Louisiana Case Remanded Due to Lack of Causal Nexus Between Defendants’ Actions Under Color of Federal Office and Plaintiff’s Negligence Claims United States District Court, E.D. Louisiana, January 7, 2019

LOUISIANA — The plaintiff Callen Dempster filed suit against multiple defendants, alleging that he was exposed to asbestos and asbestos-containing products while employed by Avondale Industries, Inc. (Avondale) from 1962-1994.  The plaintiff originally filed suit in the Civil District Court for the Parish of Orleans, State of Louisiana, on March 14, 2018.  On June 21, 2018, the defendants Huntington Ingalls Incorporated, Albert Bossier, Jr., J. Melton Garret, and Lamorak Insurance Company (the Avondale Interests) removed the case to the eastern district under the Federal Officer Removal Statute.

The plaintiff filed the instant motion to remand, arguing the following: (1) Avondale Interests’ removal was untimely; (2) there was no evidence that the plaintiff was exposed to asbestos on a federal vessel; (3) the Fifth Circuit consistently held that negligence claims did not warrant federal officer removal; (4) Avondale Interests were not “acting under” the direction of a federal officer; (5) Avondale Interests did not establish a colorable federal contractor defense; and (6) Avondale Interests ‘ Longshore and Harbor Workers’ Compensation Act (LHWCA )defense did not provide an independent basis for removal, and regardless, the LHWCA supplemented, rather than supplanted, state law remedies.

Ultimately, the court found that removal pursuant to the Federal Officer Removal Statute was improper.  In order to show that removal was proper, the defendants must show that: (1) they were “person[s]” within the meaning of the statute; (2) they acted pursuant to a federal officer’s directions, and a causal nexus existed between their actions under color of federal office and plaintiff’s claims; and (3) they have a colorable federal defense to plaintiff’s claims.  The court held that defendants “have not shown the necessary causal nexus between Avondale Interests’ or Foster’s actions under color of federal office and the plaintiff’s negligence claim exists.”

The court remanded the action back to state court.

Only the Westlaw citation is currently available at 2019 WL 117657.

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