Burkart v. PPG Industries, Inc. et al

Filing 91

ORDER AND REASONS granting 12 Motion to Remand to State Court. IT IS FURTHER ORDERED that the above-captioned case is hereby REMANDED to the Civil District Court for the Parish of Orleans. Signed by Judge Carl Barbier on 4/10/2018. (cg) (Additional attachment(s) added on 4/11/2018: # 1 Remand Letter) (cg).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

RAYMOND BURKART, JR.

CIVIL ACTION

VERSUS

No.: 17-12646

PPG INDUSTRIES, INC., ET AL.

SECTION: “J”(1)

ORDER
Before the Court is a Motion to Remand (Rec. Doc. 12) filed by
Plaintiff, Raymond Burkart, Jr. (“Plaintiff”), and an opposition
thereto (Rec. Doc. 20) filed by Defendant, Huntington Ingalls
Incorporated

(f/k/a

Avondale

Shipyards,

Inc.)

(hereinafter,

“Avondale”).

Plaintiff and Avondale have both 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.
Plaintiff alleges that he contracted mesothelioma as a result
of

being

exposed

to

asbestos-containing

products

during

his

employment at Avondale. The parties agree that Plaintiff’s alleged
asbestos

exposure

relates,

at

least

in

part,

to

asbestos-

containing materials being installed aboard ships being built for
the United States Navy.

Plaintiff filed the instant suit against

Avondale in state court seeking damages for Avondale’s alleged
failure to warn of the hazards of asbestos and failure to implement

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proper safety procedures for the handling of asbestos. Avondale
subsequently removed the action to this Court, asserting federal
jurisdiction under 28 U.S.C. § 1442, the federal officer removal
statute.

Avondale 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.
Plaintiff argues in his motion to remand that 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 his claims for

failure to warn and failure to safeguard have nothing to do with
Avondale’s compliance with federal requirements because asbestosrelated safety measures at Avondale were never under federal
direction and control. Thus, Plaintiff avers that Avondale cannot
make a showing of a casual nexus between a federal officer’s direct
and

detailed

control

over

Avondale’s

safety

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
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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”
the government’s mandate that Avondale use asbestos-containing
products in its ships.
This Court has recently rejected identical arguments made by
Avondale regarding the casual nexus requirement in Guillot v.
Avondale Indus., Inc., No. 17-7666 (E.D. La. April 9, 2018) (Rec.
Doc. 46).

There, the Court found that Avondale failed to show

that a casual nexus existed between the federal government’s
requirement that Avondale use asbestos-containing materials and
Avondale’s ability to comply with its obligations to warn and/or
safeguard under state law.

Accordingly, for the reasons expressed

in Guillot v. Avondale Indus., Inc., No. 17-7666 (E.D. La. April
9, 2018) (Rec. Doc. 46);

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).

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IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand (Rec.
Doc. 12) is GRANTED.
IT IS FURTHER ORDERED that the above-captioned case is hereby
REMANDED to the Civil District Court for the Parish of Orleans.
New Orleans, Louisiana, this 10th day of April, 2018.

_________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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