Whatley et al v. Eagle, Inc.

Filing 53

ORDER & REASONS granting #6 Motion to Dismiss for Lack of Jurisdiction and Motion to Remand. IT IS ORDERED that the VAMC is DISMISSED. IT IS FURTHER ORDERED that this matter is REMANDED to the Civil District Court, Orleans Parish, State of Louisiana, for lack of subject matter jurisdiction. Signed by Judge Martin L.C. Feldman on 12/10/2014. (Attachments: #1 Remand Letter) (caa) (Main Document 53 replaced on 12/11/2014) (caa). Modified on 12/11/2014 (caa).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LEX WHATLEY, JR. ET AL.

CIVIL ACTION

V.

NO. 14-2277

EAGLE, INC. ET AL.

SECTION "F"
ORDER AND REASONS

Before the Court are three motions: (1) the plaintiffs' motion
to dismiss the Veteran's Administration Medical Center (VAMC) for
lack

of

subject

matter

jurisdiction

and

remand,

or,

in

the

alternative, to sever and remand all state law claims; (2) the
third-party defendant Plumbers and Steamfitters Local 141's motion
to dismiss under Rule 12(b)(6); and (3) the third-party defendant
Somdal Associates' unopposed motion to dismiss under Rule 12(b)(6).
For the reasons that follow, the plaintiffs' motion to dismiss the
VAMC and remand for lack of subject matter jurisdiction is GRANTED.
Thus, the Court does not reach Local 141's and Somdal's motions to
dismiss.
Background
Lex

Whatley,

Jr.,

now

deceased,

was

diagnosed

with

mesothelioma on November 11, 2010. Five days later, the plaintiffs
filed suit in state court against several defendants for state law
claims of negligence, strict liability, intentional tort, premise
liability, and loss of consortium due to Whatley's exposure to
asbestos

and

asbestos-containing

1

products.

Whatley

died

on

December 3, 2010.
wrongful

death

His wife and children filed survival and

actions.

Before

removal,

the

case

had

been

litigated in state court for almost four years and had an expedited
trial date of December 1, 2014.
Three months before the scheduled trial date, Bird, Inc. and
AT&T Corp., two of the defendants, brought claims against several
third-party defendants, including the Veteran's Administration
Medical Center, Plumbers and Steamfitters Local 141 (Whatley's
union), and Somdal Associates, an architecture firm.1

The VAMC,

represented by the local United States Attorney's Office, removed
this case on October 2 under 28 U.S.C. § 1442(a).

The plaintiffs

now move to dismiss the VAMC and remand this case to the Civil
District Court for the Parish of Orleans; or, in the alternative,
to sever the plaintiffs' demands from the third-party claims
against the VAMC and remand the plaintiffs' claims.

Local 141 and

Somdal also move to dismiss the third-party claims against them.
I.

The VAMC and Subject Matter Jurisdiction
A.

A claim must be dismissed if it appears that the court does
not possess subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1),
(h)(3).

The burden of proof on a Rule 12(b)(1) motion to dismiss

is on the party asserting jurisdiction.

1

See Kokkonen v. Guardian

Bird and AT&T are represented by the same counsel and filed
identical claims.
2

Life Ins. Co., 511 U.S. 375, 377 (1994).

When deciding a Rule

12(b)(1) motion to dismiss for lack of subject matter jurisdiction,
it

is

well

established

that

a

court

is

not

limited

to

the

allegations in the complaint but may consider material outside of
the complaint.

The court may base its decision on the complaint

alone, the complaint supplemented by undisputed facts evidenced in
the record, or the complaint supplemented by undisputed facts plus
the court's resolution of disputed facts.

Ramming v. United

States, 281 F.3d 158, 161 (5th Cir. 2001).
B.
The VAMC removed this case pursuant to 28 U.S.C. § 1442(a)
after

Bird

potential

filed
virile

a

third-party

share

demand

contribution

against

should

the

Bird

VAMC

be

cast

for
in

judgment, based on Bird's allegation of "premise liability" against
the VAMC.
subject

The plaintiffs move to dismiss the VAMC for lack of

matter

plaintiffs'
unopposed.

jurisdiction.

motion.

The

The

United

plaintiffs'

States

motion

is

joins

the

essentially

At no point in their response do Bird and AT&T contend

that this Court has jurisdiction over the claims against the VAMC,
focusing instead on supplemental jurisdiction.

This Court agrees

that it lacks subject matter jurisdiction over the claim against
the VAMC.
Pursuant to the derivative jurisdiction doctrine, a federal
court on removal under § 1442 acquires the jurisdiction that the

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state court had.

Lopez

v. Sentrillon Corp., 749 F.3d 347, 351

(5th Cir. 2014).

A tort action against the United States or its

agencies may only be brought in federal court; the state court does
not have jurisdiction over such a claim.

28 U.S.C. § 1346(b)(1).

Thus, on removal, this Court does not have jurisdiction over the
claims against the VAMC because the state court never had such
jurisdiction.

The claims against the VAMC must be dismissed.
II. Remand
A.

Unless "otherwise expressly provided by Act of Congress," a
defendant may remove "any civil action brought in a State court of
which the district courts of the United States have original
jurisdiction." 28 U.S.C. § 1441(a). It is well settled that, when
faced with a motion to remand, the removing party "bears the burden
of establishing that federal jurisdiction exists."
Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).

De Aguilar v.
In determining

whether jurisdiction exists, the court considers jurisdictional
facts as they exist at the time of removal.

Cavallini v. State

Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995).
Additionally, because removal jurisdiction implicates important
federalism concerns, the federal removal statute is subject to
strict construction.

Willy v. Coastal Corp., 855 F.2d 1160, 1164

(5th Cir. 1988); Frank v. Bear Stearns & Co., 128 F.3d 919, 922
(5th Cir. 1997).

Any ambiguities regarding the propriety of

4

removal jurisdiction should be resolved in favor of remand and
against federal jurisdiction.

See, e.g., Manguno v. Prudential

Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
B.
The VAMC removed this case pursuant to 28 U.S.C. § 1442(a),
which allows a United States agency to remove a case brought
against it in state court.

As the removing party, the VAMC bears

the burden of establishing that federal jurisdiction exists.

The

VAMC, however, joins the plaintiffs' motion to dismiss the VAMC and
remand.

The only parties arguing for a federal forum are Bird and

AT&T in their role as third-party plaintiffs.2

No party has

persuaded the Court that it has proper removal jurisdiction over
this case, and the Court is mindful that such jurisdiction is
strictly construed.

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.

100,

When

108

(1941).

jurisdiction

2

is

doubtful,

remand

is

Bird and AT&T contend that this Court should not remand,
because the claims against the VAMC are not the only federal
claims; the claims against Local 141 arguably also arise under
federal law.
They make this argument, however, in urging this
Court to exercise its supplemental jurisdiction over the entire
case should it have found that it had jurisdiction over the claims
against the VAMC. Bird and AT&T do not contend, and this Court
does not find, that the potentially federal claims against Local
141 require that this case remain in federal court. Local 141,
unfortunately, offers the Court no guidance on this procedural
conundrum, instead inexplicably contending that the federal claims
against it should be dismissed because they do not raise an
independent state law claim.
The Court declines to exercise jurisdiction over an entire
case because of an off-handed reference to a third-party claim that
did not form a basis of removal.
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appropriate.
Accordingly, the plaintiffs' motion to dismiss the VAMC and
remand is hereby GRANTED.

IT IS ORDERED that this matter is

REMANDED to the Civil District Court, Orleans Parish, State of
Louisiana, for lack of subject matter jurisdiction.

New Orleans, Louisiana, December 10, 2014

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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