Dempster v. Lamorak Insurance Company et al

Filing 89

ORDER: IT IS HEREBY ORDERED that Plaintiff's 4 Motion to Remand is GRANTED and that the case is remanded to the Civil District Court for the Parish of Orleans, State of Louisiana. Signed by Chief Judge Nannette Jolivette Brown on 1/7/2019. (mmv) (Additional attachment(s) added on 1/7/2019: # 1 Remand Letter) (mmv).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CALLEN DEMPSTER

CIVIL ACTION

VERSUS

CASE NO. 18-6158

LAMORAK INSURANCE CO., et al.

SECTION: “G”(1)
ORDER

In this litigation, Plaintiff Callen L. Dempster (“Plaintiff”) alleges that he suffered exposure
to asbestos and asbestos-containing products that were designed, manufactured, sold, and/or
supplied by a number of Defendant companies while Plaintiff was employed by Defendant
Avondale Industries, Inc. (“Avondale”).1 After Defendants Huntington Ingalls Incorporated,
Albert Bossier, Jr., J. Melton Garret, and Lamorak Insurance Company removed the suit from state
court under the federal officer removal statute, Plaintiff filed the pending Motion to Remand.2
Having considered the motion, the memoranda in support and in opposition, the record, and the
applicable law, the Court will grant the motion and remand this case to the Civil District Court for
the Parish of Orleans, State of Louisiana.

1

Rec. Doc. 1-2 at 2. In particular, Plaintiff brought claims in his Petition against Lamorak Insurance
Company, Huntington Ingalls Inc., Albert Bossier, Jr., J. Melton Garrett, Eagle, Inc., Bayer Cropscience, Inc., FosterWheeler LLC, General Electric Co., Hopeman Brothers, Inc., McCarty Corporation, Taylor-Seidenbach, Inc., CBS
Corporation, Uniroyal, Inc., International Paper Co., Houston General Insurance Company, Berkshire Hathaway
Specialty Insurance Company, Northwest Insurance Company, United Stated Fidelity and Guaranty Company, Fist
State Insurance Company, The American Insurance Company, Louisiana Insurance Guaranty Association, and the
Traveler’s Indemnity Company. Id. at 1–2.
2

Rec. Doc. 4.

1

I. Background
A.

Factual Background
In this litigation, Plaintiff alleges that he was employed by Avondale from 1962 to 1994.3

During that time, Plaintiff avers that he was exposed to asbestos and asbestos-containing products
in various locations and work sites, resulting in Plaintiff breathing in asbestos fibers and later
developing asbestos-related cancer.4 Plaintiff asserts strict liability and negligence claims against
various Defendants.5 Specifically, Plaintiff alleges that:
All asbestos companies had care, custody, and control of the asbestos,
which asbestos was defective and which presented an unreasonable risk of harm,
which asbestos resulted in the injury of [Plaintiff] and for which these defendants
are liable under Louisiana law. However, with regard to Avondale and its executive
officers, they are liable because they failed to properly handle and control the
asbestos which was in their care, custody, and control. Petitioners are not alleging
that Avondale and its executive officers are liable for the mere use of asbestos;
rather, Avondale and its executive officers are liable for the misuse of asbestos,
including but not limited to the failure to warn of the hazardous nature and dangers
of asbestos and for the failure to take and implement reasonably safe and industrial
hygiene measures, failure to train, and failure to adopt safety procedures for the
safe installation and removal of asbestos.6
B.

Procedural Background
Plaintiff filed a “Petition for Damages” in the Civil District Court for the Parish of Orleans,

State of Louisiana, on March 14, 2018.7 Defendants Huntington Ingalls Incorporated, Albert
Bossier, Jr., J. Melton Garret, and Lamorak Insurance Company (the “Avondale Interests”)

3

Rec. Doc. 1-2 at 4.

4

Id.

5

Id.

6

Id. at 6–7.

7

Id. at 1.

2

removed the case to this Court on June 21, 2018.8 Avondale Interests allege that removal is proper
because this is an action “for or relating to conduct under color of federal office commenced in a
state court against persons acting under one or more federal officers within the meaning of 28
U.S.C. § 1442(a)(1).”9 In particular, Avondale Interests contend that Plaintiff stated during his
deposition on April 23, 2018, that he worked on Navy Destroyer Escorts while he was employed
at Avondale.10 According to the Avondale Interests, Leroy Rome (“Mr. Rome”), who was also
employed by Avondale during the entire time that Plaintiff was employed there, swore in an
affidavit that “he and other insulators were ‘exposed to asbestos by working with or around
asbestos-containing materials while working on DE vessels,’ that he knew that [Plaintiff] worked
on the same DEs that he did because ‘I [Rome] would leave instructions for the night crew, which
included [Plaintiff],’ and that the duties of Avondale insulators included work with asbestoscontaining products.”11
Avondale Interests argue that they are either corporations or individuals and therefore are
“persons” within the meaning of 28 U.S.C. § 1442(a)(1).12 Avondale Interests further assert that
Plaintiff worked on the Navy Destroyer Escorts pursuant to contracts between Avondale and the
United States government.13 Moreover, Avondale Interests aver that the use of the asbestoscontaining materials, from which Plaintiff’s causes of action arise, was required by the contractual
provisions and design specifications mandated by the Federal Government, and that the Federal

8

Rec. Doc. 1 at 2.

9

Id.

10

Id. at 2–3.

11

Id. at 4 (citing Rome Affidavit, at ¶3).

12

Id. at 5 (citing Savoie v. Huntington Ingalls Incorporated, 817 F.3d 457, 461 (5th Cir. 2016)).

13

Id.

3

Government oversaw the construction process to ensure compliance.14 Therefore, Avondale
Interests contend that they were “acting under” an “officer . . . of the United States or [an] agency
thereof” within the meaning of Section 1442(a)(1), as it was performing a task that the Federal
Government would otherwise have had to perform, i.e. building ships “used to help conduct a war”
and “to further other national interests.”15
Additionally, Avondale Interests assert “two colorable federal defenses” to Plaintiff’s
claims in the Notice of Removal: (1) that Plaintiff’s claims are barred under the doctrine of
government contractor immunity established by the Supreme Court in Boyle v. United Technologies
Corporation; and (2) that Plaintiff’s claims are preempted and barred by the exclusive remedy
provisions of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).16

On June 22, 2018, Plaintiff filed the instant Motion to Remand.17 On July 2, 2017,
Defendant Foster Wheeler, LLC (“Foster”) filed a Motion to Join the Avondale Interests’ Notice
of Removal,18 which the Court granted.19 On July 3, 2018 Foster filed an opposition to the Motion
to Remand on July 3, 2018.20 On July 5, 2018, the Avondale Interests also filed an opposition to
the Motion to Remand.21

14

Id. at 4–5.

15
Id. at 5 (citing Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 153–54 (2007); Savoie, 817 F.3d
at 461–62).
16

Id. at 6 (citing Boyle v. United Techs. Corp., 487 U.S. 500 (1988); 33 U.S.C. § 901).

17

Rec. Doc. 4. Plaintiff also filed a motion to expedite the motion to remand, which the Court granted on
June 25, 2018. Rec. Docs. 5 and 6.
18

Rec. Doc. 9.

19

Rec. Doc. 19.

20

Rec. Doc. 12.

21

Rec. Doc. 21.

4

With leave of Court, Plaintiff filed a reply brief in further support of the Motion to Remand
on July 12, 2018.22 With leave of Court, Foster filed a sur-reply in support of opposition to the
Motion to Remand on July 16, 2018.23 With leave of Court, Plaintiff filed a reply memorandum in
further support of the Motion to Remand on July 30, 2018.24 With leave of Court, Plaintiff filed a
Supplemental Memorandum in Support of the Motion to Remand on 85.25 With leave of Court,
Defendants filed a Supplemental Opposition to the Motion to Remand on 86.26
II. Parties= Arguments
A.

Plaintiff’s Motion to Remand
In the instant motion,27 Plaintiff argues that remand of this case is proper, as: (1) Avondale

Interests’ removal was untimely; (2) there is no evidence that Plaintiff was exposed to asbestos on
a federal vessel; (3) the Fifth Circuit has consistently held that negligence claims do not warrant
federal officer removal; (4) Avondale Interests were not “acting under” the direction of a federal
officer; (5) Avondale Interests have not established a colorable federal contractor defense; and (6)
Avondale Interests’ LHWCA defense does not provide an independent basis for removal, and,
regardless, the LHWCA supplements state law remedies rather than supplanting them.28

22

Rec. Doc. 35.

23

Rec. Doc. 39.

24

Rec. Doc. 48.

25

Rec. Doc. 85.

26

Rec. Doc. 86.

27

Rec. Doc. 4.

28

Rec. Doc. 4-1 at 4–25.

5

1. Timeliness
Plaintiff first argues that Avondale Interests’ Notice of Removal is untimely.29 Plaintiff
contends that Avondale Interests’ basis for removal is that Plaintiff worked aboard Destroyer
Escorts built by the United States Navy, which Plaintiff revealed in his April 23, 2018,
deposition.30 Plaintiff asserts that removal is untimely because Avondale Interests did not remove
the case until two months after the deposition, longer than the 30 days to file a notice of removal
allowed under 28 U.S.C. § 1446.31
2. No Federal Interest
Next, Plaintiff asserts that the Motion to Remand should be granted because Avondale
Interests have failed to show that Plaintiff was exposed to asbestos on a government vessel, and
thus “no federal interest is implicated.”32 Plaintiff asserts that he only worked for a short time on
government ships and only worked with rubber piping and fiberglass, never coming into contact
with asbestos.33 Further, Plaintiff asserts that Mr. Rome, his coworker whose testimony is cited by
Avondale Interests, did not have personal knowledge of the type of material Plaintiff used on these
ships because Mr. Rome worked the day shift, while Plaintiff worked the night shift.34

29

Id. at 4.

30

Id.

31

Id.

32

Id.

33

Id.

34

Id. at 4–5.

6

3. Negligence Claims
Plaintiff argues that Avondale Interests’ claims do not warrant removal because the claims
against Avondale Interests are specifically based on negligence, not strict liability.35 Plaintiff
highlights that his claims do not rely on Avondale Interests’ possession of asbestos, rather the
claims rely on Avondale Interests’ improper handling of asbestos.36
Plaintiff alleges that the “Fifth Circuit has routinely rejected assertions that…negligent acts
form the basis for federal officer removal.”37 Plaintiff cites multiple cases where the Fifth Circuit
remanded similar claims, some of which also involved Avondale as a defendant.38 Plaintiff also
highlights that this Court has remanded similar claims against Avondale, including in Templet v.
Huntington Ingalls, Inc., a case that was subsequently affirmed by the Fifth Circuit.39
4. Federal Officer Removal
Plaintiff asserts that Avondale Interests’ “federal officer removal” argument fails.40
Plaintiff outlines the law laid out in 28 U.S.C. § 1442(a)(1), which requires Avondale Interests
show that: (1) it is a “person” as defined in Section 1442; (2) it acted pursuant to a federal officer’s
directions and a causal nexus exists between those actions and Plaintiff’s claims; and (3) it has a

35

Id. at 7.

36

Id.

37

Id. at 10.

38

Id. at 10–12 (citing Legendre v. Huntington Ingalls Incorporated, 855 F.3d 398, 405 (5th Cir. 2018);
Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 462 (5th Cir. 2016); Bartel v. Alcoa Steamship, 805 F.3d 169, 174
(5th Cir. 2015)).
39

Id. at 7 (citing 2018 WL 2049145 (E.D. La. May 1, 2018), affirmed 720 F. App’x 726 (5th Cir. 2018).

40

Id. at 9.

7

“colorable federal defense” to the claims asserted.41 Plaintiff argues that there is no causal nexus
between a federal officer and Plaintiff’s claims.42
In examining the causal nexus, Plaintiff identifies that the “challenged conduct” at issue in
this case is not Federal Government action, but Avondale Interests’ negligent “failure to take
protective measures and failure to warn.”43 Plaintiff asserts that Avondale Interests have no support
for the claim that the Federal Government compelled Avondale to not warn or protect Plaintiff
from the dangers of asbestos.44 Plaintiff argues that it is insufficient for Avondale Interests to claim
that Avondale was acting under Department of Defense officials generally or that the Federal
Government ordered Avondale to install asbestos products, as Avondale Interests must also show
that Avondale was under substantial control of the Federal Government with regard to warning
others of the presence of asbestos.45 According to Plaintiff, the fact that the Federal Government
specified that Avondale should use asbestos as one of the thousands of raw materials used in the
project is insufficient by itself to create “federal officer” jurisdiction, just as the Federal
Government’s specification that Avondale should use steel does not create jurisdiction over a state
law negligence action if a piece of steel dropped on a worker due to Avondale’s negligence.46
Plaintiff highlights the relationship between the Federal Government and Avondale
through the testimony of several individuals.47 First, Plaintiff asserts that Avondale’s own “safety

41

Id. (citing Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387 (5th Cir. 1998)).

42

Id. at 14.

43

Id. at 15.

44

Id. at 18

45

Id. at 7–8.

46

Id. at 2 n.1.

47

Id. at 19.

8

man,” Peter Territo, testified that “the government inspectors had absolutely no control over nor
did they direct the Avondale safety equipment.”48 Plaintiff further points to an affidavit of Felix
Albert, a former federal ship inspector for the United States Navy during the same time that
Plaintiff worked for Avondale, in which Albert states that Avondale employees did not work under
the direction of an officer of the United States.49 According to Plaintiff, Albert also testified that
the United States government inspectors did not monitor or enforce safety regulations, as that was
the responsibility of Avondale.50 Likewise, Plaintiff avers that Rudy Walker, a Navy inspector at
Avondale, confirmed that the Navy did not supervise Avondale’s work or oversee it while it was
being performed.51 Thus, Plaintiff avers that the evidence demonstrates that asbestos safety
measures at Avondale were never under federal control.52
Additionally, Plaintiff contends that although Section 1442(a)(1) was amended in 2011, it
did not bring negligence-based claims within the ambit of the federal officer removal statute.53
Plaintiff argues that the Fifth Circuit addressed the amendment in Zeringue v. Crane Company,
where the Fifth Circuit “made clear that a removing defendant must still establish a causal nexus
between the challenged conduct at issue and the asserted federal authority” based on the facts of
each case.54 Moreover, Plaintiff argues that the Fifth Circuit’s decision in Zeringue that federal
officer removal was proper, is distinguishable, as the case involved claims for strict liability and

48

Id. (citing Rec. Doc. 4-21).

49

Id. (citing Rec. Doc. 4-19).

50

Id. at 19–20.

51

Id. at 20 (citing Rec. Doc. 4-20).

52

Id.

53

Id. at 12.

54

Id. (citing 846 F.3d 785 (5th Cir. 2017)).

9

negligence against a product manufacturer who removed the case, whereas here, Avondale
Interests are facing only negligence claims as a premises owner and employer.55
5. Federal Contractor Defense
Next, Plaintiff asserts that Avondale Interests do not have a colorable federal contractor
defense.56 Plaintiff argues that a federal contractor defense only applies if Avondale Interests can
show: “(1) the government approved reasonably precise specifications that it not protect
employees; (2) Avondale conformed to those specifications; and (3) Avondale warned the United
States about the dangers that were known to it but not the United States.”57 Plaintiff argues that
Avondale Interests fail to meet any of the requirements of this defense.58
First, Plaintiff argues that Avondale Interests “[have] not cited to any specification or
government contract which prohibited them from implementing safety procedures at the
shipyard.”59 Plaintiff further highlights that compliance with federal law, which required
implementation of various safety measures related to the use of asbestos, does not constitute the
“help or assistance necessary to bring a private person within the scope of the statute.”60
Second, Plaintiff states that Avondale Interests cannot show that the Federal Government
mandated regulations prohibiting the use of safety measures.61 Plaintiff specifically notes that
Avondale Interests did not enforce the Federal Government regulations aimed at promoting safety

55

Id. at 12-18 (citing Zeringue, 846 F.3d at 788).

56

Id. at 20.

57

Id. (citing Boyle v. United Technologies Corp., 487 U.S. 500, 512 (1988)).

58

Id. at 21–24.

59

Id. at 21.

60

Id. at 22 (citing Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 151-152 (2007)).

61

Id. at 23.

10

in the handling of asbestos, which include segregating work done aboard ships, using respiratory
protection equipment, and requiring a change of clothing before going home.62
Third, Plaintiff avers that Avondale has “submitted nothing in reference to its own
knowledge as compared to that of the Navy” and that an employee admitted that Avondale was
aware asbestos was hazardous as far back as the 1940s.63 Therefore, Plaintiff argues that Avondale
Interests cannot meet the third requirement for a federal contractor defense and show that the
Federal Government had more knowledge of the harm caused by asbestos.64
6. Removal Pursuant to the LHWCA
Finally, Plaintiff argues that Avondale Interests’ LHWCA defense is not a proper basis for
removal.65 To support this argument, Plaintiff points to Aaron v. National Union Fire Insurance
Co., wherein the Fifth Circuit “reiterated well-established law that a case cannot be removed to
federal court on the basis of a federal defense” in the context of the LHWCA.”66
B.

Defendant Foster Wheeler LLC’s Opposition to the Motion to Remand
In opposition, Foster argues that the testimony of Mr. Rome, a former Avondale employee,

is a “game changer” that demonstrates that Plaintiff came into contact with asbestos while aboard
a government vessel.67 Foster points to Mr. Rome’s testimony that he personally knew Plaintiff,
worked in the same position as Plaintiff on government vessels, and that he and others in his

62

Id.

63

Id. at 24.

64

Id.

65

Id.

66

Id. at 25 (citing 876 F.2d 1157 (5th Cir. 1989)).

67

Rec. Doc. 12 at 6.

11

position were “exposed to asbestos by working with or around asbestos-containing materials while
working on [government] vessels.”68
Foster then argues that removal is appropriate based on a colorable federal defense.69 Foster
argues that it is (1) a “person,” (2) acting under the direction of a federal officer, (3) that it has
raised a colorable federal defense, and (4) that there is a causal nexus between the Plaintiff’s claims
and the defendant’s actions under federal direction.70 First, Foster argues that the Federal
Government exercised “direct and detailed control” over the design and manufacture of Navy
equipment that lead to asbestos exposure.71 Further, Foster argues that numerous district courts
within and outside of the Fifth Circuit have repeatedly found that Foster Wheeler was “acting
under…direct and detailed control” in similar design defect cases.72
Subsequently, Foster argues that it has a colorable federal defense because (1) the United
States approved specifications, (2) to which Foster conformed, and (3) that the Federal
Government knew the danger of, but which Foster did not.73 Foster argues that its boilers were
subject to “reasonably precise” Navy specifications that required the use of asbestos, that it

68

Id. (internal citation omitted).

69

Id. at 12.

70

Id. at 13.

71

Id. at 14.

72

Id. (internal citations omitted).

73

Id. at 15 (citing Boyle, 487 U.S. at 512).

12

conformed to these specifications, and that the Federal Government knew of the danger of asbestos
decades before Plaintiff’s alleged disclosure.74
Additionally, Foster argues that it meets the “quite low” burden to establish a causal nexus
between Federal Government action and the defendant’s conduct.75 Foster argues that Mr. Rome’s
affidavit demonstrates that Plaintiff was exposed to asbestos while aboard a government vessel,
despite Plaintiff’s assertions otherwise.76 Foster alleges that where a plaintiff “claims an injury
occurred from an asbestos-containing product and a showing is made that the defendant’s design
and manufacture of that product was controlled by the Navy, a causal nexus has not simply been
shown – it is ‘axiomatic.’”77
Additionally, Foster argues that the Court also has jurisdiction over any claims “if there is
evidence that the government was involved in the decision to give, or not to give, a warning.”78
Foster argues that “even absent evidence that a specific warning was considered by the Federal
Government,” the involvement of the Federal Government is proven, “by a showing of the
government’s detailed involvement in the choice of equipment-related warnings generally.”79
Foster argues the Federal Government was involved in the following ways:
The Navy was involved in the decision of which warnings, if any, were to
be provided with Foster Wheeler’s boilers; the Navy carefully inspected and
reviewed all written materials, including warnings, furnished with those boilers;
Foster Wheeler could not have added other warnings without the Navy’s prior
express consent; and the Navy approved and accepted the boilers despite

74

Id. at 16–18.

75

Id. at 18.

76

Id. at 19.

77

Id. (citing Madden v. Able Supply Co., 205 F.Supp.2d 695, 701–2 (S.D. Tex. 2002)).

78

Id. at 20 (citing Kerstetter v. Pacific Scientific Co., 210 F.3d 431, 438 (5th Cir. 2000)).

79

Id. at 21.

13

knowledge of their asbestos content, of hazards associated with asbestos, and of the
lack of any warning as to those hazards.80
Foster also argues that “the mere fact that Foster Wheeler’s alleged ‘failure to warn’
occurred in the context of its supply of Navy equipment demonstrates that a causal nexus exists
between that purported failure and Foster Wheeler’s conduct while ‘acting under’ the Navy’s
direction and control.”81 Ultimately, due to Foster’s work for the Federal Government, Foster
argues that removal is proper in this case.82
Finally, Foster argues that cross-claims, brought by Avondale Interests against Foster, can
serve as an alternative basis for Removal.83 Foster specifically claims that “it is clear that the causal
nexus test is satisfied if either Plaintiff or Removing Defendants’ claims arise from the use of
asbestos in a product that the defendant designed and manufactured upon the government’s
request, particularly if (as here) the government contracted for the product’s supply despite
knowledge of its potential hazard.”84
C.

Avondale Interests’ Opposition to the Motion to Remand
In their opposition memorandum,85 Avondale Interests argue that: (1) removal is timely;

(2) Avondale was “acting under” federal control when it built federal vessels; (3) Plaintiff’s claims
satisfy the “causal nexus” requirement under the amended federal officer removal statute; and (4)
Avondale asserts colorable federal defenses.86 Avondale Interests assert that this case was properly
80

Id. at 23.

81

Id. (citing Isaacson v. Dow Chemical Co., 517 F.3d 129, 137–38 (2nd Cir. 2008)).

82

Id.

83

Rec. Doc. 12 at 19.

84

Id.

85

Rec. Doc. 21.

86

Id. at 11–41.

14

removed to this Court under federal officer removal statute, 28 U.S.C. § 1442(a)(1).87 Accordingly,
Avondale Interests argues that the Court should deny the Motion to Remand.
1. Timeliness of Removal
Avondale Interests argue that removal is timely based on Leroy Rome’s affidavit stating
he knew Plaintiff, worked aboard some of the same vessels as Plaintiff, in a similar capacity as an
insulator, and that he and other insulators were exposed to asbestos aboard these vessels.88
Avondale Interests argue that Mr. Rome’s affidavit should control the timeliness of removal
because “only upon receipt of Mr. Rome’s affidavit did Avondale become aware that Mr.
Dempster’s alleged exposure to asbestos included allegations of exposure on federal ships.”89
Avondale Interests argue that Mr. Dempster’s testimony at a deposition that occurred prior to Mr.
Rome’s affidavit cannot trigger the 30-day removal period because it was not in writing and “Mr.
Dempster repeatedly testified that he was not exposed to asbestos while working aboard federal
ships at Avondale.”90
2. “Acting Under” Federal Control
Avondale Interests argue that they were acting under federal control because they “[were]
fulfilling the terms of contracts with the Federal Government, which required the use of asbestos,
when [they] built the Destroyer Escorts for the Navy and the Coast Guard Cutters aboard which
Mr. Dempster worked and was exposed to asbestos between 1962 and 1994.”91 Avondale Interests
assert that they were acting under federal control as “both the Supreme Court and the Fifth Circuit

87

Id. at 6.

88

Id. at 13.

89

Id.

90

Id. at 12.

91

Id. at 6–7.

15

have held that a private contractor acts under color of federal office when it ‘is helping the
Government to produce an item that [the Government] needs,’ or is, ‘perform[ing] a job that, in
the absence of a contract with a private firm, the Government itself would have had to perform.’”92
3. “Causal Nexus” Requirement
Avondale Interests allege that the Fifth Circuit recently “broadened the ‘old causal nexus’
standard” in response to the “relating to” language added by a 2011 amendment to the federal
officer removal statute.93 Avondale Interests allege that “under the new ‘relating to’ language, a
plaintiff’s claims need only be associated with, or connected with, conduct under color of federal
office to be removable.”94
Additionally, Avondale Interests argue that removal is proper because “the Petition for
Damages alleges facts sufficient to impose strict garde liability against Avondale under former
Article 2317 of the Louisiana Civil Code.”95 As such, Avondale Interests argue that “this case is
materially indistinguishable from Savoie v. Huntington Ingalls, Inc., where the Fifth Circuit held
that the plaintiffs’ former Article 2317 strict liability claim satisfied the requirements for federal
officer removal.”96 Avondale Interests argue that “although Mr. Dempster asserts in the Petition
that he is ‘not alleging that Avondale and its executive officers are liable for the mere use of

92

Id. at 15 (citing Watson, 551 U.S. at 153–54; Wilde v. Huntington Ingalls, Inc., 616 F. App’x 710, 713
(5th Cir. 2015)).
93

Id. at 6–7 (citing Legendre v. Huntington Ingalls, Inc., 885 F.3d 389, 399 (5th Cir. 2018)).

94

Id.

95

Id. at 7.

96

Id. (internal citation omitted).

16

asbestos,’ such assertions are mere legal conclusions that the Fifth Circuit has already rejected in
Savoie.”97
4. Colorable Federal Defenses
Finally, Avondale Interests argue that Plaintiff’s claims are barred under the contractor
immunity defense and that Avondale Interests assert a colorable federal defense under the
LHWCA.98 Avondale Interests argue that the government contractor defense “‘provides immunity
to contractors for conduct that complies with the specifications of a federal contract.’”99 Avondale
Interests claims that in order to prevail on the merits it must show: “(1) the government approved
reasonably precise specifications for the construction of the ships; (2) the ships conformed to those
specifications; and (3) the contractor warned the government of any hazards presented by the
asbestos-containing components the government required that were known to the contractor but
unknown to the government.”100 However, Avondale Interests claims that it does not need to
prevail on the merits to demonstrate a “colorable or plausible” defense.101
Avondale Interests argue that they presented a colorable federal defense as to the
government specifications requirement because “the government contract contained mandatory
terms, conditions and specifications imposed upon Avondale.”102 Avondale Interests argue that
they presented a colorable federal defense as to the conformity requirement because “had

97

Id. (internal citation omitted).

98

Id. at 26–41.

99
Id. at 26 (citing Crutchfield v. Sewerage and Water Bd. Of New Orleans, 829 F.3d 370, 375 (5th Cir.
2016) (internal citations omitted)).
100

Id. at 27 (citing Zeringue v. Crane Co., 846 F.3d 785, 790 (5th Cir. 2017) (internal citations omitted)).

101

Id.

102

Id. at 29.

17

Avondale failed to comply with those specifications, the Destroyer Escorts and the Coast Guard
Cutters would not have been accepted for delivery.”103 And Avondale Interests argue that they
presented a colorable federal defense as to the warning requirement because “Avondale submits
the affidavit of Christopher Herfel, a maritime historian who avers that the Federal Government
knew as much, if not more, than Avondale did about the hazards of asbestos exposure, and that by
the early 1940s the Federal Government had become an authoritative leader in the field of
occupational medicine and industrial hygiene relating to the hazards of exposure to asbestos.”104
Avondale Interests also argue that it presents a colorable federal defense under the
LHWCA.105 Avondale Interests argue that amendment to the LHWCA in 1972 bars claims where
the latent injury manifested itself after the amendment, as is the case here.106 Specifically,
Avondale Interests point to Pitre v. Huntington Ingalls, Inc., a decision by another district judge
in the Eastern District of Louisiana, in which Avondale Interests alleges that the Court found the
case was governed by the LHWCA, not state law, because the plaintiff did not develop lung cancer
due to his asbestos exposure until 2016, long after amendment to the statute.107

103

Id.

104

Id. at 30–31.

105

Id. at 32.

106

Id. at 33–34.

107

Id. at 37 (citing No. CV 17-7029, 2017 WL 6033032 (E.D. La. Dec. 6, 2017)).

18

D.

Plaintiff’s Reply in Support of the Motion to Remand
1. Plaintiff’s Reply to Foster’s Opposition
In Response to Foster’s Opposition,108 Plaintiff argues that (1) there is no evidence he was

exposed to asbestos from a Foster boiler aboard a government vessel, (2) he made no claims against
Foster as related to government vessels, and (3) cross-claims cannot form the basis of removal.109
a. Exposure from a Foster Boiler
Regarding the first argument, Plaintiff argues that while Mr. Rome’s affidavit references
“insulators” generally being exposed to asbestos aboard government vessels, he had no personal
knowledge of Plaintiff’s work aboard these ships.110 Further, Plaintiff testified that he did not work
with asbestos containing materials on government vessels as he only worked with “rubber piping
and fiberglass.”111 Plaintiff argues his case is similar to Melancon v. Lamorak Ins. Co., another
case from the Eastern District of Louisiana, where the court found there was no federal interest in
an asbestos case because there was “no basis to suggest that Mr. Melancon was exposed to asbestos
from a Foster Wheeler boiler.”112
b. Claims Against Foster related to a Government Vessel
Regarding the second argument, Plaintiff highlights language from the petition showing he
explicitly did not bring a claim against Foster for exposure to asbestos aboard a government
vessel.113 Specifically, Plaintiff points to language from the petition stating “with regard to Foster

108

Rec. doc. 35.

109

Id. at 2–8.

110

Id. at 3.

111

Id. at 4.

112

Id. at 5 (No. 17-12367, 2018 WL 480823, at *6 (E.D. La. Jan. 19, 2018)).

113

Id. at 6.

19

Wheeler boilers, plaintiff alleges that Mr. Dempster was exposed to asbestos from Foster Wheeler
boilers on commercial vessels only.”114 Further, Plaintiff points to language from the petition
stating “Petitioner’s causes of action are based upon the acts and omissions of defendants or those
for whom the defendants are responsible, and are specifically not based upon any act committed
by the United States Government or at the direction of the United States Government.”115
c. Cross-claims as the Basis for Removal
Regarding the third argument, Plaintiff argues that Avondale Interests has not included any
additional claims in its cross-claim against Foster, rather Plaintiff argues that Avondale Interests
“merely adopted plaintiff’s allegations.”116 Further, Plaintiff argues that “even if we assume that
the Avondale Interests had included allegations regarding government vessels, the Hayden Court
specifically rejected the argument that an assertion of a cross-claim provides a sufficient basis for
jurisdiction.”117
2. Plaintiff’s Reply to Avondale Interests’ Opposition
In reply to Avondale Interests’ Opposition,118 Plaintiff argues that (1) removal is untimely;
(2) there is no evidence that Plaintiff was exposed to asbestos on a government vessel; (3) Plaintiff
has made no claims for strict liability against Avondale Interests; (4) removal is not appropriate
under these circumstances on the basis of a defendant as employer or property owner, and (5) the
LHWCA is not a bar to Plaintiff’s claims.119

114

Id. (citing Rec. Doc. 4-5 at 29–30).

115

Id. (citing Rec. Doc. 4-5 at 31).

116

Id. at 7.

117

Id. (citing Hayden v. 3M Company, 2015 U.S. Dist. LEXIS 104534, *19–20 (E.D. La. 8/10/15).

118

Rec. Doc. 35.

119

Id. at 1–21.

20

a. Timeliness of Removal
Plaintiff argues that the notice of removal is untimely because the affidavit of Leroy Rome,
used as the basis for removal by Defendants, “does not add any additional information regarding
Callen Dempster’s work aboard the Destroyer Escorts that did not already exist in Mr. Dempster’s
deposition.”120 Plaintiff asserts that “the only information specific to Callen Dempster that LeRoy
Rome provided was that he worked on a different shift than Callen Dempster and that Callen
Dempster worked aboard the Destroyer Escort.”121 Plaintiff argues that the affidavit does not state
that Mr. Rome saw Plaintiff handle asbestos at any time.122 Therefore, Plaintiff argues that his own
deposition, in which Plaintiff identified he worked on Destroyer Escorts, should act as the
controlling date and that removal should be barred on the basis of Defendants failure to respond
within 30 days.123
b. Exposure Aboard a Government Vessel
Plaintiff argues that there is “no evidence” that he was exposed to asbestos aboard a
Destroyer Escort vessel.124 Plaintiff alleges that Foster specifically “misrepresents” the
information put forth in the affidavit of Mr. Rome.125 Plaintiff states that in his affidavit Mr. Rome
indicated that he knew Plaintiff, and that he worked aboard “some” of the same Destroyer Escort
vessels as Plaintiff.126 However, Plaintiff also points out that Mr. Rome’s affidavit highlights that

120

Id. at 1.

121

Id.

122

Id. at 1–2.

123

Id.

124

Id. at 2.

125

Id.

126

Id.

21

Mr. Rome and Plaintiff did not work at the same time, as they both had different work shifts.127
Therefore, Plaintiff argues that Mr. Rome could not have known whether or not Plaintiff came into
contact with asbestos on these ships.128 Further, Plaintiff argues that his own testimony contradicts
Foster’s conclusions, in that he testified he did not come into contact with asbestos aboard a
government vessel, that he only worked on the vessels for a short time, and that he only worked
with rubber piping and fiberglass.129
c. Strict Liability against Avondale Interests
Plaintiff argues that he only brought negligence claims against Avondale Interests in the
petition and that Avondale Interests attempt to argue otherwise is a mischaracterization of the
petition.130 Specifically, Plaintiff points to language stating:
However, with regard to Avondale and its executive officers, they are liable
because they failed to properly handle and control the asbestos which was in their
care, custody, and control. Petitioners are not alleging that Avondale and its
executive officers are liable for the mere use of asbestos; rather, Avondale and its
executive officers are liable for the misuse of asbestos, including but not limited to
the failure to warn of the hazardous nature and dangers of asbestos and for the
failure to take and implement reasonably safe and industrial hygiene measures,
failure to train, and failure to adopt safety procedures for the safe installation and
removal of asbestos.131
Plaintiff then makes comparisons between similar claims in the Fifth Circuit to show that this
language from the petition does not raise a strict liability claim susceptible to removal, but rather
that the petition only raises a negligence claim against Avondale Interests.132

127

Id.

128

Id. at 2–3.

129

Id.

130

Id. at 9.

131

Id. (citing Rec. Doc. 4-5 at 6–7).

132

Id. at 8–10 (citing Melancon v. Lamorak Ins. Co., No. CV 17-12367, 2018 WL 480823 (E.D. La. Jan.
19, 2018); Wilde v. Huntington Ingalls, Inc., 616 Fed.Appx. 710 (5th Cir. 2015); Pitre v. Huntington Ingalls, Inc.,

22

d. Removal Based on Employer or Property Owner Relationship
Plaintiff argues that removal is not appropriate here because Avondale Interests were
employers and property owners with respect to Plaintiff, which Plaintiff contends is
distinguishable from the product manufacturer relationship that exists in cases where courts have
found removal appropriate.133 Plaintiff argues that because Avondale Interests are not product
manufacturers, this case is further cemented in the line of negligence cases where removal is not
appropriate, as opposed to strict liability cases where removal is appropriate.134
e. LHWCA Defense
Plaintiff argues that “the law provides that Mr. Dempster’s state law claims would still not
be preempted by LHWCA, as the facts of this case present a scenario of concurrent jurisdiction.”135
In support, Plaintiff argues that he “has not elected LHWCA nor state compensation benefits.”136
Plaintiff argues that state law can apply in this case “even if the injury occurred on navigable
waters” if the nature of an employee’s work was of local concern.137 Plaintiff argues that this
distinction is relevant to his claim because Plaintiff worked building new ships in a shipyard
and“[t]here is no dispute that an injury occurring during the construction of new ships is ‘maritime
but local,’” even if occurring on navigable waters.138 Plaintiff argues that Foster cannot “invoke a

No. CV 17-7029, 2017 WL 6033032 (E.D. La. Dec. 6, 2017); Savoie v. Huntington Ingalls, Inc., 817 F.3d 457 (5th
Cir. 2016)).
133

Id. at 11.

134

Id. at 11–17 (citing Zeringue v. Crane Company, 846 F.3d 785 (5th Cir. 2017)).

135

Id. at 18.

136

Id.

137
Id. (citing generally Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210 (1921); Grant
Smith-Porter Ship Co. v. Rohde, 27 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922)).
138

Id. (citing generally Western Fuel Co., 257 U.S. 23 42 S.Ct. 89, 66 L.Ed. 210 (1921); Grant SmithPorter Ship Co. v. Rohde, 27 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922); Sun Ship, Inc. v. Pennsylvania, 447 U.S.

23

federal officer immunity defense, where [he] did not allege exposure…aboard government
vessels.”139
F.

Foster Wheeler LLC’s Sur-Reply in Opposition to the Motion to Remand
In the sur-reply brief,140 Foster argues that Plaintiff’s reply in support of the Motion to

Remand “mischaracterizes applicable case law.”141 Specifically, Foster argues that Plaintiff
mischaracterizes the court’s decision in Hayden v. 3M Co.142 Foster alleges that in Hayden, the
Court did not “specifically reject the argument that an assertion of a cross-claim provides a
sufficient basis for jurisdiction,” as argued by Plaintiff, but that “[i]nstead, the Court found that a
defendant, who asserts a cross-claim, cannot use their own assertion of a cross-claim as a basis for
federal officer removal jurisdiction, because the removal statute requires defendant to raise a
colorable ‘defense’ to a ‘claim.’”143 And here, Foster argues, it is “not asserting its own crossclaim as basis of its removal,” but that “Avondale’s cross-claims against Foster are a sufficient
basis for Foster’s removal.”144
Additionally, Foster argues that Melancon v. Lamorak Ins. Co., “merely provides there
must be evidence to suggest exposure to equipment and/or products on federal vessels.”145 And

715, 719, 100 S.Ct. 2432, 2436, 65 L.Ed.2d 48 (1980)).
139

Id. at 7.

140

Rec. Doc. 39.

141

Id. at 1.

142

Id. (citing No. 15-2275, 2015 WL 4730741, at *1 (E.D. La. Aug. 10, 2015)).

143

Id.

144

Id. at 2.

145

Id. (citing Melancon v. Lamorak Ins. Co., No. 17-12367, 2018 WL 480823, at *6 (E.D. La. Jan. 19,

2018)).

24

here, Foster argues that standard is met through the Rome Affidavit which suggests “[Plaintiff]
worked on DE vessels around boilers.”146
G.

Plaintiff’s Supplemental Memorandum to Support Remand
Plaintiff files a supplemental memorandum to “advise the Court of the U.S. Fifth Circuit’s

most recent decision in Melancon v. Lamorak Ins. Co.147 Plaintiff states in both the original Motion
to Remand and reply memorandum, he relied upon the district court’s decision in Melancon.148
Plaintiff states that the Fifth Circuit has now considered and affirmed the remand order issued in
Melancon.149 Plaintiff further states that “the Fifth Circuit reiterated that the 2011 amendment does
not extend to plaintiff’s negligence claims against the Avondale Interests, which is ‘private
conduct that implicates no federal interests, as this would stretch the causal nexus requirement to
the point of irrelevance.’”150
H.

Plaintiff’s Second Supplemental Memorandum to Support Remand
Plaintiff files a supplemental memorandum to “make abundantly clear that Mr. Rome

cannot offer any testimony regarding whether or not Callen Dempster was exposed to asbestos on
a Destroyer Escort and to further illustrate that the sole purpose of the filing of the motion to
remand was to delay Mr. Dempster’s November 5, 2018, trial date in state court, which the
defendants have now succeeded in doing.”151 Plaintiff’s supplemental filing includes a second

146

Id.

147

Id. at 1 (citing 2018 U.S. App. LEXIS 20798 (5th Cir. 2018)).

148

Id.

149

Id.

150

Id. (citing Melancon, 2018 U.S. App. LEXIS 20798, at *4).

151

Rec. Doc. 74-1 at 1.

25

affidavit from Mr. Rome, which confirms he never personally saw Plaintiff working aboard
government vessels, working in a boiler room, or exposed to asbestos.152
I.

Avondale Interests’ Supplemental Memorandum to Oppose Remand
Avondale Interests file a supplemental memorandum to address the second affidavit

submitted by Mr. Rome and show that it “did not alter the issues before this Court.”153 Avondale
Interests attach a deposition of Mr. Rome that primarily repeats the testimony already presented
in his previous two affidavits.154 In this deposition, Mr. Rome confirms that he did not work
directly with the Plaintiff,155 but that he left notes for the night crew and that insulators generally
were exposed to asbestos aboard government vessels.156 Further, Mr. Rome confirms that
“insulators many times would have to work with insulation that didn’t contain asbestos” and that
during this period some insulators worked with rubber and fiberglass.157 Regarding whether
Plaintiff was exposed to asbestos, Mr. Rome states that “it depends where he was working at…if
they was close to it.”158
III. Legal Standard
Pursuant to the current text of 28 U.S.C. § 1442(a)(1), a civil action commenced in state
court against “[t]he 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

152

Rec. Doc. 74-4 at 1.

153

Rec. Doc. 80-1 at 1.

154

Rec. Doc. 80-2.

155

Id. at 24.

156

Id. at 14.

157

Id. at 24.

158

Id. at 22.

26

or relating to any act under color of such office” may be removed to federal court. The purpose of
the federal officer removal statute is to protect the Federal Government from undue state
interference of its lawful activities.159 Before Section 1442(a)(1) was amended in 2011, a person
acting under a federal officer could only remove a case to federal court if the state lawsuit was “for
any act under color of such office;” after the 2011 amendment, Section 1442 allows removal of a
state suit “for or relating to any act under color of such office.”160 According to the Fifth Circuit,
“[t]he plain meaning of the added language broadens the scope of the statute as the ordinary
meaning of [the phrase ‘relating to’] is a broad one—‘to stand in some relation; to have bearing or
concern; to pertain; refer; to bring into association with or connection with.’”161
Unlike the general removal statute, which must be “strictly construed in favor of remand,”
the federal officer removal statute’s language must be liberally interpreted.162 Nonetheless, its
“broad language is not limitless.”163 It is the removing party’s burden to establish the existence of
federal jurisdiction over the controversy.164 Orders remanding a case to state court that was
removed pursuant to the federal officer removal statue are appealable under 28 U.S.C. § 1447(d)
and are reviewed de novo by the Fifth Circuit, “without a thumb on the remand side of the scale.”165
159

See Mesa v. California, 489 U.S. 121, 126 (1989); Bartel v. Alcoa Steamship Co., 64 F. Supp. 3d 843,
852–53 (M.D. La. 2014), aff’d sub nom. Bartel v. Alcoa S.S. Co., 805 F.3d 169 (5th Cir. 2015); St. Bernard Port,
Harbor & Terminal Dist. v. Violet Dock Port, Inc., LLC, 809 F. Supp. 2d 524, 529 (E.D. La. 2011) (Vance, J.).
160

28 U.S.C. § 1442(a)(1) (emphasis added); Zeringue v. Crane Co., 846 F.3d 785, 793 (5th Cir. 2017)
(discussing the 2011 amendment).
161

Zeringue, 846 F.3d at 793 (quotation marks omitted).

162

Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 147 (2007); Winters v. Diamond Shamrock Chem.
Co., 149 F.3d 387, 398 (5th Cir. 1998) (“Furthermore, this right is not to be frustrated by a grudgingly narrow
interpretation of the removal statute.”); Bartel, 64 F. Supp. 3d at 852–53; St. Bernard Port, Harbor & Terminal Dist.,
809 F. Supp. 2d at 529.
163

Watson, 551 U.S. at 147; Winters, 149 F.3d at 397.

164

Winters, 149 F.3d at 397; St. Bernard Port, Harbor & Terminal Dist., 809 F. Supp. 2d at 529.

165

Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 460 (5th Cir. 2016).

27

The Fifth Circuit has adopted a three-part inquiry to determine whether a government
contractor qualifies as a “person acting under [a federal] officer” who is sued “in an official or
individual capacity for any act under color of such office.”166 The contractor must prove that: (1)
it is a “person” within the meaning of the statute; (2) it acted pursuant to a federal officer’s
directions, and a causal nexus exists between its actions under color of federal office and the
plaintiff’s claims; and (3) it has a colorable federal defense to the plaintiff’s claims.167
IV. Analysis
While the parties present numerous arguments,168 for the reasons that follow, the Court
finds that removal pursuant to 28 U.S.C. § 1442(a)(1) was improper. Defendants have not shown
that the necessary causal nexus between Avondale Interests’ or Foster’s actions under color of
federal office and Plaintiff’s negligence claims exists. As stated supra, in order to show that
removal under the federal officer removal statute is proper, Defendants must show that: (1) they
are “person[s]” within the meaning of the statute; (2) they acted pursuant to a federal officer’s
directions, and a causal nexus exists between their actions under color of federal office and the
plaintiff’s claims; and (3) they have a colorable federal defense to the plaintiff’s claims.169

166

Id.; St. Bernard Port, Harbor & Terminal Dist., 809 F. Supp. 2d at 529.

167

Winters, 149 F.3d at 397; Savoie, 817 F.3d at 460; St. Bernard Port, Harbor & Terminal Dist., 809 F.
Supp. 2d at 529.
168
Plaintiff raises multiple arguments in favor of remand related to the timeliness of removal and removal
under a colorable federal defense. However, the Court finds it only needs to address one basis for remand in this
case: the federal officer removal statute.
169

28 U.S.C. § 1442(a)(1); Winters, 149 F.3d at 397; Savoie, 817 F.3d at 460; St. Bernard Port, Harbor &
Terminal Dist., 809 F. Supp. 2d at 529; see also Blouin v. Huntington Ingalls Inc., No. 17-2636, 2017 WL 2628103,
at *5 (E.D. La. June 19, 2017) (Zainey, J.).

28

A. Analysis of Avondale Interests’ Removal Arguments
With regard to the first factor, Plaintiff does not dispute that Avondale, as a corporation,
qualifies as a “person” within the meaning of Section 1442. Both the Supreme Court and the Fifth
Circuit have recognized that the removal statute applies to both private persons and corporate
entities “‘who lawfully assist’ the federal officer ‘in the performance of his official duty.’”170
Therefore, the Court finds that Avondale has sufficiently shown that the corporation is a “person”
within the meaning of the federal officer removal statute.
With regard to the second factor, Plaintiff argues that Avondale Interests cannot show that
the corporation acted pursuant to a federal officer’s directions when it allegedly failed to warn and
protect Plaintiff from the dangers of asbestos, or that there is a causal nexus between Avondale
Interests’ actions under color of federal office and Plaintiff’s negligence claims.171 First, Plaintiff
disputes that he ever came into contact with asbestos aboard a government vessel.172 Plaintiff stated
in his deposition that he “only worked a short time on those government ships,” and that he worked
with fiberglass and cloth that did not contain asbestos.173 Further, Plaintiff stated that he did not
work in the engine rooms of government vessels because he was a new employee that “was just
learning” and was not yet fully trained.174 If Plaintiff never came into contact with asbestos aboard
a government vessel, then no federal interest is implicated, and no federal jurisdiction exists.175
170

Savoie, 817 F.3d at 461 (quoting Watson, 551 U.S. at 151 (quoting Davis v. South Carolina, 107 U.S. 597,
600 (1883))).
171

Rec. Doc. 4-1 at 7–20.

172

Rec. Doc. 4-23 at 3–4.

173

Id.

174

Id. at 4.

175

See Willingham v. Morgan, 395 U.S. 402, 407 (1969) (“Federal jurisdiction rests on a ‘federal interest in
the matter,’ the very basic interest in the enforcement of federal law through federal officials.”) (internal citations
omitted).

29

The only evidence of exposure on which Defendants rely is the affidavit of another
Avondale insulator, Mr. Rome. In his first affidavit, Mr. Rome states that he and other insulators,
like Plaintiff, were “exposed to asbestos by working with or around asbestos-containing materials
while working on DE vessels,” that he knew Plaintiff worked on the same vessels that he did
because “I [Rome] would leave instructions for the night crew, which included [Plaintiff],” and
that the duties of Avondale insulators included work with asbestos-containing products.176
However, as Mr. Rome was a member of the night crew, he does not have personal knowledge
that Plaintiff, a member of the day crew, ever dealt with asbestos aboard a government vessel.177
Rather, he only has knowledge that insulators generally were exposed to asbestos-containing
materials.178 This is further confirmed by both the subsequent affidavit submitted by Plaintiff and
the deposition transcript submitted by Avondale Interests.179 In the second affidavit, Mr. Rome
confirms that he never personally saw Plaintiff working aboard government vessels, working in a
boiler room, or exposed to asbestos.180 In his submitted deposition, Mr. Rome again confirms that
he did not work directly with the Plaintiff,181 but that he left notes for the night crew and that
insulators generally were exposed to asbestos aboard government vessels.182 Further, Mr. Rome
confirms that “insulators many times would have to work with insulation that didn’t contain

176

Rec. Doc. 1-3 at 1–2.

177

See id.

178

See id.

179

Rec. Docs. 74-4, 80-2.

180

Rec. Doc. 74-4 at 1.

181

Id. at 24.

182

Id. at 14.

30

asbestos” and that during this period some insulators worked with rubber and fiberglass.183
Regarding whether Plaintiff was exposed to asbestos, Mr. Rome states that “it depends where he
was working at…if they was close to it.”184
In contrast, Plaintiff states in his deposition that he was a new employee during the short
time he worked on government vessels, and thus did not handle the same materials or work on the
same parts of the vessel as more senior insulators, such as Mr. Rome.185 The present facts are
similar to Melancon v. Lamorak Insurance Company, a case from the Eastern District of Louisiana
that was subsequently affirmed by the Fifth Circuit.186 In Melancon, the district court found there
was no federal interest in the matter, in part, because Defendants had failed to show that plaintiff,
who worked outside the engine room, was exposed to asbestos via a boiler in the engine room.187
Here, Defendants present no evidence that Plaintiff came into contact with asbestos aboard a
government vessel, and thus, no federal interest is implicated.
Moreover, even if the Court was to accept Defendants’ argument that Plaintiff came into
contact with asbestos aboard a government vessel as true, the Court does not find that the necessary
causal nexus exists between Federal Government action and Plaintiff’s injury. Avondale Interests
assert that, under the current “for or relating to” language of Section 1442(a)(1), Avondale has
demonstrated that the duties of care it owed Plaintiff resulted directly from the government’s
specifications to use asbestos-containing materials in constructing the federal vessels.188

183

Id. at 24.

184

Id. at 22.

185

See Rec. Doc. 4-23 at 3–4.

186

See Melancon v. Lamorak Insurance Company, 2018 U.S. App. LEXIS 20798, *6 (5th Cir. 2018).

187

See id.

188

Rec. Doc. 1 at 4–5.

31

Therefore, Avondale Interests argue that Plaintiff’s negligence claims are “related to” its actions
pursuant to the Federal Government’s directions.189
In Bartel v. Alcoa S.S. Company, a 2015 case decided after Section 1442(a) was amended
in 2011, the Fifth Circuit explained that it is “necessary but not sufficient for a defendant to show
it ‘acted pursuant to a federal officer’s directions,’” as the removing party must also show that a
causal nexus exists.190 In Bartel, the Fifth Circuit instructed that, when considering whether a
causal nexus exists for removal, it is “important to understand the nature of the plaintiffs’
allegations . . . [for] failure to warn, failure to train, and failure to adopt procedures for the safe
installation and removal of asbestos.”191 Thus, the Bartel court opined that the proper approach for
such negligence claims is to consider whether the Federal Government exercised control over
safety requirements such that a failure to warn was caused by the Federal Government’s
instructions.192 Because the defendants “[could] do no better than to show that the Federal
Government owned the vessels in question” and did not produce evidence that the Federal
Government issued orders relating to safety procedures or asbestos, the Fifth Circuit held that
remand was proper.193 “What little evidence there is suggests the Federal Officer Defendants
operated the vessels in a largely independent fashion and, at a minimum, were free to adopt the
safety measures the plaintiffs now allege would have prevented their injuries.”194

189

Id.

190

Bartel v. Alcoa S.S. Co., 805 F.3d 169, 172 (5th Cir. 2015) (emphasis added) (quoting Winters, 149 F.3d

191

Id. at 173.

192

Id. (citing Lalonde v. Delta Field Erection, No. 96-3244, 1998 WL 34301466, at *1 (M.D. La. Aug. 6,

193

Id. at 174.

194

Id.

at 398).

1998)).

32

A year later in Savoie v. Huntington Ingalls, Inc., the Fifth Circuit again held that, “with
respect to the [plaintiff’s] negligence claims, we agree with the district court that the federal
government’s mandate of asbestos insulation did not cause the shipyard to engage in the
challenged conduct.”195 In other words, the Fifth Circuit concluded that negligence claims for
failing to warn of the dangers of asbestos or to take safety precautions against asbestos exposure
“did not challenge actions taken under color of federal authority even though the government was
responsible for the existence of the asbestos.”196 The Fifth Circuit noted that the shipyard failed to
demonstrate that its government contracts “prevented it from taking any of these protective
measures identified by Plaintiffs,” as an affidavit stating that the Navy inspected and oversaw the
vessels for safety was insufficient to trigger Section 1442(a)(1) jurisdiction.197 The Fifth Circuit
further pointed out that the other evidence presented made clear that the government had no control
over the shipyard’s safety procedures or safety department.198 In sum, the Fifth Circuit concluded
that because the plaintiff’s negligence claims “challenge[d] discretionary acts of the shipyard free
of federal interference” and “the government’s directions to the shipyard via the contract
specifications did not cause the alleged negligence,” removal on those grounds was not proper.199
The Fifth Circuit further determined, however, that the plaintiff’s strict liability claims against the
shipyard, which were premised on the “mere use of asbestos” and “do not turn on discretionary
decisions made by the shipyard,” supported federal officer removal.200

195

817 F.3d 457, 462 (5th Cir. 2016).

196

Id.

197

Id. at 463.

198

Id.

199

Id.

200

Id. at 465.

33

A line of similar asbestos cases before the Fifth Circuit culminated in Legendre v.
Huntington Ingalls, Inc., wherein the court again affirmed a district court order remanding an
asbestos case to state court.201 The plaintiffs in Legendre alleged that Huntington Ingalls failed to
warn them of the risks of asbestos exposure and failed to implement proper safety procedures for
handling asbestos.202 Referencing earlier cases, the Fifth Circuit explained that strict liability
claims that “rest[ ] on the mere use of asbestos” support removal because they are “causally linked
to the [government’s] requirement that its ships contain asbestos.”203 But negligently “failing to
warn, train, and adopt safety procedures regarding asbestos” does not support removal because it
is “private conduct that implicate[s] no federal interest.”204
This Court has also addressed the distinction between the federal officer removal standard
for acts of negligence and strict liability in Templet v. Huntington Ingalls, Inc.205 In Templet, the
Fifth Circuit ultimately affirmed this Court’s opinion, holding that negligence claims do not
support federal officer removal, while strict liability claims do support federal officer removal.206
The Fifth Circuit stated that removal is not appropriate in asbestos cases where the plaintiff brings
negligence claims and there is no evidence the Federal Government exercised control over the
operations of private employers.207 Specifically, the Fifth Circuit stated that “allowing removal

201

885 F.3d 398 (5th Cir. 2018).

202

See 885 F.3d at 399

203

Id. at 401 (quoting Savoie, 817 F.3d at 465–66).

204

Id. at 402 (quoting Zeringue, 846 F.3d at 794).

205

2018 WL 2049145 (E.D. La. May 1, 2018), affirmed 720 Fed. Appx. 726 (May 1, 2018).

206

See Templet v. Huntington Ingalls, Inc., 2018 WL 2049145 (E.D. La. May 1, 2018), affirmed 720 Fed.
Appx. 726 (May 1, 2018).
207

See id. at 727.

34

when the defendants were free to adopt the safety measures at issue, ‘would have stretched the
causal nexus requirement to the point of irrelevance.’”208
Most recently, the Fifth Circuit affirmed a ruling by another district judge in the Eastern
District of Louisiana remanding Melancon v. Lamorak Insurance Company, the “latest in an everincreasing line of cases brought by former Huntington Ingalls employees or their family members
in state court alleging asbestos exposure.”209 In Melancon, the Fifth Circuit once again
acknowledged the amendment to the statutory language and found that the case was properly
remanded by the district court because plaintiff brought negligence claims and “there is no
evidence that Huntington Ingalls could not have adopted the warnings or safety procedures
proposed by the Melancons.”210
This litigation was removed to this Court by Avondale Interests, consisting of Defendants
Huntington Ingalls Incorporated, Albert Bossier, Jr., J. Melton Garret, and Lamorak Insurance
Company.211 Avondale Interests allege that removal is proper because this is an action “for or
relating to conduct under color of federal office commenced in a state court against persons acting
under one or more federal officers within the meaning of 28 U.S.C. § 1442(a)(1).”212
Plaintiff alleges that he was employed by Avondale from 1962 to 1994.213 During that time,
Plaintiff avers that he was exposed to asbestos and asbestos-containing products in various
locations and work sites, resulting in Plaintiff breathing in asbestos fibers and later developing

208

Id. (quoting Zeringue, 846 F.3d at 794).

209

Melancon v. Lamorak Ins. Co., 2018 U.S. App. LEXIS 20798, *1 (5th Cir. 2018).

210

Id. at *2.

211

Rec. Doc. 1 at 2.

212

Id.

213

Rec. Doc. 1-2 at 4.

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asbestos-related cancer.214 Plaintiff asserts strict liability and negligence claims against various
Defendants.215 But specifically, Plaintiff alleges that:
All asbestos companies had care, custody, and control of the asbestos,
which asbestos was defective and which presented an unreasonable risk of harm,
which asbestos resulted in the injury of Mr. Dempster and for which these
defendants are liable under Louisiana law. However, with regard to Avondale and
its executive officers, they are liable because they failed to properly handle and
control the asbestos which was in their care, custody, and control. Petitioners are
not alleging that Avondale and its executive officers are liable for the mere use of
asbestos; rather, Avondale and its executive officers are liable for the misuse of
asbestos, including but not limited to the failure to warn of the hazardous nature
and dangers of asbestos and for the failure to take and implement reasonably safe
and industrial hygiene measures, failure to train, and failure to adopt safety
procedures for the safe installation and removal of asbestos.216
Plaintiff has only brought negligence claims against Avondale for its alleged failure to take
certain safety precautions and warn Plaintiff about the dangers of asbestos.217 These allegations
are distinguishable from the allegations in Savoie, where the Plaintiff brought some negligence
claims against Huntington Ingalls, Inc. and some strict liability claims against Huntington Ingalls,
Inc.218 Instead, these allegations are similar to the allegations in Templet, where the plaintiff
alleged that Avondale acted negligently by failing to: (1) provide Plaintiff with a safe work
environment or adequate safety equipment; (2) warn Plaintiff about the hazards of asbestos or

214

Id.

215

Id.

216

Id. at 6–7.

217

Id. at 11–15.

218

See Savoie, 817 F.3d at 463–64 (“The district court found that the claims the Savoies labeled as ‘strict
liability’ causes of action in actuality alleged negligence. This is true of some of the claims given that label such as
the one that alleges that the shipyard ‘was aware or should have been aware of the dangerous condition presented by
exposure to asbestos” yet “failed and/or willfully withheld from Mr. Savoie knowledge of the dangers to his health
from exposure to asbestos fiber.’ But others—'All defendants had care, custody, and control of the asbestos, which
asbestos was defective and which presented an unreasonable risk of harm, which asbestos resulted in the injury of
Mr. Savoie and for which these defendants are strictly liable under Louisiana law’—are based on the mere use of
asbestos on the ships and therefore fit the strict liability label.”).

36

reveal critical information regarding the risks associated with asbestos; (3) timely remove asbestos
hazards from the workplace; (4) properly ensure compliance with safety regulations; (5) provide a
safe means of eliminating asbestos dust in the air; and (6) provide necessary protections to lessen
or eliminate the transfer of asbestos from the workplace to Plaintiff’s home.219 Plaintiff does not
assert any strict liability claims Avondale Interests, as Plaintiff goes to efforts to make clear in its
petition, as quoted supra.220 Based on the foregoing, and in light of the Fifth Circuit’s holdings in
Bartel, Savoie, Legendre, Templet, and Melancon the Court finds that Avondale Interests has not
shown the second prong of the federal officer removal statute is met, i.e. that a causal nexus exists
between its actions under color of federal office and the plaintiff’s claims.
In response, Avondale Interests point to the existence of the Federal Government contract
as the basis for Plaintiff’s work and the Federal Government’s specifications that asbestoscontaining products were to be used in constructing the federal vessels.221 Avondale further argues
that the 2011 amendment to the text of Section 1442(a)(1) widens the scope of the federal officer
removal statute.222 However, as the Fifth Circuit has made clear in multiple cases decided under
the current version of 28 U.S.C. § 1442(a)(1), removal is not proper when the “federal
government’s mandate of asbestos insulation did not cause the shipyard to engage in the
challenged conduct.”223 In Zeringue v. Crane Company, a case decided in 2017, the Fifth Circuit

219

See Templet v. Huntington Ingalls, Inc., 274 F.Supp. 3d 469, 483 (E.D. La. 2017).

220

See Rec. Doc. 1-2 at 6–7.

221

See Rec. Doc. 21 at 29 ( Removal is appropriate“[b]ecause Avondale has submitted evidence showing
that the Navy Destroyer Escorts and the Coast Guard Cutters, aboard which [Plaintiff] was allegedly exposed to
asbestos, were built under contracts executed between Avondale and the United States government and contained
mandatory terms, conditions and specifications imposed upon Avondale by the government.”).
222

Id.

223

See Savoie, 817 F.3d at 462.

37

directly addressed the effect of the 2011 amendment on Section 1442.224 In Zeringue, the Fifth
Circuit confirmed that Section 1442, “both before and after the 2011 amendment,” requires the
causal nexus prong to be satisfied, and that while the 2011 amendment expanded the breadth of
acts within the removal statute’s reach, courts should not “attenuate the causal nexus requirement
‘to the point of irrelevance.’”225
While the Zeringue court ultimately concluded that removal was proper because the
manufacturer-defendant had shown that it was ordered by the Navy to provide the asbestoscontaining parts on which the plaintiff’s strict liability claims were premised, it recognized that its
holding was consistent with the Fifth Circuit’s decision in Bartel, that involved claims for failure
to warn or provide safety measures analogous to Plaintiff’s here.226 The Fifth Circuit recognized
that the conduct in Bartel “implicated no federal interest,” and allowing those defendants to
remove “would have stretched the causal nexus requirement to the point of irrelevance.”227 Thus,
contrary to Avondale’s suggestion that the decision in Zeringue supports removal here, Zeringue
confirms that Bartel remains good law.228 By contrast, Avondale does not distinguish the facts of
this case from the negligence claims raised in Bartel, Savoie, Legendre, Templet, and Melancon,
or otherwise show how Plaintiff’s claims are “related to” Avondale’s acts under color of federal
office such that a causal nexus exists.

224

846 F.3d 785, 793 (5th Cir. 2017).

225

Id. (citing Wilde v. Huntington Ingalls, Inc., 616 Fed. App’x 710, 713 (5th Cir. 2015)).

226

Id. at 788, 794.

227

Id. at 794.

228

See, e.g., Blouin v. Huntington Ingalls Inc., No. 17-2636, 2017 WL 2628103, at *6 (E.D. La. June 19,
2017) (Zainey, J.) (“Simply, Zeringue expressly recognizes that Bartel remains a correct result even under the 2011
amendments.”).

38

Here, like in Bartel, Plaintiff only asserts negligence claims against his employer,
Avondale, for its failure to meet its duties to Plaintiff. Moreover, Avondale Interests have adduced
no evidence that the Federal Government prevented Avondale from taking the protected measures
identified by Plaintiff or exercised control over Avondale’s safety procedures or safety
department.229 In other words, Avondale has not demonstrated that its own discretionary decisions
to allegedly fail to warn or protect Plaintiff from the dangers of asbestos while Plaintiff was
employed by Avondale resulted from or are “related to” its actions under color of federal office,
to the extent that any such actions exist.230 As such, this case is distinguishable from Papp v. ForeKast Sales Company, decided by the Third Circuit in 2016,231 and Sawyer v. Foster Wheeler LLC,
decided by the Fourth Circuit in 2017,232 which both found that there was evidence that the Federal
Government exercised some control over asbestos warnings and safety materials, and thus removal
of a failure to warn claim was proper.233 Rather, similar to the plaintiff in Savoie, Plaintiff has
pointed to affidavits from both a federal inspector and a former Avondale Safety Director that
confirmed that the Federal Government did not exercise any control over Avondale’s safety
department or its compliance with safety regulations.234 Therefore, based on the Fifth Circuit case
law and the facts as presented in this case, the Court finds Avondale Interests’ removal pursuant
to 28 U.S.C. § 1442(a)(1) was improper.

229

Savoie, 817 F.3d at 463.

230

28 U.S.C. § 1442(a)(1).

231

842 F.3d 805, 813 (3d Cir. 2016).

232

860 F.3d 249, 258 (4th Cir. 2017).

233

Sawyer, 860 F.3d at 258 (noting that the Navy dictated the content of warnings on the defendant’s boilers);
Papp, 842 F.3d at 813 (pointing out that the United States Armed Forces exercised control over the written materials
and warnings associated with the aircraft at issue).
234

See Rec. Doc. 4-21, 4-19.

39

B. Analysis of Foster’s Removal Argument
As an alternative to Avondale Interests’ arguments for removal, Foster argues that federal
officer removal is also appropriate based on its role in the case.235 Therefore, Foster must show (1)
it is a “person” within the meaning of the statute; (2) it acted pursuant to a federal officer’s
directions, and a causal nexus exists between its actions under color of federal office and the
plaintiff’s claims; and (3) it has a colorable federal defense to the plaintiff’s claims.236 Plaintiff
does not argue that Foster is not a “person” within the meaning of Section 1442. However, Foster’s
claim fails because, like Avondale Interests, it cannot demonstrate that it acted pursuant to a federal
officer’s direction and a causal nexus exists between Plaintiff’s claims and Foster’s actions.
Foster’s removal argument is grounded in Foster’s claim that the Federal Government
directed it in specifications for design and manufacture of boilers, along with warning labels Foster
could place on boilers that might have been relevant in preventing Plaintiff’s injury.237 However,
Plaintiff disputes that he ever came into contact with asbestos aboard a government vessel.238
Plaintiff stated in his deposition that he “only worked a short time on those government ships,”
and that he worked with fiberglass and cloth that did not contain asbestos.239 Further, Plaintiff
stated that he did not work in the engine rooms of government vessels because he was a new
employee that “was just learning” and was not yet fully trained.240 If Plaintiff did not work in the

235

See Rec. Doc. 12.

236

28 U.S.C. § 1442(a)(1); Winters, 149 F.3d at 397; Savoie, 817 F.3d at 460; St. Bernard Port, Harbor &
Terminal Dist., 809 F. Supp. 2d at 529; see also Blouin v. Huntington Ingalls Inc., No. 17-2636, 2017 WL 2628103,
at *5 (E.D. La. June 19, 2017) (Zainey, J.).
237

Rec. Doc. 12 at 8–12.

238

See Rec. Doc. 4-23 at 3–4.

239

Id.

240

Id. at 4.

40

engine room of a government vessel, he would not have come into contact with asbestos from a
Foster boiler, located in the engine room.241 Foster relies on the affidavit of Mr. Rome, which it
calls a “game changer,” to prove that Plaintiff came into contact with asbestos from one of Foster’s
boilers aboard a government vessel.242 However, Mr. Rome’s affidavit presents no personal
knowledge regarding Plaintiff’s work aboard a government vessel, the existence of a Foster boiler
aboard a specific vessel, or Plaintiff’s alleged exposure to asbestos aboard a government vessel.243
The subsequent affidavit from Mr. Rome and his deposition further demonstrate that he lacked
knowledge that Plaintiff specifically was exposed to asbestos aboard a government vessel.244
Plaintiff’s testimony contradicts Foster’s assertions that Plaintiff was exposed to asbestos by one
of Foster’s boilers aboard a government vessel, and Foster fails to provide relevant contradictory
evidence. As found supra regarding Avondale Interests, if Plaintiff never came into contact with
asbestos aboard a government vessel, then no federal interest is implicated, and no federal
jurisdiction exists.245
The conclusion that removal was improper is further supported by the long line of Fifth
Circuit cases cited supra, including Bartel, Savoie, Legendre, Templet, and Melancon, which hold
that removal is appropriate for strict liability claims, but not for negligence claims. Specifically,
this case is distinguishable from Zeringue, where the court ultimately concluded that removal was
proper because the manufacturer-defendant had shown that it was ordered by the Navy to provide

241

Id. at 3–4

242

Rec. Doc. 12 at 6.

243

See Rec. Doc. 1-3 at 1–2.

244

See Rec. Docs. 74-4, 80-1.

245

See Willingham v. Morgan, 395 U.S. 402, 407 (1969) (“Federal jurisdiction rests on a ‘federal interest in
the matter,’ the very basic interest in the enforcement of federal law through federal officials.”) (internal citations
omitted).

41

the asbestos-containing parts on which the plaintiff’s strict liability claims were premised.246 Here,
Plaintiff does not assert a claim against Foster based on exposure to asbestos aboard a federal
vessel.247 Specifically, Plaintiff stated in the petition that “with regard to Foster Wheeler boilers,
plaintiff alleges that Mr. Dempster was exposed to asbestos from Foster Wheeler boilers on
commercial vessels only.”248 Further, Plaintiff stated that “Petitioner’s causes of action are based
upon the acts and omissions of defendants or those for whom the defendants are responsible, and
are specifically not based upon any act committed by the United States Government or at the
direction of the United States Government.”249 While Plaintiff does bring strict liability claims
against Foster, those claims are only in relation to his work on commercial vessels.250 Plaintiff
does not bring strict liability claims against Foster on a government vessel, because he alleges he
was not exposed to asbestos aboard a government vessel.251 Therefore, Zeringue, in which the
Plaintiff brought strict liability claims against the product manufacturer tied to the plaintiff’s work
on a government vessel, is distinguishable.252
Finally, Foster argues that cross-claims, brought by Avondale Interests against Foster, can
serve as an alternative basis for Removal.253 Foster specifically claims that “it is clear that the
causal nexus test is satisfied if either Plaintiff or Removing Defendants’ claims arise from the use

246

Zeringue, 846 F.3d at 788, 794.

247

Rec. Doc. 35 at 6.

248

Rec. Doc. 4-5 at 29–30.

249

Id. at 31.

250

See id. at 29–30.

251

See Rec. Doc. 4-23 at 3–4.

252

See Zeringue, 846 F.3d at 788, 794.

253

Rec. Doc. 12 at 19.

42

of asbestos in a product that the defendant designed and manufactured upon the government’s
request, particularly if (as here) the government contracted for the product’s supply despite
knowledge of its potential hazard.”254 However, Avondale Interests has not included any additional
claims in its cross-claims against Foster, rather, as Plaintiff points out, Avondale Interests “merely
adopted plaintiff’s allegations.”255 Therefore, if removal is not proper on the basis of Plaintiff’s
claims against Avondale Interests, it is also not proper on the basis of Avondale Interests’ claims
against Foster, which adopt the same allegations and basis for fault.
Based on Foster’s failure to prove Plaintiff’s exposure to asbestos by a Foster boiler aboard
a government vessel, Plaintiff’s carefully worded petition, and clear Fifth Circuit precedent, the
Court finds that Foster’s removal pursuant to 28 U.S.C. § 1442(a)(1) was improper.
V. Conclusion
In short, Avondale Interests and Foster have identified no evidence nor any plausible
reason to distinguish this matter from the clear Fifth Circuit holdings in Bartel, Savoie, Legendre,
Templet, and Melancon, or the recent conclusions of several district courts that rejected the same
arguments put forth by Avondale Interests and Foster here.256 Allowing removal of Plaintiff’s
negligence claims, without proof of exposure aboard a government vessel, would not serve the
basic purpose of Section 1442, i.e. “to protect the Federal Government from . . . interference with

254

Id.

255

See Rec. Doc. 27-6 at 3; Rec. Doc. 27-7 at 2–3.

256

See, e.g., Blouin, No. 17-2636, 2017 WL 2628103, at *6 (rejecting Avondale’s argument that it could
remove claims for failure to warn and failure to implement safety measures under the 2011 amendments to Section
1442); Legendre v. Huntington Ingalls Inc., No. 17-2162, 2017 WL 1458209, at *5 (E.D. La. Apr. 25, 2017) (Africk,
J.) (finding that Avondale failed to establish a causal nexus with the plaintiff’s negligence claims challenging
Avondale’s discretionary decisions); Wilde v. Huntington Ingalls Inc., No. 15-1486, 2015 WL 2452350, at *6 (E.D.
La. May 21, 2015) (Fallon, J.) (determining that there was no evidence that the government restricted Avondale’s
ability to warn of the asbestos dangers, and therefore there was no jurisdiction over the plaintiff’s failure to warn
claims).

43

its ‘operations.””257 Because Avondale Interests and Foster have not shown that the necessary
causal nexus between their actions under color of federal office and Plaintiff’s claims exists, the
Court finds that removal pursuant to 28 U.S.C. § 1442(a)(1) was improper. Accordingly, the Court
concludes that the above-captioned matter must be remanded for lack of subject matter
jurisdiction,258 and therefore grants the Motion to Remand.259 Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s “Motion to Remand”260 is GRANTED and
that the case is remanded to the Civil District Court for the Parish of Orleans, State of Louisiana.

7th day of January, 2019.

NEW ORLEANS, LOUISIANA, this

_________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

257

Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 142 (2007).

258

See Savoie, 817 F.3d at 462; Bartel, 805 F.3d at 172.

259

Rec. Doc. 4. Additionally, because the Court finds that Defendants have not satisfied the causal nexus
requirement for removal under Section 1442(a)(1), the Court need not address Plaintiff’s other arguments, including
those related to the timeliness of the removal or colorable federal defenses.
260

Id.

44