LOUISIANA — The plaintiffs filed this action against many defendants including Huntington Ingalls (Avondale) alleging their decedent contracted mesothelioma as a result of exposure to asbestos while working at Avondale Shipyard from 1964-1972. Avondale removed the case asserting Federal Officer Removal Statute. The plaintiff moved to remand arguing that Avondale could not satisfy the elements required under Federal Officer Removal Statute.
According to the court, Avondale must show that it 1) that the person is within the meaning of the statute 2) that it has a colorable federal defense 3) that is acted pursuant to a federal officer’s directions and 4) that a casual nexus exists between its actions under color of federal office and the plaintiff’s claims in order to assert Federal Officer Removal Statute.
The plaintiff took the position that Avondale’s removal was untimely. The controlling statute required removal within “30 days after receipt of a plaintiff’s initial pleading setting forth for relief upon which such action or proceeding is based.” However, if the initial pleading does not state assertions to remove, then a notice to remove must be filed within 30 days after receipt by the defendant of a pleading from which removal may be ascertained. Here, the initial pleading was filed March 21, 2018. Avondale removed the case on July 19, 2018. Clearly the removal was more than 30 days after Avondale received the initial pleading. The court then turned its attention to whether Avondale could have ascertained that the case was removable from the initial pleading. The court noted that the plaintiffs’ complaint disclaimed conduct Avondale took under direction of the government. The court characterized that this disclaimer was an effort for Plaintiffs to have their cake and eat it too. On the other hand, Avondale argued that it only became aware that the case was removable during the deposition of Tex Martinez. During that deposition, Avondale learned for the first time about allegations of exposure onboard a specific federal ship at Avondale. Avondale removed the case within 2 weeks after the deposition and therefore the removal was timely.
The plaintiff then argued that the defendant failed to establish the causal nexus requirement for removal under Federal Officer Removal Statute. The element at issue required Avondale to show that there exists a causal nexus between its actions under the direction of the federal government and the conduct underlying the suit. The plaintiffs took the position that they disclaimed their strict liability claims and therefore Federal Office Removal Statute was inapplicable because the claims were sounded in negligence. Relying on the Boyd decision, Avondale countered and stated that the disclaimer was not enforceable. The court disagreed as the disclaimer was one separate from the earlier boilerplate disclaimer. Moreover, the court could not enforce the plaintiff to make a claim it was not asserting. Consequently, remand was granted.