the first “other paper” from which Avondale

could ascertain that this case had become removable, because that was the first instance in which

Plaintiffs indicated they would pursue strict liability claims against Avondale. Plaintiffs filed the

proposed jury interrogatories, jury charges, and Pre-Trial Order on January 3, 2020.144 Avondale

removed on January 9, 2020, only six days later.145 Accordingly, the removal was timely.

2. The Second Removal

Plaintiffs argue that the issue of whether Decedent came into contact with asbestos aboard

a government vessel was already judicially determined by this Court the first time this matter was

removed and that therefore, res judicata applies.146 Plaintiffs contend that this Court previously

found that Decedent did not come into contact with asbestos aboard a government vessel, and that

therefore, no federal interest is implicated.147 Plaintiffs argue that if Avondale disagreed with this

Court’s prior holding, it should have appealed the decision to remand.148

142 Id. § 1446(b)(3).

143 Morgan v. Huntington Ingalls, Inc., 879 F.3d 602, 608–09 (5th Cir. 2018) (citations and quotations

omitted).

144 Rec. Docs. 1-10, 1-11, 1-12.

145 Rec. Doc. 1.

146 Rec. Doc. 14 at 2, 9.

147 Id. at 2–3 (citing Dempster v. Lamorak Ins. Co., 2019 U.S. Dist. LEXIS 2118, *12 (E.D. La. 2019)).

148 Id. at 3–4.

The mere fact that a case was previously removed and remanded does not automatically

preclude a subsequent removal. “The Fifth Circuit recognizes a defendant’s right to seek

subsequent removals after remand.”149 “[A] defendant is precluded only from seeking a second

removal on the same ground,” meaning by referring to the same pleading or event that formed the

basis of the initial removal.150 Nevertheless, a defendant may file a second notice of removal when

subsequent pleadings or events reveal a new and different basis for removal.151

In the first notice of removal, Avondale Interests alleged that the matter became removable

upon receipt of the affidavit of Leroy Rome (“Mr. Rome”) stating that Avondale insulators were

exposed to asbestos aboard Navy Destroyer Escorts.152 In the second notice of removal, Avondale

contends that the matter became removable upon receipt of the jury interrogatories, jury charges,

and Pre-Trial Order recently filed by Plaintiffs in state court, which Avondale contends contradict

Decedent’s prior representation in federal court that he was not asserting strict liability claims

against Avondale.153 The jury interrogatories, jury charges, and Pre-Trial Order, which formed the

basis of the second removal, are clearly different from the Rome Affidavit, which formed the basis

of the first removal. Therefore, Avondale is not precluded from removing the case for a second

time because the second removal is based on different grounds.154

149 S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996) (citing Browning v. Navarro, 743

F.2d 1069, 1079–80 n. 29 (5th Cir. 1984)).

150 Id. (emphasis in original).

151 Id. at 492–93.

152 Case No. 18-6158, Rec. Doc. 1 at 4.

153 Rec. Doc. 1 at 4–5.

154 S.W.S. Erectors, Inc., 72 F.3d at 492.

B. Whether the Three-Part Test for Federal Officer Removal is Met

As noted above, the Fifth Circuit has adopted a three-part inquiry to determine whether a

government contractor qualifies as a “person acting under [a federal] officer” who is sued “in an

official or individual capacity for any act under color of such office.”155 The contractor must prove

that: (1) it is a “person” within the meaning of the statute; (2) it acted pursuant to a federal officer’s

directions, and a causal nexus exists between its actions under color of federal office and the

plaintiff’s claims; and (3) it has a colorable federal defense to the plaintiff’s claims.156 The

removing defendant must satisfy all three prongs to support removal; if any one prong is lacking,

remand to state court is justified.157 Accordingly, the Court will address each prong in turn.

1. Whether Avondale is a Person Within the Meaning of the Statute

With regard to the first factor, the parties do not dispute that Avondale, as a corporation,

qualifies as a “person” within the meaning of Section 1442. Both the Supreme Court and the Fifth

Circuit have recognized that the removal statute applies to both private persons and corporate

entities “‘who lawfully assist’ the federal officer ‘in the performance of his official duty.’”158

Therefore, the Court finds that Avondale has sufficiently shown that the corporation is a “person”

within the meaning of the federal officer removal statute.

2. Whether Avondale Acted Pursuant to a Federal Officer’s Directions, and

Whether a Causal Nexus Exists Between its Actions Under Color of Federal

Office and Plaintiffs’ Claims

With regard to the second factor, Section 1442 requires a government contractor seeking

155 Id.; St. Bernard Port, Harbor & Terminal Dist., 809 F. Supp. 2d at 529.

156 Winters, 149 F.3d at 397; Savoie, 817 F.3d at 461-62; St. Bernard Port, Harbor & Terminal Dist., 809 F.

Supp. 2d at 530.

157 Legendre v. Huntington Ingalls, Inc., 885 F.3d 398, 400 (5th Cir. 2018).

158 Savoie, 817 F.3d at 461 (quoting Watson, 551 U.S. at 151 (quoting Davis v. South Carolina, 107 U.S. 597,

600 (1883))).

removal to establish that it (1) “acted pursuant to a federal officer’s directions,” which is

sometimes phrased as “acting under” federal direction, and, (2) “that a causal nexus exists between

the defendants’ actions under color of federal office and the plaintiff’s claims.”159

a. Whether Avondale Acted Pursuant to a Federal Officer’s Directions

To determine whether a contractor is “acting under” federal direction in the context of

federal contractor immunity, the Supreme Court has asked whether the contractor “is helping the

Government to produce an item that it needs . . . [or is] perform[ing] a job that, in the absence of

a contract with a private firm, the Government itself would have had to perform.”160 The Supreme

Court has held that the term “acting under” is broad and must be “liberally construed,” 161 and must

“refer to . . . a relationship that involves ‘acting in a certain capacity, considered in relation to one

holding a superior position or office.’”162 This relationship “typically involves ‘subjection,

guidance, or control,’”163 but, at a minimum, it “must involve an effort to assist, or to help carry

out, the duties or tasks of the federal superior.”164 Importantly, “[d]irect oversight of the specific

acts that give rise to a plaintiff’s complaint is not required to satisfy this part of § 1442.”165

Plaintiffs argue that the issue of whether Decedent came in contact with asbestos aboard a

government vessel was already judicially determined by this Court the first time this matter was

159 Winters, 149 F.3d at 398.

160 Watson, 551 U.S. at 153–54.

161 Id. at 147.

162 Id. at 151 (quoting 18 Oxford English Dictionary 948 (2d ed. 1989)).

163 Id. (quoting Webster’s New International Dictionary 2765 (2d ed. 1953)).

164 Id. at 152.

165 Zeringue, 846 F.3d at 792.

removed and that therefore, res judicata applies.166 In the first notice of removal, regarding the

“acting under” factor, Avondale Interests argued that Decedent was exposed to asbestos while

working on Navy Destroyer Escorts, which were constructed by Avondale pursuant to a contract

with the United States government.167 In support of this argument, Avondale Interests presented

an affidavit of Mr. Rome, who swore that “he and other insulators were ‘exposed to asbestos by

working with or around asbestos-containing materials while working on [Navy Destroyer Escorts]

vessels,’ that he knew that [Decedent] worked on the same [Navy Destroyer Escorts] that he did

because ‘[Rome] would leave instructions for the night crew, which included [Decedent],’ and that

the duties of Avondale insulators included work with asbestos-containing products.”168 In the

Remand Order, this Court concluded that Mr. Rome’s testimony was insufficient to show that

Decedent came into contact with asbestos aboard a government vessel because Mr. Rome, as a

member of the night crew, confirmed that he never personally saw Decedent, a member of the day

crew, working aboard government vessels, working in a boiler room, or exposed to asbestos.169

Therefore, the Court held that Avondale Interests had not shown that a federal interest was

implicated.170

In the second removal, regarding the “acting under” factor, Avondale now argues that

Decedent’s alleged asbestos exposure aboard Lykes vessels implicate a federal interest necessary

to form the basis of a federal officer removal because Lykes vessels were partially financed by the

166 Rec. Doc. 10-3 at 2, 9.

167 Case No. 18-6158, Rec. Doc. 1 at 4.

168 Id.

169 Dempster v. Lamorak Ins. Co., 2019 U.S. Dist. LEXIS 2118, *29 (E.D. La. 2019).

170 Id.

government and were to be used in time of war.171

According to the affidavit of Christopher Herfel (“Mr. Herfel”), a maritime historian, the

Lykes vessels were constructed under the provisions of Title V of the Merchant Marine Act of

1936, known as the Construction Differential Subsidy (“CDS”) program.172 Mr. Herfel states that

the CDS program permitted the U.S. Maritime Administration (“MARAD”) to pay for over half

of the cost of new merchant ships to defray the cost of building the ships in U.S. commercial

shipyards.173 Mr. Herfel attests that ship plans and specifications were reviewed by both MARAD

and the U.S. Navy, and the ship construction specifications all required the use of at least some

asbestos-containing materials.174 Additionally, Mr. Herfel states that the Navy required all ships

receiving CDS funding to include Specific “National Defense Features” to ensure that the ships

could be used as Naval Auxiliaries in time of war.175 According to Mr. Herfel, the CDS payments

were made directly to Avondale, and Avondale was obligated to build the vessels in strict

accordance with the ship plans and specifications.176

In building these vessels, Avondale was “helping the Government to produce an item that

it needs . . . [or was] perform[ing] a job that, in the absence of a contract with a private firm, the

Government itself would have had to perform.”177 The Government needs vessels that can be used

in a time of war. The CDS program allowed ship owners to obtain favorable financing from the

171 Rec. Doc. 1 at 3; Rec. Doc. 12 at 12.

172 Rec. Doc. 12-1 at 5.

173 Id.

174 Id.

175 Id.

176 Id.

177 Watson, 551 U.S. at 153–54.

U.S. Maritime Administration, which paid a portion of the cost of building merchant ships.178 In

exchange, the government required that the ships be built according to certain specifications, so

that they could be used in a time of war.179 In Wilde, the Fifth Circuit found the mere fact that “the

federal government would have had to build those ships had [the defendant] not done so” sufficient

to satisfy the “acting under” requirement.180 Here, the evidence presented establishes that had the

Lykes vessels that Decedent worked on not been built, the government would have had to build

similar vessels to be used as Naval Auxiliaries in a time of war. Therefore, the Court finds that the

facts in the record are sufficient to establish that Avondale was “acting under” federal direction.

2. Whether a Causal Nexus Exists Between its Actions Under Color of Federal

Office and the Plaintiff’s Claims

In Bartel v. Alcoa S.S. Company, the Fifth Circuit explained that it is “necessary but not

sufficient for a defendant to show it ‘acted pursuant to a federal officer’s directions,’” as the

removing party must also show that a causal nexus exists.181 In other words, there must be a causal

nexus between the defendant’s conduct and the government requirements.182 Importantly, “mere

federal involvement does not satisfy the causal nexus requirement; instead, the defendant must

show that its actions taken pursuant to the government’s direction or control caused the plaintiff's

specific injuries.”183

In Bartel, the Fifth Circuit instructed that, when considering whether a causal nexus exists

178 Rec. Doc. 12-1 at 5.

179 Id.

180 Wilde v. Huntington Ingalls, Inc., 616 F. App’x 710, 713 (5th Cir. 2015) (per curiam).

181 Bartel, 805 F.3d at 172 (emphasis added) (quoting Winters, 149 F.3d at 398).

182 Id.

183 Savoie, 817 F.3d at 462.

for removal, it is “important to understand the nature of the plaintiffs’ allegations . . . [for] failure

to warn, failure to train, and failure to adopt procedures for the safe installation and removal of

asbestos.”184 Thus, the Bartel court opined that the proper approach for such negligence claims is

to consider whether the Federal Government exercised control over safety requirements such that

a failure to warn was caused by the Federal Government’s instructions.185 Because the defendants

“[could] do no better than to show that the Federal Government owned the vessels in question”

and did not produce evidence that the Federal Government issued orders relating to safety

procedures or asbestos, the Fifth Circuit held that remand was proper.186

A year later in Savoie v. Huntington Ingalls, Inc., the Fifth Circuit again held that, “with

respect to the [plaintiff’s] negligence claims, we agree with the district court that the federal

government’s mandate of asbestos insulation did not cause the shipyard to engage in the

challenged conduct.”187 In other words, the Fifth Circuit concluded that negligence claims for

failing to warn of the dangers of asbestos or to take safety precautions against asbestos exposure

“did not challenge actions taken under color of federal authority even though the government was

responsible for the existence of the asbestos.”188 The Fifth Circuit noted that the shipyard failed to

demonstrate that its government contracts “prevented it from taking any of these protective

measures identified by Plaintiffs,” as an affidavit stating that the Navy inspected and oversaw the

184 Bartel, 805 F.3d at 173.

185 Id. (citing Lalonde v. Delta Field Erection, No. 96-3244, 1998 WL 34301466, at *1 (M.D. La. Aug. 6,

1998)).

186 Id. at 174.

187 Savoie, 817 F.3d at 462.

188 Id.

vessels for safety was insufficient to trigger Section 1442(a)(1) jurisdiction.189 The Fifth Circuit

further pointed out that the other evidence presented made clear that the government had no control

over the shipyard’s safety procedures or safety department.190 In sum, the Fifth Circuit concluded

that because the plaintiff’s negligence claims “challenge[d] discretionary acts of the shipyard free

of federal interference” and “the government’s directions to the shipyard via the contract

specifications did not cause the alleged negligence,” removal on those grounds was not proper.191

The Fifth Circuit further determined, however, that the plaintiff’s strict liability claims against the

shipyard, which were premised on the “mere use of asbestos” and “do not turn on discretionary

decisions made by the shipyard,” supported federal officer removal.192

A line of similar asbestos cases before the Fifth Circuit culminated in Legendre v.

Huntington Ingalls, Inc., wherein the court again affirmed a district court order remanding an

asbestos case to state court.193 The plaintiffs in Legendre alleged that Huntington Ingalls failed to

warn them of the risks of asbestos exposure and failed to implement proper safety procedures for

handling asbestos.194 Referencing earlier cases, the Fifth Circuit explained that strict liability

claims that “rest[ ] on the mere use of asbestos” support removal because they are “causally linked

to the [government’s] requirement that its ships contain asbestos.”195 But negligently “failing to

warn, train, and adopt safety procedures regarding asbestos” does not support removal because it

189 Id. at 463.

190 Id.

191 Id.

192 Id. at 465.

193 Legendre, 885 F.3d at 398.

194 Id. at 399.

195 Id. at 401 (quoting Savoie, 817 F.3d at 465–66).

is “private conduct that implicate[s] no federal interest.”196

Simply put, the causal nexus prong is established when a plaintiff seeks to recover on a

theory of strict liability but is absent when the theory of recovery is restricted to negligence for

failure to warn, train, and adopt safety procedures regarding asbestos. In the January 7, 2019 Order

remanding this case for the first time, this Court found that the necessary causal nexus did not exist

between Federal Government action and Decedent’s claims.197 This determination was based on

the fact that Decedent brought negligence claims, rather than strict liability claims, against

Avondale Interests.198

In the second notice of removal, Avondale contends that the jury interrogatories, jury

charges, and Pre-Trial Order filings by Plaintiffs in state court directly contradict Decedent’s prior

representation in federal court that he was not asserting strict liability claims against Avondale.199

In the instant motion to remand, Plaintiffs submit that they have not changed their allegations and

are not alleging strict liability against the Avondale Interests.200 Plaintiffs contend that they have

not raised strict liability in either the petition or the amended petition, and to the extent they

inadvertently included strict liability in the pretrial filings such inclusions do not change the

allegations made in the petitions.201

In response, Avondale contends that the pretrial filings can properly form the basis for

removal pursuant to 28 U.S.C. § 1446(b)(3), which recognizes that the receipt of “other paper”

196 Id. at 402 (quoting Zeringue, 846 F.3d at 794).

197 Case No. 18-6158, Rec. Doc. 89 at 31.

198 Id. at 36–37.

199 Rec. Doc. 1 at 4–5.

200 Rec. Doc. 4-1 at 3.

201 Id. at 3–4.

may form the basis of a removal.202 In support, Avondale cites Leboeuf v. Texaco.203 In Leboeuf,

a district court in the Eastern District of Louisiana found that although neither the original petition

nor the first supplemental and amended petition contained any reference to federal claims so as to

place the defendant on notice for removal purposes, the plaintiffs’ answer to an interrogatory,

stating that one of the common legal and factual issues to be determined by the class action was

the defendant’s liability under the Federal Oil Pollution Act, raised an issue of federal law

sufficient to trigger the thirty-day period for removal.204

In the Joint Pre-Trial Outline, Plaintiffs listed the issue of “[w]hether defendants are strictly

liable” as a question of fact and law to be determined at trial.205 The parties do not dispute that

Plaintiffs bring strict liability claims against some of the defendants, and the Joint Pre-Trial Outline

does not specifically reference a strict liability claim against Avondale. However, in the proposed

jury interrogatories, Plaintiffs do include a question which would ask the jury to decide if the

asbestos in the care, custody, or control of Avondale was “unreasonably dangerous per se” and a

question which would ask the jury to decide whether asbestos in the care, custody, or control of

Avondale was “unreasonably dangerous in composition.”206 In Savoie v. Huntington Ingalls, Inc.,

the Fifth Circuit held that the plaintiff’s claim that “'[a]ll defendants had care, custody, and control

of the asbestos, which asbestos was defective and which presented an unreasonable risk of harm,

which asbestos resulted in the injury of Mr. Savoie and for which these defendants are strictly

202 Rec. Doc. 12 at 16–17. Avondale contends that Plaintiffs’ Pre-Trial Order, jury interrogatories, and jury

charges constitute “other paper” from which Avondale could ascertain that this case had become subject to removal

based on Plaintiffs’ intention to pursue strict liability claims against Avondale.

203 Leboeuf, 9 F. Supp. 2d at 661.

204 Id. at 664–65.

205 Rec. Doc. 1-12 at 25.

206 Rec. Doc. 1-10 at 5–6.

liable under Louisiana law’—are based on the mere use of asbestos on the ships and therefore fit

the strict liability label,” supported federal officer removal.207

Here, the proposed jury interrogatories demonstrate an intent to hold Avondale liable under

a theory of strict liability contrary to Decedent’s representations when the case was first removed.

The Fifth Circuit has “previously recognized that strict liability claims support federal officer

removal when the government obligates the defendant to use the allegedly defective product that

causes the plaintiff's harm.”208 Avondale has presented evidence to show that the government

required the use of some asbestos containing material in vessels constructed with CDS funds,209

and Plaintiffs claim that Decedent was allegedly exposed to asbestos while working on those same

vessels. Pursuant to the CDS program, Avondale was obligated to build the vessels in strict

accordance with the ship plans and specifications, which included a requirement that Avondale

use some asbestos containing material.210 This is enough to show a causal nexus between the

Plaintiffs’ strict liability claims and Avondale’s actions under the color of federal

authority. Therefore, the Court finds that a causal nexus exists between its actions under color of

federal office and the plaintiffs’ claims.

Finally, Plaintiffs argue they are not bringing a strict liability claim, as no such claim is

raised in either the petition or the amended petition. Louisiana Code of Civil Procedure article

1154 provides:

When issues not raised by the pleadings are tried by express or implied consent of

the parties, they shall be treated in all respects as if they had been raised by the

pleading. Such amendment of the pleadings as may be necessary to cause them to

207 Savoie, 817 F.3d at 463–64.

208 Id. at 465.

209 Rec. Doc. 12-1 at 5.

210 Id.

conform to the evidence and to raise these issues may be made upon motion of any

party at any time, even after judgment; but failure to so amend does not affect the

result of the trial of these issues. If evidence is objected to at the trial on the ground

that it is not within the issues made by the pleadings, the court may allow the

pleadings to be amended and shall do so freely when the presentation of the merits

of the action will be subserved thereby, and the objecting party fails to satisfy the

court that the admission of such evidence would prejudice him in maintaining his

action or defense on the merits. The court may grant a continuance to enable the

objecting party to meet such evidence.

Pursuant to Article 1154, a Louisiana state trial court has “broad discretion” to allow enlargement

of the pleadings to conform to the evidence.211 “So long as the facts constituting the claim or

defense are alleged or proved, the party may be granted any relief to which he is entitled under the

fact-pleadings and evidence.”212 Therefore, the fact that strict liability was not raised in the

petitions would not in itself bar Plaintiffs from pursuing a strict liability claim in state court, and

the pretrial filings Plaintiffs submitted to the state trial court show their intent to pursue strict

liability claims against Avondale.

C. Whether Avondale has Asserted a Colorable Federal Defense to Plaintiffs’ Claims

The third and final factor Avondale must prove is that it has a colorable federal defense to

the plaintiff’s claims.213 The Federal Officer Removal Statute “permits a federal defense, which is

generally statutorily impotent to establish subject matter jurisdiction, to serve as the federal

question that endues the court with jurisdiction.”214 To succeed at the removal stage “defendants

need not prove the asserted defense, but need only articulate its ‘colorable’ applicability to the

211 Brantley v. Kaler, 43,418 (La. App. 2 Cir. 6/4/08), 986 So. 2d 188, 191

212 Greemon v. City of Bossier City, 2010-2828 (La. 7/1/11), 65 So. 3d 1263, 1268 (quoting Cox v. W.M.

Heroman & Co., Inc., 298 So. 2d 848, 855 (La. 1974), overruled on other grounds by A. Copeland Enterprises, Inc.

v. Slidell Memorial Hosp., 94–2011, p. 9 (La.6/30/95), 657 So.2d 1292, 1299.

213 Winters, 149 F.3d at 400; Savoie, 817 F.3d at 460; St. Bernard Port, Harbor & Terminal Dist., 809 F.

Supp. 2d at 529.

214 Zeringue, 846 F.3d at 789 (internal citations omitted) (emphasis original).

plaintiff’s claims.”215 While the Fifth Circuit has noted that the definition of “colorable” in the

context of the Federal Officer Removal Statute remains undefined, the Fifth Circuit has clarified

that a “non-colorable federal defense is a defense that is immaterial and made solely for the purpose

of obtaining jurisdiction or that is wholly insubstantial and frivolous.”216

Avondale raises three federal defenses to Plaintiffs’ claims: derivative sovereign immunity,

federal contractor immunity, and preemption by the LHWCA.217 In response, Plaintiffs argue that

these three defenses are not colorable.218

In Boyle, the Supreme Court explained that the government contractor immunity defense

“provides immunity to contractors for conduct that complies with the specifications of a federal

contract.”219 To establish a “colorable federal defense” using the government contractor immunity

defense, a defendant must satisfy a three-part test: “(1) the United States approved reasonably

precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier

warned the United States about the dangers in the use of the equipment that were known to the

supplier but not to the United States.”220

Regarding the first factor, the contractor must show that the federal government approved

“reasonably precise specifications.”221 Here, a shipbuilder such as Avondale must show that the

federal government approved reasonably precise specifications for the construction of the vessels

215 Winters, 149 F.3d at 400.

216 Zeringue, 846 F.3d at 790.

217 Rec Doc. 1 at 10–11.

218 Rec. Doc. 14 at 11.

219 Crutchfield v. Sewerage & Water Bd. of New Orleans, 829 F.3d 370, 375 (5th Cir. 2016) (citing Boyle,

487 U.S. at 500).

220 Boyle, 487 U.S. at 512.

221 Id.

in question.222 In similar cases, the Fifth Circuit has held that a shipbuilding contractor satisfies

this factor when the terms of the contract with the government mandated that the shipbuilding

contractor build ships using asbestos-containing material.223 Here, Avondale presented evidence

to show that it built ships according to contracts with the federal government that required the use

of at least some asbestos containing material.224 Accordingly, Avondale has made a colorable

showing that it could satisfy the first factor of Boyle.

With regard to the second factor, the contractor must show that the equipment conformed

to the above-mentioned specifications.225 Here, Avondale submitted affidavits and deposition

testimony to show that it complied with the government’s contract specifications requiring the use

of asbestos-containing material.226 In his affidavit, Danny Joyce, an industrial hygienist, states that

inspectors for MARAD oversaw the construction of MARAD vessels, and these inspectors would

determine whether the supplies used in the construction of the MARAD vessels were in

compliance with the plans and specifications.227 Similar evidence was deemed sufficient by the

Fifth Circuit to satisfy this factor.228 Accordingly, Avondale has made a colorable showing that it

could satisfy the second factor of Boyle.

With regard to the third factor, the contractor must show that it warned the government

222 Rivera v. Huntington Ingalls, Inc., No. 18-6795, 2018 WL 4579826, at *3 (E.D. La. Sept. 25, 2018).

223 Zeringue, 846 F.3d at 791–92; Winters, 149 F.3d at 400–01 (finding that the “‘government contractor

defense requires only that the government approve reasonably precise specifications’ and that this factor was met

where [the] government supplied the relevant specifications.”).

224 Rec. Doc. 12-1 at 5.

225 Boyle, 487 U.S. at 512.

226 Rec. Docs. 12-16 at 2, 3; 12-15 at 17; Rec. Doc. 12-2

227 Rec. Doc. 12-2 at 2.

228 Zeringue, 846 F.3d at 792.

about the dangers in the use of the equipment if those dangers were known to it but not to the

government.229 Avondale submitted the affidavit of Christopher Herfel, a maritime historian, and

the affidavit of Danny Joyce, an industrial hygienist, to show that Avondale had no more

information or knowledge than the government did about the dangers of asbestos at the time

Avondale used asbestos-containing materials in its shipbuilding work.230 Accordingly, Avondale

has made a colorable showing that it could satisfy the third factor of Boyle.

To succeed at the removal stage, Avondale need only articulate a colorable defense, which

is not “wholly insubstantial and frivolous.”231 Having made a colorable showing that it could

satisfy the three Boyle factors, the Court finds that Avondale has stated a colorable defense of

federal contractor immunity to Plaintiffs’ strict liability claims. Accordingly, because the Court

finds a colorable federal contractor immunity defense under Boyle, it need not reach Avondale’s

argument that it also has a colorable federal defense under the Longshore and Harbor Workers’

Compensation Act and derivative sovereign immunity.

V. Conclusion

In short, this case was properly removed to this Court under the federal officer removal

statute. The notice of removal was timely filed and Plaintiffs’ pretrial filings constitute a proper

basis for the second removal. Additionally, Avondale met the three-part test for federal officer

removal. Namely, (1) Avondale is a person within the meaning of the statute, (2) Avondale acted

229 Boyle, 487 U.S. at 512.

230 Rec. Docs. 12-1 at 8–9; 12-2 at 2–3 (concluding that “Avondale did not have any information regarding

the hazards of asbestos that was not known by the Federal Government . . . .”).

231 Zeringue, 846 F. 3d at 790 (internal citation omitted). Plaintiffs does not dispute the merits of Avondale’s

government contractor defense, but rather argue that government contractor immunity does not apply to their

negligence claims for failure to warn, train in the proper use of asbestos, and adopt procedures for safe handling. Rec.

Doc. 14 at 11. However, the instant removal is based on Plaintiffs’ strict liability claims. Therefore, this argument is

of no moment to the instant analysis.

pursuant to a federal officer’s directions and a causal nexus exists between its actions under color

of federal office and plaintiffs’ claims and (3) Avondale has a colorable federal defense to

Plaintiffs’ claims under the government contractor immunity defense.

Accordingly,

IT IS HEREBY ORDERED that Plaintiffs’ “Emergency Motion to Remand”?*” is

DENIED.

IT IS FURTHER ORDERED that the parties must contact the Court’s case manager by

January 31, 2020 to conduct a scheduling conference and set a trial date.

NEW ORLEANS, LOUISIANA, this 28th day of January, 2020.

D \ Gorell

NANNETTE JOLAVETTE BROWN hin

CHIEF JUDGE

UNITED STATES DISTRICT COURT

232 Rec. Doc. 4.

37