Vedros v. Northrop Grumman et al

Filing 341

ORDER & REASONS: denying 320 Motion to Remand to State Court. Signed by Judge Carl Barbier on 4/24/14. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
VEDROS, ET AL

CIVIL ACTION

VERSUS

NO: 11-1198

NORTHROP GRUMMAN SHIPBUILDING,
INC., ET AL

SECTION: J

ORDER AND REASONS
Before the Court are Plaintiffs' Motion to Remand (Rec. Doc.
320); Oppositions filed by Defendants Amchem (Rec. Doc. 326),
Continental Insurance Company (hereinafter "Continental") (Rec.
Doc. 327), CBS Corporation (hereinafter "Westinghouse") (Rec. Doc.
328), and Avondale and the Avondale Interests1 (Rec. Doc. 329); and
a Reply filed by Plaintiffs (Rec. Doc. 339). Having considered the
motions, the parties’ submissions, the record, and the applicable
law, the Court finds, for the reasons expressed below, that the
Motion to Remand should be DENIED.
PROCEDURAL AND FACTUAL BACKGROUND
This action arises from the death of Sally Gros Vedros
("Vedros") due to mesothelioma. Alton Gros ("Gros"), Vedros's
father, worked at Avondale as a welder from 1943 to 1976, and

1
"Avondale" refers to Defendant Northrop Grumman Shipbuilding, Inc, and
the "Avondale Interests" refers to Defendants Albert L. Bossier, Jr., J. Melton
Garrett, and OneBeacon America Insurance Company and American Employers Insurance
Company, as the alleged insurers of C. Edwin Hartzman, Hettie Dawes Eaves, Henry
"Zac" Carter, James Bull, Roy Barkdull, and Ewing Moore.

1

Vedros claims to have spent many years washing her father's work
clothes, which allegedly resulted in Vedros's secondary exposure to
asbestos. Vedros also worked at Avondale from 1960 to 1963 in the
purchase department, and she claims that she was directly exposed
to asbestos while she worked at Avondale. Before her death, Vedros
filed suit against multiple Defendants, and after Vedros's death,
her

children

joined

the

suit

as

plaintiffs.

Defendants

Westinghouse, Foster-Wheeler, and General Electric removed the case
to federal court based on the federal officer defense.2
In August 2011, the case was transferred to the United States
District Court for the Eastern District of Pennsylvania as part of
an MDL. In the MDL proceedings, Plaintiffs moved to remand the case
to state court, but the MDL court found that federal jurisdiction
was satisfied because the requirements of the federal officer
removal statute had been met. In February 2013, the case was
remanded from the MDL to this Court, where it was allotted to Chief

2

Those Defendants removed this action to federal court pursuant to 28
U.S.C. § 1442(a)(1), the "Federal Officer Removal Statute," which states that an
action filed in state court may be removed to federal court when that action is
against:
[t]he 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.A. § 1442(a)(1) (West 2013). Here, the removing Defendants successfully
argued that because Vedros alleged that she was exposed to asbestos from all
vessels and equipment present at Avondale during the period of construction of
several United States Navy vessels, under the direction of the Navy, the
Defendants were acting under the direction of the United States at the time of
the alleged exposure to Gros and/or Vedros.

2

Judge Vance in Section "R," transferred to Judge Engelhardt in
Section "N," and finally transferred to the undersigned in Section
"J." The parties have undergone extensive discovery in this case,
including

multiple

documents

have

depositions

been

filed

in

and

expert

reports.

this

matter

in

Over

federal

300

court.

Discovery has been completed, and the Court has ruled that no
further discovery shall be allowed without express permission of
the Court. Through multiple status conferences and oral arguments
in this matter, the Court has become intimately familiar with the
facts of this case, and after ruling on eighteen (18) motions for
summary judgment, the Court finds that this matter is ripe for
trial. In resolving those motions, the Court dismissed all claims
against General Electric and Foster-Wheeler, as well as the claims
against Westinghouse based on its supplying turbines to Avondale.3
As

a

result

of

the

dismissal

of

those

parties

and

claims,

Plaintiffs have filed the instant Motion to Remand.
PARTIES' ARGUMENTS
Plaintiffs argue that federal jurisdiction no longer exists
over this case because the dismissal of all claims against General
Electric, all claims against Foster-Wheeler, and the turbine claims
against Westinghouse moots the federal officer defense, which is
the basis for this Court's jurisdiction. Plaintiffs also argue that

3

The claims against Westinghouse based on its supplying micarta board to
Avondale remain viable.

3

the Court should decline to exercise supplemental jurisdiction over
the remaining claims because the legal issues in this case,
specifically the issues of solidary liability and virile shares,
involve complex questions of state law.
Amchem, Westinghouse, Avondale, the Avondale Interests, and
Continental argue that the Court should exercise supplemental
jurisdiction because the Court has already expended substantial
judicial resources and the case is ripe for trial. They also point
out that virile share liability is not a novel or complex issue
that requires state court adjudication; rather, issues of virile
share

allotment

and

solidary

liability

have

repeatedly

been

addressed by federal district courts sitting in Louisiana.4
LEGAL STANDARD
Although it is the general rule that where federal claims are
dismissed before trial, a federal court should also dismiss pendent
state claims, that rule "is neither absolute nor automatic."
Newport Ltd. v. Sears, Roebuck and Co., 941 F.2d 302, 307 (5th Cir.
1991), cert. denied, 502 U.S. 1096 (1992). Rather, the federal
court has discretion to exercise supplemental jurisdiction over the
remaining state law claims. Id.; see also Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 351 (1988). The court may decline to exercise

4
Continental alternatively argues that the Court retains jurisdiction
because the Avondale Interests have also asserted the federal officer defense.
Avondale and the Avondale Interests have made no such argument. Because the Court
finds that the exercise of supplemental jurisdiction is appropriate in this case,
it need not resolve Continental's alternative argument.

4

supplemental jurisdiction pursuant to 28 U.S.C. § 1367 if:

(1) the claim raises a novel or complex issue of State
law,
(2) the claim substantially predominates over the claim
or claims over which the district court has original
jurisdiction,
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4)

in

exceptional

circumstances,

there

are

other

compelling reasons for declining jurisdiction.

28 U.S.C.A. § 1367(c) (West 1990). In determining whether to
exercise supplemental jurisdiction, the court must also balance
"judicial economy, convenience, fairness, and comity." Batiste v.
Island Records, Inc., 179 F.3d 217, 227 (5th Cir. 1999), cert.
denied, 528 U.S. 1076 (2000) (internal citations omitted).
DISCUSSION
The Court finds that there are no novel or complex issues of
state law present in this case such that the Court should decline
to exercise supplemental jurisdiction. The Court is perfectly
capable of adjudicating issues involving solidary liability and
virile shares. See, e.g., Anderson v. Chieftain Int'l Corp., No.
01-638, 2002 WL 1363878 (E.D. La. June 20, 2002) (Barbier, J.);
5

Liberty Mut. Fire Ins. Co. v. Fluor Enter., Inc., No. 08-5166, 2012
WL 255763 (E.D. La. Jan. 27, 2012) (Vance, J.); Rodman v. Restivo,
No. 09-3395, 2010 WL 60188 (E.D. La. Jan. 5, 2010) (Duval, J.);
Knight v. RPM Pizza, Inc., No. 99-2894, 2000 WL 869503 (E.D. La.
June 28, 2000) (Clement, J.).
Additionally, this case is similar to several other cases
where district courts in this circuit have properly exercised
supplemental jurisdiction where the matters have been pending in
federal court for several years, extensive discovery has occurred
and numerous documents have been filed, discovery is closed, the
case is ripe for trial, there are no novel or overly complex issues
of

state

law,

and

the

district

court

has

already

expended

significant judicial resources and decided multiple dispositive
motions. See, e.g., Newport, 941 F.2d at 307-08; Batiste, 179 F.3d
at 227-28; Brookshire Bros. Holding, Inc. v. Dayco Prods. Inc., 554
F.3d 595, 602-04 (5th Cir. 2009), cert. denied, 557 U.S. 936 (2009);
Doddy v. Oxy USA, Inc., 101 F.3d 448, 455-56 (5th Cir. 1996); Port
of S. La. v. Tri-Parish Indus., Inc., 927 F.Supp.2d 332, 338-39
(E.D. La. 2013) (Milazzo, J.); Chauvin v. Radioshack Corp., No. 084255, 2009 WL 961247, at *2-3 (E.D. La. Apr. 8, 2009) (Africk, J.),
aff'd, 332 Fed. App'x 994 (5th Cir. 2009). Therefore, the Court
declines to remand this case to state court.
CONCLUSION
Accordingly,
6

IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand (Rec.
Doc. 320) is DENIED.
New Orleans, Louisiana this 24th day of April, 2014.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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