U.S. District Court for the Eastern District of Louisiana, March 2, 2021
Plaintiff Linda Crossland filed a motion to remand and defendants Avondale and Hopeman Brothers Inc. oppose the plaintiff’s motion. The plaintiff’s alleged exposure to asbestos was from asbestos fibers floating from Avondale Shipyards into her neighborhood, take home asbestos exposure from her father and husband’s work at Avondale, and from her own work at Avondale’s Main yard from 1966 through the 1970s. The plaintiff was deposed on December 11, 2020 and Avondale removed to federal court on December 20, 2020.The Federal Officer Removal Statute authorizes removal of a suit by the “United States or any agency thereof or any officer (or any person acting under that officer) of the United States or any agency thereof, in an official or individual capacity, for or relating to any act under color of such office . . . .” 28 U.S.C. §1442(a)(1). The party asserting jurisdiction under this statute bears the burden of establishing that federal jurisdiction exists.
The plaintiff does not contest that the requirements of the Federal Officer Removal Statute are met, rather, the plaintiff contests only the timeliness of removal. The plaintiff argues that this action was removable based on the initial state-court petition because of Avondale’s knowledge and experience in litigating asbestos cases and its knowledge of the plaintiff’s work history. The defendants contend that the initial pleading was not removable because the federal officer defense was not apparent on the face of the petition. The court noted that according to case law, the thirty-day removal clock begins to run only if the initial pleading “affirmatively reveals on its face” that the case is removable. The court found the plaintiff’s argument unavailing as it goes to Avondale’s subjective knowledge of the cause of plaintiff’s exposures, and their relation to federal vessels under construction at Avondale. However, according to case law, in order for a case to be removable, the allegations in it must facially support removal. On its face, the pleading contains no reference to federal vessels at Avondale, or other allegations that support removal. The plaintiff contends that Avondale could have ascertained the removability of this matter based on employment records she provided to defendants on September 18, 2020. Those records consist of a single page with plaintiff’s name, her “clock no.,” an address, a phone number, the foreman, and the date, title, and rate of the plaintiff’s compensation. The court noted that the document contained no “unequivocally clear and certain” indication that plaintiff worked on federal vessels, or that her alleged asbestos exposures were otherwise related to the federal vessels at Avondale. The court finds that removability could not be ascertained from the employment records, and defendant’s receipt of them did not start the 30-day removal clock. The court further noted that the first unequivocally clear and certain indication that plaintiff’s exposures occurred aboard or were related to work on federal vessels at Avondale was during the plaintiff’s deposition, taken December 11, 2020. Therefore, Avondale removed this matter timely on December 30, 2020 and denied the plaintiff’s motion to remand.