Guillot v. Avondale Industries, Inc., et al
ORDER AND REASONS granting 5 Motion to Remand to State Court. The above-captioned matter is hereby REMANDED to the Civil District Court for the Parish of Orleans. Signed by Judge Carl Barbier on 4/9/2018. (cg) (Additional attachment(s) added on 4/11/2018: # 1 Remand Letter) (cg).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
AVONDALE INDUSTRIES INC.,
ORDER AND REASONS
Before the Court is a Motion to Remand (Rec. Doc. 5) filed by
Linda Guillot (“Plaintiff”) and an opposition thereto (Rec. Doc.
10) filed by Avondale Industries, Inc. (“Avondale”).
and Avondale have also filed a reply (Rec. Doc. 22) and sur-reply
(Rec. Doc. 25), respectively.
Having considered the motion and
legal memoranda, the record, and the applicable law, the Court
finds that the motion should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
sustained as a result of exposure to asbestos.
that she contracted mesothelioma as a result of being exposed to
asbestos fibers on the work clothes of her husband and father who
were both employed at Avondale. The parties agree that Plaintiff’s
secondhand exposure to asbestos was likely generated by asbestoscontaining
Avondale for the federal government.
Plaintiff filed the instant suit against Avondale in state court
seeking damages for Avondale’s alleged failure to warn of the
procedures for the handling of asbestos.
Avondale removed the
action to this Court, asserting federal jurisdiction under 28
U.S.C. § 1442, the federal officer removal statute.
contends that the Court has federal officer jurisdiction over the
dispute because its use and installation of asbestos-containing
materials in the construction of federal vessels was required by
the contractual provisions and design specifications mandated by
the federal government.
Avondale has not carried its burden of establishing the elements
of federal officer jurisdiction—specifically, that a casual nexus
exists between Plaintiff’s claims and Avondale’s acts under the
color of federal office.
Simply put, Plaintiff argues that her
claims for failure to warn and failure to safeguard have nothing
to do with Avondale’s compliance with federal requirements because
asbestos-related safety measures at Avondale were never under
Avondale cannot make a showing of a casual nexus between a federal
activities and Avondale’s ability to comply with its obligation to
warn and/or safeguard under state law.
In contrast, Avondale argues that the federal government’s
mandate that it use asbestos-containing material is sufficient to
establish the casual nexus prong of the federal officer removal
statue as amended.
In particular, Avondale asserts that Plaintiff
relies on a casual nexus standard that was rendered obsolete when
Congress amended the federal officer removal statute in 2011.
Avondale argues that under the amendment, the removing party need
only show that there is some connection or association between the
plaintiff’s claims and the defendant’s conduct under color of
federal office. 1 Thus, Avondale maintains that its removal of this
suit is proper because Plaintiff’s negligence claims “relate to”
containing products in its ships.
Plaintiff’s motion is now before the Court on the briefs and
without oral argument.
“[F]ederal officer removal under 28 U.S.C. § 1442 is unlike
other removal doctrines: it is not narrow or limited.”
principle of limited federal court jurisdiction ordinarily compels
1 Prior to the amendment, § 1442 allowed the removal of a state suit against a
person acting under a federal officer when the suit was for “for any act under
color of such office.” Act of June 25, 1948, ch. 646, 62 Stat. 938 (codified at
28 U.S.C. § 1442); see Zeringue, 846 F.3d at 793. Congress altered the language
of § 1442 in 2011 to allow the removal of a state suit “for or relating to any
act under color of such office.” 28 U.S.C. § 1442(a)(1).
federal courts to resolve any doubt about removal in favor of
remand, courts should analyze removal under § 1442(a)(1) “without
a thumb on the remand side of the scale.”
See Savoie v. Huntington
Ingalls, Inc., 817 F. 3d 457, 462 (5th Cir. 2016) (citations
Nevertheless, it remains “the defendant’s burden to
Winters v. Diamond Shamrock Chem. Co., 149 F.3d
387, 397 (5th Cir. 1998).
Section 1442 permits, in pertinent part, “any person acting
under [an officer] of the United States or of any agency thereof”
to remove a state suit to federal court if any of the plaintiff’s
claims are “for or relating to any act under color of such office.”
28 U.S.C. § 1442(a)(1). To qualify for removal under § 1442(a)(1),
a 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, (3) that it has a colorable federal defense
to the plaintiff’s claims, and (4) 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) (citation omitted).
Even where the defendant can show that it acted pursuant to
a federal officer’s directions, removal will not be proper unless
she can also establish the requisite casual connection between the
plaintiff’s claims. See id. (citation omitted); see also Zeringue
v. Crane Co., 846 F.3d 785, 794 (5th Cir. 2017) (noting that the
casual nexus requirement functions to ensure a legitimate federal
interest in a matter by limiting the universe of potentially
removable claims to those where the specific acts or omissions
performed under federal direction).
In other words, the defendant
must show that the federal government was directing the defendant’s
See Savoie v. Huntington Ingalls, Inc., 817
F.3d 457, 462 (5th Cir. 2016) (citing Bartel, 508 F.3d at 172-74).
Although Avondale argues that the 2011 amendment altered the casual
nexus requirement, the Court finds that Avondale’s position is
In Bartel v. Alcoa Steamship Co., the plaintiffs, merchant
mariners, filed suit against companies that operated ships owned
by the United States Navy.
805 F.3d at 171.
The vessels contained
asbestos, and the merchant mariners alleged that the operators
were negligent for failing to warn them of the asbestos.
Fifth Circuit held that federal officer removal was improper
negligence claim and the defendants’ acts under color of federal
Id. at 174.
Specifically, the court found that there was
no evidence to suggest that the government issued any “orders
relating to safety procedures,” and thus, no casual nexus existed
because the defendants were “free to adopt the safety measures the
plaintiffs now allege would have prevented their injuries.” Id.
The Fifth Circuit recently reached the same conclusion in
Legendre v. Huntington Ingalls Inc., 885 F.3d 398 (5th Cir. 2018).
The plaintiffs in Legendre filed suit against Avondale after their
sister died from mesothelioma, allegedly caused by her exposure to
asbestos fibers contained on her relatives’ clothes when they
returned home each day from work at Avondale.
Id. at 399.
implement proper safety procedures for handling asbestos in state
court, and Avondale removed citing federal officer jurisdiction.
Id. The district court remanded, finding casual nexus lacking under
Bartel because Avondale failed to provide any evidence that the
government had any control over Avondale’s safety protocols.
Avondale argued on appeal that Bartel was inapposite
because it applied pre-2011 precedent and thereby failed to give
effect to Congress’s new language.
In affirming the district
court’s remand order, the panel concluded that it was in fact bound
by Bartel because the case was decided after the amendment and
quoted the statute’s new “relating to” language. Id. Accordingly,
the Legendre panel expressly recognized that Bartel remains good
law even under the 2011 amendment.
Here, like the defendants in Bartel and Legendre, Avondale
has not adduced any evidence that the federal government controlled
Rather, Plaintiff’s uncontroverted evidence clearly establishes
that the federal government had no control whatsoever regarding
safeguard under state law.
For example, Peter Teritto, a former
Avondale Safety Director, testified that federal officers did not
control the safety department at Avondale and did not prevent
Avondale from meeting its state law obligation to warn. Similarly,
Felix Albert, a federal ship inspector for the United States Navy
at Avondale, testified in his affidavit that the “government
inspectors neither monitored nor enforced safety regulations” and
that “on the job safety during the construction of vessels of the
Shipyards’ safety department.”
This is also echoed by Avondale’s
own Superintendent of Outfitting, Eddie Blanchard, who affirmed
that no federal officer directed or controlled Avondale’s safety
In sum, there is simply nothing in the record indicating that
Avondale was prevented from adopting the safety measures that
At best, Avondale demonstrates that the federal
government required Avondale to use asbestos when building ships.
However, the government’s responsibility for the existence of
asbestos is insufficiently related to Plaintiff’s claims so as to
justify federal officer removal.
Savoie v. Huntington Ingalls,
Inc., 817 F.3d 457, 463-65 (5th Cir. 2016) (concluding that no
casual nexus existed regarding the plaintiff’s failure to warn and
demonstrate that its contracts with the government prevented it
from taking any of the protective measures identified by the
Therefore, the Court finds that removal pursuant to
28 U.S.C. §1442(a)(1) was improper, as Avondale has not shown that
the necessary casual nexus exists between the federal government's
requirement that Avondale use asbestos and Avondale's allegedly
lax safety protocols.
IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand (Rec.
Doc. 5) is GRANTED.
The above-captioned matter is hereby REMANDED
to the Civil District Court for the Parish of Orleans.
New Orleans, Louisiana this 9th day of April, 2018.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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