U.S. District Court for the Middle District of Louisiana, August 31, 2021
In this asbestos action, plaintiff Jerome Gehant served in the U.S. Navy from 1967 until 1970 and subsequently for several employers, including McDermott, Inc. from 1984 until 1999. He alleges that his exposure to asbestos during his service and employment on ships resulted in his diagnosis of mesothelioma. He filed a petition for damages in state court (the Nineteenth Judicial District Court for the Eastern District of East Baton Rouge). Specifically, Gehant alleged claims under the Jones Act and maritime law claims against the ship-owner defendants, as well as negligence and strict liability claims against the manufacturer defendants. Six notices of removal filed under the federal officer removal statute were unopposed by the plaintiff. Since their filing, the claims against all defendants other than McDermott have been dismissed. In addition, the plaintiff had filed a second action against the former manufacturer defendants in state court.
The plaintiff sought to remand this action to state court. Ultimately, the court agreed that it should exercise its discretion to remand. First the court noted that it properly had jurisdiction under 28 U.S.C. § 1442 when the case was first removed. As such, the court also properly had ancillary jurisdiction over the remaining claims. At the time the plaintiff sought removal, the only remaining claims included Jones Act and general maritime claims for unseaworthiness against McDermott.
At this time, the plaintiff argued that the court had the “discretion to remand to state court once the party who removed the case under the federal officer removal statute is dismissed from the suit” under IMFC Professional Services of Fla., Inc. v. Latin Am. Home Health, Inc. McDermott opposed, contending that since the court in IMFC retained the remaining claims, this court should do the same. The court rejected McDermott’s contention. First, the court noted that the remaining claims (Jones Act and general maritime claim for unseaworthiness) would not be removable on their own if brought in state court. As such, the court found that this point “militates in favor of treating the remaining claims the same as state law claims would be treated.”
Once determining that the court could “exercise its discretion and decline to exercise ancillary jurisdiction over the remaining claims” as the federal officers were previously dismissed, the court used the following factors to determine whether to remand: “plaintiff’s choice of forum, as well as principles of comity, fairness, and judicial economy.” When balancing these factors, the court found that the factors weighed in favor to remand the matter. With regard to the plaintiff’s choice of forum, the plaintiff originally chose to file its claims in state court. With regard to comity, “state courts are empowered to exercise concurrent jurisdiction over the remaining claims, and are equally capable of deciding them.” In addition, the claims “are not uniquely federal, nor do they present novel federal issues.” Further, there is no showing of “wasted judicial resources or inefficiencies” since there has not been substantial activity in this matter during its two-year pendency. The court also found that “t[h]e other arguments in favor of retention are not more compelling than those favoring remand.” Thus, the magistrate judge recommended that the court decline ancillary jurisdiction and remand the matter to state court.