Gehant v. Air & Liquid Sys., Corp.

JEROME J. GEHANT v. AIR & LIQUID SYSTEMS, CORP., ET AL.

Civil Action No. 19-732-SDD-EWD

United States District Court, M.D. Louisiana

August 31, 2021

NOTICE

ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE

Please take notice that the attached Magistrate Judge's Report and Recommendation has been filed with the Clerk of the U.S District Court.

In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Before the Court is the Motion to Remand (the “Motion”) filed by Jerome J. Gehant (“Plaintiff”).^[1] The Motion is opposed by Defendant McDermott, Inc. (“McDermott”).^[2] Although the Court originally had jurisdiction over all claims based on federal officer removal, all federal officer defendants have now been dismissed from the case. As explained further below it is recommended^[3] that the Court decline ancillary jurisdiction over Plaintiff's remaining claims against McDermott and remand this case to the Nineteenth Judicial District Court for the Parish of East Baton Rouge.

I. Facts and Procedural Background

This is a civil action involving claims for damages based upon injuries allegedly sustained by Plaintiff when he served in the U.S. Navy from March 1967 through December 1970, and when he worked for McDermott (and others) from 1984 to 1999, aboard ships and barges that exposed him to asbestos.^[4] Plaintiff was diagnosed with mesothelioma on May 24, 2019 as a result of these alleged exposures.^[5]

On September 18, 2019, Plaintiff filed his Petition for Damages (“Petition”) in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, alleging that sixteen defendants, grouped as follows, are liable for his injuries:^[6] (1) the Shipowner Defendants, including McDermott, ^[7] (2) the Manufacturer Defendants;^[8] (3) and the Insurance Defendants.^[9]Plaintiff asserted claims under the Jones Act, 46 U.S.C. § 30104, as well as unseaworthiness claims under general maritime law against the Shipowner Defendants, and negligence and strict liability claims against the Manufacturer Defendants.^[10]

On October 23, 2019, Foster Wheeler Corporation (“Foster Wheeler”) filed a Notice of Removal on the basis of the federal officer removal statute, 28 U.S.C. § 1442(a)(1).^[11] Five other Defendants filed Motions for Joinder in the Notice of Removal, which Plaintiff did not oppose.^[12]As Plaintiff did not oppose the Motions for Joinder, they were denied as moot and construed as consents to removal.^[13] Plaintiff's claims against all Defendants, except McDermott, have since been dismissed without prejudice.^[14] According to McDermott, Plaintiff filed a second action in the Circuit Court for the City of Norfolk, Virginia alleging the same claims against the same Manufacturer Defendants that were dismissed from this matter.^[15]

Plaintiff seeks remand since all the federal officer defendants, whose presence initially gave rise to jurisdiction, have been dismissed from the case.^[16] As explained further below, the Court should exercise its discretion to remand this suit.

II. Law and Analysis

A. The Case Was Properly Removed Under 28 U.S.C. § 1442

Neither Plaintiff nor McDermott challenge Foster Wheeler's removal of this case based on §1442.^[17] Regardless, since the parties cannot confer jurisdiction, ^[18] it must first be determined whether the Court had jurisdiction when the case was removed.

As amended in 2011 and still effective, the federal officer removal statute at 28 U.S.C. § 1442(a)(1) provides, in pertinent part:

(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 ...: (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 ....^[19]

The Supreme Court has explained that the purpose of this provision is to protect the lawful activities of the federal government from undue state interference.^[20] As the federal government “can act only through its officers and agents, ” it has a strong interest in ensuring that the states do not hinder those officers in the execution of their duties.^[21] Because of its broad language and unique purpose, the federal officer removal statute has been interpreted to operate somewhat differently. Unlike the general removal statute, which must be “strictly construed in favor of remand, ”^[22] the federal officer removal statute's broad language must be liberally interpreted.^[23]Additionally, the Supreme Court has consistently urged courts to avoid “a narrow, grudging interpretation of § 1442(a)(1).”^[24] There is also no requirement in the federal officer removal statute that the district court have original jurisdiction over the plaintiff's claim. A case against a federal officer may be removed even if a federal question arises as a defense rather than as a claim apparent from the face of the plaintiff's well-pleaded complaint.^[25] This enables federal officers to remove cases to federal court that ordinary federal question removal would not reach.^[26] The party asserting federal jurisdiction in a case removed under § 1442 still bears the burden of establishing that jurisdiction exists.^[27] Remand is proper if the court lacks jurisdiction, including federal officer removal jurisdiction.^[28]

At the time of removal, and in light of the liberal interpretation given to § 1442, federal officer removal jurisdiction was sufficiently pleaded as to at least one defendant, Foster Wheeler, to-wit: (1) Foster Wheeler, a corporation, is a “person” for purposes of 28 U.S.C. § 1442(a);^[29] (2) Foster Wheeler “acted under” a federal officer's direction when it designed, manufactured and supplied boilers that contained asbestos pursuant to contracts and specifications executed by the U.S. Navy, as supported by affidavits of a former Foster Wheeler employee and a retired Naval officer, and the contents of all associated warnings were under the control of the U.S Navy;^[30] (3) Plaintiff's design defect and failure to warn claims arose from Foster Wheeler's design of the boilers and failure to warn of asbestos-related health hazards under the direction of the U.S. Navy, and thus there is a connection or association between Plaintiff's claims and Foster Wheeler's work under the direction of the U.S. Navy;^[31] and (4) Foster Wheeler asserted that it had a “government contractor” defense to each of Plaintiff's claims under Boyle v. United Technologies Corp.^[32] As further support, Foster Wheeler alleged that it designed, manufactured and supplied the U.S. Navy with the boilers at issue aboard the U.S.S. America^[33] during the time that Plaintiff testified he served in the U.S. Navy and worked with those boilers, which contained asbestos and caused him to develop mesothelioma.^[34] Plaintiff's deposition testimony is not in the record; however, Exhibit A to Plaintiff's Petition lists “U.S.S. America (CV A66)” as the site of his work with the U.S Navy from March 23, 1967 through December 21, 1970.^[35] Thus, Foster Wheeler sufficiently alleged a basis for federal officer removal over Plaintiff's failure to warn and design defect claims.^[36]

B. The Court Has Ancillary Jurisdiction Over the Remaining Claims

The only remaining claims before the Court are Plaintiff's Jones Act and general maritime claims for unseaworthiness against McDermott.^[37] Notably for the purpose of the Motion, §1442(a)(1) authorizes removal of the entire case even though only one of its controversies might involve a federal officer or agency.^[38] This creates a species of ancillary jurisdiction over the remaining claims.^[39] Plaintiff argues that, per IMFC, this Court has “discretion to remand to state court once the party who removed the case under the federal officer removal statute is dismissed from the suit.”^[40] In that case, and after thoroughly considering the issue, the Fifth Circuit held that “elimination of the federal officer from a removed case does not oust the district court of jurisdiction (except where there was no personal jurisdiction over the officer).”^[41] Instead, ancillary jurisdiction exists over the plaintiff's state law claims, and whether to retain jurisdiction is a matter of the court's discretion. This holding was adopted in the other cases, cited by Plaintiff, which discuss ancillary jurisdiction over state law claims.^[42] McDermott does not dispute Plaintiff's reliance on IMFC and argues that because that court ultimately retained the remaining claims, this Court should do the same.^[43] However, IMFC is more nuanced.

In IMFC, two defendants appealed the district court's retention of jurisdiction after the dismissal of the federal officer third-party defendant who removed the case, and the court's unfavorable summary judgment ruling on state law claims. The Fifth Circuit Court held: “It is not necessary for us to consider whether the district court abused its discretion in not remanding this case, for [the movants] never requested remand until after the court...