U.S. District Court for the Eastern District of Louisiana, March 16, 2021
The plaintiff filed suit against Avondale and Lamorak Insurance Co. (defendants) in state court on February 12, 2020. The defendants removed the case under the federal officer removal statute alleging that the lawsuit pertains to action by Avondale’s taken pursuant to the direction of a federal officer. By way of background, this case rises out of Harvel A. Landreaux’s (the plaintiff) alleged exposure to asbestos while working as an employee of defendant Avondale Shipyards, Inc. between 1967 and 1973, and in 1976.
The plaintiff filed this instant motion to remand contesting the veracity of defendants’ jurisdictional allegations and requesting that this court remand the case back to state court. The defendants opposed the motion, supporting their jurisdictional allegations with trial testimony, depositions, and affidavits from previous cases to which plaintiff was not a party. In response, the plaintiff filed a Rule 12(f) Motion to Strike, asserting that defendants’ evidence in opposition to remand is inadmissible under the Federal Rules of Civil Procedure and the Federal Rules of Evidence. The dfendants responded in opposition, arguing that plaintiff’s objections are unfounded and unsupported by law. On February 12, 2021, plaintiff’s motion to strike was denied. As rationale the court noted, to be ‘colorable, the asserted federal defense need not be ‘clearly sustainable, as Section 1442 of the Federal Rules of Evidence does not require a federal official or person acting under him to ‘to “win his case before he can have it removed. Therefore, depositions and affidavits constitute relevant and competent evidence in considering motions to remand under the federal officer removal statute.
The court noted that under the federal officer removal statute “ the right of removal . . . is made absolute whenever a suit in a state court is for any act ‘under color’ of federal office, regardless of whether the suit could originally have been brought in a federal court.” To remove under section 1442(a), a defendant must show (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.
In his motion to remand, the plaintiff does not contend that Avondale was not required by federal direction to use asbestos, but rather that it was required to do so “safely and in compliance with applicable federal and state safety standards. The court noted that a defendant is only required show that Avondale’s use of asbestos was “pursuant to a federal officer’s direction,” not whether it also complied with all relevant state and federal safety requirements. Moreover, the defendants asserted three federal defenses: (1) “government contractor immunity,” under Boyle, 487 U.S. 500; (2) “derivative sovereign immunity,” under Yearsley, 309 U.S. 18; and (3) the exclusive remedy provisions of the LHWCA. Because defendants have a “colorable defense” under Boyle, the court found it was unnecessary to discuss their alternative defenses. Moreover, because the Supreme Court explained that state law is displaced where the Boyle factors are met, it was unnecessary to discuss plaintiff’s argument that an analysis of whether operation of state law frustrates federal interests is a condition precedent of government contractor immunity.
In light of the precedential case law, the court found that the defendants’ assertion of a federal defense is not wholly insubstantial and frivolous, and therefore, colorable to invoke removal.