Blouin, Sr. et al v. Huntington Ingalls Incorporated et al

Filing 65

ORDER granting 7 Motion to Remand to State Court. Signed by Judge Jay C. Zainey on 6/19/2017. (ajn) (Additional attachment(s) added on 6/19/2017: # 1 Remand Letter) (ajn).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
VICTOR J. BLOUIN SR., ET AL.

CIVIL ACTION

VERSUS

NO: 17-2636

HUNTINGTON INGALLS INC., ET
AL.

SECTION: "A" (3)

ORDER
The following motion is before the Court: Motion to Remand (Rec. Doc. 7) filed
by Plaintiffs, Victor Blouin, Sr., Victor Blouin, Jr., and Nicole C. Blouin, individually and
as the statutory heirs of Ruth E. Blouin. Defendant Huntington Ingalls Inc. (“Avondale”)
opposes the motion. The motion, submitted for consideration on May 3, 2017, is before
the Court on the briefs without oral argument. For the reasons stated herein, the motion
is GRANTED.
I.

BACKGROUND
Plaintiffs initiated this action in state court against Avondale and others asserting

survival and wrongful death claims as the heirs and statutory wrongful death
beneficiaries of Ruth E. Blouin. Ms. Blouin contracted mesothelioma and allegedly died
as a result of the disease. Plaintiffs allege that Ms. Blouin’s mesothelioma was caused
in part by exposure to asbestos while laundering the work clothes of her husband, Victor
J. Blouin, Sr.1 Mr. Blouin was employed at Avondale from April 1972 to August 1972,

1

This type of case is referred to as a secondary exposure or colloquially, “take-home”
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where he was exposed to asbestos while working as an electrician on two government
vessels. The crux of the claims against Avondale is that Avondale failed in its duties
under state law to warn of the hazards of asbestos and failed to implement any of the
many industrial hygiene and engineering safeguards then known to lessen or eliminate
asbestos exposure. Plaintiffs do not assert claims against Avondale based on the theory
of strict liability. (Rec. Doc. 7-1, Memo in Support at 4).
No party suggests that the initial pleadings put Avondale on notice that the case
was removable.2 Importantly, the factual allegations did not link the Blouines’ exposure
to any vessels being built by Avondale under contracts with the United States
government. (Rec. Doc. 1, Notice of Removal ¶ 4). But on February 17 and 20, 2017,
Victor Blouin, Sr. was deposed. Mr. Blouin testified that during his short time with
Avondale he worked aboard only two ships—a destroyer escort and a Coast Guard
cutter, both of which were United States government ships. (Rec. Doc. 7-19, Blouin
deposition at 52-53).
Avondale’s counsel received the deposition transcript from the court reporter on
March 2, 2017. (Rec. Doc. 1-5, Thornhill affidavit). Avondale filed its notice of removal
on March 28, 2017.
Plaintiffs now move to remand the case to state court. First, Plaintiffs contend

mesothelioma case.
2

According to Avondale, the original and amending and supplemental petitions contained broad
allegations of exposure to asbestos with no details as to where or how the decedent’s husband
was exposed to asbestos at Avondale. (Rec. Doc. 38, Memo in Opposition at 3). Moreover, the
parties do not appear to be diverse in citizenship.
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that the removal was untimely because Avondale waited more than 30 days from the
date of Mr. Blouin’s deposition to file its notice of removal. Second, Plaintiffs contend
that this case does not meet the standard for removability under 28 U.S.C. § 1442, the
federal officer removal statute. The Court considers each of these contentions in turn.
II.

LAW AND ANALYSIS
A.

Timeliness

Title 28 U.S.C. ' 1446 governs the procedural aspects of removal, including
timeliness. Again, no party suggests that the initial pleadings (or any of the pleadings for
that matter) put Avondale on notice that the case was removable. Therefore, the
removal in this case was governed by ' 1446(b)(3). Section 1446(b)(3) provides that
[I]f the case stated by the initial pleading is not removable, a notice of
removal may be filed within 30 days after receipt by the defendant, through
service or otherwise, of a copy of an amended pleading, motion, order,
or other paper from which it may first be ascertained that the case is one
which is or has become removable.
28 U.S.C.A. ' 1446(b)(3) (West Supp. 2016) (emphasis added). Thus, pursuant to the
foregoing plain language of ' 1446(b)(3), the timeliness of the removal in this case turns
on whether Avondale removed the case within 30 days of receipt of a copy of "an
amended pleading, motion, order, or other paper@ from which it could "first be
ascertained" that the case was removable. The “other paper” that Avondale relies upon
is the transcript of Victor J. Blouin, Sr.’s discovery deposition. But because the
deposition testimony itself gave Avondale actual notice of its asserted basis for removal,
Plaintiffs contend that the 30-day time clock was triggered on February 17, 2017, and

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expired on March 19, 2017,3 well before Avondale removed the case. Avondale takes
the position, however, that the plain language of the statute does not trigger the 30-day
period for removal unless the defendant receives something in writing, which means
that only the deposition transcript itself could trigger the 30-day countdown imposed by
§ 1446(b)(3). Thus, resolution of Plaintiffs’ first challenge to the removal turns on the
legal question of whether the 30-day period for removal was triggered when Mr. Blouin
testified at his deposition or whether it was triggered when Avondale received the
deposition transcript from the court reporter.
In Huffman v. Saul Holding Ltd., 194 F.3d 1072 (10th Cir. 1999), the Tenth Circuit
squarely addressed the issue of whether the giving of the deposition testimony itself or
the receipt of the court reporter’s transcript constituted “other paper” for purposes of
triggering § 1446(b)(3)’s 30-day deadline. The Huffman court, after observing that the
majority of federal district courts have not required receipt of an actual written
document, held that it was the deposition testimony not the court reporter’s transcript
that triggered removal. Id. at 1078. In so holding, the court explained that deposition
testimony stands on equal footing with written forms of discovery, such as
interrogatories and requests for information. Id. Further, the rules of civil procedure do
not impose a deadline for producing a transcript of a deposition so the date of receipt of
a transcript may be subject to manipulation. Id.

3

March 19, 2017, was a Sunday. Pursuant to Federal Rule of Civil Procedure 6(a), if the trigger
date for removal was February 17, 2017, then the 30 day period ended on Monday, March 20,
2017.
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Other non-controlling cases have reached a similar result. See, e.g., In re Vioxx
Prods. Liab. Litig., No. MDL 1657, 2005 WL 3542885 (E.D. La. Nov. 23, 2005) (Fallon,
J.); Campos v. Housland, Inc., 824 F. Supp. 100 (S.D. Tex. 1993); King v. Kayak
Manufacturing Corp., 688 F. Supp. 227 (N.D.W. Va. 1988) (finding that the district
court’s oral ruling from the bench and not receipt of the court’s written order triggered
removability).
The Court notes that this case does not present a factual scenario where the
removing party actually learns of removability or first ascertains it upon receiving a
deposition transcript from a court reporter. The facts that rendered the case removable
were revealed to all parties on February 17, 2017, the date of Mr. Blouin’s deposition.
Avondale was not only represented at Mr. Blouin’s deposition, its counsel questioned
Mr. Blouin at length, and in particular about the government vessels at issue. Counsel’s
questions touched upon factual inquiries pertinent to a potential federal defense and
federal officer removal. (Rec. Doc. 7-19, Blouin deposition at 52-53). Avondale had
“unequivocally clear and certain” evidence at that point regarding removability, see
Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5th Cir. 2002), and whether Avondale
understood its significance at the time is irrelevant to whether the requirements of §
1446(b)(3) were triggered.4

4

Avondale suggests that predicating removal on the content of deposition testimony implicates
a subjective knowledge standard in contravention of the principles underlying the Fifth Circuit’s
timeliness cases. (Rec. Doc. 58-2, Supp. Memo. at 3). The subjective knowledge prohibition
prevents a defendant from reopening the time for removal under § 1446(b)(3) based on his
subjective knowledge of the facts because subjective knowledge by the defense does not
satisfy the requirements of § 1446(b)(3). S.W.S. Erectors, 72 F.3d at 494. Moreover, textually §
1446(b)(3) protects defendants from needless concern with inferences that should have or could
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Further, the deposition testimony at issue was that of the plaintiff himself, not that
of some other non-party or defense witness. Thus, the testimony that put Avondale on
notice that the case was removable complies with the rule in this circuit that “other
paper” must result from the voluntary act of the plaintiff. See Addo v. Globe Life & Acc.
Ins. Co., 230 F.3d 759, 762 (5th Cir. 2000) (citing S.W.S. Erectors, Inc. v. Infax, Inc., 72
F.3d 489, 494 (5th Cir. 1996)). Obviously, Mr. Blouin’s own testimony constituted “a
voluntary act of the plaintiff”; it is not robbed of that character even if the defendants
themselves noticed the deposition. See S.W.S. Erectors, 72 F.3d at 491-92.
Interestingly, § 1446(b)(3) does not use the terminology “in writing,” it says “other
paper,” and rightly or wrongly decided, many cases have interpreted “other paper” to be
a concept broader than a writing. Section 1446 itself now contains textual support for
that proposition. See § 1446(c)(3)(A) (pertaining to diversity jurisdiction). Obviously,
requiring an amended pleading, motion, order, or other paper to reopen the statutory
window for removal envisions both notions of fairness to the defendant in terms of
notice, and non-equivocation in terms of evidence. Deposition testimony given under
oath is not akin to a conversation or other oral assertion that can be denied later. The
substance of the deposition testimony in this case was made no more or less
unequivocal or irrefutable by the court reporter’s ultimate production of a typed
transcript. Basing the removal deadline on the vagaries of the court reporter’s schedule,
particularly when the writing at issue is not the source from which it may first be

have been made regarding removability. But once the requirements of § 1446(b)(3) are
triggered, the defendant is charged with actual notice of removability regardless of whether he
subjectively recognizes it as such.
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ascertained that the case is one which is or has become removable, strikes the Court
as arbitrary .
Huffman is the only circuit court opinion to address the specific issue presented
in this case, i.e., whether deposition testimony can trigger the second 30-day removal
period provided by § 1446(b)(3). S.W.S. Erectors v. Infax, supra, holds that a deposition
transcript constitutes “other paper” that supports removal under § 1446(b)(3), but that
panel was not presented with the question of whether the deposition testimony itself can
constitute “other paper” for purposes of starting the second 30-day removal period
provided by § 1446(b)(3); and the panel never suggested that it could not. Therefore,
the numerous district court cases that support Plaintiffs’ position are not necessarily
contrary to circuit precedent.5

5

Avondale’s approach to discrediting those cases, such as Poole v. Western Gas Resources,
Inc., No. 97-2929, 1997 WL 722958, at *2 (E.D. La. Nov. 18, 1997) (Clement, J.), where the
judge found “no functional difference between a deposition and a transcript of a deposition for
purposes of the removal statute,” is to suggest that § 1446(b)(3) envisions a time period when a
case can voluntarily be removed before the mandatory 30 day period begins to run. As the
Court previously explained (Rec. Doc. 56 n.1), § 1446(b)(3) does not recognize such a
bifurcated timing system. It is important to remain mindful that in cases like this one that were
not removable on the initial pleadings, § 1446(b)(3) only comes into play once the initial 30-day
window from § 1446(b)(1) has expired. Regardless of what a defense attorney subjectively
learns about the case after that initial 30-day window has closed, any attempt to remove the
case will be deemed untimely unless the second 30-day window of § 1446(b)(3) is opened. And
once that window is opened, the 30-day countdown begins. Thus, removing a case during the
“voluntary” period that Avondale describes would result in a patently untimely removal.
Further, Avondale’s reliance on footnote 13 in Mumfrey v. CVS Pharmacy, Inc., 719 F.3d
392, 400 (5th Cir. 2013), for the voluntary/mandatory proposition is misplaced. In footnote 13 of
the Mumfrey decision the Fifth Circuit was referring to removal under § 1446(b)(1) not §
1446(b)(3). The triggers for the running of the 30-day windows provided by those two statutory
provisions do not work the same way. Therefore, if Avondale had known upon being served with
this lawsuit that Mr. Blouin had been exposed to asbestos while working on government
vessels, then Avondale could have removed this case under § 1446(b)(1) by alleging the facts
outside of the pleadings that supported removal and removing within 30 days of service. But
once the initial 30-day period from § 1446(b)(1) expired, Avondale could not voluntarily remove
the case based on its own subjective knowledge because the removal would then be untimely.
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However, the Court is not persuaded that Avondale’s interpretation of the law in
this circuit is unreasonable. Section 1446(b)(3) refers specifically to “other paper,” and
the Fifth Circuit has not yet held that “other paper” can be something other than a
physical document. This Court will not deprive Avondale of its statutory right to remove
this case by expanding “other paper” beyond its plain meaning until such time as the
Fifth Circuit specifically decides the issue. The Court therefore considers Avondale’s
notice of removal, which was filed within thirty days of receipt of the deposition
transcript, as timely.6 The Court now considers the merits of the removal.
B.

Removal Merits

Avondale removed this case under the auspices of the federal officer removal statute, 28
U.S.C. § 1442(a)(1). Avondale alleges that the use and installation of asbestos-containing
materials in the construction of the federal vessels was required by the contractual provisions and
design specifications mandated by the federal government. (Notice of Removal ¶ 9). Avondale
alleges that the vessels were constructed under mandatory terms, conditions, and specifications
established by the United States government. Id. ¶ 11.

Instead, Avondale would have to wait until the plaintiff provided “other paper” evidence to open
a new 30-day window under § 1446(b)(3) to remove on facts that it knew about all along. That is
the principle that footnote 13 in Mumfrey recognizes.
6

The Court notes that even if the 30-day period began to run on February 17, 2017 when the
deposition occurred, Avondale received the transcript from the court reporter on March 2, 2017,
which means that Avondale still had over two weeks to remove the case within the more
onerous 30-day period. The notice of removal that Avondale did ultimately file was simple and
straightforward, and removal under the grounds asserted did not require consent from any of
the other defendants. Thus, this case does not present a scenario where the defendant’s
removal rights would have been unfairly prejudiced by a delay in receiving a transcript.
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Plaintiffs do not take issue with the foregoing general allegations. But given that their
claims pertain to Avondale’s failure to warn of the hazards of asbestos and failure to
implement any of the known safety measures designed to mitigate asbestos exposure—
state law duties that were in no manner controlled by or in conflict with the government’s
mandates—Plaintiffs contend that federal officer removal is not available to Avondale.
Specifically, Plaintiffs argue that Avondale can satisfy neither the causal nexus nor
federal defense aspects of federal officer removal. Plaintiffs posit that even if Avondale was
under the substantial control of the government regarding the use of asbestos on the federal
vessels, it is insufficient for purposes of federal officer removal to simply establish that the
relevant acts occurred under the general auspices of a federal officer. Simply put, Plaintiffs
contend that the omissions by Avondale that injured them had nothing to do with federal
requirements because the evidence demonstrates that asbestos-related safety
measures at Avondale were never under federal direction and control.
Moreover, Plaintiffs emphasize that they do not assert any claims against
Avondale based on the theory of strict liability—Plaintiffs’ claims against Avondale in
this matter sound only in negligence. Plaintiffs contend that the Fifth Circuit recognizes
a critical distinction between strict liability and negligent failure to warn claims in
situations where a contractor seeks to remove a case and avail itself of the contractor
immunity defense.
Title 28, § 1442, entitled Federal Officers or Agencies Sued or Prosecuted, states in
relevant part:
(a) A civil action or criminal prosecution that is commenced in a State court and that
is against or directed to any of the following may be removed by them to the district
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court of the United States for the district and division embracing the place wherein
it is pending:
(1) 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.A. § 1442(a)(1) (West 2006 & Supp. 2016).
To qualify for removal under § 1442(a)(1), the removing defendant must show (1) that it is
a “person” within the meaning of the statute, (2) that the defendant acted pursuant to a federal
officer’s directions, and (3) that a causal connection exists between the defendant’s actions under
color of federal office and the plaintiff’s claims. Bartel v. Alcoa Steamship Co., 805 F.3d 169, 172
(5th Cir. 2015) (quoting Winters v. Shamrock Chem. Co., 149 F.3d 387, 398-400 (5th Cir. 1998)).
Even where the defendant can show that it acted pursuant to a federal officer’s directions,
removal will not be proper unless he can also establish the requisite causal connection between
the defendant’s actions under color of federal office and the plaintiff’s claims. See id. Additionally,
a defendant seeking to remove under § 1442(a)(1) must demonstrate that it has a colorable
federal defense to the plaintiff’s claims. See Mesa, 489 U.S. at 965.
The Court discerns little controversy in the first two requirements for federal officer
removal. Avondale is a “person” for purposes of the statute, and it was acting pursuant to the
government’s directions when it worked on the two federal vessels where Mr. Blouin was
exposed to asbestos.
The point of contention arises with respect to the causal nexus requirement for federal
officer removal. The causal nexus requirement functions to ensure a legitimate federal interest in

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a matter by limiting the universe of potentially removable claims to those where the specific acts
or omissions upon which the plaintiff’s claims are based were themselves performed under
federal direction. See Zeringue, 846 F.3d at 794 (citing Winters v. Diamond Shamrock Chem.
Co., 149 F.3d 387, 398 (5th Cir. 1998)). For instance in Bartel v. Alcoa Steamship Co., supra, the
plaintiffs had worked aboard Navy vessels where they were exposed to asbestos. They alleged
that their injuries were attributable to the employer’s negligence—failure to warn of the dangers of
asbestos, to train their crews in using asbestos-containing products, and to adopt procedures for
the safe installation and removal of asbestos.7 805 F.3d at 171. The Fifth Circuit held that federal
officer removal was improper because the defendants could do no more than show that the
federal government owned the vessels in question. Id. at 174. There was no evidence to suggest
that the government exercised oversight over operations aboard the vessels, and what little
evidence there was tended to suggest that the defendants operated the vessel in a largely
independent fashion, and were free to adopt the very safety measures that the plaintiffs were
alleging would have prevented their injuries. Id. The Bartel panel distinguished failure to warn
cases like Lalonde v. Delta Field Erection, No 96-3244, 1998 WL 34301466 (M.D. La. Aug. 6,
1998), where the federal government had been dictating safety operations at the facility where
the plaintiff was exposed. Bartel, 805 F.3d at 173.
Bartel was decided in 2015. Then in 2016 the Fifth Circuit decided Savoie v. Huntington
Ingalls, Inc., 817 F.3d 457 (5th Cir. 2016), which vacated the district court’s remand order
because the district court had erroneously construed all of the plaintiff’s claims as negligence

7

The opinion alludes to potential claims for strict liability that might have supported removal but
any argument pertaining to those claims had been waived on appeal and therefore did not
impact the court’s analysis. Bartel, 805 F.3d at 174.
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claims when in fact the plaintiffs had alleged negligence claims as well as strict liability claims. Id.
at 460. Crucially, with respect to the negligence claims, the Fifth Circuit specifically found that
those claims did not support federal officer removal because those claims challenged
discretionary acts of the shipyard free of federal interference. Id. at 463. The government’s
directions to the shipyard via the contract specifications did not cause the alleged negligence so
those claims did not support removal. Id.
Thus, Bartel and Savoie are consistent with each other and with a long line of federal
officer removal cases in this circuit insofar as state law negligence claims for failure to warn and
the like are concerned. Nothing in Avondale’s briefing suggests that it can refute Plaintiffs’
contention that under the established law in this circuit as demonstrated by Bartel and Savoie,
Avondale cannot satisfy the causal nexus requirement in light of the nature of Plaintiffs’ claims.
Avondale contends, however, that the causal nexus requirement changed when
Congress amended § 1442(a)(1) in 2011 to broaden the universe of removable cases, and that
now the requisite causation component for purposes of federal officer removal has been so
relaxed so as to render the instant case removable. Avondale contends that post-amendment all
it need show to support removal is that the suit merely relates to the work that it did for the
government contracts. According to Avondale, the former distinction between strict liability and
negligence claims is now irrelevant, and Plaintiffs are relying on pre-amendment jurisprudence
that has now been eschewed by the Fifth Circuit. Avondale contends that the recent decision of
Zeringue v. Crane Co., 846 F.3d 785 (5th Cir. 2017), evinces this change in the law and in the
Fifth Circuit’s current treatment of failure to warn claims.

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In order to support its argument Avondale has characterized Bartel and Savoie as preamendment cases decided under old law but this characterization is inaccurate. Both Bartel and
Savoie were removed from state court years after the 2011 amendments to § 1442 that allegedly
changed the law, and those court of appeal decisions were issued in 2014 and 2015. Both
decisions quote verbatim the amended version of § 1442(a)(1) so there is no question that both
decisions were rendered under the post-amendment version of the statute. Contrary to
Avondale’s argument, Bartel and Savoie do not constitute pre-amendment jurisprudence.8
And importantly, the Fifth Circuit’s decision in Zeringue v. Crane Co., supra, which was
decided earlier this year and which expressly acknowledges the broadening effect of the 2011
amendments to § 1442, does not purport to change the law in this circuit regarding negligence
claims grounded on failure to warn and like omissions. Factually, Zeringue involved a
manufacturer that built equipment under contract with the government and that equipment
included asbestos pursuant to specific government mandates. The Zeringue panel expressly
discussed Bartel and explained that Bartel—which again was a failure to warn case—was
consistent with its outcome in Zeringue because a finding of removability in Bartel would have
been stretching the causal nexus requirement “to the point of irrelevance.” Zeringue, 846 F.3d at
794 (quoting Wilde v. Huntington Ingalls, Inc., 616 Fed. Appx. 710, 713 (5th Cir. 2015)). Simply,

8

It appears that any arguments based on the impact of the 2011 amendments were not even raised in
Bartel and not raised in Savoie until the defendant petitioned the Fifth Circuit for rehearing. Savoie v.
Huntington Ingalls, Inc., 824 F.3d 468 (5th Cir. 2016). If the 2011 amendments to § 1442(a)(1) effected the
type of sweeping changes in federal officer removal jurisdiction that Defendant urges in this case, and
essentially opened the doors of the federal courts to a bevy of new state law cases formerly not removable,
it is beyond puzzling that the significance of those amendments was overlooked by the parties in those
cases.
Page 13 of 16

Zeringue expressly recognizes that Bartel remains a correct result even under the 2011
amendments.9 In light of the nature of Plaintiffs’ claims in this case, Avondale is not similarly
situated to the removing defendant in Zeringue, but rather to the removing defendant in Bartel,
which remains good law.10
Even though Zeringue does not control in this case, the panel’s discussion of the 2011
amendments does suggest that the Fifth Circuit concurs in Avondale’s suggestion that the 2011
amendments relaxed the causal nexus requirement to broaden the scope of removable cases.
But even so, the gadfly for Avondale in removing this particular case comes in the requirement of
being able to assert a colorable federal defense to Plaintiffs’ failure to warn claims. Section
1442(a) is a pure jurisdictional statute that grants district court jurisdiction over cases in which a
federal officer is a defendant, but regardless how broadly Congress defines removability under
the statute, Article III of the Constitution serves as a backstop. See Mesa, 489 U.S. at 968-69. In
Mesa, the Supreme Court held that federal officers cannot remove cases against them to federal
court in the absence of a federal defense because without a federal defense there is no Article III
subject matter jurisdiction. Id. at 139. Contrary to Avondale’s suggestion, the requirement of a
federal defense dictated by Article III of the Constitution was not and could not be relaxed by the
2011 amendments to the removal statute.

9

Zeringue also expressly states that the panel was not considering whether the failure to warn
claim was removable. 846 F.3d at 794 (“[W]e do not determine whether Crane independently
established the right to remove Zeringue’s failure to warn claim.”).
10

In Legendre v. Huntington Ingalls, Inc., Judge Africk recently concluded that Bartel and
Savoie remain good law as to negligence claims. No. 17-2162, 2017 WL 1458209 (E.D. La. Apr.
25, 2017).
Page 14 of 16

The specific federal defense alleged in the notice of removal is the doctrine of
government contractor immunity established in Boyle v. United Technologies Corp., 487 U.S.
500 (1988), and its progeny. (Notice of Removal ¶ 10).11 The problem, however, is that this
case is not one where the federal government’s contracts, requirements, or specifications
interfered with Avondale’s ability to conform its conduct in accordance with the duties imposed
under state law. Neither the McCafferty nor the Joyce affidavits suggest otherwise. (Rec. Docs.
38-1 & 38-6). Again, this case is like Bartel and not like other cases where federal control
displaced the defendant’s ability to conform its conduct to state law. See Lalonde, supra. In other
words Avondale has no federal defense to Plaintiff’s state law negligence claims.
Avondale’s only answer to this problem is to contend that recognizing the foregoing for
what it is would be to hold Avondale to an overly demanding a burden of proof at the jurisdictional
stage. The Court recognizes that Avondale need not win its defense at this stage and need not
present an “airtight case on the merits.” Jefferson Cnty. v. Acker, 527 U.S. 423, 432 (1999).
Avondale need only demonstrate a colorable federal defense but in this case it cannot do even
that. Avondale’s treatment of the federal defense issue in briefing tracks Zeringue nearly verbatim
but Zeringue was decided on claims specific to a manufacturer that followed government
specifications when incorporating asbestos into its design. For purposes of a federal defense,

11

In Boyle v. United Technologies Corp., 487 U.S. 500 (1988), the Supreme Court concluded
that independent contractors who supply military equipment to the federal government are
entitled, under certain circumstances, to the same discretionary immunity defense that protects
the government from state tort liability. The Supreme Court held that liability for faulty design of military
equipment cannot be imposed under state law on a government contractor when, 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 512.
Page 15 of 16

Avondale is not similarly situated to the manufacturer in Zeringue and the nature of the claims
against Avondale are substantively different than the claims in Zeringue that drove the panel’s
decision as to removal. The fact that the Zeringue court addressed the federal defense in that
case first before proceeding to the more relaxed requirements of § 1442(a) only underscores the
importance of the defense for triggering a federal interest in the matter sufficient to support
federal jurisdiction, particularly when applying a more relaxed causal nexus standard. Thus, even
if the 2011 amendments to § 1442 broadened the scope of federal officer removal by relaxing the
causal nexus requirement, this case must be remanded for lack of a colorable federal defense to
the state law claims.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Remand (Rec. Doc. 7) filed by Plaintiffs,
Victor Blouin, Sr., Victor Blouin, Jr., and Nicole C. Blouin, individually and as the
statutory heirs of Ruth E. Blouin is GRANTED. This matter is REMANDED to the state
court from which it was removed.
June 19, 2017

JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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