Take Home Mesothelioma Case Remanded After Defendant Files Untimely Removal; Costs Denied U.S. District Court for Eastern District Of Louisiana, November 17, 2016
The plaintiffs brought claims sounded in negligence, intentional tort, fraud and strict liability for their decedent’s mesothelioma which was alleged to have developed after coming into contact with her husband’s asbestos laden clothes. Mr. Tregre was alleged to have worked for Avondale Industries, a predecessor to Huntington Ingalls, Inc. while onboard ship construction.
Avondale removed the case to the U.S. District Court on May 16, 2016 under federal officer removal statute and argued that it built ships under contract for the U.S. who required the use of asbestos. The plaintiff contended that the removal was untimely and sought remand and costs. The court commenced its analysis of federal officer removal. A civil action may be removed from state court when suit is brought against a person acting under the authority of the United States. The purpose of the statute is to prevent states from interfering with a federal officer’s “execution of their duties.” Also noted by the court was the distinction between general removal and federal officer removal. Although general removal requires the court to have original jurisdiction over the claim federal officer removal does not. Removal under federal officer must take place within 30 days of receiving a copy of the initial pleading or 30 days after receiving an amended copy of the pleading or other papers from which a defendant may ascertain that the case is removable.
Avondale argued that it did not know the case was removable until April 15, 2016 when it learned from Mr. Tregre’s son-in-law and another fact witness that Mr. Tregre may have been exposed to asbestos on ships built pursuant to government contract. The plaintiff contested that position and pointed to three sources of Avondale’s knowledge that triggered the removal clock months prior: 1) the deposition of Luther Demster, Tregre’s former supervisor 2) Mr. Tregre’s deposition and 3) Avondale’s own employment records. The removal was untimely accordingly to the plaintiff since the depositions took place seven months prior.
Avondale countered and stated that Mr. Demster’s deposition testimony was general and not specific as to which ships Mr. Tregre may have been on. The court disagreed and stated that Mr. Demster in fact had spoken about specific work and exposure. Additionally, Avondale had not presented the court with any authority that Mr. Demster’s memory had to be “clear and unequivocal.” As for sanctions, the court denied costs and found that under the Savoie case, Avondale had a reasonable ground to believe that removal was proper.