Remand Denied as Defendants’ Notice of Removal Deemed Timely and Proper Under Federal Officer Statute

U.S. District Court for the Eastern District of Louisiana, September 18, 2020

In this asbestos matter, plaintiff James Becnel contends that he developed lung cancer as a result of his work aboard a Navy vessel while employed at Avondale. The initial complaint was filed in the Civil District Court for the Parish of Orleans on July 22, 2019. In August 2019, the plaintiff testified that he worked aboard a Navy vessel known as the Lykes vessel during his deposition. Notably, he filed a second supplemental and amending petition on November 19, 2019, which added a paragraph for strict liability. The defendants filed a notice of removal on December 11, 2019.

The plaintiff filed a motion to remand on two separate grounds. First, the plaintiff argued that removal of the case was untimely. Pursuant to 28 U.S.C. §1446, a notice of removal must be filed within 30 days after the receipt of the initial pleading. If the case is not removable on the face of the initial pleading, 28 U.S.C. §1446(b)(3) sets forth that the notice “may be filed within 30 days after receipt by the defendant, through service or otherwise, of 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.”

As previously stated, the plaintiff asserted that the defendants removal was untimely, as the defendants should have filed their notice of removal within 30 days of their receipt of the deposition transcript as an “other paper” under 28 U.S.C. §1446(b)(3). The defendants argued their removal notice was timely as the case became removable upon receipt of the second supplemental and amending petition adding the strict liability claim on November 19, 2019.

The court held that removal upon receipt of the strict liability claim in the second supplemental and amending petition was procedurally proper. The court stated that an important change occurred in the Fifth Circuit upon consideration of the Latiolais v. Huntington Ingalls decision. Before the Latiolais decision in February 2020, removal was appropriate when the defendant showed “a causal nexus” between the defendants’ acts performed under color of federal authority and plaintiff’s claims.” As such, a negligence-only claim lacked a causal nexus required for removal. However, the court set forth that the “Fifth Circuit’s decision in Latiolais overruled the ‘causal nexus’ requirement and replaced it with the requirement that the defendants show that ‘the charged conduct is connected or associated with an act pursuant to a federal officer’s directions.’” The court determined that the use of the Latiolais decision as an “order” upon which removal could be based was proper under the Green v. R.J. Reynolds Tobacco Co. factors. 

The plaintiff also challenged the defendants’ notice of removal on substantive grounds, as they believed the requirements for federal officer removal were not met in this matter. However, the court found that the pleadings met the standard for removal under 28 U.S.C. §144(a)(1) and Latiolais. Specifically, “a defendant must show (1) it is a “person” within the meaning of the statute, (2) that has acted pursuant to a federal officer’s directions, (3) the charged conduct is connected or associated with an act pursuant to a federal officer’s directions, and (4) it has asserted a colorable defense.” First, the court noted that the Avondale defendant is a person within the meaning of the statute. Second, the court determined the plaintiff’s allegations satisfy the removal standard as “[t]he Lykes vessel was constructed under the direction and pursuant with the plans and specifications given to Avondale by the U.S. Navy.” Further, “Avondale’s alleged use of asbestos was pursuant to directions of the U.S. Navy.” Last, the court found the defendants raised a colorable federal contractor immunity defense under the Boyle factors. Ultimately, the court found the defendants’ removal under 28 U.S.C. §1442(a)(1) timely and jurisdictionally proper.