Addotto et al v. Equitable Shipyards, L.L.C. et al

Filing 32

ORDER AND REASONS granting 12 Motion to Remand to State Court. Signed by Judge Ivan L.R. Lemelle on 3/25/2014. (ijg)(CC to Clerk, CDC Orleans Parish) (Additional attachment(s) added on 3/31/2014: # 1 Remand Letter) (ijg).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALANA ADDOTTO ET AL.

CIVIL ACTION

VERSUS

NO. 13-5807

EQUITABLE SHIPYARDS, LLC, ET AL.

SECTION “B”(5)

ORDER AND REASONS
NATURE OF THE MOTION
Before

the

Court

is

the

Plaintiffs’

Motion

to

Remand,

Defendant The Boeing Company’s (“Boeing”) Opposition, Plaintiff's
Reply, and Boeing's Sur-Reply. (Rec. Doc. Nos. 12, 18, 22, & 27).
Accordingly, and for the reasons articulated below,
IT IS ORDERED

that the Plaintiffs’ Motion to Remand is

GRANTED. (Rec. Doc. No. 12).
FACTS AND PROCEDURAL HISTORY
Plaintiffs Alana and Frederick Addotto filed a Petition for
Damages in the Civil District Court for the Parish of Orleans,
initiating an asbestos-exposure personal injury action against
numerous defendants on January 7, 2013 . (Rec. Doc. No. 12-3).
Plaintiffs then added Boeing as a defendant by amended complaint on
July 30, 2013. (Rec. Doc. No. 12-5). Plaintiffs’ claims against
Boeing are based on negligence, failure to provide a safe workplace
and failure to warn. (Rec. Doc. No. 12-2 at 2-5; Rec. Doc. No. 12-5
at 8-10). Boeing timely removed under the Federal Officer Removal
Statute, 28 U.S.C. §1442(a)(1). (Rec. Doc. No. 1).
Plaintiff Alana Addotto was an employee of the United States

Department of Agriculture, and alleges that she was exposed to
asbestos while working at Building 350 in the Michoud Assembly
Facility (MAF) in New Orleans, Louisiana, from 1981 to 2005. (Rec.
Doc. No. 12-2 at 2-3). NASA owns the Michoud Assembly Facility,
(Rec. Doc. No. 18-1 at 3) and entered into contracts with Martin
Marietta Corporation (“Lockheed Martin”) to construct a space
shuttle’s fuel tanks from 1973 to 2010 at MAF.(Rec. Doc. No. 18 at
3). Lockheed Martin in turn entered into a contract with Boeing,
under which Boeing agreed to perform facility maintenance at MAF.
(Rec. Doc. No. 18-1 at 1, 4).
On these grounds, Boeing asserts jurisdiction and sought
removal under the Federal Officer Removal Statute, 28 U.S.C.
§1442(a)(1). (Rec. Doc. No. 1). In the instant motion, Plaintiffs
assert that this Court lacks subject matter jurisdiction because
Being fails to meet the requirements for removal under 28 U.S.C.
§1442(a)(1).1
LAW AND ANALYSIS
Federal courts are courts of limited jurisdiction. Howery v.
Allstate Insurance Co., 243 F.3d 912, 916 (5th Cir. 2001). “[W]hen
faced with a motion to remand, it is the defendant’s burden to
establish

the

existence

of

federal

jurisdiction

over

the

controversy.” Winters v. Diamond Shamrock Chemical Co., 149 F.3d

1

The Court initially granted expedited review in light of Plaintiff's
deteriorating health. (Rec. Doc. 17). Unfortunately, Plaintiff passed away a
short time later. To allow due consideration of the issues the Court has since
granted leave to file reply and sur-reply. (Rec. Docs. 21 & 25).

387, 397 (5th Cir. 1998). Here, Boeing argues that the present case
was properly removed under the Federal Officer Removal Statute, 28
U.S.C. § 1442(a). (Rec. Doc. No. 18 at 1).
That statute provides that any actions commenced in state
court against an officer of the United States (or “any person
acting

under

that

officer”)

who

is

“sued

in

an

official

or

individual capacity for any act under color of such office” may
remove to the district court of the United States embracing the
state forum where the action commenced. 28 U.S.C. § 1442(a)(1). The
purpose of this statute “is to prevent federal officers or persons
acting under their direction from being tried in state court for
acts done within the scope of their federal employment.” Peterson
v. Blue Cross/Blue Shield of Texas, 508 F.2d 55, 58 (5th Cir.),
cert. denied, 422 U.S. 1043 (1975). Furthermore, “[t]his right is
not to be frustrated by a grudgingly narrow interpretation of the
removal statute.” Winters, 149 F.3d at 398.
The Fifth Circuit provides a three part test to determine
whether government contractors qualify as a “person acting under a
[federal] officer” for the purposes of § 1442(a)(1). Id. at 398400. The defendant contractor must: (1) be a “person,” (2) who
acted pursuant to a federal officer’s directions and there must be
a causal nexus between the defendant’s actions made under color of
federal office and the plaintiff’s claims, and (3) must have
asserted a colorable federal defense. Id. Here, Boeing fails to

3

satisfy the second prong and on those grounds the case should be
remanded.
As

a

preliminary

matter,

Corporate

entities

qualify

as

“persons” under § 1442(a)(1); therefore Boeing meets the first
requirement in the three part test. Id. at 398.
The second requirement--that the defendants acted pursuant to
a federal officer’s direction and a causal nexus exists between the
defendant’s

actions

under

color

of

federal

office

and

the

plaintiff’s claims--should be given a “broad reading,” but the
right to removal “only arises when a federal interest in the matter
exists.”

In

re

FEMA

Trailer

Formaldehyde

Products

Liability

Litigation, MDL 07-1873, 2012 WL 601805 at *4 (E.D. La. Feb. 23,
2012). In evaluating whether this requirement is met, the court
must determine whether the government specified actions or control
so as to supply the causal nexus between defendant’s actions under
color of federal office and the plaintiff’s claims. Winters, 149
F.3d at 398.
Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387 (5th
Cir. 1998) illustrates how governmental control is necessary for
finding a causal nexus. There, the Fifth Circuit found a causal
nexus between the defendants’ manufacture of Agent Orange under the
government’s direction and plaintiff’s claims of injury due to
Agent Orange exposure. The Department of Defense had imposed
detailed specifications on the defendant contractors concerning the

4

ingredients, formulation, packaging, labeling and delivery of Agent
Orange. Id. at 400. In addition, the government compelled the
defendants

to

deliver

Agent

Orange

under

threat

of

criminal

sanctions. Id. at 398. Thus, the court concluded that such “strict
control over the development and subsequent production of Agent
Orange” provided a “direct causal nexus between the defendants’
actions taken under color of federal office and [plaintiff’s]
claims.” Id. at 399-400.
Further

guidance

is

found

in

Francis

v.

Union

Carbide

Corporation. No. 11-2695, 2011 WL 6180061 (E.D. La. 2011), where
this court remanded asbestos-related claims similar to those at
issue here for failure to satisfy § 1442 causal nexus requirement.
There, the plaintiffs claimed, inter alia, that the defendant
contractor failed to provide a safe work environment and failed to
warn of asbestos hazards. Id. at *1. The court noted that the
plaintiffs’ claims were not based on use of asbestos as specified
by the government, but rather on “defendants’ failure to use
asbestos safely.” Id. at *3. The court held that in order to
demonstrate

a

causal

nexus

with

such

claims,

the

contractor

defendant had to demonstrate that the government “provided some
level of direct control over warnings” of asbestos dangers. Id. at
*3. Because the defendant failed to provide evidence that suggested
that the government issued any standards to defendants regarding
safety hazards, industrial hygiene, or asbestos warnings, the court

5

concluded
plaintiff’s

that

there

claims

was

and

no

causal

defendant

connection

working

on

between

behalf

of

the
the

government and remanded. Id. at *4.
Here, like the defendant in Francis, Boeing has failed to
establish a causal nexus between the Plaintiffs’ claims and actions
taken under a color of federal office. The basis of the Plaintiffs’
claims against Boeing are not based on use of asbestos according to
government specifications, as the claims in Winters were, but
instead are centered on claims for failure to warn, negligence, and
failure to maintain a safe working environment, similar to those in
Francis.(Rec. Doc. No. 12-5 at 8-10). In other words, Plaintiff's
causes of action do not turn on Boeing’s use of asbestos, but
rather Boeing’s failure to use asbestos

safely.

Thus, as in

Francis, the court must determine whether the government controlled
Boeing’s actions with regard to asbestos so as to supply a causal
nexus

Boeing’s

actions

under

color

of

federal

office

and

plaintiff’s claims.
Boeing contends that “any decision regarding asbestos in MAF
facilities air conditioning. . . was under the full control and
discretion of the United States Government.” (Rec. Doc. No. 18 at
10). It fails, however, to substantiate that claim. Boeing points
to its contract with Lockheed Martin, which terms “extend[ed] to
CONTRACTOR [Boeing] its rights to use and responsibilities to care
for that property.” (Rec. Doc. No. 18-1 at 6). It further points to

6

various contractual provisions between NASA and Lockheed Martin,
which

"subject[ed

Lockheed]

to

the

surveillance

and

written

technical direction" of NASA personnel, required prior approval
from NASA of all subcontractors, required that such subcontractors
be subject to "various specification, standards, and procedures,"
and allowed NASA to conduct audits of all relevant plants at "all
reasonable times." (Rec. Doc. 27 at 4-5). It hardly follows from
such general provisions, however, that NASA did in fact exert such
control. In short, Boeing has only established that NASA could have
exerted a degree of control and not that it provided any level of
actual--let alone direct--control.
There has been no showing that Boeing suffered detailed
specifications or control from the government regarding warnings
about asbestos, industrial hygiene, safe work environments, or
surveying for asbestos. Boeing’s assertions of government control
do not rise to the requisite level of specific, detailed control
similar to that exerted by the government in Winters. Boeing offers
no evidence to suggest that the government gave any orders or
specifications at all to Boeing regarding asbestos warnings in
Building 350 regarding industrial hygiene or other safety concerns
relating to asbestos. Thus, no casual connection existed between
the injuries alleged by Plaintiffs with respect to Boeing’s work
allegedly done under color of federal office.
Furthermore, Boeing has not demonstrated that it “acted under”

7

a color of federal office, regardless of causation. In the Fifth
Circuit, a defendant acts under the direction of a federal officer
when: (1) it had a contract with the government, (2) the government
maintained strict control over development and production, (3) the
government

required

production

to

adhere

to

the

government’s

specifications set forth in the contract and other documents
referenced and (4) the government performed inspections. Winters,
149 F.3d at 398-400; Morgan v. Great Southern Dredging, Inc., No.
11-2461, 2012 WL 4564688 at *6 (E.D. La. Sept. 30, 2012); Prigmore
v. Jim Cooley Constr., Inc., No. 11-238, 2011 WL 2004961 at *2
(E.D. La. May 23, 2011).
A company that merely conforms to the “basic contractual
parameters after the government has entered the market to obtain a
service” does not satisfy the “acting under” element. Breaux v.
Gulf Stream Coach, Inc., No. 08-893, 2009 WL 152109 at *5 (E.D. La.
Jan. 21, 2009).
A defendant contractor is “acting under” the color of a
federal

officer

government.

See

when

there

Winters,

is

149

direct
F.3d

387

supervision
(Defense

from

the

Department

contracted for the production of Agent Orange); C.R. Pittman
Constr. Co. Inc., v. Parson and Sanderson, Inc., No. 10-1027, 2010
WL 3418240 (E.D. La. Aug. 24, 2010) (defendant operated under the
supervision of the United States Army Corps of Engineers); Crocker
v. Borden, Inc., 852 F.Supp. 1322 (E.D. La. 1994) (defendant
8

constructed turbines according to strict Naval specifications and
under the supervision of United States Navy employees).
In contrast, this Court has held that a subcontractor with no
direct contract with the government cannot satisfy the acting under
requirement. Morgan v. Great Southern Dredging, Inc., 2012 WL
4564688 at *6. In Morgan v. Great Southern Dredging, Inc., the
plaintiff filed suit after her husband died from a workplace
accident. Id. at *1. The defendants included a construction company
who was awarded a contract from the U.S. Army Corps of Engineers
and a subcontractor who contracted in turn with the construction
company.

Id.

The

defendant

subcontractor

argued

that

it

was

entitled to federal officer removal on the grounds that it acted
under the direction of a federal officer, as its work was overseen
by an employee of the construction company which in turn had a
contract with the Corps. Id. at *6. However, the court concluded
that because the subcontractor was not a government contractor
itself, it could not in that instance be acting under the color of
federal law Id.
Here, Boeing is likewise a subcontractor and not a government
contractor

itself.

Each

contract

on

which

Boeing

relies

to

establish government control exists between Lockheed Martin and the
Government. See Rec. Doc. Nos. 18-1; 18-2. Thus, for the same
reasons in Morgan, Boeing “cannot show that it had a contract with
the government and so therefore, it cannot meet the requirement

9

that is acted under the direction of a federal officer.” 2012 WL
4564688 at *6.
CONCLUSION
Boeing does not satisfy the second requirement of the
test to establish federal officer jurisdiction under 28 U.S.C. §
1442(a)(1). It is thus unnecessary for the Court to consider the
third requirement. This matter was improperly removed pursuant to
§ 1442(a)(1) and remand is recommended for lack of subject matter
jurisdiction.
It is ORDERED that Plaintiffs’ Motion to Remand (Rec. Doc. No.
13)is GRANTED.

New Orleans, Louisiana, this 25th day of March, 2014.

____________________________
UNITED STATES DISTRICT JUDGE

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