Boyd, et al v. Boeing Company, et al

Filing 37

ORDER denying 17 Motion to Remand to State Court; denying as moot 18 Motion to Strike. Signed by Judge Jay C. Zainey. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PATSY S. BOYD, ET AL.

CIVIL ACTION

VERSUS

NO: 15-0025

BOEING CO., ET AL.

SECTION: "A" (4)

ORDER AND REASONS
Before the Court is a Motion to Remand, or, Alternatively,
To Sever and Remand the State-Law Based Claims Against the Other
Defendants (Rec. Doc. 17) filed by plaintiffs Patsy S. Boyd,
Wayne P. Boyd, Wheldon J. Boyd, and Elizabeth Legasse, as the
heirs of Wheldon J. Boyd, Sr. ("Boyd").

Defendants The Boeing

Company ("Boeing") and United Technologies Corporation ("UTC")
have each filed an opposition to the motion.

The motion, set for

hearing on March 11, 2015, is before the Court on the briefs
without oral argument.
I.

BACKGROUND

The instant case was originally filed by Plaintiffs in the
25th Judicial District Court for the Parish of Plaquemines,
Louisiana.

Plaintiffs allege that the decedent contracted

malignant mesothelioma as a direct and proximate result of having
inhaled, ingested, or otherwise been exposed to asbestos.
Decedent was diagnosed with mesothelioma on December 3, 2013 and
died on March 30, 2014.

According to Plaintiffs, decedent's

asbestos exposure occurred during his time as a civilian flight

mechanic at the "Belle Chasse Air Force Base" (i.e., Naval Air
Station Joint Reserve Base New Orleans) from "the early 1950s
through []1979."

During this time, decedent worked on F-100 and

F-102 jets assembled by a company now incorporated into Boeing
with engines developed by a division of UTC.

Plaintiffs allege

that the engine and other component parts of the plane contained
asbestos, in addition to parts of the hangars in which the planes
were stored.

Plaintiffs allege that Defendants knew or should

have known of the dangers presented by asbestos, but failed to
warn decedent about such dangers and even actively concealed the
dangers.

Defendant Boeing was served with Plaintiffs’ Petition

on December 8, 2014, and filed its Notice of Removal (Rec. Doc.
1) with this Court on January 7, 2015.
In the Petition, Plaintiffs allege that the "products mined,
manufactured, sold, distributed, supplied, and/or used by these
defendants were defective" due to: 1) the mining, manufacture,
sale, supply, distribution and use of products that are
unreasonably dangerous, or unreasonably dangerous per se; 2) the
mining, manufacture, sale, supply, distribution and use of
products that possess inherent and known properties that make
them unreasonably dangerous by presenting high potential for
causing serious injury, such as respiratory disease, cancer, and
other health problems to the [decedent] who would be foreseeably
exposed to them []as a result of their intended use; 3) lack of

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warning or of sufficient warning of the hazards these products
would present in the course of their normal foreseeable use or
intended use; 4) lack of safety instructions or of sufficient
safety instructions for eliminating or reducing the health risks
associated with the intended use of these products; 5) failure of
[D]efendants to inspect these products to assure sufficiency and
adequacy of warnings and safety cautions; 6) failure to test or
adequately test these products for defects or hazards they could
present to the intended or foreseeable users; 7) failure to
truthfully report or adequately report the results of product
testing and medical studies associated with foreseeable hazards
of these products by intended or foreseeable users; 8) failure to
properly design these products when the nature of the product did
not require use of asbestos mineral or where alternate, equally
suitable substances were readily available; 9) defects in the
composition and construction of these products; 10) failure to
recall these products mined, manufactured, sold, distributed
and/or supplied; 11) failure to properly package these products
so that they could be safely transported, handled, stored or
disposed of; 12) overwarranting the safety of these products that
were manufactured, sold, supplied and/or used by Defendants; and
13) liability to Petitioner in strict liability for things in
their garde, possession, custody or control, pursuant to article
2317 of the Louisiana Code of Civil Procedure that have caused

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harm to Petitioner.
Plaintiffs conclude that these defects and Defendants'
negligence were the proximate causes of decedent's injuries.
Via the instant motion, Plaintiffs move to remand this case
to state court.

Plaintiffs urge that the Court lacks subject

matter jurisdiction over this case because Defendants cannot meet
the requirements for removal set forth in 28 U.S.C. § 1442(a)(1).
In the alternative, Plaintiffs seek to have their state law
claims against the other defendants severed and remanded.
II.

LEGAL STANDARD

Federal courts are courts of limited jurisdiction.

Howery

v. Allstate Insurance Co., 243 F. 3d 912, 916 (5th Cir. 2001)
(citing Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S.
375, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994)).

The Court must

assume that a suit lies outside this limited jurisdiction until
jurisdiction is established.

Id.

When a case is removed from

state court, the removing party bears the burden of showing that
federal jurisdiction exists and that removal was proper.

Manguno

v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
2002) (citing DeAguilar v. Boeing Co., 47 F.3d 1404 (5th Cir.
1994); Jernigan v. Ashland Oil Inc., 989 F.2d 812 (5th Cir. 1993)
(per curiam); Willy v. Coastal Corp., 855 F.2d 1160 (5th Cir.
1988)).

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Given that Boeing removed the suit to this court,1 it bears
the burden of establishing a basis for federal subject matter
jurisdiction.

Any doubt regarding whether removal jurisdiction

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

Acuna v. Brown & Root, Inc., 200 F.3d 335, 339

(5th Cir. 2000)(citing Willy, 855 F.2d at 1164).

Defendant has

invoked jurisdiction under 28 U.S.C. § 1442(a)(1), asserting that
at the time of the alleged failure to warn, Boeing was acting
under the direction and control of the United States Government.
28 U.S.C. § 1442(a)(1), the federal officer removal statute,
provides that removal is permitted in any case in which the
defendant 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, sued in an official or
individual capacity for 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 statute

is designed to protect officers of the federal government, who
when acting pursuant to authority granted them under federal law,

1

UTC then joined in the removal. (Rec. Doc. 5). As removal
under 28 U.S.C. § 1442 applies to all claims and parties, and as for
purposes of the present motion UTC's interests are aligned with those
of Boeing, the Court will not address the arguments of each opposition
separately. See Fowler v. So. Bell Tel. & Tel. Co., 343 F.2d 150, 152
(5th Cir. 1965)("[T]he filing of a petition for removal by a single
federal officer removes the entire case to the federal court.").

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run afoul of the laws of a state.

Winters v. Diamond Shamrock

Chem. Co., 149 F.3d 387, 397 (5th Cir.1998) (quoting Willingham
v. Morgan, 395 U.S. 402 (1969)).

One of the most important

functions of this right of removal is to allow a federal court to
determine the validity of an asserted official immunity defense.
Id.

The Supreme Court has held that this right is “not to be

frustrated by a grudgingly narrow interpretation of the removal
statute”; its broad construction and the unique purpose of the
statute require that it be “liberally construed.”

Willingham,

395 U.S. at 407; State of La. v. Sparks, 978 F.2d 226, 232 (5th
Cir.1992) (noting Supreme Court requirement of liberal
interpretation for over two decades); Watson v. Philip Morris
Companies, Inc. 551 U.S. 142 (2007) (quoting Colorado v. Symes,
286 U.S. 510 (1932)).
III. ANALYSIS
Federal officer removal is appropriate where 1) the
defendant is a “person” within the meaning of the statute; 2) the
defendant acted pursuant to a federal officer’s directions when
committing the acts that allegedly give rise to the injury at
issue; and 3) the defendant can assert a colorable defense.
Winters, 149 F.3d at 397 (quoting Willingham, 395 U.S. 402).
The parties do not dispute that Boeing, as a corporation, is
a person within the meaning of §1442(a)(1).

See id. at 398.

Under the second prong, § 1442(a)(1) applies to governmental
6

contractors when they can demonstrate a “causal nexus” between
the plaintiffs' claims and the acts performed under the “color of
federal office.”
(1989).

Mesa v. California, 489 U.S. 121, 131–32

The “color of federal office” prong should not be

construed narrowly, but does require “a federal interest in the
matter.”
139).

Winters, 149 F.3d at 398 (quoting Mesa, 489 U.S. at

Prior decisions analyzing what constitutes federal

direction have required more than “general auspices” of a federal
officer, or participation in a regulated industry.

Mouton v.

Flexitallic, Inc., no. 99-0162, 1999 WL 225438, at *1 (E.D. La.
April 14, 1999).

Instead, the defendant must show “strong

government intervention and the threat that a defendant will be
sued in state court” based on actions which follow federal
direction.

Id.

Plaintiffs cite several cases in which courts granted
motions to remand where an individual was exposed to asbestos at
whole or in part on a private employer's premises while
performing work pursuant to a government contract's
specifications.

See, e.g., Francis v. Union Carbide Corp., no.

11-2695, 2011 WL 6180061 (E.D. La. Dec. 13, 2011); Sheppard v.
Northrop Grumman Systems Corp., no. 07-2208, 2007 WL 1550992
(E.D. La. May 24, 2007); Gauthe v. Asbestos Corp., no. 96-2454,
1997 WL 3255 (E.D. La. Jan. 2, 1997); Westbrook v. Asbestos Defs.
(BHC), no. 01-1661, 2001 WL 902642 (N.D. Cal. July 31, 2001);
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Overly v. Raybestos-Manhattan, no. 96-2853, 1996 WL 532150 (N.D.
Cal. Sept. 9, 1996); Ruffin v. Armco Steel Corp., 959 F. Supp.
770 (S.D. Tx. 1997), vacated, 1999 WL 318023.

Those cases

involved, at least in part, a basis in premises liability and a
focus on claims that defendant failed to properly warn the
plaintiff about the conditions and otherwise failed to implement
proper safety procedures.

Id.

Most importantly, the courts

granted remand either exclusively or substantially for the
following reason: "[T]he government, at a minimum, had to provide
some level of direct control over warnings and the defendant
failed to establish that this was the case.
the existence of a causal nexus . . . ."

This in turn negated

Cole v. Northrop

Grumman Ship Systems, Inc., no. 07-3049, 2008 WL 2651428, at *4
(E.D. La. July 7, 2008)(collecting some of the same and similar
cases).
This case is distinguishable and demands a different result.
Boeing provided the affidavit of Mr. Nolan H. Leatherman
("Leatherman").2

Leatherman, a mechanical engineer by training,

acquired over thirty years of experience in "reviewing,

2

Plaintiff has not supported its argument that Defendant's
failure to include this evidence with its notice of removal renders
its removal invalid. The Court has found no precedent to suggest this
nor do the relevant statutes imply this. See 28 U.S.C. 1442, 1446.
Boeing properly responded with such evidence when its removal was
challenged via motion to remand. See Winters, 149 F.3d at 397
("[W]hen faced with a motion to remand, it is the defendant's burden
to establish the existence of federal jurisdiction over the
controversy.").

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negotiating, and dealing with government contracts for military
aircraft procurement" as a design engineer, as a specification
engineer, and eventually as the Manager in Contracts and Pricing
Department, all at North American Aviation Columbus (since merged
into Boeing).

(Rec. Doc. 25-48; ¶¶2-6).

His knowledge includes

"the review and approval of detail specifications and related
[g]overnment specifications and standards; the [g]overnment's
exclusive control over the designs and specifications of,
including any marking or warnings about, the equipment to be
installed as part of the manufacturing process; and the
involvement of [g]overnment personnel in inspection and testing
of military aircraft before being released to service."

Id. at

¶8.
According to this record document evidence, the government
exercised control over all aspects of the production of the F100, including what warnings were to be included on which parts.
The point does not need to be unduly belabored at this stage of
the proceedings beyond pointing to a few relevant examples.3

3

For the same reason, the Court will not lengthen the record by
going into great detail as to the additional distinctions between this
case and others in which remand has been granted. Here, the claims
extend beyond merely failure to warn claims. See (Rec. Doc. 1-1)
(listing claims, including those for strict liability); c.f.,
Sheppard, 2007 WL 1550992 (finding the absence of a strict liability
claim was a factor supporting remand). Further, the government had
its own engineers and staff embedded at the Boeing facilities to
oversee all aspects of the production process. (Rec. Doc. 25-48;
¶¶45-50). Also, decedent incurred the injuries on the government
base, not on Boeing's premises.

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Leatherman unequivocally testified that Boeing manufactured these
aircraft according to exacting specifications set forth by the
government.

Id. at ¶18.

The government provided Boeing several

component parts of the aircraft and allowed Boeing no control
over those parts, requiring Boeing to only install them as
provided.

E.g., id. at ¶26-30, 33-36, 57-61, 66.

The

government's control extended to the warnings, and many of the
parts "were supplied to Boeing . . . with the warnings and labels
already affixed.

Boeing was not permitted to add, delete or

modify warnings related to this equipment."

Id. at ¶27.

These

same restrictions applied to the relevant manuals and related
materials for the F-100.

E.g., id. at ¶60.

This is sufficient

to establish that Boeing was acting under federal direction
regarding actions which Plaintiffs claim caused or contributed to
the injuries at issue.4
The third requirement for federal officer removal is that
the defendants must show that they have a colorable defense under
federal law.

Winters, 149 F.3d at 400 (citations omitted).

The

Fifth Circuit has held that the defendants need not prove the
asserted defense, but need only articulate its “colorable”

4

Given this evidence of explicit direction, the Court does not
determine today if or what lower threshold of government control might
suffice to fulfill these elements. C.f. Najolia v. Northrop Grumman
Ship Systems, Inc., 883 F. Supp. 2d 646, 658 (E.D. La. 2012) ("[T]here
is authority for the proposition that even if the Navy did not
expressly prohibit asbestos warnings a finding of a colorable defense
may properly be made.").

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applicability to the plaintiff’s claims.

As the Supreme Court

stated in Willingham, “[t]he officer need not win his case before
he can have it removed.”

Willingham, 395 U.S. at 407.

The Supreme Court set out the elements for one such defense,
the government contractor defense, in Boyle v. United
Technologies Corp., 487 U.S. 500 (1988).5

To establish a

colorable defense, the defendant must establish that 1) the
United States approved reasonably precise specifications; 2) the
equipment conformed to those specifications; and 3) the supplier
warned the United States about the dangers in the use of the
equipment that were known to the supplier but not to the United
States.

Id. at 511.

Relatedly, and as antecedents, the

defendant must also show that the case concerns a uniquely
federal interest and that a significant conflict exists between
the federal mandate and state law duties as applied to the case.
Id. at 504-08.
Addressing first these latter two issues, the procurement of
military equipment, such as the F-100, is a uniquely federal
5

Plaintiffs' contention that the government contractor defense
is inapplicable in "failure to warn" cases is unsupported. The cases
cited by Plaintiffs denied the defendants' recourse to the government
contractor defense due to the facts of that particular case, not
because the defense was unavailable as a matter of law. See, e.g.,
Westbrook, 2001 WL 902642, at *3 ("But Todd has not shown that the
Navy required it to refrain from issuing warnings. Absent such a
showing, Todd has no colorable military contractor defense to a
failure to warn claim."). Another case frequently referenced by
Plaintiffs noted that "the Fifth Circuit has held that the [government
contractor defense] could also be applied in failure to warn cases."
Ruffin, 959 F. Supp. at 774.

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interest.

Id. at 506-07.

The warnings placed on the equipment

and in manuals, not to mention any of Plaintiffs' other claims,
go directly to the technical specifications mandated by the
government and thus to the procurement of the aircraft.
Doc. 25-48; ¶¶2-6).

(Rec.

Additionally, such direction by the

government directly interferes and creates a conflict with any
state law duty to warn incumbent on Defendants more expansive
than that discharged by the government-regulated warnings.

See

Kerstetter v. Pac. Scientific Co., 210 F.3d 431, 438 (5th Cir.
2000).
As has been reviewed above, the government did not just
provide reasonably precise specifications; it provided the exact
language, and in some cases, even the relevant parts with the
only-permitted warning language already included.
at ¶26.

See, e.g., id.

Boeing's conformity to these specifications, via its

contractual obligation to implement and follow the government's
directions as recounted by Leatherman, has not been questioned.
See id. at ¶19.6

Boeing has also produced evidence that

throughout the relevant time periods, particularly beginning in
the 1940s and regarding military aircraft, the government

6

Additionally, the Court finds it premature to engage in a
detailed analysis at this point as to whether precise conformity was
achieved. See Najolia, 883 F. Supp. 2d at 658 (noting, in analyzing a
motion to remand, that "it is too early to engage in an evidentiary
challenge to whether the turbines conformed precisely to the Navy's
specifications").

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possessed state-of-the-art knowledge and expertise "relating to
work[ing] with or around asbestos-containing materials and
products" that was "superior to that of companies manufacturing
military aircraft and aircraft components."
¶15).

(Rec. Doc. 25-33, at

Further, as discussed earlier, the government provided

parts for Boeing to install that Boeing had no role in
manufacturing and no basis for specialized knowledge regarding
such a part's potential dangers.

Thus, Boeing has made a showing

that it did not fail to warn the government about dangers which
it knew about but the government did not.

Boeing can therefore

make a colorable claim of the applicability of a federal defense
in this case.
As a final attempt to avoid the ramifications of the federal
officer removal statute in this case Plaintiffs argue that the
Court should take the disclaimer in their Petition into
consideration.

In their Petition filed in state court,

Plaintiffs included the following language:
Plaintiffs disclaim[] any cause of action or
recovery

for

any

injuries

caused

by

any

exposure to asbestos dust that occurred in a
federal enclave. Plaintiffs also disclaim any
cause of action or recovery for any injuries
resulting from any exposure to asbestos dust
caused by any acts or omissions of a party

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committed at the direction of an officer of
the United States Government.
(Rec. Doc. 1-1, at 3-4).
Plaintiffs point to the Sheppard case, in which that court
noted a disclaimer with the exact same language and then remanded
the case.

Sheppard, 2007 WL 1550992, at *6-7.

The difference

though is that the disclaimer in that case was just one of
several factors favoring remand.

That court had already found

that the defendants could not show that they were acting under
the direction of a federal officer; that there was a sufficient
causal nexus; or that there was a colorable federal defense.
at 5-6.

Id.

Only after making such findings did the Sheppard court

then consider the disclaimer language.

Id. at 6-7.

Further, the

plaintiff in that case did not merely include such language in
his petition; he also sought to amend his petition to remove
product liability and strict liability claims while the matter
was still pending in state court.

Id. at 1; see also Meyers v.

Chesterton, no. 15-0292, 2015 WL 2452346 (E.D. La. May 20,
2015)(finding such a disclaimer effective under similar facts and
where the plaintiff personally verified the binding nature of the
disclaimer).
In this case, based on the Court's above findings,
Plaintiffs rely on this disclaimer in the Petition as the only
factor in favor of remand.

The Court finds persuasive the

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reasoning in cases such as In re Asbestos Prods. Liability
Litig., 770 F. Supp. 2d 736 (E.D. Pa. 2011); Corley v. Long
Lewis, Inc., 668 F. Supp. 2d 1315 (N.D. Ala. 2010).

The "federal

officer" should be able to have a federal court make a
determination on the existence of federal subject matter
jurisdiction.

In re Asbestos Prods. Liability Litig., 770 F.

Supp. 2d at 742.

Further, based on these facts, unlike in

Sheppard, it seems likely that the defendants will rely at least
in part on a government contractor defense, and they should have
the ability to have this matter decided by a federal court.
Winters, 149 F.3d at 397-98 ("[T]he Supreme Court has noted that
one of the most important functions of this right to removal is
to allow a federal court to determine the validity of an asserted
official immunity defense."); Corley, Inc., 668 F. Supp. 2d at
1335-36.

The Court will not grant remand on the disclaimer

alone.
Finally, Plaintiffs ask in the alternative, should the Court
deny the motion to remand, that the claims against the other
defendants be severed and remanded.

Plaintiffs point to 28

U.S.C. § 1441(c) which provides for the remand of additional
claims "not within the original or supplemental jurisdiction of
the district court or a claim that has been made nonremovable by
statute."

Plaintiffs note the related legislative history which

explained that this section's language "permit[s] removal of the

15

case but require[s] that a district court remand unrelated state
law matters."

H.R. Rep. No. 112-10, at 12 (2011).

Plaintiffs

conclude with the broad statement that such severing and
remanding is always within the discretion of this Court.
The cited statutory language, as applied to this case, does
not require severing and remanding any of the other claims.

Such

claims do not fall under the language of § 1441(c)(B) nor has it
been explained how any of the other claims are "unrelated."

To

the contrary, it appears that all claims are intimately related
to those made against the removing defendants.

The Court chooses

not to sever and remand any matters at this time based on
judicial economy.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Remand (Rec. Doc. 17) filed
by Plaintiffs is DENIED.
IT IS FURTHER ORDERED that the Motion to Strike Declarations
attached to Rec. Doc. 4 (Rec. Doc. 18) filed by Plaintiffs is
DENIED AS MOOT.

This 14th day of July 2015.

______________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
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