Washington v. Eagle Inc.

1

CLAUDETTE WASHINGTON, ET AL. v. EAGLE, INC., ET AL.

Civil Action No. 23-1381-BAJ-SDJ

United States District Court, M.D. Louisiana

September 12, 2024

MAGISTRATE'S REPORT AND RECOMMENDATION

SCOTT D. JOHNSON UNITED STATES MAGISTRATE JUDGE

Before the Court is Plaintiffs' Motion to Remand, filed on November 6, 2023. (R. Doc. 30). The Motion is opposed by Defendant Hopeman Brothers, Inc. (R. Doc. 41), and by Defendant Travelers Insurance Company (R. Doc. 43). Plaintiffs filed a Supplement to their Motion to Remand on June 19, 2024 (R. Doc. 71), and Defendant ExxonMobil Oil Corp. opposed the substance of that supplement (R. Doc. 73).

I. Procedural Background

This case originated in the 19th Judicial District Court, Parish of East Baton Rouge, Louisiana, on September 12, 2022 (R Doc. 1-2). Plaintiffs Claudette Washington Skidmore and Courtney Skidmore Williams brought claims against several defendants after the death of their husband and father, Kurt Lawrence Skidmore.^[1] (R. Doc. 1-2 at 1). Plaintiffs' claims relate to Defendants' “mining, processing manufacturing, installation, maintenance, sale, distribution, and/or use of asbestos and asbestos-containing products”. (R. Doc. 1-2 at 1). Plaintiffs claim that Kurt Skidmore was exposed to asbestos many times through the course of his career, that each individual exposure directly caused or contributed to his injury and death, and that all Defendants are liable for damages. (R. Doc. 1-2 at 2). Plaintiffs' original petition names as defendants Eagle, Inc.; Taylor-Seidenbach, Inc.; the Louisiana Insurance Guaranty Association; and Hopeman. (R. Doc. 1-2 at 8). Plaintiffs amended their petition on August 15, 2023, to add seven more defendants: two deceased executive officers of Avondale Industries, Inc.;^[2] Travelers, as Avondale's insurer;^[3]ConocoPhillips Company; Exxon; Shell Oil Company; and Texaco, Inc. (R. Doc. 1-3 at 1). The Amended Petition adds premises claims, insurance claims, and negligence claims against the executive officers. (R. Doc. 1-3).

On September 27, 2023, Travelers timely removed the case to this Court,^[4] citing federal jurisdiction under 28 U.S.C. § 1442(a)(1), federal officer jurisdiction. (R. Doc. 1). No other Defendants joined the removal.^[5] Plaintiffs filed their first Motion to Remand on November 6, 2023. (R. Doc. 30). Hopeman filed a Memorandum in Opposition on November 22, 2023 (R. Doc. 41), and Travelers filed its Memorandum in Opposition on November 27, 2023 (R. Doc. 43).

On June 18, 2024, Plaintiffs and Travelers filed a Joint Motion to Dismiss, representing to the Court that Plaintiffs have resolved all claims against Travelers and its insureds. (R. Doc. 70). The Court granted the motion, and so Travelers was dismissed on June 20, 2024, leaving claims against all other Defendants intact. (R. Doc. 72). In light of the dismissal of Travelers, Plaintiffs filed a Supplement to their Motion to Remand on June 19, 2024. (R. Doc. 71). Exxon filed its Memorandum in Opposition to the Supplemental arguments on June 26, 2024. (R. Doc. 73).

On July 12, 2024, Hopeman filed into the record a Suggestion of Bankruptcy (R. Doc. 74), and on July 22, 2024, the Court acknowledged the automatic stay imposed by section 362 of the Bankruptcy Code. This Court stayed the instant action only as to Hopeman. (R. Doc. 76).

II. Arguments of the Parties

In their original Motion to Remand, Plaintiffs argue that Defendants cannot show the elements required to remove a case per § 1442. They assert that, while the Avondale Defendants may have been operating under federal contract, the conduct at issue-failure to provide a safe workplace and to use asbestos in accordance with federal and state laws and regulations-was not done at the direction of or acting under a federal officer. (R. Doc. 30-1 at 7-15). Furthermore, Plaintiffs assert that Defendants cannot show that they have a colorable federal defense.

In opposition, Travelers argues that the “acting under” requirement for federal officer jurisdiction should be broadly interpreted and indeed that other courts have found Avondale's shipbuilding for the U.S. military satisfies §1442(a). (R. Doc. 43 at 11). Supporting its position, Travelers provides evidence that at the time of Skidmore's alleged asbestos exposure, Avondale's contracts with the U.S. government required the use of asbestos, and that the use of asbestos was monitored by federal inspectors.^[6] (R. Doc. 43 at 3). Travelers further alleges that Avondale adhered to federal regulations regarding repeated asbestos exposure, and that federal officials had the authority to halt operations if in violation of such regulations. (R. Doc. 43 at 5-6). Hopeman-a subcontractor for Avondale, working on U.S. Coast Guard vessels-asserts similar arguments in its Opposition to Remand, including specific language from specifications for Coast Guard Cutters and MARAD^[7] vessels requiring that components containing asbestos be installed. (R. Doc. 41 at 8-12).

After Plaintiffs and Travelers settled their dispute out of court and Travelers was dismissed, Plaintiffs supplemented their Motion to Remand. They argue that because Travelers alone asserted federal officer jurisdiction, and because no other Defendant could demonstrate entitlement to jurisdiction under §1442, the case should now be remanded for lack of federal jurisdiction. (R. Doc. 71). Exxon opposed this newly raised argument for remand, arguing that this Court retains jurisdiction so long as jurisdiction was proper at the time of removal, and noting that Plaintiffs' argument ignores Hopeman's claim to federal officer jurisdiction. (R. Doc. 73).

III. Law and Analysis

A. Dismissal of Travelers Does Not Extinguish This Courts' Jurisdiction

As a threshold issue, we first address Plaintiffs' argument that dismissal of Travelers resolves all question of federal officer jurisdiction and necessitates remand. Exxon rightly points out that Hopeman remains as a subcontractor Defendant, having asserted its own entitlement to federal officer jurisdiction in its Opposition to Remand (R. Doc. 41). Furthermore, “the Fifth Circuit has held that dismissal of the federal defendant (the defendant entitled to section 1442 removal) does ‘not deprive the district court of power to entertain the remaining state law controversy.'” In re FEMA Trailer Formaldehyde Prod. Liab. Litig., 2012 WL 1448132, at *7 (E.D. La. Apr. 26, 2012) (citing IMFC Professional Services of Florida, Inc. v. Latin American Home Health, Inc., 676 F.2d 152, 158 (5th Cir. 1982). And so, even ignoring Hopeman's assertion of federal officer jurisdiction, this Court retains jurisdiction if Travelers properly removed under §1442.^[8]

B. Legal Standards for Federal Officer Removal

As amended in 2011 and still effective, the federal officer removal statute provides, in relevant 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 ....

28 U.S.C. § 1442(a)(1) (2018). 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. Neal v. Ameron Int'l Corp., No. 20-00172, 2020 WL 6153686, at *4 (M.D. La. Oct. 20, 2020), citing Mesa v. California, 489 U.S. 121, 126 (1989). 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. Willingham v. Morgan, 395 U.S. 402, 406 (1969) (quoting Tennessee v. Davis, 100 U.S. 257, 263 (1879)). If federal officers acting within 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.” Id.

Unlike the general removal statute, “[t]he Supreme Court has consistently urged courts to avoid ‘a narrow, grudging interpretation of § 1442(a)(1).'” Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 290-91 (5th Cir. 2020) (citing Willingham v. Morgan, 395 U.S. 402, 407 (1969)); see also Arizona v. Manypenny, 451 U.S. 232, 242 (1981); Jefferson County v. Acker, 527 U.S. 423, 431 (1999). As the Supreme Court has explained, “the purpose of this provision is to protect the lawful activities of the federal government from undue state interference.” St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock Port, Inc., 809 F.Supp.2d 524, (2011) (citing Willingham v. Morgan, 395 U.S. 402, 406 (1969)). “Because of its broad language and unique purpose, the federal officer removal statute has been interpreted to operate somewhat differently than the general removal provision.” Id. “Unlike the general removal statute, which must be ‘strictly construed in favor of remand,' the federal officer removal provision's broad language must be liberally interpreted.” Id. (internal citation omitted) (citing Watson v. Philip Morris Cos. Inc., 551 U.S. 142 (2007) (“this Court has made clear that [§ 1442(a)] must be ‘liberally construed' ”)).

C. Latiolais and Its Progeny

To properly remove under 1442(a), a defendant must show that (1) it has asserted a colorable federal defense, (2) it is a “person” within the meaning...