United States District Court, Eastern District of Louisiana.
Plaintiff Jesse Hernandez filed suit against several defendants alleging he developed mesothelioma while working summers in 1968, 1969 and 1970 at the Avondale Shipyard as a painter’s helper and assistant clerk. During his deposition, he recalled working on board several vessels in the main yard and U.S. Navy destroyers. The defendants removed the case based on federal officer removal. Plaintiff moved to remand.
The Court quickly concluded that the defendants had a colorable federal defense. Relying on the Latiolais decision, the Court stated that the defendants’ position was not “wholly insubstantial or frivolous.” Avondale showed that the government approved the specifications for the construction of the ships according to the Court. Avondale complied with the instructions and the “government knew more than them about the asbestos-related hazards and appropriate safety measures” according to the Court. Moreover, Avondale fit the description of a “person” for purposes of federal officer removal. The contracts between the government and Avondale showed that Avondale was “acting” under those contracts as well. Finally, the allegations were related to the installation of asbestos for Navy ships. Accordingly, the defendants’ had asserted a colorable defense. The motion for remand was consequently denied.