Crutchfield et al v. Sewerage & Water Board of New Orleans et al

Filing 327

ORDER & REASONS denying 319 Motion to Remand to State Court. Signed by Judge Martin L.C. Feldman on 4/20/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RONDA CRUTCHFIELD, ET AL.

CIVIL ACTION

v.

NO. 13-4801

SEWERAGE & WATER BOARD OF
NEW ORLEANS, ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is the plaintiffs' motion to remand. For the
reasons that follow, the motion is DENIED.
Background
This lawsuit arises from alleged property damage caused by
construction of the Dwyer Road Intake Canal in New Orleans.

The

plaintiffs, who are individual residents of New Orleans, brought
this proposed class action in Orleans Parish Civil District Court
against Hill Brothers, the Sewerage & Water Board of New Orleans,
Richard C. Lambert Consultants, Blue Iron, and various unnamed
insurers.

Hill Brothers, who had been contracted by the U.S. Army

Corps of Engineers, removed the case on June 14, 2013, pursuant to
28 U.S.C. § 1442(a)(1), because it alleged a government contractor
immunity defense.

Other parties were added to the case after

removal.
In April 2014, Magistrate Judge North ordered that the parties
submit briefing about the governmental immunity defense and its
implications for subject matter jurisdiction; the plaintiffs did
not move for remand.

Magistrate North set a discovery schedule,
1

and several months later, the plaintiffs moved for partial summary
judgment as to Hill Brothers' governmental immunity defense. Seven
weeks ago, before recusing herself from the case, Judge Berrigan
denied without prejudice the plaintiffs' attempt to dismiss Hill
Brothers' government contractor immunity defense, finding that the
plaintiffs had "significant gaps" in evidentiary support.

The

Court found that adjudication of the merits of Hill Brothers'
defense "should be postponed until the parties have conducted
further discovery."1
After Judge Berrigan's recusal, the case was re-allotted to
this Section of the Court, and the pending evidentiary hearing on
the motion to certify class was cancelled.

The plaintiffs were

instructed to re-submit their motion in accordance with the page
limit provided by the Local Rules and to include as exhibits all
evidence they wished the Court to consider, and a briefing schedule
was set.

The plaintiffs later asked for an extension of the

briefing schedule, stating that they needed more time to prepare
the exhibits. The Court granted the request, only to discover that
perhaps the extra time was in fact sought for the filing of this
motion to remand.2

1

See Order & Reasons, dated March 4, 2015.

2

In its opposition to the motion to remand, the Sewerage &
Water Board notes that the "plaintiffs' disingenuous claim for
needing to continue the class certification submission date only to
proffer this groundless retread of a just denied argument, thus
requiring the unnecessary expenditure of significant time and
2

I.
The Federal Officer Removal Statute, 28 U.S.C. § 1442, permits
the removal of any civil or criminal action brought in state court
when the defendant in the matter is:
The United States or any agency thereof or any officer
(or any person acting under that officer) of the United
States or of any agency thereof, in an official or
individual capacity, for or relating to any act under
color of such office or on account of any right, title or
authority claimed under any Act of Congress for the
apprehension or punishment of criminals or the collection
of the revenue.
28 U.S.C. § 1442(a)(1).

The Fifth Circuit has recognized that the

purpose of removal pursuant to this statute is to "ensure a federal
forum in any case where a federal official is entitled to raise a
defense arising out of his official duties," and that "this right
is not to be frustrated by a grudgingly narrow interpretation of
the removal statute."

Winters v. Diamond Shamrock Chemical Co.,

149 F.3d 387, 398 (5th Cir. 1998).

The removing defendant has the

burden of establishing the existence of federal jurisdiction.
at 398.

Id.

Removal under § 1442(a)(1) is proper only when the

defendant: (1) is a "person" within the meaning of the statute, (2)
who acted under color of federal authority when he committed the
acts that allegedly led to the plaintiffs' injuries, and (3) has a
"colorable federal defense."

Mesa v. California, 489 U.S. 121 at

resources, approaches the territory of sanctionable conduct per 28
U.S.C. § 1927." This Court agrees and warns plaintiffs' counsel of
that provision.
3

131–32 (1989); Winters, 149 F.3d at 398.
II.
The plaintiffs contend that remand is proper because Hill
Brothers did not strictly comply with the specifications of the
U.S. Army Corps of Engineers.

Hill Brothers and several other

parties submit that this Court has subject matter jurisdiction,
that Hill Brothers can easily make a showing of a "colorable
federal defense," and that the plaintiffs misstate the requirements
of § 1442(a)(1).

The Court agrees.

A. Person under § 1442(a)(1)
Corporate entities may qualify as persons under 28 U.S.C. §
1442.

Winters, 149 F.3d at 398.

Brothers was a corporation.

At all relevant times, Hill

Moreover, the plaintiffs make no

argument that Hill Brothers does not fulfill this requirement.
B. Federal Direction and Causal Nexus
To satisfy the second prong of the analysis, this Court has
required that a defendant "demonstrate that [he] acted pursuant to
a federal officer's directions and that a causal nexus exists
between the defendant['s] actions under color of federal office and
the plaintiffs' claims."

Dupre v. Todd Shipyards Corp., No. 11-

2097, 2011 WL 4551439 (E.D. La. Sept. 29, 2011) (Zainey, J.).
Here, the plaintiffs claim that Hill Brothers failed to follow the
Corps's vibration and dewatering specifications, thus stripping
Hill Brothers of immunity. Hill Brothers and the other respondents

4

contend that Hill Brothers worked under the supervision of the
Corps, and that any deviations from best practices was minimal. In
the

end,

after

all,

the

Corps

approved

of

Hill

Brothers'

construction work.
The Court agrees with Hill Brothers.

The project was funded

in its entirety by the federal government, and the Army Corps of
Engineers exercised direct and detailed control over Hill Brothers'
construction

activities

throughout.

Hill

Brothers'

Project

Manager, John Hendrix,3 explained that before performing work, Hill
Brothers was required to schedule preparatory meetings with the
Corps to get approval for how the work was to be performed.

The

Corps

who

had

an

office

at

the

project

site

with

personnel

monitored the daily construction activities and inspected the work
performed by Hill Brothers to ensure that it was in compliance with
the contract plans and specifications. The Corp prepared a quality
assurance report to document its findings and future construction
issues.

It provided periodic performance reviews, and at the end

of construction, it confirmed that the project was completed
satisfactorily.

See C.R. Pittman Const. Co. Inc. v. Parson and

Sanderson, Inc., 2010 WL 3418240 (E.D. La. Aug. 24, 2010) (Lemelle,
J.) (upholding removal where the contract with the Corps required

3

See Miles v. Sewerage & Water Board of New Orleans, No. 041587, 2004 WL 1794527 (E.D. La. Aug. 10, 2004) (Duval, J.)
(upholding removal based on the affidavit of a project
superintendent).
5

the Corps to occupy and staff a field office that inspected
equipment and work).
The plaintiffs contend that because some of Hill Brothers'
work did not perfectly comply with its contract terms (e.g.,
sometimes the vibration levels exceeded a level imposed by the
Corps), Hill Brothers must have had the discretion to work outside
of the contract and thus did not work at the direction of the Army
Corps of Engineers.
purpose of § 1442.

This overly narrow reading distorts the

See Joseph v. Fluor Corp., 513 F. Supp. 2d 664,

671 (E.D. La. 2007) (Fallon, J.) (noting that the federal officer
removal statute must be broadly construed, resolving all factual
disputes in favor of federal jurisdiction).
C. Colorable Federal Defense
Hill Brothers invokes government contractor immunity as a
defense to the plaintiffs' claims. To show removal is proper, Hill
Brothers need not prove its asserted defense; it must assert only
its colorable applicability to the claims.

A motion to remand is

not the proper mechanism by which to litigate a defendant's
defense.4

Winters, 149 F.3d at 387; Laurent v. City of New

4

To succeed on the merits of its defense, Hill Brothers will
have to show: (1) that the government approved reasonably precise
specifications; (2) that the government supervised and controlled
the implementation of those specifications; and (3) that Hill
Brothers was not aware of reasons also not known to the government
that would make the implementation of the specifications unsafe or
unreasonable. Hill Brothers makes a substantial showing that it
will be able to prove all three elements, and there is no evidence
on this record to the contrary.
6

Orleans, No. 14-2022, 2014 WL 5410654 (E.D. La. Oct. 23, 2014)
(Barbier, J.).
imposed

Hill Brothers has alleged that the Army Corps

precise

specifications

to

which

it

conformed

its

construction work.
Because Hill Brothers has demonstrated that (1) it is a person
within

the

meaning

of

§

1442(a)(1),

(2)

it

acted

under

the

direction of the U.S. Army Corps of Engineers, and (3) it has a
colorable federal defense, removal of this matter was proper under
28 U.S.C. § 1442(a)(1).5

According, IT IS ORDERED that the

plaintiffs' motion to remand is hereby DENIED.

New Orleans, Louisiana, April 20, 2015

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

5

There may be other bases for the exercise of jurisdiction as
well: Blue Iron, a subcontractor, also asserts a government
contractor immunity defense, and Travelers Property Casual Company
and Liberty Mutual Fire Insurance Company contend that the Class
Action
Fairness
Act
provides
another
basis
for
federal
jurisdiction.
7