Legendre v. Lamorak Insurance Company, et al

Filing 240

ORDER denying 61 Motion to Remand to State Court. The motion is denied, as set forth in document. Signed by Judge Greg Gerard Guidry on 03/31/2021. (ko)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

STEPHEN R. LEGENDRE

CIVIL ACTION

VERSUS

NO: 19-14336

LAMORAK INSURANCE COMPANY,
et al.

SECTION: T (5)

ORDER
Before the Court is a motion to remand to state court filed by Plaintiff Stephen R.
Legendre, 1 now substituted by Kathleen Legendre, his wife, and his children, Stephen Legendre,
Jr., Scott Legendre, and Robert Legendre (hereafter, “Plaintiffs”). Defendants, the Avondale
Interests, have filed an opposition.2 Plaintiffs filed a reply in support of their motion. 3 With leave
of Court, Plaintiffs also a filed a supplemental memorandum, 4 to which Defendants filed a
response. 5 Plaintiffs then filed a reply.6 For the reasons set forth below, the motion to remand is
DENIED.
FACTS AND PROCEDURAL HISTORY
In October 2019, Plaintiff filed his Petition for Damages in state court alleging that he was
diagnosed with malignant mesothelioma in September 2019, and that his mesothelioma was caused

1

R. Doc. 61.
R. Doc. 67. Huntington Ingalls Incorporated (f/k/a Northrop Grumman Shipbuilding, Inc., f/k/a
Northrop Grumman Ship Systems, Inc., f/k/a Avondale Industries, Inc., f/k/a Avondale
Shipyards, Inc., and f/k/a Avondale Marine Ways, Inc.) and Lamorak Insurance Company1
(collectively hereafter “the Avondale Interests”).
3
R. Doc. 70.
4
R. Doc. 165.
5
R. Doc. 173.
6
R. Doc. 176.
1
2

by exposure to asbestos from several sources, including asbestos allegedly brought home on the
Avondale work clothes of his father, Percy Legendre, Sr. Plaintiff alleged that his father worked
at Avondale in “various positions” from 1943 to 1945, and was exposed to asbestos “on a daily
basis.” 7
Defendants filed a Notice of Removal pursuant to the Federal Officer Removal Statute, 28
U.S.C. § 1442, 8 based on allegations of exposure to asbestos sustained by Stephen Legendre
through the work of his father, Percy Legendre, Sr., at Avondale Shipyard. 9 Plaintiffs filed a
motion to remand asserting that they have not alleged strict liability claims, only negligence
claims, and that federal jurisdiction is not warranted for three reasons. First, Plaintiffs contend the
Avondale Interests cannot show that Mr. Legendre’s father, Percy Legendre, Sr., was exposed to
asbestos on government vessels. Second, Plaintiffs argue that, even if Percy Legendre, Sr. was
exposed to asbestos in connection with government contracts, the Avondale Interests cannot show
they complied with the government’s requirements or specifications with regard to the safe

7
8

R. Doc. 1-1.
28 U.S.C. § 1442(a)(1) provides as follows:
(a) A civil action or criminal prosecution that is commenced in a State court and that is
against or directed to any of the following may be removed by them to the district court
of the United States for the district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting
under that officer) of the United States or of any agency thereof, in an official
or individual capacity, for or relating to any act under color of such office or on
account of any right, title or authority claimed under any Act of Congress for
the apprehension or punishment of criminals or the collection of the revenue.

9

R. Doc. 1. Plaintiff also alleged exposure to asbestos brought home on the clothing and persons
of his brothers, Percy Legendre, Jr. (who worked for Avondale) and Floyd Legendre (who
worked for Entergy). Defendants’ removal is premised upon the work performed by plaintiff’s
father, Percy Legendre, Sr. R. Doc. 61-1, p.1 n. 1.
2

handling of asbestos. Finally, Plaintiffs contend the Avondale Interests cannot show they have a
colorable federal defense.
LAW and ANALYSIS
Generally, a defendant may remove a civil state court action to federal court if the federal
court has original jurisdiction over the action.10 The burden is on the removing party to show “that
federal jurisdiction exists and that removal was proper.”11 When determining whether federal
jurisdiction exists, courts consider “the claims in the state court petition as they existed at the time
of removal.” 12
Section 1442(a)(1) makes removable a civil action commenced in a 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 or relating
to any act under color of such office[.]”13 “[T]he right of removal...is made absolute whenever a
suit in a state court is for any act ‘under color’ of federal office, regardless of whether the suit
could originally have been brought in a federal court.”14 Only a “colorable defense” under federal
law is necessary to avoid remand, because one “need not win his case before he can have it
removed.” 15 “This policy should not be frustrated by a narrow, grudging interpretation of §
1442(a)(1).” It is well-settled that the federal officer removal statute must be liberally construed,

10

28 U.S.C. § 1441.
Barker v. Hercules Offshore, Inc., 713 F.3d 208, 212 (5th Cir. 2013) (quoting Manguno v.
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 722 (5th Cir. 2002)).
12
Manguno, 276 F.3d at 723.
13
28 U.S.C. § 1442(a)(1), note 8, supra.
14
Willingham v. Morgan, 395 U.S. 402, 406 (1969).
15
Id. at 407.
3
11

“resolving any factual disputes in favor of federal jurisdiction.” 16
The Fifth Circuit recently overruled precedent imposing “a ‘causal nexus’ test after
Congress amended section 1442(a)” in 2011, and clarified the standard required for a government
contractor to remove a case pursuant to the federal officer removal statute as follows:
[T]o remove under section 1442(a), a defendant must show (1) it has
asserted a colorable federal defense, (2) it is a “person” within the meaning of the
statute, (3) that has acted pursuant to a federal officer’s directions, and (4) the
charged conduct is connected or associated with an act pursuant to a federal
officer’s directions. 17
A. Exposure to Asbestos Pursuant to a Government Contract
Plaintiffs first argue Defendants have not presented any evidence that Stephen Legendre
was exposed to asbestos from a government vessel. Plaintiffs note that, although Avondale asserted
in its removal that Stephen Legendre would have been exposed to asbestos from government
vessels through the work of his father, Percy Legendre, Sr., they cannot show that Percy Legendre,
Sr., ever worked on a government vessel during his employment at Avondale between 1943 and
1945. Plaintiffs point out that Percy Legendre, Sr. is deceased and never gave a deposition prior to
his death. Plaintiffs contend Defendants’ own attachments show only that “repair and conversion
work is being done at the wet dock on Government and private contracts.” Plaintiffs assert
Defendants have not submitted any evidence that Mr. Legendre’s exposure to asbestos occurred
from work on government contracts as opposed to the repair and conversion work on private
contracts that were ongoing at Avondale.

16

Breaux v. Gulf Stream Coach, Inc., No. Civ. A. 08-893, 2009 WL 152109, p. 2 (E.D. La. Jan.
21, 2009) (citing Louisiana v. Sparks, 978 F.2d 226 (5th Cir. 1992)); see also Landreaux v.
Huntington Ingalls, Inc., No. Civ. A. 20-1208, 2021 WL 973616 (E.D. La. 3/16/2021).
17
Latiolais, 951 F.3d at 296 (internal quotation marks omitted).
4

Plaintiffs point out that this same issue arose when Stephen Legendre’s sister, Mary Jane
Wilde, filed her claim for mesothelioma due to the work of her father and brother at Avondale
Shipyard.18 In Wilde v. Huntington Ingalls, the Fifth Circuit considered a motion to stay filed by
the Avondale Interests after the district court granted plaintiffs’ motion to remand. In denying the
motion to stay, the Fifth Circuit in Wilde, according to Plaintiffs, considered these same contracts
and specifications attached by the Avondale Interests to this motion to remand and held as follows:
The problem is that there is simply no evidence that Legendre was ever in
contact with these ships. While Wilde pleads that Legendre worked at Avondale
when federal ships were under construction, there is no direct evidence in the record
indicating that Legendre actually worked on or around N3-S-A1 ships that
contained federally mandated asbestos. 19
The Wilde Court held that the defendant could not show a causal nexus between federal activity
and Mr. Legendre’s exposure without evidence linking Mr. Legendre to the vessels in question. 20
Plaintiffs also point to Defendants’ more recent answers to interrogatories, which they
argue establish that Avondale admitted it has no evidence that Percy Legendre, Sr. worked on any
government vessel. 21 In response to Interrogatory No. 12, Plaintiffs assert, Avondale stated that
“Defendant does not have sufficient information to respond to this Interrogatory with respect to
Percy Legendre, Sr. as there is no evidence as to the type of work he may have performed at
Avondale.” 22 Thus, Avondale, according to Plaintiffs, has admitted there is no evidence that Percy
Legendre, Sr. performed work that would have placed him on a government vessel.
Defendants counter that Plaintiffs in their petition alleged that Percy Legendre, Sr. was

18

Wilde v. Huntington Ingalls, Inc., 616 Fed.Appx. 710, 715-716 (5th Cir. 2015)
Id. at 714.
20
Id.
21
R. Doc. 165, pp. 1-2.
22
Id. at 2.
5
19

exposed to asbestos while working at Avondale from 1943 to 1945. Defendants point to the
testimony of Ms. Wilde, Stephen Legendre’s sister, in earlier litigation in which she testified that
her father had worked in the engine rooms of Navy ships being constructed at Avondale. 23
Defendants assert that, if Plaintiff’s father worked in the engine rooms of vessels constructed at
Avondale during the years 1943 to 1945, those vessels were built for the government. 24 From 1943
to 1945, Defendants aver, Avondale built eight V4-M-A1 Type Single Screw Ocean Going Tugs
and fourteen N3-S Type Coastal Cargo Ships (hereafter “the Federal Vessels”) pursuant to
contracts with the United States Maritime Commission (the “Commission”). 25 These are the only
vessels Avondale constructed during the 1943 to 1945 time period that contained engine rooms,
Defendants maintain. 26
As to the answer to the interrogatory cited by Plaintiffs, Defendants explain that the
response merely states there are no records as to the type of work Mr. Legendre performed or
whether any other employees knew of his work during that time period. 27 Defendants deny that
the answer to the interrogatory undermines their showing that Plaintiffs’ allegations of exposure
through the work of Percy Legendre, Sr., by necessity, must relate to the Federal Vessels. 28 Lastly,
Defendants point out that the Fifth Circuit in Wilde was confronted with not only no evidence in
the record, but also no pleading or argument by Avondale in that case, that Percy Legendre, Sr.

23

R. Doc. 67, pp. 9-10, quoting Exhibit A, November 25, 2014 Deposition Testimony of Mary
Jane Wilde, pp. 15-16, 62.
24
R. Doc. 67, p. 10.
25
Id.
26
Id.
27
R. Doc. 173.
28
Id.
6

had worked around government ships.29 By contrast in this case, Defendants argue, the Avondale
Interests have specifically pled and submitted evidence that, if Percy Legendre, Sr. was exposed
to asbestos at Avondale, as Plaintiffs allege, those exposures necessarily occurred during his work
in engine rooms of the Federal Vessels. 30 As such, they argue, the Avondale Interests have made
a colorable showing in this case that Plaintiffs’ allegations, by necessity, include exposure to
asbestos originating from the Federal Vessels. 31
There can be no doubt that after Latiolais, jurisdiction under Section 1442 must be broadly
construed, and that factual disputes must be resolved in favor of maintaining federal jurisdiction.
Factual issues need not be decided at this stage, and a “federal contractor defense is adequate for
jurisdictional purposes when the removing party's entitlement to it is subject to reasonable
debate.” 32 Here, there is a factual dispute as to whether Stephen Legendre was exposed to asbestos
through his father’s employment at Avondale working on government ships being constructed
during that time period. The Court need not resolve that dispute at this time to find that it has
jurisdiction over the case.
B. The Connection Prong
Plaintiffs next argue Defendants cannot show they complied with the government’s
requirements and/or specifications. 33 They contend that the allegations against the Avondale
Interests are the failure to handle asbestos properly and failure to prevent asbestos from being
carried home on the clothing of Percy Legendre, Sr. Plaintiffs argue that Defendants cannot show

29

Id., p. 4.
Id.
31
Id.
32
Schexnayder v. Huntington Ingalls, Inc., 2020 WL 3970159 (E.D.La. July 14, 2020) (citing
33
R. Doc. 61-1, p. 4.
7
30

they have a colorable federal defense because the Avondale Interests failed to comply with the
government’s requirements regarding protection of employees from asbestos exposures. 34 As
Defendants point out, the Fifth Circuit in Latiolais specifically overruled cases employing the
“direct causal nexus” test. The Latiolais court rejected that plaintiff’s argument that Avondale
negligently failed to warn him about asbestos hazards and failed to provide adequate safety
equipment. 35 The court stated:
[T]he pleadings here satisfy the “connection” condition of removal.
Latiolais alleges that Avondale failed to warn him of the dangers of asbestos and
failed to take measures to prevent exposure. This negligence is connected with the
installation of asbestos during the refurbishment of the USS Tappahannock.
Avondale performed the refurbishment and, allegedly, the installation of asbestos
pursuant to directions of the U.S. Navy. Thus, this civil action relates to an act under
color of federal office. 36
The same reasoning applies to the case before the Court, with respect to Plaintiffs’
negligence claims. Defendants have produced evidence showing that Avondale was compelled to
use asbestos to meet detailed government specifications and that the government exercised
supervision over the shipyard’s work to ensure compliance. Plaintiffs arguments go toward
whether Defendant’s federal officer immunity defense is valid, not whether the matter was
properly removed under the federal officer removal statute. Accordingly, Plaintiffs’ claims are
sufficiently connected to the installation of asbestos during the construction of the government
ships so as to confer jurisdiction under the federal officer removal statute.

34

Id.
Latiolais, 951 F.3d at 290.
36
Latiolais, 951 F.3d at 296.
35

8

C. The Colorable Defense Prong
The statute allows federal officers to remove to federal court cases “that ordinary federal
question removal would not reach.”37 “In particular, section 1442(a) permits an officer to remove
a case even if no federal question is raised in the well-pleaded complaint, so long as the officer
asserts a federal defense in the response.” 38 The Fifth Circuit explained that, “an asserted federal
defense is colorable unless it is immaterial and made solely for the purpose of obtaining
jurisdiction or wholly insubstantial and frivolous.” 39 Therefore, “if a defense is plausible, it is
colorable.” 40
Defendants have raised two federal defenses, including that Plaintiffs’ claims are barred
by governmental contractor immunity as established by Boyle v. United Technologies Corp., 487
U.S. 500 (1988). 41 Because Defendants have a “colorable defense” under Boyle, it is unnecessary
to discuss alternative defenses. 42
Defendants also relied upon Boyle in Latiolais, where the Fifth Circuit explained:
This defense extends to federal contractors an immunity enjoyed by the
federal government in the performance of discretionary actions. Accordingly,
federal contractors are not liable for design defects if (1) the United States approved
reasonably precise specifications; (2) the equipment conformed to those
specifications; and (3) the supplier warned the United States about the dangers in
the use of the equipment that were known to the supplier but not to the United
States. Furthermore, the government contractor defense does not necessarily apply
only to claims labeled design defect. Instead, whether it will apply to a particular
37

Id. at 290.
Id.
39
Id. at 297 (internal quotation marks and citations omitted).
40
Id.
41
R. Doc. 1.
42
See Landreaux, supra, * 3 n. 6 (citing Dempster v. Lamorak Ins. Co., 435 F. Supp. 3d 708
(E.D. La. 2020); Hernandez v. Huntington Ingalls, Inc., No. CV 19-14685, 2020 WL 1864874
(E.D. La. Apr. 14, 2020); Bourgeois v. Huntington Ingalls Inc., No. CV 20-1002, 2020 WL
2488026 (E.D. La. May 14, 2020)).
9
38

claim depends only upon whether Boyle’s three conditions are met with respect to
the particular product feature upon which the claim is based. 43
As in Latiolais, Defendants have offered evidence establishing that the three Boyle
conditions are satisfied. 44 Although Plaintiffs argue that the defense is not colorable and has been
asserted only to invoke federal jurisdiction, those arguments do not undermine the plausibility of
the defense. Defendants have submitted evidence showing that the vessels at issue 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, including the
requirement that Avondale use asbestos. Defendants have demonstrated that the Avondale
Interests complied with the government design specification to install asbestos through affidavits
and deposition testimony that the Avondale Interests complied with reasonably precise
specifications (requiring the use of asbestos) from the government regarding its shipbuilding
operations. And, as they did in Latiolais, Defendants have submitted evidence tending to show
that the federal government knew as much or more than the Avondale Interests regarding asbestosrelated hazards and safety measures. Therefore, as in Latiolais, Defendants have made a colorable
claim that they did not fail to warn the government about any dangers of which the government
did not know.
In short, Defendants have asserted a federal defense that is not wholly insubstantial and
frivolous, despite Plaintiffs’ arguments to the contrary. Accordingly, Defendants have sufficiently
established the conditions for federal officer removal under Section 1442(a). For these reasons,

43

Latiolais, 951 F.3d at 296 (internal quotation marks and citations omitted) (emphasis in
original).
44
Id. at 297-98.
10

IT IS ORDERED that Plaintiffs’ motion to remand45 is DENIED.
New Orleans, Louisiana, this 31st day of March 2021.

GREG GERARD GUIDRY
UNITED STATES DISTRICT JUDGE

45

R. Doc. 61.

11