Plaintiff’s Motion to Remand on Timeliness of Defendant’s Removal on Federal Officer Jurisdiction Denied

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

Plaintiff H. Francis alleged he was diagnosed with lung cancer as a result of his work as a rod clerk for Avondale Shipyards from 1973 to 1974. Mr. Francis was deposed on January 21, 2020 regarding these allegations, and Avondale received his deposition transcript on February 4, 2020. On March 24, 2020, Avondale filed a Notice of Removal, seeking to remove the case from Louisiana State court to the U.S. District Court for the Eastern District of Louisiana pursuant to 28 U.S.C. §1442 (Federal Officer Removal), as clarified by the Fifth Circuit Court ofAppeals decision in Latiolais, which had been handed down on February 24, 2020 (reported here). In response, the plaintiff filed a Motion to Remand, arguing that Avondale should have removed the matter within 30 days of when it first ascertained that the case was removable, and the exception outlined in Green v. R.J. Reynolds Tobacco Co. was not applicable because the Latiolais opinion was not an “order” or “other paper.”

The court acknowledged that generally, a civil action must be removed within 30 days after the defendant receives the initial pleading, or within 30 days of service of the summons, if the initial pleading is not required to be served. However, if the case is not removable based on the initial pleading, “a notice of removal may be filed within 30 days after receipt by the defendant…a copy of an amended pleading, motion, order, or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3). Here, Avondale’s receipt of Mr. Francis’ deposition transcript on February 4, 2020 constituted a receipt of “other paper” under § 1446(b)(3). However, the court held that the clock for Avondale’s removal did not start upon its receipt of the transcript, because the Fifth Circuit’s decision in Latiolais did not clarify the removal statute until February 24, 2020. As such, it was not “unequivocally clear and certain” that the case was removable at the time that Avondale received Mr. Francis’ deposition transcript, but rather twenty days later when the Latiolais decision was issued. As such, Avondale’s filing of its Notice of Removal on March 24, 2020, thirty days after the Latiolais decision was issued, was timely.

The plaintiff further argued that Green v. R.J. Reynolds Tobacco Co. holds that “[d]ecisions in unrelated cases usually do not constitute ‘orders’ under §1446(b)(3) and hence are ‘not to be grounds for removal.’” However, the court noted that in Green, the Fifth Circuit held that an order in another case can be an “order” for the purpose of removal when the cases “involve (1) the same defendants, (2) a similar factual situation, and (3) resolution of a similar legal issue that has the effect of making the case removable.” This case fit within Green’s narrow exception, as Avondale was a defendant in Latiolais, both cases involved negligence claims involving the use of asbestos by a federal officer, and Latiolais resolved the very legal question at issue here, which was the removability of negligence cases involving asbestos exposure under the Federal Office Removal statute.

Given the above analysis, the court denied the plaintiff’s motion to remand the case back to Louisiana state court.