Falgout v. Anco Insulations Inc et al

Filing 38

ORDER AND REASONS denying 10 Motion to Remand to State Court; denying 12 Motion to Remand to State Court. IT IS FURTHER ORDERED that oral argument schedule for October 6, 2021 is CANCELLED. Signed by Judge Carl Barbier on 10/4/21. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RUBY LEE MARIE FALGOUT

CIVIL ACTION NO. 2:21-CV-1443

Plaintiff

SECTION J(3)

VERSUS

JUDGE CARL J. BARBIER
MAGISTRATE JUDGE DANA M.
DOUGLAS

ANCO INSULATIONS, INC., ET AL
Defendants

ORDER & REASONS
Before the Court is a Motion to Remand (Rec. Doc. 10) filed by Ruby Lee
Marie Falgout against Defendant, Avondale Industries, Inc. (hereinafter “Avondale”),
a Motion to Remand (Rec. Doc. 12) filed by Plaintiff against Defendant, Hopeman
Brothers (hereinafter “Hopeman,” collectively with Avondale “Defendants), an
opposition filed by Hopeman (Rec. Doc. 33), and an opposition filed by Avondale
(Rec. Doc. 34). Having considered the motion and legal memoranda, the record, and
the applicable law, the Court finds that both motions should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff alleges that she contracted mesothelioma as a result of asbestos
exposure by laundering her husband’s work clothes, who worked at Avondale’s Bridge
City, LA shipyard. Plaintiff filed suit against numerous parties in the Orleans Parish
on March 26, 2021. On July 29, 2021, Hopeman filed for removal asserting
jurisdiction under 28 U.S.C. § 1442. On August 4, 2021, Avondale filed a Notice of
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Joinder to Hopeman’s removal. On August 27, 2021, Plaintiff filed Motions to Remand
as to both Avondale and Hopeman. On September 28, 2021, Hopeman filed an
Opposition to Plaintiff’s Motion to Remand, and on September 29, 2021, Avondale
filed their Opposition.
LAW
Although federal courts are courts of limited jurisdiction, “federal officer
removal under 28 U.S.C. § 1442 is unlike other removal doctrines: it is not narrow or
limited.” State v. Kleinert, 855 F.3d 305, 311 (5th Cir. 2017); Howery v. Allstate Ins.
Co., 243 F.3d 912, 916 (5th Cir. 2001). Although the principle of limited federal court
jurisdiction ordinarily compels federal courts to resolve any doubt about removal in
favor of remand, courts should analyze removal under § 1442(a)(1) “without a thumb
on the remand side of the scale.” Savoie v. Huntington Ingalls, Inc., 817 F. 3d 457,
462 (5th Cir. 2016). Nevertheless, it remains the removing party’s burden of showing
that federal jurisdiction exists. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d
720, 723 (5th Cir. 2002).
Under 28 U.S.C. § 1442(a)(1), the federal officer removal statute, a federal
court has subject matter jurisdiction if the defendant is “any person acting under [an
officer] of the United States or of any agency thereof . . . . for or relating to any act
under color of such office.” 28 U.S.C. § 1442(a)(1). To qualify for removal under §
1442(a)(1), a defendant must show: (1) 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

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an act pursuant to a federal officer’s directions. Latiolais v. Huntington Ingalls, Inc.,
951 F.3d 286, 296 (5th Cir. 2020).
DISCUSSION
As to Avondale, courts have repeatedly held that Avondale can remove under
the federal officer removal statute. Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286,
296 (5th Cir. 2020); Savoie v. Pa. Gen. Ins. Co., 2017 U.S. Dist. LEXIS 94904 (E.D. La.
June 2, 2017); Pennino v. Reilly-Benton Co., Inc., No. CV 21-363, 2021 WL 3783184
(E.D. La. Aug. 26, 2021). There are no new facts or issues in the present case that
would cause this Court to break with precedent. As to Hopeman, for the reasons
stated in Jackson v. Avondale, the Court concludes that Hopeman also can remove to
federal court under the federal officer removal statute. See 469 F. Supp. 3d 689 (E.D.
La. 2020).
CONCLUSION
Accordingly,
IT IS ORDERED Plaintiff’s Motion to Remand (Rec. Doc. 10) is DENIED.
IT IS FURTHER ORDERED Plaintiff’s Motion to Remand (Rec. Doc. 12) is
DENIED.
IT IS FURTHER ORDERED that oral argument schedule for October 6,
2021 is CANCELLED.
New Orleans, Louisiana this 4th day of October, 2021.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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