Shipyard Owner’s Removal Deemed Timely Under Recent Fifth Circuit Decision

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Plaintiff Robert Bourgeois II originally filed his lawsuit in the Civil District Court for the Parish of Orleans, State of Louisiana, alleging his exposure while employed at Avondale Shipyards caused him to develop mesothelioma. Defendant Avondale removed the case to the Eastern District of Louisiana; in response, the plaintiff filed the instant Motion for Remand.

The plaintiff asserted four arguments as to why remand is proper:

  1. Removal was untimely because Avondale learned of the case’s potentially removability when it received the transcript of Plaintiff’s May 2019 deposition, but did not file its notice until March 2020;
  2. The en banc opinion in Latiolais is not an order that makes the case removable because the narrow exception articulated in Green does not apply;
  3. Avondale cannot establish the necessary elements for removal because he did not work on any of the Navy or LASH vessels; and
  4. Avondale does not have a colorable federal defense.

Avondale argued that the removal was procedurally proper because it was filed within 30 days of the Fifth Circuit’s en banc decision in Latiolais, which it contends constitutes an order that first made this action removable. Avondale argues it had no obligation to remove this action earlier because it could not do so successfully under the pre-Latiolais Fifth Circuit jurisprudence which held that asbestos-exposure negligence claims were not removable under the Federal Officer Removal Statute. Thus, Avondale contends that its receipt of Bourgeois’s deposition transcript did not start the 30-day removal clock. Further, Avondale argues that the Green exception applies to qualify the Latiolais decision as an order under § 1446(b) that made this action removable. Moreover, Avondale argues that all of the substantive elements of § 1442(a)(1) are satisfied because Latiolais takes a broad view of “relating to” as used in the statute, and the facts of the case show that Bourgeois’s alleged asbestos exposure was necessarily related to work done at Avondale under the direction of a federal officer. Finally, Avondale argues that it has colorable federal defenses.

The court, after a lengthy discourse on each argument, denied Bourgeois’s Motion to Remand.