U.S. District Court for the Eastern District of Louisiana, November 23, 2021
The plaintiff was an employee of Huntington Ingalls, Inc., intermittently from 1972 to 1975, running a cherry picker at Avondale shipyards. He alleged that he was exposed to asbestos dust through this employment and was later diagnosed with mesothelioma.
On July 16, 2021, the plaintiff filed suit in the Civil District Court for the Parish of Orleans, Louisiana, and on October 26, 2021, the defendants removed the case to federal court pursuant to the Federal Officer Removal Statute. The plaintiff subsequently moved to remand, arguing that removal was untimely and the defendants could not satisfy the connection requisite.
In the operative complaint, the plaintiff alleged that his exposure to asbestos was due to asbestos dust released by the installation, removal, and repair of asbestos-containing products.
The defendants removed the case, arguing that the plaintiff failed to affirmatively identify the reason for exposure, and concluded that the asbestos dust must be from ambient exposure to asbestos-containing products, including products being used for two federal vessels being constructed at the Avondale shipyard during the period the plaintiff alleged exposure.
The court ruled that the defendants properly removed under the Federal Officer Removal Statute, because the plaintiff met all requirements including the connection prong. Further, the court found the defendants’ removal to be timely. While there is a bright line rule that a defendant has thirty days to remove starting upon the defendants’ receipt of an initial pleading or other document that affirmatively reveals on its face why the case is removable, here, the thirty-day clock did not begin to run at the pleadings stage, as neither the plaintiff’s first nor amended complaints alleged unequivocally clear the facts that connect the government to the injurious acts. As such, the defendants’ removal was timely.