Templet v. Avondale Industries, Inc.

274 F. Supp. 3d 469
CourtDistrict Court, E.D. Louisiana
DecidedAugust 4, 2017
DocketCIVIL ACTION CASE NO. 17-5935
StatusPublished
Cited by2 cases

This text of 274 F. Supp. 3d 469 (Templet v. Avondale Industries, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Templet v. Avondale Industries, Inc., 274 F. Supp. 3d 469 (E.D. La. 2017).

Opinion

SECTION: “G” (1)

ORDER

NANNETTE JOLIVETTE BROWN, UNITED STATES DISTRICT JUDGE

In this litigation, Plaintiff Robert Tem-plet, Sr. (“Plaintiff’) alleges that he. suffered exposure to asbestos and asbestos-containing products that were- designed, manufactured, sold, and/or supplied by a number of Defendant companies while Plaintiff was employed by Defendant Avondale Industries, Inc. (“Avondale”).1 Pending before the Court is Plaintiffs “Motion to Remand.”2 Having considered the motion, the memoranda in' support and in opposition, the record, and the applicable law, the Court will grant the motion and remand this case to the Civil District Court for the Parish of Orleans, State of Louisiana. "'

I. Background

A. Factual Background

In this-litigation, Plaintiff alleges that he was employed by Avondale from 1968 to 2002.3 During that time, Plaintiff avers that he handled asbestos and asbestos-containing products in various locations and work sites, resulting in: Plaintiff breathing in asbestos fibers-'and later developing diffuse malignant pleural ’ meso-thelioma.4 Plaintiff asserts'that each of the named Defendants “designed, tested, evaluated, manufactured, packaged, furnished, stored, handled, ■ transported, installed, supplied and/or sold [the] asbestos-containing products” to which Plaintiff was exposed.5 Plaintiff brings Louisiana state law claims for negligence and strict liability.6

B. Procedural Background

Plaintiff filed a “Petition for Damages” in the Civil District Court for the Parish .of [472]*472Orleans, State of Louisiana, on May 15, 2017.7 Defendants Avondale, Albert Bossier, Jr., who is an executive officer at Avon-dale, and Lamorak Insurance Company removed the case to this Court on June 19, 2017.8 Defendants allege that removal is proper because this is an action “for or relating to conduct under color of federal office commenced in a state court against persons acting under one or more federal officers within the meaning of 28 U.S.C. § 1442(a)(1).”9

On July 5, 2017, Plaintiff filed the instant motion to remand.10 On July 5, 2017, Plaintiff also filed a request for oral argument,11 which the Court denied.12 On July 25, 2017, Avondale filed a timely opposition, which was subsequently marked as deficient by the Clerk of Court for exceeding 25 pages.13 On July 26, 2017, Avondale filed a motion for leave to file a 33 page opposition,14 which the Court granted.15 On July 27, 2017, Avondale filed a motion for leave to file certain exhibits under seal,16 which the Court granted.17 On August 1, 2017, Plaintiff filed a reply with leave of Court.18

II. Parties’ Arguments

A. Avondale’s Notice of Removal

In Avondale’s Notice of Removal, Avon-dale asserts that this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1442(a)(1), as this action is allegedly for or relating to conduct under color of federal office commenced in a state court against persons acting under one or more federal officers.19 In particular, Avondale contends that Plaintiff stated during his deposition on June 8, 2017, that he remembered working on Navy Destroyer Escorts and Coast Guard Cutters while the vessels were afloat in the Mississippi River and while Plaintiff was employed at Avondale.20 According to Avondale, Plaintiff testified in his deposition that he worked near insulators while installing asbestos-containing products on those vessels, and that he breathed in asbestos fibers generated during the work.21 Moreover, Avondale points out that Plaintiff testified that he worked in close proximity to employees of Defendant Hopeman Brothers while aboard the Coast Guard Cutters and while they were sawing asbestos-containing wallboards, which also created asbestos dust that Plaintiff allegedly breathed.22

Avondale argues that it is a corporation and therefore a “person” within the meaning of 28 U.S.C. § 1442(a)(1), and that its former executive officers are “persons” within the meaning of the statute as well.23 Avondale further asserts that Plaintiff worked on the Coast Guard Cutters and [473]*473Navy Destroyer Escorts pursuant to contracts between Avondale and the United States government.24 Moreover, Avondale avers that the use of asbestos-containing materials from which Plaintiffs causes of action arise was required by the contractual provisions and design specifications mandated by the federal government, and that the federal government oversaw the construction process to ensure compliance.25 Therefore, Avondale contends that it was “acting under” an “officer ... of the United States or [an] agency thereof’ within the meaning of Section 1442(a)(1), as it was performing a task that the federal government would otherwise have had to perform, ie. building ships “used to help conduct a war” and “to further other national interests.”26

Additionally, Avondale asserts “two col-orable federal defenses” in its Notice of Removal to Plaintiffs claims: (1) Plaintiffs claims are barred under the doctrine of government contractor immunity established by the Supreme Court in Boyle v. United Technologies Corporation; and (2) Plaintiffs claims are preempted and barred by the exclusive remedy provisions of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).27

B. Plaintiff’s Motion to Remand

In his motion, Plaintiff argues that remand of this case involving only state law negligence claims is proper, as: (1) Avon-dale was not “acting under” the direction of a federal officer and cannot show a “causal nexus” between a federal officer’s “direct and detailed control” over Avon-dale’s operations, safety activities, or handling of asbestos and Avondale’s ability to comply with its state law obligations to warn and protect Plaintiff; and (2) Avon-dale’s LHWCA defense does not provide an independent basis for removal, and, regardless, the LHWCA supplements state law remedies rather than supplanting them.28

1. Federal Officer Removal Statute

First, Plaintiff asserts that Avondale’s “federal officer removal” argument fails, as 28 U.S.C. § 1442

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Bluebook (online)
274 F. Supp. 3d 469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/templet-v-avondale-industries-inc-laed-2017.