Motion for Reconsideration on Removal in Shipyard Case Granted

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U.S. District Court for the Eastern District of Louisiana

The plaintiff, Patricia Jackson, alleges asbestos exposure while employed by Avondale Shipyard between 1970 and 1977. She further alleged asbestos exposure from father’s work clothing while he was employed by Avondale between 1962 and 1975. The plaintiff filed suit against numerous defendants including Huntington Ingalls Incorporated, Albert L. Bossier, Jr., and Lamorak Insurance Company (collectively, the Avondale defendants), Taylor Seidenbach, International Paper, Eagle, Inc., Liberty Mutual Insurance Company, and Hopeman Brothers, Inc. in state court. The case was removed to federal court by the Avondale defendants.

Shortly after removal, the plaintiff settled her claims against the Avondale defendants and filed a motion to remand challenging the merits of the removal and arguing that irrespective of the merits, the case ought to be remanded because the basis for federal jurisdiction only with respect to the Avondale defendants. Additionally, the Avondale defendants filed a motion to withdraw the notice of removal, explaining that the claims against them had been settled. The court received no oppositions to the plaintiff’s motion to remand.

Defendant Hopeman filed a motion for reconsideration of the remand order. Hopeman explains that the Avondale Defendants failed to file a Notice of Compliance as required by 28 U.S.C. § 1446, which resulted in Hopeman not being notified of the pendency of the motion to remand or, for that matter, the remand order. Hopeman argued that this failure deprived it of the opportunity to oppose the motion to remand, and requests that the court rescind its May 11, 2020 Order and Reasons to allow the jurisdictional issues to be fully briefed. The court granted Hopeman an opportunity to file a supplemental brief addressing the merits of its jurisdictional argument. In their supplemental brief, Hopeman argued two “colorable federal defenses,” namely official and derivative sovereign immunity and the government contractor defense, because the conduct giving rise to the plaintiff’s claims against Hopeman is associated with acts performed at the direction of the federal government. Hopeman also asserted that diversity jurisdiction exists.

The plaintiff opposed reconsideration and filed a supplemental brief in opposition to the merits of Hopeman’s jurisdictional argument. The plaintiff also filed a Motion to Strike a number of exhibits attached to Hopeman’s supplemental brief discussing its alleged basis for federal jurisdiction. The plaintiff argues that Hopeman must support its entitlement to a federal defense with “competent evidence” that would be considered in a motion for summary judgment context and that the aforementioned exhibits are all inadmissible under the Federal Rules of Civil Procedure and/or the Federal Rules of Evidence.

Motion to Strike

The court noted that, “the burden of persuasion for establishing jurisdiction, of course, remains on the party asserting it.” Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010). “When challenged on allegations of jurisdictional facts, the parties must support their allegations by competent proof.” Id. The parties disagree as to what constitutes “competent proof” for purposes of federal officer removal. The plaintiff argues the court may only consider evidence that would be appropriate at the summary judgment stage and is generally admissible under the Federal Rules of Evidence, while Hopeman suggests such an exacting standard is misplaced. Hopeman urges the court to consider affidavits and deposition testimony prepared in other cases, as well as excerpts of contracts and specifications, in support of its right to assert a federal defense. Heeding the Supreme Court’s instruction that a removing defendant “need not win his case before he can have it removed,” Willingham v. Morgan, 395 U.S. 402 (1969), the court concluded that consideration of Hopeman’s exhibits is appropriate at this preliminary stage. At this stage, the court is less concerned with the actual merits of the defense than the plausibility of its assertion.

Motion for Reconsideration

The plaintiff’s maintain the court reached the correct result when initially remanding this matter back to state court and that reconsidering that decision would cause a manifest injustice to the plaintiff, who suffers from a terminal illness and may not survive long enough to have her day in court if the trial is continued. Hopeman, however, points out that when the court granted the remand, there was no opposition on file due to an error on Avondale’s part in not filing the required notice. Hopeman was accordingly unaware of the remand motion and unable to object to it through no fault of its own. Weighing the respective positions of the parties, the court concludes that the scale tips in favor of Hopeman with respect to reconsideration.

The court then considered the merits of Hopeman’s argument that this case this case is properly in federal court pursuant to federal officer removal and diversity jurisdiction. The federal officer removal statute permits “[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States” to remove a case originally  filed in state court “that ordinary federal question removal would not reach.” 28 U.S.C. § 1442(a); Latiolais, 951 F.3d at 290. The purpose of this statute is to provide a federal forum in cases where a defendant is entitled to raise a defense arising out of their official duties. Hopeman bears the burden of demonstrating that (1) it asserted a colorable federal defense; (2) it is a “person” within the meaning of the statute; (3) it 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, 951 F.3d at 296. After analyzing each factor separately, the court concluded it has jurisdiction over this matter pursuant to the Federal Officer Removal Statute.

The plaintiff challenges the timeliness of removal predicated on federal officer removal under § 1442(a). The court concluded the decision in Latiolais is an “order” for the purposes of § 1446. Since Avondale removed within 30 days of the order’s issuance, and Hopeman’s opposition to remand is based on Avondale’s notice of removal, the removal is timely. Other courts in this district have reached the same conclusion. See, e.g.Bourgeois, 2020 WL 2488026; Francis v. ITG Brands, LLC, No. CV 20-997, 2020 WL 2832538, at *3 (E.D. La. June 1, 2020).

Consequently, the plaintiff’s motion to strike was denied and Hopeman’s Motion to Reconsider was granted.