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Motion to Remand Denied as Defendant’s Removal Timely Under Federal Officer Removal Statute

Court: United States District Court for the Eastern District of Louisiana

In this asbestos action, decedent Gayle LeBeau alleged take-home exposure to asbestos from her father and brother’s work at the Avondale Shipyards. After decedent filed her claim in state court, defendant Huntington Ingalls Incorporated (“Avondale”) removed the case to federal court. Plaintiffs moved to remand the case to state court, which Avondale opposed.   

Plaintiffs argued that removal was untimely as Avondale had notice of the appropriateness of removal from the decedent’s original petition on November 2, 2019. Further, plaintiffs believed that Avondale had several other occasions to determine the claims were related to ships “constructed pursuant to contracts with the federal government.” 

In opposition, Avondale argued that the removal was timely as they moved after receiving the plaintiff’s letter, which “provided the first clear indication that plaintiffs’ exposure allegations relate to federal vessels.”

Indeed, the original petition did not form the basis for removal as “the Original Petition explicitly state[d] that Plaintiffs disclaim any cause of action or recovery for any injuries caused by exposure to asbestos dust that occurred in a federal enclave.” In addition, employment records cannot form the basis of removal as “the Fifth Circuit has stated that a matter cannot be made removable by evidence of the defendant.” Finally, the court determined that the “Exhibit List did not trigger the removal clock because it did not clearly and unequivocally establish the existence of federal officer jurisdiction.” Moreover, the court determined that Avondale satisfied the Federal Officer Removal statute as “Avondale’s grounds for removal . . . are regularly used by Avondale and affirmed by the Eastern District [of Louisiana].” Thus, the court denied plaintiffs’ motion to remand.

Read the full decision here.