Robichaux v. Huntington Ingalls Incorporated

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

FELTON ADAM ROBICHAUX, CIVIL ACTION

Plaintiff

NO. 22-610

VERSUS

SECTION: “E” (5)

HUNTINGTON INGALLS

INCORPORATED, ET AL.,

Defendants

ORDER AND REASONS

Before the Court is a motion to remand, filed by Plaintiff Felton A. Robichaux

(“Plaintiff”).1 Defendant Huntington Ingalls Incorporated (“Avondale”) filed an

opposition.2

For the reasons that follow, Plaintiff’s motion to remand is DENIED.3

BACKGROUND

This personal injury suit is based on Plaintiff’s alleged exposure to asbestos.

Plaintiff alleges he was “diagnosed with asbestos-related mesothelioma on or about

January 14, 2022.”4 Plaintiff alleges he was exposed to asbestos containing products on

Avondale’s premises—that is, at Avondale Shipyards.5 Plaintiff alleges he worked at

Avondale Shipyards from 1961 to 1979 as a carpenter and insulator.6 Plaintiff further

alleges from 1961 to 1979 he was exposed to injurious levels of asbestos during his

employment at Avondale Shipyards through his exposure to asbestos-containing

products supplied, distributed by Defendants Eagle, Inc and Taylor-Seidenbach, Inc.7

1 R. Doc. 27.

2 R. Doc. 43.

3 R. Doc. 27.

4 R. Doc. 1-2 at p. 2, ¶ 3

5 Id. at ¶ 4.

6 Id. at ¶ 12.

Plaintiff alleges his brother also worked at Avondale Shipyards during the relevant time

frame, that Plaintiff’s brother was exposed to asbestos fibers, and that the asbestos fibers

and dust contaminated his brother’s person, clothing, vehicle, home, and personal items,

and that Plaintiff was exposed to the asbestos fibers carried home by his brother.8 Plaintiff

further alleges he was exposed to asbestos contaminated clothing from other Avondale

workers aboard the labor bus Plaintiff took to and from the Avondale Shipyards.9

On January 27, 2022, Plaintiff filed a petition for damages in Civil District Court,

Parish of Orleans, State of Louisiana, against several Defendants, including the Insurers.10

Plaintiff brings negligence claims against all Defendants based on the Defendants’ failure

to warn Plaintiff of the dangers of asbestos exposure, failure to provide adequate

ventilation to minimize asbestos exposure, failure to provide respiratory equipment to

protect Plaintiff from asbestos exposure, and failure to implement an asbestos

decontamination policy or procedure to prevent asbestos fibers and dust from exposing

others outside of the Avondale Shipyards.11 Plaintiff also brings negligence and strict

liability claims against Eagle, Inc., Union Carbide Corporation, Taylor-Seidenbach, Inc.,

Foster Wheeler Energy Corporation, General Electric Company, Hopeman Brothers, Inc.,

Liberty Mutual Insurance Company, International Paper Company, Maryland Casualty

Company, Uniroyal, Inc., Sentry Insurance Company, Employers Insurance Company of

Wausau, Viacom CBS, Inc., 3M Company, Metropolitan Life Insurance Company, and

Bayer Conscience, Inc., for manufacturing, distributing, supplying, selling, or using

asbestos-containing products, causing Plaintiff to be exposed to asbestos-containing

8 Id. at ¶ 13.

9 Id. at ¶ 14.

10 See generally id.

products.12 Plaintiff also brings negligence and strict liability claims against Avondale,

alleging Avondale is liable for Plaintiff’s injuries for failing to provide Plaintiff “a safe

place to work free from the dangers of respirable asbestos-containing dust.”13

Avondale removed Plaintiff’s suit to federal court on March 10, 2022.14 In its Notice

of Removal, Avondale asserts this Court has subject matter jurisdiction under 28 U.S.C.

§ 1441 in that the action arises under the Constitution, laws or treaties of the United

States, and because Avondale was, at all material times, acting under an officer of the

United States as set forth in 28 U.S.C. § 1442(a)(1).15

On April 11, 2022, Plaintiff filed the instant motion to remand.16 Plaintiff argues

that remand is warranted because Avondale’s “removal was defective and untimely under

§ 1446(b), and because [Avondale] failed to satisfy the requirements under § 1442(a).17

On May 3, 2022, Avondale filed an opposition to Plaintiff’s motion to remand.

LEGAL STANDARD

Federal courts are courts of limited jurisdiction and possess only the authority

conferred upon them by the U.S. Constitution or by Congress.18 “The removing party

bears the burden of showing that federal jurisdiction exists and that removal was

proper.”19 Under 28 U.S.C. § 1442, Congress has allowed for the removal of state cases

commenced against

[t]he United States or any agency thereof or any 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

12 Id. at ¶¶ 26–30

13 Id. at ¶¶ 31–55.

14 R. Doc. 1.

15 Id. at p. 1.

16 R. Doc. 27.

17 R. Doc. 27-1 at p. 5.

18 Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. Feb. 28, 2001).

or authority claimed under any Act of Congress for the apprehension or

punishment of criminals or the collection of the revenue.

The time for removal is set forth in 28 U.S.C. § 1446, which provides:

(b)(3) Except as provided in subsection (c), 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.20

. . .

(g) Where the civil action or criminal prosecution that is removable under

section 1442(a) is a proceeding in which a judicial order for testimony or

documents is sought or issued or sought to be enforced, the 30-day

requirement of subsection (b) of this section and paragraph (1) of section

1455(b) is satisfied if the person or entity desiring to remove the proceeding

files the notice of removal not later than 30 days after receiving, through

service, notice of any such proceeding.

Generally, a defendant must file a notice of removal within 30 days of being served the

initial complaint.21 An exception exists, however, if more than 30 days after service the

defendant receives an “amended pleading, motion, order, or other paper from which it

may be first be ascertained that the case is one which is or has become removable.”22

Discovery responses, including answers to interrogatories made by voluntary act of the

plaintiff,23 constitute an “other paper” under the statute, “triggering the 30-day

removability period.”24 Discovery responses must be “unequivocally clear and certain” to

support removal under this rule.25 This reduces premature “protective’ removals” by

20 28 U.S.C. 1446(b) (emphasis added).

21 28 U.S.C. § 1446(b)(1).

22 28 U.S.C. § 1446(b)(2)(3).

23 Chapman v. Powermatic, Inc., 969 F.2d 160, 164 (5th Cir. Aug. 26, 1992) (“Clearly the answer to

interrogatory which triggered the filing of the notice of removal in this case is such an ‘other paper.’”) ; See

also S.W.S. Erectors, Inc., 72 F.3d at 494 (holding that the defendant may not produce the removable event,

but rather that the plaintiff must voluntarily produce or plead information that reveals a removable ground

for jurisdiction).

24 Cole ex rel. Ellis v. Knowledge Learning Corp., 416 Fed.Appx. 437, 440 (5th Cir. Mar. 4, 2011). See S.W.S.

Erectors, Inc. v. Infax, Inc., 72 F.3d 489 (5th Cir. 1996) (“We hold that the affidavit, created entirely by the

defendant, is not ‘other paper’ under section 1446(b) and cannot start the accrual of the 30–day period for

removing. On the other hand, a transcript of the deposition testimony is ‘other paper.’”).

25 Bosky v. Kroger Texas, LP, 288 F.3d 208 (5th Cir. April 8, 2002) (citing DeBrey v. Transamerica Corp.,

601 F.2d 480, 489 (10th Cir. 1979) (holding that if the 30-day period under § 1446(b) “is going to run, the

defendants who fear being time-barred in cases with initial pleadings that lack sufficient

information to determine any federal jurisdiction.26 Judicial economy is promoted by

relieving the Court from delving into what the defendant subjectively knew or did not

know and instead allows the Court to look directly at the pleadings, motions, orders, and

other paper.27

LAW AND ANALYSIS

I. Avondale has satisfied the requirements for removal under 42

U.S.C. § 1442(a)(1).

Section 1442(a)(1), “is a pure jurisdictional statute in which the raising of a federal

question in the officer’s removal petition . . . constitutes the federal law under which the

action against the federal officer arises for [Article III] purposes.”28 This statute allows

federal officers to “remove cases to federal court that ordinary federal question removal

would not reach[, ] . . . even if no federal question is raised in the well-pleaded complaint,

so long as the officer asserts a federal defense in response.”29 Broadly speaking, this

statute allows for removal “where a federal official is entitled to raise a defense arising out

of his official duties.”30 The goal of the statute is to “prevent federal officers who simply

comply with a federal duty from being punished by a state court for doing so.”31

Ordinarily, the removing defendant has the burden to establish that federal

jurisdiction exists.32 However, because § 1442(a) must be liberally construed,33 whether

26 Chapman, 969 F.2d at 163.

27 Id.

28 Zeringue v. Crane Co., 846 F.3d 785, 789 (5th Cir. 2017) (quoting Mesa v. California, 489 U.S. 121, 136

(1989)).

29 Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 290 (5th Cir. Feb. 24, 2020).

30 Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387, 397 (5th Cir. 1998).

31 Id. at 397–98.

32 Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. Jan. 8, 2002) (citing De

Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. Mar. 7, 1995)).

33 See, e.g, City of Walker v. Louisiana, 877 F.3d 563, 569 (5th Cir. 2017) (“federal officer removal under

federal officer removal jurisdiction exists must be assessed “without a thumb on the

remand side of the scale.”34 The federal officer removal statute authorizes removal if: (1)

the defendant is a person within the meaning of the statute; (2) the defendant “acted

under” the direction of a federal officer; (3) the defendant’s conduct is “connected or

associated with” or “related to” a federal directive;35 and (4) the defendant has a colorable

federal defense.36

In its Notice of Removal, Avondale asserts that during Plaintiff’s alleged period of

employment from 1961 to 1979, Avondale constructed numerous vessels pursuant to

contracts with the federal government.37 Specifically Avondale asserts it constructed

vessels for the federal government pursuant to contracts with United States Navy, the

United States Coast Guard, and the United States Maritime Administration (“MARAD”),

and that the federal vessels constructed during Plaintiff’s alleged exposure period

included U.S. Navy Destroyer Escorts, U.S. Coast Guard Cutters, and Lykes, LASH, and

States lines cargo vessels for MARAD (the “Federal Vessels”).38 Avondale further asserts

in its Notice of Removal that the Federal Vessels were built with asbestos-containing

products and materials pursuant to Navy, Coast Guard, and MARAD requirements, and

that, to the extent Plaintiff alleges exposure to asbestos during his employment with

Avondale, “such exposure is necessarily attributable to asbestos-containing materials

required and destined for use in the construction of these U.S. Navy, U.S. Coast Guard,

and MARAD vessels.”39

34 Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 462 (5th Cir. 2016) (citations omitted).

35 St. Charles Surgical Hosp., L.L.C. v. La. Health Serv. & Indem. Co., No. 20-30093 at *12 (5th Cir. March

8, 2021) (citing Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 291 and 296 (5th Cir. Feb. 24, 2020)

and rejecting the Fifth Circuit’s former “causal nexus” requirement).

36 Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 296 (5th Cir. Feb. 24, 2020).

37 R. Doc. 1 at p. 3, ¶ 4.

38 Id. at p. 4, ¶ 4.

In its Notice of Removal, Avondale asserts the four requirements for establishing

jurisdiction under § 1442(a)(1) are met, and that, as a result, removal is proper. Avondale

argues it is a “person”; that it “acted under” the direction of the Navy, Coast Guard, and

MARAD; that Plaintiff’s claims against Avondale are claims for or related to acts

performed under color of federal directives because the use and installation of asbestos-

containing materials in the construction of the Federal Vessels was required by the

contractual provisions and design specifications mandated by the Navy, Coast Guard, and

MARAD; and that it raises two colorable federal defenses.40

In his motion to remand, however, Plaintiff argues remand is warranted because

all the requirements under § 1442(a)(1) because Avondale cannot demonstrate a valid

colorable federal defense.41 Plaintiff challenges only whether Avondale has raised a

colorable federal defense.42

Avondale raises two federal defenses to Plaintiff’s claims. First, Avondale raises the

federal defense of government contractor immunity established by Boyle v. United Techs.

Corp., 487 U.S. 500 (1988), and its progeny.43 Second, the federal defense of derivative

sovereign immunity as set forth in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18

(1940), and its progeny.44

The federal officer defense recognized in Boyle “extends to federal contractors an

immunity enjoyed by the federal government in the performance of discretionary

actions.”45 In Boyle, the Supreme Court held state law liability may not be imposed for

design defects in military equipment “when (1) the United States approved reasonably

40 R. Doc. 1 at pp. 5–8, ¶¶ 8-20.

41 R. Doc. 27-1 at p. 6.

42 Id.

43 R. Doc. 3 at pp. 8, 20.

44 R. Doc. 3 at p. 9, ¶ 22.

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.”46 For the Yearsley derivative

sovereign immunity defense to apply, there are two elements that must be satisfied: (1)

the work done was “authorized and directed by the Government of the United States” and

“performed pursuant to the Act of Congress” and (2) the contractor “simply performed as

the Government directed.”47

In his motion to remand, Plaintiff argues in order to invoke the Boyle defense, a

defendant must “‘establish that the federal government was involved in the decision to

give or not to give a warning and that the defendant complied with the federal

government’s provisions.’”48 Plaintiff further argues there is no evidence in this case that

the Navy contracts dictated what warnings were to be provided to employees or what

safety precautions were to be implemented to prevent spread of asbestos from the

Avondale shipyards.49 Plaintiff argues that, unless Avondale can produce some evidence

to this effect, its defense under Boyle is not colorable. With respect to the Yearley defense,

Plaintiff argues a defendant is required to produce some evidence that the plaintiff’s

injury “was attributable to actions taken pursuant to a specific government specification

or instruction,” and that the defendant specifically adhered to that instruction.50 Plaintiff

argues Avondale cannot present a colorable defense under Yearsley because “there is no

evidence that the Navy contracts in question dictated the warnings Avondale must

46 Boyle v. United Tech. Corp., 487 U.S. 500, 512 (1988).

47 Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 167 (2016) (quoting Yearsley v. W.A. Ross Const. Co., 309

U.S. 18, 20 (1940)).

48 R. Doc. 27-1 at p. 6 (quoting Jowers v. Lincoln Elec. Co., 617 F.3d 346, 353 (5th Cir. 2010)).

49 Id.

provide regarding asbestos exposure or what safety precautions must be implemented to

prevent spread of asbestos from the Avondale Shipyards.”51

In Latiolais v. Huntington Ingalls, Inc., a case involving Avondale’s removal of the

plaintiff’s suit on the basis of § 1442, the Fifth Circuit, explained that

[t]o 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.’” Jefferson

County, 527 U.S. at 431, 119 S. Ct. at 2075 (quoting Willingham, 395 U.S. at

407, 89 S. Ct. at 1816). 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.” See Zeringue, 846

F.3d at 790; see also Bell, 743 F.3d at 89–91 (deeming an asserted federal

defense colorable simply because it satisfied the “causal connection”

requirement). Certainly, if a defense is plausible, it is

colorable. Compare Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S. Ct.

1937, 1949–50, 173 L.Ed.2d 868 (2009) (plausible claim survives a motion

to dismiss), with Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118

S. Ct. 1003, 1010, 140 L.Ed.2d 210 (1998) (“It is firmly established in our

cases that the absence of a valid (as opposed to arguable) cause of action

does not implicate subject-matter jurisdiction.”), and Montana-Dakota

Utils. Co. v. Nw. Pub. Serv. Co., 341 U.S. 246, 249, 71 S. Ct. 692, 694, 95

L.Ed. 912 (1951) (“If the complaint raises a federal question, the mere claim

confers power to decide that it has no merit, as well as to decide that it

has.”).52

In Latiolais, an injured machinist brought suit against Avondale, defendant in this

matter, for exposure to asbestos while working for Avondale installing thermal insulation

aboard the USS Tappahannock.53 Following a review of affidavits, deposition testimonies,

and other items in the record, the Fifth Circuit found Avondale sufficiently offered

evidence that the three Boyle conditions had been met. Plaintiff argues that Avondale

cannot succeed on its federal defenses unless Avondale produces evidence the

government contracts at issue dictated what warnings were to be provided to employees

or what safety precautions were to be implemented to prevent spread of asbestos from

51 Id.

52, 296–97 (5th Cir. 2020).

the Avondale shipyards. This argument misses the mark because it mistakes the

jurisdictional inquiry into whether the defense is colorable for an inquiry into the merits

of Avondale’s federal defenses. As explained in Latiolais, a colorable federal defense does

not need to be “clearly sustainable.”54 It is not for the Court to decide today whether the

Boyle or Yearsley federal contractor defenses have merit and shield Avondale from

liability. Said differently, the issue is not whether Avondale’s federal defenses will

ultimately provide a defense against Plaintiff’s claims; but whether the federal defenses

are not wholly insubstantial and frivolous. The Court need only find—which it does—that

Avondale raised a colorable federal defense. Avondale raises federal defenses that are

plausible and not frivolous or immaterial. Avondale need not win its case before it can be

removed.55

A brief examination of Avondale’s evidence in light of the Boyle factors and the

Fifth Circuit’s decision in Latiolais makes clear that Avondale raises a colorable federal

defense under Boyle. Before the Court turns to the Boyle factors, however, two points

must be made. First, Plaintiff argues that

where, as is the case here, the claims against the defendant are premised on

a failure to warn, the Defendant must show: (1) the federal government

exercised discretion and approved warnings for the product; (2) the

warnings the defendant provided about the product conformed to the

federal government specification; and (3) the defendant warned the federal

government about dangers known to the defendant but not the

government.56

In Latiolais, however, the plaintiff—like Plaintiff in this case—“allege[d] that Avondale

failed to warn him of the dangers of asbestos and failed to take measures to prevent

54 Id. at 296.

55 See Jefferson Cnty. v. Acker, 527 U.S. 423, 431 (1999) (“We therefore do not require the officer virtually

to ‘win his case before he can have it removed.”) (quoting Willingham v. Morgan, 395 U.S. 402, 407 (1969)).

exposure.”57 Nevertheless, in Latiolais, the Fifth Circuit in Latiolais considered whether

the following three factors were met to determine whether the Boyle defense was

colorable: “(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.”58 As a result, the Court will consider the three Boyle factors as

set out in Latiolais rather than as urged by Plaintiff. Second, “[b]ecause 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” Yearsley.59

Turning now to the three Boyle factors, in Latiolais, the Fifth Circuit found that

Avondale’s evidence regarding the first element of the Boyle defense was colorable

because

Avondale submitted one affidavit and deposition testimony alleging that the

Navy required installation of asbestos on the Tappahannock, as well as

another affidavit alleging that the Navy generally required Avondale to

install asbestos and to comply with certain related safety practices.60

In this case, Avondale has submitted evidence, including an affidavit and deposition

testimony, demonstrating that the Federal Vessels were built pursuant to contracts

executed between Avondale and the Navy, Coast Guard, and MARAD.61 Avondale’s

evidence makes colorable that the government approved reasonably precise specifications

about the installation of asbestos.62 As to the second factor, Avondale has submitted

evidence that these contracts contained mandatory specifications requiring Avondale to

57 Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 296 (5th Cir. 2020) (quoting Boyle, 487 U.S. at 512)

(internal quotations omitted).

58 Id. at 297.

59 Pitre v. Huntington Ingalls, Inc., No. CV 17-7029, 2017 WL 6033032, at *6 (E.D. La. Dec. 6, 2017).

60 Latiolais, 951 F.3d at 297.

61 R. Doc. 43-5 at ¶¶ 15-45; R. Doc. 43-6 at p. 10; R. Doc. 43-12 at ¶ 6.

use asbestos-containing materials in constructing the Federal Vessels.63 Avondale’s

evidence makes colorable the second element of the Boyle defense, namely, that it

complied with the government’s design specifications by installing asbestos in the Federal

Vessels. Avondale’s evidence shows that the federal government maintained strict

oversight of Avondale’s activities to ensure compliance, and that Avondale was never

placed in default of contract or cited for failing to comply with specifications, but that, on

the contrary, the federal government continued to award Avondale shipbuilding

contracts.64 Avondale has presented an affidavit containing a sworn declaration to the

effect that Avondale “complied with governmental and industry rules and regulations

relative to asbestos air quality.”65 Turning to the third Boyle factor, in Latiolais, the Fifth

Circuit explained that

Avondale's evidence tends to support that the federal government knew

more than Avondale knew about asbestos-related hazards and related safety

measures. From such evidence, it is colorable that Avondale did not omit

warning the government about any dangers about which the government

did not know.66

In this case, Avondale has submitted an affidavit from Christopher Herfel, a marine

engineer, who attests to the fact that the government knew as much, if not more, than

Avondale did about the hazards of asbestos exposure.67 Specifically, Herfel attests that

the United States government as a whole, from the 1940s to the present, has developed

and acquired “state-of-the-art knowledge concerning potential risks or hazards relating

to work with or around a multitude of products and materials, including those which

contained asbestos,” and that it is “inconceivable that contract shipyards, such as

63 R. Doc. 43-5 at ¶¶ 15-45.

64 R. Doc. 43-9 at p. 4; R. Doc. 43-18 at pp. 2–5.

65 R. Doc. 43-12 at ¶ 6.

66 Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 298 (5th Cir. 2020).

Avondale, would have had the same level of sophisticated knowledge as the Navy

concerning potential asbestos hazards.”68 Avondale also submitted the affidavit of Danny

Joyce, an industrial hygienist and long-time corporate designee for Avondale, who has

spent years “investigating historic asbestos use and asbestos work practices in connection

with building and repairs of marine vessels.”69 In his affidavit, Joyce attests that

“Avondale did not have any information regarding the hazards of asbestos that was not

known by the Federal Government.”70 In addition, Avondale also offers the deposition

testimony of Dr. Richard Lemen, a retired Assistant Surgeon General of the United States,

who testified that the U.S. Public Health Service collected and reviewed scientific

literature on asbestos beginning in the 1930s.71 Avondale’s evidence satisfied the third

Boyle factor because, based on Avondale’s evidence, “it is colorable that Avondale did not

omit warning the government about any dangers about which the government did not

know.”72

Avondale has raised a colorable federal officer defense under Boyle.

II. Avondale’s Notice of Removal was filed in a timely manner.

Plaintiff’s state court petition was filed on January 27, 2022, and Avondale’s Notice

of Removal was filed on March 10, 2022.73 In the Notice of Removal, Avondale asserts its

Notice of Removal “is being filed within thirty days of service of Plaintiff’s Petition for

Damages on Avondale, February 9, 2022, and is therefore, timely under 28 U.S.C. §

1446.74 Plaintiff argues Avondale’s removal was untimely because “removal took place

68 Id. at ¶ 63.

69 R. Doc. 43-6 at p. 1, ¶ 1.

70 Id. at p. 2, ¶ 9.

71 R. Doc. 43-23.

72 Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 298 (5th Cir. 2020).

73 See R. Doc. 1.

approximately forty-two (42) days following receipt of Plaintiffs Original Petition, twelve

(12) days after the expiration of the thirty-day removal deadline as prescribed under 28

U.S.C. § 1446.”75 Plaintiff's argument is based on the incorrect assumption that the thirty-

day deadline set forth in § 1446 began to run on January 27, 2022, the day his state court

petition was filed. Section 1446(b) is clear that the notice of removal “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.” A sheriffs return attached to

Avondale’s opposition reflects that Avondale was served with a summons and copy of the

petition on February 9, 2022.77 Avondale’s Notice of Removal was filed 29 days after

Avondale was served with Plaintiffs petition. Under § 1446(b), Avondale’s Notice of

Removal was timely filed.78

CONCLUSION

IT IS ORDERED that Plaintiffs motion to remand”? is DENIED.

New Orleans, Louisiana, this 17th day of May, 2022.

SUSIE none 1

UNITED STATES DISPRICT JUDGE

75 R, Doc. 27-1 at p. 5.

7% 28 U.S.C. § 1446(b)(1).

77 R. Doc. 43-3.

78 Because the Court concludes Avondale’s Notice of Removal was filed within 30 days of service of process

on Avondale, the Court need not address whether Avondale timely removed this lawsuit within 30 days of

Plaintiffs February 8, 2022 deposition, which allegedly was the first indication that his claims of asbestos

exposure were from or related to Avondale’s work constructing vessels for the federal government.

79 Doc. 27.

14