Federal Officer Removal Found to Be Proper and Timely in Another Post-Latiolais Decision

U.S. District Court for the Middle District of Louisiana, March 4, 2021

The plaintiffs alleged the decedent, Kirk Reulet, was exposed to asbestos during his own employment at the Avondale Shipyard from 1967 to 1972 and from take-home exposure to asbestos through his father, Pierre Reulet, who worked for Avondale from 1964 to 1977. Defendant Hopeman Brothers, Inc. allegedly performed contracting work with asbestos-containing products at Avondale during Mr. Reulet’s employment. In June 2019, the plaintiffs filed suit against Avondale, Hopeman, and other defendants in the Nineteenth Judicial district Court for the Parish of East Baton Rouge, alleging that Mr. Reulet’s exposure to asbestos caused his diagnosis with mesothelioma and subsequent death. Avondale filed a notice of removal in June 2020. As justification for the timeliness of the removal, Avondale argued that the plaintiffs’ petition for damages did not link Mr. Reulet’s alleged asbestos exposure to any vessels that Avondale built for the federal government, and therefore did not put Avondale on notice that federal officer removal jurisdiction exited. Rather, Avondale argued that its first notice of Mr. Reulet’s alleged exposures related to asbestos-containing materials installed on vessels built by Avondale pursuant to federal contracts came during the June 2020 deposition of Mr. Reulet’s co-worker. The plaintiffs filed a motion to remand in July 2020, arguing that the plaintiffs removal was untimely and improper. Following substantial briefing on the issue, the court was called to resolve the issues as to whether the requirements of federal officer removal had been established, and whether removal was timely.

Citing Latiolais and its progeny, the court noted that with regard to the fourth element of federal officer removal jurisdiction, “a defendant must only show that the charged conduct ‘is connected or associated with an act pursuant to a federal officer’s directions.” This standard replaced the requirement of “a causal nexus” between the defendant’s acts under color of federal office and the plaintiff’s claims, which was in place prior to the Latiolais decision. The court also noted that several cases out of the Eastern District of Louisiana that have upheld the propriety of federal officer removal under similar facts to this case, and following consideration of much of the same evidence submitted in this case. Given this, the court found that the plaintiffs’ arguments, while not in bad faith, disregarded the sea change in the law brought about by Latiolais. The court held that the defendants had established the elements of federal officer removal, and this case should be “added to that line of cases upholding the propriety of federal officer removal post-Latiolais.”

With regard to the second inquiry, as to the timeliness of the removal, the court noted that the Fifth Circuit “has provided a bright line rule that ‘the thirty-day removal period…is triggered only where the initial pleading affirmatively reveals on its face’ that jurisdiction exists.” Furthermore, the Fifth Circuit has provided that the 30-day removal period is triggered only where jurisdiction is “unequivocally clear and certain” from an amended pleading, motion, order, or other paper.” Here, the plaintiffs argued that their petition asserted that Mr. Reulet was exposed to asbestos through the work of his father, and this, coupled with their pre-suit production of Mr. Reulet’s father’s employment file, put the defendants on notice that Mr. Reulet’s father worked on vessels built by Avondale. The court disagreed, finding that the petition did not affirmatively reveal on its face that Mr. Reulet’s or his father’s exposure to asbestos at Avondale was in connection with work performed by the defendant, Hopeman, and therefore the petition did not start the clock for federal officer removal. Further, the court held that “Avondale’s pre-suit possession of [Mr. Reulet’s] and [his father’s] employment files cannot be used to make an end-run around the requirement that the Petition must affirmatively reveal on its face that jurisdiction exited justifying removal.” Additionally, the court noted that regardless of what the defendants knew based on the employment files, they could not have removed the case prior to the Latiolais decision, so the case was not removal at the time of the plaintiffs’ petition.

Given this, the court held that the requirements of federal officer removal were met, and removal was timely.

Read the full decision here.