Louisiana United Business Ass'n Cas. Ins. v. J & J Maintenance, Inc.

133 F. Supp. 3d 852, 2015 U.S. Dist. LEXIS 129589, 2015 WL 5638083
CourtDistrict Court, W.D. Louisiana
DecidedSeptember 24, 2015
DocketNo. 15-cv-1769
StatusPublished
Cited by6 cases

This text of 133 F. Supp. 3d 852 (Louisiana United Business Ass'n Cas. Ins. v. J & J Maintenance, Inc.) is published on Counsel Stack Legal Research, covering District Court, W.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Louisiana United Business Ass'n Cas. Ins. v. J & J Maintenance, Inc., 133 F. Supp. 3d 852, 2015 U.S. Dist. LEXIS 129589, 2015 WL 5638083 (W.D. La. 2015).

Opinion

MEMORANDUM RULING

KATHLEEN KAY, United States Magistrate Judge.

Before the court is a Motion to Remand [doc. 14] filed on June 26, 2015 by plaintiff Louisiana United Business Association Casualty Insurance Company (“LUBA,” “plaintiff’) in response to a Notice of Removal [doc. 1] filed on May 7, 2015 by [856]*856defendant Pride Industries (“Pride”). Pride opposes the motion to remand [doc. 21], and is joined in doing so by other defendants, The Migues Deloach Company (“Deloach”) [doc. 22], Entergy Louisiana, LLC (“Entergy Louisiana”) [doc. 23], and J & J Maintenance, Inc. (“J & J”) [doc. 24] (collectively, “defendants”).1 For the reasons stated below, the plaintiffs motion is hereby DENIED.

I.

Background

The present case involves the employment of Jonathon West (“West”) by De-loach, a subcontractor on the New Shira Dental Clinic remodeling project (“remodeling project”) at Fort Polk, Louisiana.2 Doc. 1, att. 2, p. 3; Doc. 15, att. 1, p. 53. West was fatally injured at the remodeling project on January 4, 2012, while operating a boom manufactured by Volvo. Doc. 1, att. 2, pp. 3-4. The plaintiff alleges that the boom overextended and struck power lines at the remodeling project. Id. at 4. It also alleges that Entergy Louisiana failed to turn off the power in a timely manner after the accident occurred thus delaying West from receiving medical attention. Id. Finally, it contends that Pride received a work request from the U.S. Army to relocate power lines at the remodeling site but that it performed this work negligently and failed to follow the Army’s specifications as to where the lines should be moved. Id. at 25.

Pride maintains that it followed the Army’s work request for power line reloca-tions connected to the remodeling project and that it completed this work in line with the specifications provided.3 Doc. 21, att. 1, pp. 1-3. Pride’s general manager also states that the Army usually sends a deficiency report to Pride “if the government has an issue or concerns regarding unsatisfactory performance of its requests,” and that Pride received no such report relating to this request. Id. at 2.

This action was instituted by the plaintiff, who was workers’ compensation insurer for Deloach, on October 1, 2012, in the 30th Judicial District Court, Vernon Parish, Louisiana. Doc. 1, att. 2, pp. 2-3. The plaintiff seeks relief pursuant to:

• Unspecified Louisiana laws “including but not limited to exercising its rights under ... reimbursement, tort, contract, unjust enrichment, and general obligation.” Doc. 1, att. 2, p. 3.
• A Louisiana workers’ compensation provision, La.Rev.Stat. 23:1101 et seq., relating to suits by the person obligated to pay workers’ compensation benefits against a third party who caused the injury. Id. at 3; La.Rev.Stat. 23:1101(b).

The original action named as defendants J & J, Entergy Corporation (Entergy Louisiana substituted in first amended complaint), Volvo, and their respective insurers. Id. at 2-3, 10. In a third party [857]*857demand served on other counsel of record on December 19, 2012, J & J joined De-loach as a third party defendant. Doc. 15, att. 1, pp. 52-59. The plaintiff joined Pride as a defendant in the same action with a petition served on April 30, 2015. Doc. 1, att. 2, pp. 19-20.

With the consent of the other named defendants, Pride removed the action to this court on May 27, 2015. Doc. 1, pp. 1-2. The plaintiff moved to remand on June 26, 2015. Doc. 14, p. 1. Pride opposes the motion to remand, and was joined by other defendants in doing so.4 Doc. 21, p. 1. The plaintiff filed a reply to the defendants’ opposition on July 24, 2015. Doc. 28, p. 1.

II.

Law & Analysis

Any civil action brought in a State court of which the district courts have original jurisdiction may be removed to the proper district court. 28 U.S.C. § 1441(a). However, the federal district court must remand the action to state court if it finds that it lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). The removing party bears the burden of showing that removal was procedurally proper and that federal jurisdiction exists. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.1995).

Pride asserts two bases for subject matter jurisdiction in its notice of removal: federal 'officer removal jurisdiction and federal enclave jurisdiction. The plaintiff challenges the application of both rules to the instant case. It also contends that state law exceptions within federal- enclave jurisdiction and limitations on removal under cases arising under workers’ compensation laws necessitate remand. We therefore review the plaintiffs challenges to determine whether the matter ought to be remanded to state court for lack of subject matter jurisdiction, with the burden remaining on the defendants to establish that federal jurisdiction exists.

A. Federal Officer Removal Jurisdiction

Section 1442(a) of Title 28, United States Code, provides that an action in state court may be removed to federal court if it is against the U.S. government, including agencies and officers of the government “or any person acting under that officer.” In order to justify removal under this statute, a party must show that:

(1) it is a person under the statute’s meaning. Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398 (5th Cir.1998).
(2) it acted “under color of office,” shown for contractors when they “act pursuant to a federal officer’s directions and ... a causal nexus [existed] between the [defendant’s] actions under color of federal office and the plaintiffs claims.” § 1442(a)(3); Winters, 149 F.3d at 398.
(3) it can articulate a “colorable applicability” of a federal defense to the plaintiffs claims. Winters, 149 F.3d at 400 (internal citations omitted).

The plaintiff does not dispute that Pride satisfies the first factor, given the acceptance of corporate entities as private persons. Id. at 398. We therefore turn to the second and third factors.

1. Acting under color of federal office

The plaintiff first asserts that Pride, as a federal contractor, cannot claim that it was acting under color of federal office because (1) it did not act pursuant to federal direction when it moved power lines at the [858]*858remodeling project and (2) there was no causal nexus between the work completed at federal direction and the plaintiffs claims.

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133 F. Supp. 3d 852, 2015 U.S. Dist. LEXIS 129589, 2015 WL 5638083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/louisiana-united-business-assn-cas-ins-v-j-j-maintenance-inc-lawd-2015.