# Becnel v. Lamorak Insurance Company

> District Court, E.D. Louisiana · September 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10185901

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** September 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES BECNEL CIVIL ACTION
VERSUS NO. 19-14536
LAMORAK INSURANCE COMPANY ET AL SECTION “B”(5)
ORDER AND REASONS
Plaintiff James Becnel filed a motion to remand, alleging
removal of the case was untimely. Rec. Doc. 7. Additionally,
plaintiff alleges the requirements for federal officer removal

are not satisfied. Id. Defendants timely filed a response in
opposition. Rec. Doc. 11. Plaintiff then sought and was granted
leave to file a reply. Rec. Doc. 14. Thereafter, parties engaged
in filing sur-replies, replies to sur-replies, and other
supplemental memoranda. The court held a hearing via
teleconference on the motion to remand on July 29, 2020 with
parties’ counsel. Post-hearing memoranda were received from all
parties. For the reasons discussed below,
IT IS ORDERED that the motion to remand is DENIED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This is an asbestos case. Plaintiff, James Becnel (“Becnel”)

filed a complaint, alleging negligence, in Civil District Court
for the Parish of Orleans, naming the Avondale Interest as
defendants, on July 22, 2019. 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 resulting from plaintiff’s employment at Avondale. Id.

On August 14, 2019, plaintiff filed a first amended
supplemental petition for damages adding additional defendants.
Rec. Doc. 1-3. Plaintiff was deposed on August 29, 2019 and August
30, 2019. Rec. Doc. 1-5. Plaintiff testified that he worked on a
Lykes Vessel during his employment at Avondale. Id. at 3-16.
On November 13, 2019, Mr. Becnel died. Rec. Doc. 1-4. On
November 19, 2019 his heirs filed a second supplemental and
amending petition substituting themselves as plaintiffs,
asserting survival and wrongful death claims, and adding a
paragraph for strict liability. Id. at 2-3.
Defendants filed a notice of removal on December 11, 2019

asserting district court 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 2-3. Defendants assert the case became
removable after the plaintiffs filed the second supplemental and
amending petition for damages asserting strict liability claims
against the defendants. Id. at 4.
Plaintiff filed the instant motion to remand asserting that
defendants’ removal notice was untimely, and the requirements of
federal officer removal had not been satisfied. Rec. Doc. 7-1.
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 plaintiffs’ claims were based on strict
liability. Rec. Doc. 11 at 9. Additionally, defendants’ response

in opposition assert the court has jurisdiction pursuant to 28
U.S.C. §1442.
On July 29, 2020, a hearing was held via telephone with
parties’ counsel of record. Rec. Doc. 41. Following questioning
from the court, responsive answers were given by counsel for the
parties on plaintiff’s motion to remand (Rec. Doc. 7), defendants’
opposition to plaintiff’s motion to remand (Rec. Doc. 11), and
various other relies, sur-replies and replies to sur-replies filed
by the parties. Id. Upon concluding the hearing, parties were
invited to file supplemental memoranda on a particular aspect of
the "other papers" issue that was raised sua sponte by the court.
Rec. Doc. 42. As seen infra, more than 30 days prior to filing the

removal notice, defendants knew or had reason to know from
plaintiff’s deposition they had a federal officers defense. During
relevant times here, they and their counsel, for the most part,
were actively engaged in litigation challenging circuit authority
that restricted removal in similar cases as this one, received a
dissenting panel opinion favorable to their position, and
ultimately prevailed with an en banc decision that basically agreed
with that dissent. On August 3, 2020, parties filed supplemental
memoranda (Rec. Doc. 45 and 47). Shortly thereafter, parties filed
replies to submitted supplemental memoranda. (Rec. Doc. 49 and
50).

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. & Cas. Ins. Co., 276
F.3d 720, 722 (5th Cir. 2002).

The first issue before the Court in this case is a timeliness
dispute. Parties disagree as to when removal of the suit to federal
district court was proper. Additionally, there appears to be some
confusion as to the reason for removal.
Plaintiffs state that the defendants removed the case to
federal court because Becnel worked aboard the Lykes vessel, a
Navy vessel. Rec. Doc. 7-1. Plaintiffs argue that removal was
untimely as defendants had notice that Becnel worked aboard the
vessel while employed at Avondale, through Becnel’s deposition
testimony given in August 2019. Id. Plaintiffs assert that
defendants had 30 days from the date of the deposition testimony

to remove the case; thus, plaintiffs contend that removal is
untimely. Id.
The removal clock begins ticking upon receipt of
the deposition transcript” because the deposition transcript is
“other paper” under Section 1446(b)(3). Morgan v. Huntington
Ingalls, Inc., 879 F.3d 602, 610 (5th Cir. 2018). Plaintiffs nor
defendants have provided information on when the deposition
transcript was received; however, plaintiff’s depositions were
taken in August 2019 and the removal notice was filed in December
2019. Parties counsel appeared at both depositions with no
equivocation of relevant testimony given at same by plaintiff.
Judicial notice and reasonable interpretation of those timelines
would support finding the deposition transcripts were produced to
parties more than 30-days prior to the removal notice date. However

as explained in more detail later, the case was not removable due
to then existing precedent from the Fifth Circuit against removal
for a federal officer defense to mere negligence claims.
Defendants assert the case became removable on November 19,
2019 when the plaintiffs filed a second supplemental and amending
petition for damages adding strict liability claims against the
defendants. Rec. Doc. 11 at 13. Plaintiffs argue that though the
second supplemental and amending petition for damages added strict
liability claims, the claims against the Avondale Interest are
restricted to negligence, not strict liability. Rec. Doc. 7-1 at

4.
The additional paragraph added to the second supplemental and
amending petition for damages states:
“As a result of the acts of negligence, intentional
tort, fraud and strict liability of the defendants named
herein and in the Original Petition for Damages and First
Supplemental and Amending Petition for Damages, James
Becnel contracted asbestos-related lung cancer which
caused or contributed to his death on November 13, 2019,”
Rec. Doc. 1-4 at 2-3.

It is clear from the language of the paragraph that plaintiffs
assert claims for strict liability against defendants. The
defendants filed the notice of removal on December 11, 2019 within
thirty days of receiving the second supplemental and amending
petition for damages on November 19, 2019. Thus, the defendants’
notice of removal was timely.

Moreover, on September 24, 2019 the en banc Fifth Circuit
heard oral arguments in Latiolais v. Huntington Ingalls, Inc. to
address the 2011 amendment’s “relating to” language and the “causal
nexus” requirement set forth in Bartel. See Latiolais v. Huntington
Ingalls, Inc., 918 F.3d 406 (5th Cir.), reh'g en banc granted, 923
F.3d 427 (5th Cir. 2019). Under Bartel, to qualify for removal
under 28 U.S.C. §1442 (a)(1), a defendant was required to show;
(1) that it was a person within the meaning of the statute, (2)
that it had a colorable federal defense, (3) that it acted pursuant
to a federal officer’s directions, and (4) that a causal nexus
existed between its actions under color of federal office and the
plaintiff’s claims. Bartel v. Alcoa S.S. Co., 805 F.3d 169, 171
(5th Cir. 2015) (quoting Winters v. Diamond Shamrock Chem. Co.,

149 F.3d 387, 398 (5th Cir. 1998). Under prior Fifth Circuit case
authorities, negligence-only claims did not challenge actions
taken under color of federal authority; thus, negligence-only
claims lacked a causal nexus required for federal officer removal.
Legendre v. Huntington Ingalls, Inc., 885 F.3d 398 (5th Cir. 2018).
After rehearing en banc, the Fifth Circuit clarified that
removal under the 2011 amended § 1442(a) is appropriate when the
removing defendant shows “(1) it has asserted a colorable federal
defense, (2) it is a ‘person’ within the meaning of the statute,
(3) that has acted pursuant to a federal officer’s directions, and
(4) the charged conduct is connected or associated with an act

pursuant to a federal officer’s directions.” Latiolais v.
Huntington Ingalls, Inc., et al, 951 F.3d 286, 296 (5th Cir. 2020).
In so holding, that en banc decision overruled the line of cases
that relied on a “causal nexus” between the defendant’s acts
performed under color of federal authority and plaintiff’s
claims. Id. at 291, 296.
Plaintiff now argues that the Latiolais decision is not an
“order” or “other paper” that makes the case removable because the
Latiolais decision does not meet narrow circumstances allowed by
the Fifth Circuit. However, defendants contend that the Fifth
Circuit’s decision in Latiolais constitutes an “order” or “other

paper” for the purposes of removal.
Although decisions in unrelated cases typically do not
constitute grounds for removal, the Fifth Circuit has carved out
a narrow exception to this rule. In Green v. R.J. Reynolds Tobacco
Co., the court held that a decision in an unrelated case may
constitute an “order” upon which removal can be based if the same
party was a defendant in both cases, the cases involve similar
factual circumstances, and the decision resolved a legal issue
that has the effect of making the case removable. 274 F.3d 263,
268 (5th Cir. 2001).
Considering Green, we conclude that the Latiolais decision is
an “order” upon which removal can be based. First, Avondale was a

defendant in Latiolais. Second, both cases involved negligence
claims stemming from asbestos exposure that occurred while
plaintiff worked at Avondale Shipyards. Third, Latiolais changed
the standard under which cases may be removed under § 1442(a),
effectively rendering negligence-based lawsuits removable where
removal had previously been precluded.
Because plaintiff initially asserted a mere negligence claim
against defendants, it is clear that removal of that claim would
have been unwarranted as long as the causal nexus test remained
the law of this circuit. However as explained above, the Fifth
Circuit’s decision in Latiolais overruled the “causal nexus”

requirement and replaced it with the requirement that the
defendants show that “the charged conduct is connected or
associated with an act pursuant to a federal officer’s directions.”
951 F.3d at 296. Essentially, this change allows negligence claims
involving discretionary acts, such as those raised in the instant
case, to be removable under § 1442(a). As other courts in this
district have ruled, this court also concludes that the decision
in Latiolais is an “order” for the purposes of § 1446. See,
e.g., Bourgeois, 2020 WL 2488026; Francis v. ITG Brands, LLC, No.
CV 20-997, 2020 WL 2832538, at *3 (E.D. La. June 1, 2020); Jackson
v. Avondale Indus. Inc., No. CV 20-1005, 2020 WL 3510724, at *9
(E.D. La. June 29, 2020).
Having determined that removal was procedurally proper, the

court turns to the merits of the defendants’ jurisdictional
argument.
Federal Officer Removal
A civil action or criminal prosecution that is commenced in
a State court and that is against or directed to 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, may be

removed to the district court of the United States for the district
and division embracing the place where it is pending. 28 U.S.C.
§1442(a)(1). To qualify for removal under 28 U.S.C. §1442 (a)(1),
a defendant must show (1) it is a “person” within the meaning of
the statute, (2) that has acted pursuant to a federal officer’s
directions, (3) the charged conduct is connected or associated
with an act pursuant to a federal officer’s directions, and (4) it
has asserted a colorable defense. Latiolais v. Huntington Ingalls,
Inc., 951 F.3d 286, 296 (5th Cir. 2020).
Parties do no dispute that the Avondale interest is a “person”
within the meaning of the statute. Plaintiffs argue that defendants
failed to establish a causal nexus between the defendant’s
challenged conduct at issue and the defendant’s actions under the

direction of the federal government. Rec. Doc. 7-1 at 9. However,
as explained above, a showing of causal nexus is no longer
required. Defendants must only show the Avondale Interests acted
pursuant to a federal officer’s direction and that the failure to
warn Becnel of the dangers of asbestos and failure to take measures
are connected or associated with the Avondale Interests acting
pursuant to a federal officer’s direction.
This case is almost identical to Latiolais v. Huntington
Ingalls, Inc., in which the Fifth Circuit found that the pleadings
satisfied the “connection” condition of removal where Latiolais
alleged that Avondale failed to warn him of the dangers of asbestos
and failed to take measures to prevent exposure. Latiolais, 951

F.3d at 296. The Fifth Circuit found that the negligence was
connected with the installation of asbestos during the
refurbishment of a Navy vessel because Avondale performed the
refurbishment and, allegedly, the installation of asbestos
pursuant to directions of the U.S. Navy. Id. Thus, the Fifth
Circuit found that the civil action related to an act under color
of federal office. Id.
Here, the pleadings satisfy the connection requirement of
removal. Plaintiffs allege that Avondale failed to properly handle
asbestos and warn its employees of the dangers of working with
asbestos. Rec. Doc. 1-1. Submitted evidence shows the vessel Becnel

worked aboard, the Lykes vessel, was built by Avondale for the
U.S. Maritime Administration and such vessels were constructed
pursuant to Title V “Construction Differential Subsidy” of the
Merchant Marine Act, 1936 and contracts with the United States
Government. Rec. Doc. 11-1 at 4. The Lykes vessel was constructed
under the direction and pursuant with the plans and specifications
given to Avondale by the U.S. Navy. Id. Avondale’s alleged use of
asbestos was pursuant to directions of the U.S. Navy. Consequently,
the plaintiffs action relates to an act under the color of federal
office. Plaintiffs’ attempt to distinguish accountability for
using asbestos from their claims of failing to warn or provide

other protective measures in such usage do not defeat, at this
preliminary stage, the federal officer defense.
Defendants must demonstrate a colorable defense. If a defense
is plausible, it is colorable. Ashcroft v. Iqbal, 556 U.S. 662,
678–79 (2009) (plausible claim survives a motion to dismiss). To
be “colorable,” the asserted federal defense need not be “clearly
sustainable,” as section 1442 does not require a federal official
or person acting under him “to ‘win his case before he can have it
removed.’ ” Latiolais, 951 F.3d at 296 quoting Jefferson Cty.,
Ala. v. Acker, 527 U.S. 423, 431 (1999). Instead, an asserted
federal defense is colorable unless it is “immaterial and made
solely for the purpose of obtaining jurisdiction” or “wholly
insubstantial and frivolous.” Zeringue v. Crane Co., 846 F.3d 785

(5th Cir. 2017).1
The defendants raise three defenses to the plaintiffs’
claims: derivative sovereign immunity, federal contractor
immunity, and preemption by the LHWCA. Rec. Doc. 11 at 19.
Plaintiffs argue the defendant’s defenses are not colorable. Rec.
Doc. 7-1 at 20.
In Boyle v. United Techs. Corp, 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.” Crutchfield v. Sewerage & Water Bd. of New
Orleans, 829 F.3d 370, 375 (5th Cir. 2016) (citing Boyle v. United
Techs. Corp., 487 U.S. 500 (1988). 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

1 Overruled by Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286 (5th Cir.
2020) on other grounds.
were known to the supplier but not to the United States.” Boyle,
487 U.S. at 512.
The defendants have submitted the affidavit of Christopher
Herfel, a maritime historian, the affidavit of Danny Joyce, an

industrial hygienist, and deposition testimony alleging that the
U.S. Navy generally required Avondale to install asbestos and to
comply with certain related safety practices. Rec. Doc. 11-1 and
11-2. The affidavit and deposition testimony demonstrate that the
government approved reasonably precise specifications concerning
the installation of asbestos. While plaintiffs point out
contradicting evidence in response to defendants’ submissions, the
affidavits and deposition testimony demonstrate a plausible non-
frivolous federal officer defense, at the moment.
Regarding the third factor, defendants must show that it
warned the government about the dangers in the use of the equipment
if those dangers were known to it but not to the government. Boyle,

487 U.S. at 512. Defendants submitted affidavits claiming 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. Rec Doc. 11-1 and
11-2. The evidence tends to show that the federal government knew
as much, and possibly more than what Avondale knew about asbestos-
related hazards and related safety measures.
The defendants have made a colorable (non-binding) showing
that it could satisfy the three Boyle factors. Thus, defendants
have stated a colorable defense of federal contractor immunity to
plaintiffs' claims. Because there is a colorable federal
contractor immunity defense under Boyle, there is no need to reach

Avondale's argument that it also has a colorable federal defense
under the Longshore and Harbor Workers' Compensation Act and
derivative sovereign immunity.
Therefore, defendants properly removed this case under 28
U.S.C. §1442 (a)(1).
New Orleans, Louisiana this 18th day of September 2020

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185901. Public record. Not legal advice.