Shipyard Defendant’s Removal Deemed Timely Following Receipt of Discovery

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U.S. District Court for the Eastern District of Louisiana, December 7, 2020

Plaintiff Ethel Sampey was diagnosed with mesothelioma, which she alleged was caused by secondhand exposure to asbestos from her uncle, Huey Levron, who worked at the Avondale Shipyard from 1957 to 1965, and also from working as a bartender and serving Avondale workers. The plaintiff filed suit against Avondale, among other defendants, in July 2020. On August 1, 2020, the plaintiff served her fact witness list, which identified numerous witnesses, including two individuals, Stanley Gomez and Charles Bourg, without any indication of their relationship to the claims at issue or their work history. Ms. Sampey was deposed on August 21, 2020, and served written responses to discovery on September 25, 2020. Through the written discovery, Ms. Sampey was asked to identify each former Avondale employee that she alleged exposed her to asbestos. In response, she referenced the previously produced fact witness list identifying Stanley Gomez and Charles Bourg. On October 9, 2020, Avondale removed the case to federal court on the basis of federal-question (28 U.S.C. § 1441) and federal-officer jurisdiction (28 U.S.C. § 1442). Avondale stated in its notice of removal that same was timely filed within 30 days of its receipt of the plaintiff’s discovery responses and fact witness list on September 25, 2020.

The plaintiff did not dispute the substantive basis for federal-officer jurisdiction. Rather, she moved to remand the case back to state court on the grounds that Avondale’s removal was untimely, in that it was more than 30 days after they were served. The plaintiff argued that her discovery responses of September 25, 2020 did not provide any new information to Avondale, and therefore did not start the 30-day window from receipt of “other paper” pursuant to the statute. In opposition, Avondale argued Plaintiff’s fact witness list itself was not enough to give them notice of a basis for federal-officer removal, and it was only after being advised through discovery that Messrs. Gomez and Bourg were alleged sources of exposure to Ms. Sampey through their bar patronage that they could raise a colorable defense under federal law. As such, Avondale argued that their 30-day removal window began upon receipt of the September 25, 2020 discovery responses.

The court agreed with Avondale, finding that they could not have removed the case to federal court based on the first disclosure of the plaintiff’s witness list. While Messrs. Gomez and Bourg were identified in the list, “there was no indication on the list (or anywhere else) of what role they might play in the case or testimony they might offer.” Rather, they were two names on a list of 37 potential witnesses. As such, Avondale’s removal was timely following receipt of the discovery responses that clarified the fact witness’ roles in the case. The court also noted that Avondale had asserted a colorable government contractor immunity defense under Boyle v. United Techs. Corp., and therefore had sufficient substantive basis for federal-officer jurisdiction.