Court Finds Shipyard Defendants’ Removal Timely Based on Plaintiffs’ Supplemental Discovery Responses; Remand Denied

U.S. District Court for the Eastern District of Louisiana, March 19, 2021

Decedent Frank Labarre worked as a tire repairman or salesman in automobile shops throughout Louisiana throughout his career. In 2016, Mr. Labarre was diagnosed with a “probable asbestos-related lung condition,” and he passed away in 2018. The plaintiff alleged that by performing brake jobs and by performing work at various premises, including those of Avondale, he was regularly exposed to asbestos-containing brake products. Avondale was a customer of the decedent for over four years, and during that time, the decedent spent a couple of hours at Avondale’s premises about every two weeks. His work at those premises was confined to the truck yard, which was “way off” from the shipbuilding, and the decedent never went on board a ship at Avondale. In his discovery requests, the decedent claimed that he believes he was “exposed to asbestos-containing materials while on the premises of Avondale Shipyards.” After the decedent’s passing, in the supplemental discovery responses prepared on his behalf, Plaintiff claimed that “countless ships” at Avondale were among the alleged sources of the decedent’s asbestos exposure.

As a result, on January 14, 2021, Avondale removed this matter to the federal court on the basis of federal-officer jurisdiction pursuant to 28 U.S.C. Section 1442(a)(1). Avondale argues that the predicate for this jurisdiction was not apparent until the plaintiff’s supplemental discovery responses first asserted “ships” as a source of the decedent’s asbestos exposure. In its notice of removal, Avondale alleged two colorable federal defenses: a government contractor immunity defense, and a derivative sovereign immunity defense.

In the motion to remand, the plaintiff now argues that removal of this matter is untimely because the notice was not filed within 30 days of Avondale’s receipt of “other papers” which laid out the elements of federal-officer jurisdiction. Specifically, the plaintiff notes that the exhibit and witness lists make myriad references to federal vessels, and argues that there is nothing new in the supplemental discovery responses that would trigger removal. Avondale argues in response that the basis for removal was not unequivocally clear and certain until these supplemental discovery responses identified “countless ships” at Avondale.

To remove a matter 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. Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 296 (5th Cir. 2020). Notably, Plaintiff does not dispute that Avondale has raised a colorable federal defense but only takes issue with the timing of removal.

The court held that Avondale’s removal is timely because it was filed within 30 days of the supplemental discovery responses, which first made the basis for federal-officer removal ‘unequivocally clear and certain.” While generally, a civil action must be removed within 30 days after the defendant receives a copy of the initial pleading setting forth the plaintiff’s claim for relief, a notice of removal may be filed within 30 days after receipt by the defendant of a copy of an amended pleading or other paper from which it may be first ascertained that the case is or has become removable. 28 U.S.C. §§ 1446(b)(1), 1446(b)(3). “The information supporting removal in a copy of an amended pleading, motion, order or other paper … must be unequivocally clear and certain to start the time limit running. Morgan v. Huntington Ingalls, Inc., 879 F.3d 602, 608-09 (5th Cir. 2018). To provide the basis for removal, facts must be alleged or adduced to indicate that work on federal vessels was a source of asbestos exposure for the plaintiff.

The court held that until the January 14, 2021 supplemental discovery responses, it was not specifically alleged that the decedent worked on any such federal vessels. While a seasoned litigator may have had reason to suspect prior to this date that federal-officer jurisdiction may exist, suspicion is not sufficient to start the removal clock. The court therefore denied the plaintiff’s motion to remand this matter to state court.

Read the full decision here.