Reulet v. Lamorak Ins. Co.

JOANNE REULET, ET AL. v. LAMORAK INSURANCE COMPANY, ET AL.

CIVIL ACTION NO. 20-404-BAJ-EWD

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

March 4, 2021

NOTICE

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.

Signed in Baton Rouge, Louisiana, on March 4, 2021.

/s/_________

ERIN WILDER-DOOMES

UNITED STATES MAGISTRATE JUDGE

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Before the Court is the Motion to Remand (the "Motion"), filed by Joanne Clement Reulet, Leslie Reulet Carrere, and Evan J. Reulet ("Plaintiffs").¹ The Motion is opposed by Defendant Hopeman Brothers, Inc. ("Hopeman")² and Huntington Ingalls Incorporated ("Avondale"),³ Lamorak Insurance Company ("Lamorak"), and Albert Bossier, Jr. ("Bossier") (collectively, the "Avondale Defendants").⁴ As all elements of federal officer removal are met and the removal was timely filed, it is recommended⁵ that the Motion be denied, and that this matter be referred for a scheduling conference.⁶

I. Facts and Procedural Background

This is a civil action involving claims for damages based upon the injuries allegedly sustained by, and demise of, Kirk Reulet ("Decedent").⁷ According to Plaintiffs, Decedent was employed by Avondale from 1967 to 1972, and during Decedent's employment, he was exposed to asbestos on a daily basis.⁸ Decedent's father, Pierre Reulet ("Pierre"), worked for Avondale from 1964 to 1977, and Decedent was also exposed to asbestos on a daily basis from Pierre's clothing.⁹ Plaintiffs further allege that some of the asbestos that Decedent and Pierre were exposed to was manufactured, distributed and sold by Hopeman. During Decedent's and Pierre's employment with Avondale, Hopeman allegedly performed contracting work using asbestos-containing products, which exposed the men to asbestos.¹⁰ Decedent was diagnosed with mesothelioma in December 26, 2018, and died on January 2, 2019, as a result of his alleged exposures to asbestos from his work (and Pierre's) at Avondale, his employment with other Defendants that exposed him to asbestos, and his exposure to asbestos-containing products manufactured by Hopeman and others.¹¹

On June 28, 2019, Plaintiffs filed their Petition for Damages ("Petition") against numerous defendants, including Hopeman and the Avondale Defendants, in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, alleging that Defendants are liable for the injuriessustained by, and death of, Decedent due to his exposure to asbestos.¹² Plaintiffs alleged that, among other deficiencies, Avondale intentionally concealed the dangers of asbestos and was negligent in: failing to provide a safe place to work, failing to provide adequate measures to control the level of exposure to asbestos, and failing to warn or inform Decedent of the hazards of asbestos exposure. Plaintiffs particularly alleged:

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 [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.¹³

Plaintiffs alleged that the asbestos manufactured by Hopeman was unreasonably dangerous per se and defective in design which constituted a breach of warranty, and that Hopeman was aware of the dangers of asbestos exposure and strictly liable.¹⁴ On the basis of these allegations, Plaintiffs,who are Decedent's surviving spouse and children, assert wrongful death and survival actions against all Defendants.¹⁵

The Avondale Defendants filed a Notice of Removal on June 25, 2020.¹⁶ To establish that removal was timely, the Avondale Defendants contended that the Petition did not link Decedent's alleged asbestos exposure to any vessels Avondale built for the federal government, and therefore, did not put them on notice that federal officer removal jurisdiction existed. Rather, the Avondale Defendants say they were first put on notice that Decedent's alleged exposures related to asbestos-containing materials installed on Lykes Lines cargo ships ("Lykes vessels") and/or U.S. Coast Guard Cutters built by Avondale pursuant to federal contracts at the June 23, 2020 deposition of Dwight Granier ("Granier"), Decedent's and Pierre's co-worker.¹⁷

Plaintiffs filed the instant Motion on July 24, 2020 alleging that the removal was untimely and that the removal was improper because the requirements for federal officer jurisdiction were lacking.¹⁸ This led to a flurry of briefing, including: Hopeman's opposition memorandum,¹⁹ the Avondale Defendants' opposition memorandum,²⁰ Plaintiff's reply memorandum to each opposition,²¹ the Avondale Defendants' sur-reply,²² and Plaintiff's sur-reply response.²³ The two primary issues for the Court to consider are whether the requirements of federal officer removal have been established, and whether the removal was timely.

II. Law and Analysis

A. General Legal Standards Regarding Removal

Remand is proper if the court lacks federal officer removal jurisdiction.²⁴ The removing defendant bears the burden of showing, if challenged, that removal based on Section 1442 was procedurally proper.²⁵ A plaintiff challenging removal on the basis of a defect other than subject matter jurisdiction is required to do so within thirty days after the filing of the notice of removal.²⁶

B. Legal Standards for Federal Officer Removal

1. General Purpose

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 ....²⁷

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.²⁸ Because 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.²⁹ If federal officers actingwithin the scope of their authority "can be arrested and brought to trial in a State court, for an alleged offense against the law of the State, yet warranted by the Federal authority they possess, and if the general government is powerless to interfere at once for their protection ... the operations of the general government may at any time be arrested at the will of one of its members."³⁰

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,"³¹ the federal officer removal statute's broad language must be liberally interpreted.³² Additionally, the Supreme Court has consistently urged courts to avoid "a narrow, grudging interpretation of § 1442(a)(1)."³³ 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.³⁴ Thus, and according to the Fifth Circuit, federal officers may remove cases to federal court that ordinary federal question removal would not reach.³⁵

2. Latiolais and Its Progeny

A defendant removing under Section 1442(a)(1) 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 pursuantto a federal officer's directions, and (4) the charged conduct is connected or associated with an act pursuant to a federal officer's directions.³⁶ Before 2020, courts in the Fifth Circuit required a removing defendant to show "a causal nexus" between the defendant's acts under color of federal office and the plaintiff's claims.³⁷ In its unanimous, en banc decision in Latiolais v. Huntington Ingalls, Inc. ("Latiolais"), which involved a similar asbestos-exposure claim asserted against the Avondale Defendants,³⁸ the Fifth Circuit significantly expanded the law regarding federal officer removal. Now, instead of "a causal nexus," a defendant must only show that the charged conduct "is connected or...