Pitre et al v. Huntington Ingalls Inc et al, No. 2:2017cv07029 - Document 47 (E.D. La. 2017)
Court Description: ORDER AND REASONS regarding 20 Motion to Remand to State Court and 43 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court. For the foregoing reasons, the Court DENIES the motion to review the Magistrate Judge's order granting plaintiffs leave to amend. Further, the Court DENIES plaintiffs' motion to remand. Signed by Judge Sarah S. Vance on 12/6/2017. (cg)
Download PDF
<![CDATA[
Pitre et al v. Huntington Ingalls Inc et al Doc. 47 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DIANE PITRE, ET AL. CIVIL ACTION VERSUS NO. 17-70 29 HUNTINGTON INGALLS, INC., ET AL. SECTION “R” (5) ORD ER AN D REASON S Before the Court is plaintiffs’ m otion to rem and to state court, 1 and Defendants Huntington Ingalls, Inc. and Lamorak Insurance Com pany’s m otion for review of the Magistrate J udge’s order granting plaintiffs leave to am end their com plaint. 2 For the following reasons, the Court denies both m otions. I. BACKGROU N D This case arises out of alleged asbestos exposure at Avondale Shipyard in Avondale, Louisiana. 3 Stewart Pitre worked as a pipefitter for Avondale Shipyard from 1963 to 1972. 4 Mr. Pitre developed lung cancer, allegedly as 1 2 3 4 R. Doc. 20 . R. Doc. 43. R. Doc. 4-1 at 4. Id. Dockets.Justia.com a result of exposure to asbestos at Avondale Shipyard, and passed away on J uly 15, 20 16. 5 On April 6, 20 17, Mr. Pitre’s wife and children filed an action in state court for wrongful death and survival. 6 Plaintiffs nam ed numerous defendants, including Huntington Ingalls, Inc. (Avondale) and Foster Wheeler, LLC. 7 Plaintiffs’ original petition included, am ong other causes of action, failure to warn and other negligence claim s against Avondale, and strict products liability and failure to warn claim s against Foster Wheeler. 8 Foster Wheeler allegedly produced boilers with asbestos-containing insulation that Mr. Pitre cam e into contact with aboard vessels at Avondale. 9 On J une 30 , 20 17, plaintiffs filed a first am ended petition adding Occidental Chem ical Corporation as a defendant, and asserting strict liability claim s against both Avondale and Occidental Chem ical. 10 On J une 27, 20 17, Chester Rodrigue, a form er coworker of Mr. Pitre’s, testified in a deposition that he worked with Mr. Pitre on Destroyer Escorts 5 Id. at 4 ¶ 15. Id. at 1. 7 Id. at 1-2. Huntington Ingalls was formerly known as Avondale Industries, Inc., and Avondale Shipyards, Inc. See id. at 1. 8 Id. at 9-11. 9 Id. at 2, 9. 10 R. Doc. 1-2 at 1-2, 6; R. Doc. 19-1 at 3-4. Avondale and Occidental Chem ical are each identified in the petition as “Prem ises Defendants.” See R. Doc. 1-2 at 1-2. 2 6 built by Avondale. 11 Avondale and its alleged insurer, Lamorak Insurance Com pany, rem oved this case to federal court on J uly 24, 20 17. 12 Avondale and Lam orak argue that they are entitled to rem ove this m atter under 28 U.S.C. § 1442(a)(1) because plaintiffs’ claims are for or related to acts perform ed under color of federal office while Avondale was acting under the authority of an officer of the United States. 13 The notice of rem oval asserts that rem oval is tim ely because it cam e within 30 days of Mr. Rodrigue’s testim ony, which provided the first notice that Mr. Pitre’s alleged injuries were connected to asbestos-containing m aterials on Destroyer Escorts built by Avondale for the U. S. Navy. 14 See 28 U.S.C. § 1446(b)(3). On August 23, 20 17, plaintiffs requested leave to file an am ended com plaint to delete their strict liability claim s against Avondale. 15 Magistrate J udge North granted plaintiffs leave to am end. 16 Avondale and Lam orak 11 R. Doc. 23-1 at 1, 6-8, 10 . R. Doc. 1. Lam orak is also the alleged insurer of deceased Avondale executive officers C.E. Hartzm an, Henry Zac Carter, and Hettie Dawes Eaves. See id. at 1; R. Doc. 4-1 at 3 ¶¶ 10 -11. 13 R. Doc. 1 at 4-5. 14 Id. at 3. 15 R. Doc. 19. 16 R. Doc. 31. 3 12 Insurance now appeal J udge North’s decision. 17 Plaintiffs oppose defendants’ appeal, and m ove to rem and this action to state court. 18 II. LEGAL STAN D ARD The federal officer rem oval statute perm its an officer of the United States, “or any person acting under that officer,” to rem ove to federal court a civil action or crim inal prosecution brought against them “in an official or individual capacity, for or relating to any act under color of such office . . . .” 28 U.S.C. § 1442(a)(1). The party asserting jurisdiction under this statute bears the burden of establishing that federal jurisdiction exists. W inters v. Diam ond Sham rock Chem . Co., 149 F.3d 387, 397 (5th Cir. 1998). The purpose of the federal officer removal provision is to protect the lawful activities of the federal governm ent from undue state interference. See W illingham v. Morgan, 395 U.S. 40 2, 40 5-0 6 (1969). 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. Id. at 40 6-0 7 (quoting Tennessee v. Davis, 10 0 U.S. 257, 263 (1880 )). 17 18 The federal officer rem oval statute “authorizes R. Doc. 43. R. Doc. 20 ; R. Doc. 46. 4 rem oval of the entire case even though only one of its controversies m ight involve a federal officer or agency.” IMFC Prof. Servs. of Fla. v. Latin Am . Hom e Health, Inc., 676 F.2d 152, 158 (5th Cir. Unit B 1982). Because of its broad language and unique purpose, the federal officer rem oval statute has been interpreted to operate somewhat differently from the general rem oval provision. Unlike the general rem oval statute, which m ust be “strictly construed in favor of remand,” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720 , 723 (5th Cir. 20 0 2), the federal officer rem oval provision m ust be liberally construed. W atson v. Philip Morris Co., Inc., 551 U.S. 142, 147 (20 0 7). A case against a federal officer may be rem oved even if a federal question arises as a defense rather than as a claim apparent from the face of the plaintiff’s well-pleaded com plaint. See Jefferson County , Ala. v. Acker, 527 U.S. 423, 431 (1999). Additionally, rem oval under § 1442(a)(1) does not require the consent of codefendants. See Hum phries v. Elliott Co., 760 F.3d 414, 417 (5th Cir. 20 14). 5 III. D ISCU SSION A. Ap p e al o f Magis trate Ju d ge ’s Ord e r Magistrate J udge North granted plaintiffs leave to am end their com plaint to rem ove strict liability claim s against Avondale. 19 Avondale and Lam orak Insurance appeal this decision, arguing that plaintiffs’ am endm ent is im proper. 20 Magistrate judges are em powered to “hear and determ ine” certain non-dispositive pretrial m otions, including a m otion for leave to am end. 28 U.S.C. § 636(b)(1)(A); see also PYCA Indus., Inc. v. Harrison Co. W aste W ater Mgm t. Dist., 81 F.3d 1412, 1421 n.11 (5th Cir. 1996). If a party is dissatisfied with a m agistrate judge’s ruling, it m ay appeal to the district court. Fed. R. Civ. P. 72(a). When a tim ely objection is raised, the district court will “m odify or set aside any part of the order that is clearly erroneous or is contrary to law.” Id.; see also 28 U.S.C. § 636(b)(1)(A). The Court reviews the m agistrate judge’s “factual findings under a clearly erroneous standard, while legal conclusions are reviewed de novo.” Moore v. Ford Motor Co., 755 F.3d 80 2, 80 6 (5th Cir. 20 14) (internal citation om itted). A factual “finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite 19 20 R. Doc. 31; see also R. Doc. 19. R. Doc. 43. 6 and firm conviction that a m istake has been com m itted.” United States v. U.S. Gy psum Co., 333 U.S. 364, 395 (1948). The order granting plaintiffs leave to am end their complaint is not clearly erroneous or contrary to law. Courts will “freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a). The Court considers m ultiple factors in determ ining whether it is appropriate to grant leave, including “undue delay, bad faith or dilatory m otive on the part of the m ovant, repeated failure to cure deficiencies by am endm ents previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of am endm ent.” Fom an v. Davis, 371 U.S. 178, 182 (1962). Avondale and Lam orak Insurance appear to argue that plaintiffs’ am endment is in bad faith because it is intended to defeat federal jurisdiction, and that the am endm ent is futile because it cannot destroy federal jurisdiction. 21 Plaintiffs represent that the addition of strict liability claim s against Avondale in the first am ended petition was an inadvertent error. 22 Plaintiffs explain that they requested leave to am end in state court to add a new defendant, Occidental Chem ical Corporation, and never requested leave to add new claim s against Avondale. 23 21 22 23 R. Doc. 43-1 at 5-7. R. Doc. 19-1 at 5. Id. at 3-4. 7 But plaintiffs acknowledge that their second amended com plaint is intended to support their m otion to remand. 24 The m agistrate judge could reasonably have concluded that plaintiffs’ am endment seeks to correct a good faith error, and was not m ade in bad faith. Plaintiffs are dropping substantive claim s against Avondale that they m ight otherwise have pursued, and are not engaging in m erely superficial m anipulation of the pleadings to defeat federal jurisdiction. See Enochs v. Lam pasas Co., 641 F.3d 155, 160 (5th Cir. 20 11) (noting that a “m otion to am end [the] com plaint to delete the federal claim s is not a particularly egregious form of forum m anipulation, if it is m anipulation at all”). Avondale relies on the Fifth Circuit’s unpublished opinion in Bouie v. Equistar Chem icals, L.P., 188 F. App’x 233 (5th Cir. 20 0 6), to argue that plaintiffs’ amendment should be disallowed. 25 But the Bouie court held only that the district court did not abuse its discretion in denying leave to amend after finding futility and bad faith, not that a com plaint can never be am ended to rem ove federal claim s. Id. at 238-39. Avondale asserts that plaintiffs’ am endm ent is futile because it cannot destroy federal jurisdiction. 26 24 25 26 Federal question jurisdiction under the Id. at 5. R. Doc. 43-1 at 6. Id. at 6-7. 8 federal officer rem oval statute arises out of the existence of a federal defense in the notice of rem oval. See Mesa v . California, 489 U.S. 121, 136 (1989). If a case is properly rem oved, the Court acquires supplemental jurisdiction over nonfederal claim s. See IMFC Prof. Servs. of Fla., 676 F.2d at 158-59; see also W ilde v. Huntington Ingalls, Inc., 616 F. App’x 710 , 715 n.24 (5th Cir. 20 15). Thus, the post-rem oval “elim ination of the federal officer from a rem oved case does not oust the district court of jurisdiction (except where there was no personal jurisdiction over the officer).” See IMFC Prof. Servs. of Fla., 676 F.2d at 159. The Court nevertheless has discretion to relinquish supplemental jurisdiction and rem and to state court if an am ended com plaint elim inates the federal question in a case. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 346, 357 (1988); see also Sew ell v. Sew erage & W ater Bd. of N ew Orleans, 697 F. App’x 288, 291, 293 (5th Cir. 20 17). Magistrate J udge North thus correctly concluded that it is within the Court’s discretion to consider an am ended complaint within the context of a m otion to rem and. 27 See Carnegie-Mellon Univ., 484 U.S. at 357 (explaining that the “district court can consider whether the plaintiff has attem pted to m anipulate the forum ” when deciding whether rem and is appropriate). 27 R. Doc. 31. 9 That the amended com plaint does not autom atically destroy federal jurisdiction weighs in favor, rather than against, perm itting am endment. Cf. Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987) (explaining that courts should scrutinize an amendm ent that would destroy federal jurisdiction m ore closely than an ordinary amendment). Accordingly, the Court finds no error in Magistrate J udge North’s order granting plaintiffs leave to amend their com plaint. Avondale and Lam orak Insurance’s appeal is denied. B. Mo tio n to Re m an d Plaintiffs argue that, in light of the am ended com plaint, the Court lacks subject m atter jurisdiction and this case m ust be remanded to state court. 28 But, as explained above, the Court’s jurisdiction is based on the notice of rem oval, not the am ended com plaint. See IMFC Prof. Servs. of Fla., 676 F.2d at 159; see also Bartel v. Alcoa S.S. Co., Inc., 80 5 F.3d 169, 172 n.2 (5th Cir. 20 15). Although an amended com plaint deleting federal claim s may perm it a discretionary rem and, it does not destroy federal jurisdiction over a validly rem oved case. Here, the Court finds that rem and is not justified. Avondale’s notice of rem oval is valid, and the Court properly acquired jurisdiction over this m atter. Further, Foster Wheeler was not affected by 28 R. Doc. 20 -1. 10 plaintiffs’ am ended com plaint, and remains entitled to a federal forum under the federal officer rem oval statute. 1. Ju r is d ict io n a t R e m o v a l Avondale rem oved this case to federal court based on its work as a m ilitary contractor. 29 The Fifth Circuit has adopted a three-part test to determ ine whether a government contractor m ay invoke 28 U.S.C. § 1442(a)(1). The contractor m ust show that: (1) it is a “person” within the m eaning of the statute; (2) it acted pursuant to a federal officer’s directions, and a causal nexus exists between its actions under color of federal office and the plaintiffs’ claim s; and (3) it has a colorable federal defense to the plaintiffs’ claim s. W inters, 149 F.3d at 398-40 0 . Plaintiff’s first amended state court petition, which form ed the basis for rem oval, nam es Avondale and Occidental Chem ical Corporation as “Prem ises Defendants.”30 The am ended petition asserts a strict liability claim against the Prem ises Defendants under Louisiana Civil Code article 2317 for Mr. Pitre’s injuries as a result of asbestos exposure. 31 Avondale argues that it is a person under the statute, it was acting under an officer of the United States, the use and installation of asbestos-containing m aterials 29 30 31 R. Doc. 1. R. Doc. 1-2 at 1-2. Id. at 6. 11 was required by its contracts with the U.S. Navy, and it has colorable federal defenses to plaintiffs’ claim s under both Boy le v. United Technologies Corp., 487 U.S. 50 0 (1988), and the Longshore and Harbor Workers’ Compensation Act. 32 Circuit precedent strongly supports Avondale’s right to rem ove this m atter based on plaintiffs’ strict liability claim s for asbestos exposure. Under nearly identical factual circum stances, the Fifth Circuit held that Avondale is a person within the m eaning of the statute, and that it satisfied the causal nexus requirem ent between its work as a m ilitary contractor and the plaintiffs’ strict liability claim s for asbestos exposure under Louisiana Civil Code article 2317. See Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 462, 463-66 (5th Cir. 20 16). The Savoie court found a sufficient causal relationship because “[t]he strict liability claim s rest on the m ere use of asbestos, and that use at the shipyard was pursuant to governm ent directions via contract specifications.” Id. at 465; see also W inters, 149 F.3d at 40 0 . The evidence before the Court indicates that the U.S. Governm ent required the use of asbestos at Avondale for m ost of the tim e period between 1963 and 1972 when Mr. Pitre was employed there. Avondale subm its the affidavits of Commander Thomas McCaffery, Edward Blanchard, and Danny 32 R. Doc. 1; R. Doc. 23. 12 J oyce. 33 McCaffery, a retired Com m ander in the U.S. Navy (Reserve), attests that the contracts between Avondale and the U.S. Governm ent to build warships specified the m aterials that could be used in the construction of U.S. Navy ships. 34 He further represents that, until m id-1969, all approved pipe insulation products for use on pipes whose norm al operating tem perature exceeded 370 degrees Fahrenheit contained asbestos. 35 Blanchard, a former supervisor and vice-president at Avondale, attests that all aspects of work on federal vessels at Avondale were perform ed under the close and detailed surveillance of the U.S. Navy and other federal agencies. 36 Further, Blanchard states that federal inspectors retained ultim ate decision-m aking authority over all construction, and that every com ponent installed on a Navy vessel had to be on the Navy’s list of qualified products. 37 J oyce, a form er industrial hygienist at Avondale, represents that he has reviewed the contracts and specifications pertaining to the construction of federal vessels at Avondale. 38 He states that federal inspectors m onitored the site to ensure that the supplies used were those 33 34 35 36 37 38 R. Doc. 23-3; R. Doc. 23-4; R. Doc. 23-5. R. Doc. 23-3 at 1, 6-7. Id. at 7 ¶ 27. R. Doc. 23-4 at 1-2. Id. at 2, 8. R. Doc. 23-5 at 1, 3. 13 required by the contracts and specifications, including asbestos-containing insulation and other asbestos-containing m aterials. 39 As noted above, Chester Rodrigue’s deposition testim ony indicates that Mr. Pitre worked on Destroyer Escorts built by Avondale for the U.S. Navy. 40 The Court finds that Avondale has shown a sufficient causal nexus between Avondale’s actions under color of federal office and plaintiffs’ strict liability claim s for use of asbestos. Because Avondale satisfies the causal nexus standard as it was applied by the Fifth Circuit in Savoie, 817 F.3d 457 and W inters, 149 F.3d 387, the Court need not address Avondale’s argument that the 20 11 am endm ents to the federal officer rem oval statute created a less dem anding causal nexus requirement. 41 Avondale has also presented a colorable defense of federal contractor im m unity. The federal defense need only be colorable, not clearly sustainable, and a federal “officer need not win his case before he can have it rem oved.” See W illingham , 395 U.S. at 40 6-0 7; see also Acker, 527 U.S. at 432. The Fifth Circuit has explained that “a non-colorable federal defense is a defense that is im m aterial and m ade solely for the purpose of obtaining jurisdiction or that is wholly insubstantial and frivolous.” Zeringue v. Crane 39 40 41 Id. at 3-4 ¶ 8. R. Doc. 23-1 at 1, 6-8, 10 . R. Doc. 23 at 14-17. 14 Co., 846 F.3d 785, 790 (5th Cir. 20 17). Federal contractors are im m une from suit when “(1) the United States approved reasonably precise specifications; (2) the equipm ent conform ed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipm ent that were known to the supplier but not to the United States.” Boy le, 487 U.S. at 512. As outlined above, Avondale has provided evidence that the U.S. Navy required it to com ply with precise specifications, including the use of asbestos-containing pipe insulation. 42 Avondale’s affidavits also indicate that federal m onitors ensured that vessels built by Avondale conformed to contract specifications. 43 See Miller v. Diam ond Sham rock Co., 275 F.3d 414, 420 (5th Cir. 20 0 1) (explaining that evidence of inspections, and “[a]cceptance and use of an item following its production can establish that the item conformed to its specifications”). Further, the evidence suggests that the U.S. Government was at least as knowledgeable about the dangers of asbestos as Avondale. J oyce attests that Avondale did not have any inform ation regarding the hazards of asbestos that was not known by the federal government, including the U.S. 42 43 R. Doc. 23-3 at 7 ¶ 27. R. Doc. 23-4 at 2-3; R. Doc. 23-5 at 3-4 ¶ 8. 15 Navy. 44 Avondale also offers the deposition testim ony of Dr. Richard Lemen, a retired Assistant Surgeon General of the United States, who testified that the U.S. Public Health Service collected and reviewed scientific literature on asbestos beginning in the 1930 s. 45 The Fifth Circuit has held that a U.S. Navy contractor had a colorable federal defense against a strict liability claim for asbestos exposure when evidence existed that m ilitary specifications required the use of asbestos, and the Navy had as much or m ore knowledge about the dangers of asbestos exposure as the contractor. See Zeringue, 846 F.3d at 791-92. This case presents sim ilar circum stances, and the Court finds that Avondale has stated a colorable defense of federal contractor im m unity to plaintiffs’ strict liability claim s. See Savoie v. Penn. Gen. Ins. Co., No. 15-1220 , 20 17 WL 2391264, at *6-7 (E.D. La. 20 17) (holding that Avondale presented a colorable defense of federal contractor im m unity to strict liability claim s for asbestos exposure). Because the Court finds a colorable federal contractor im m unity defense under Boy le, it need not reach Avondale’s argument that it also has a colorable federal defense under the Longshore and Harbor Workers’ Com pensation Act. 46 44 45 46 R. Doc. 23-5 at 4 ¶ 9. R. Doc. 23-7 at 7. R. Doc. 23 at 24. 16 Plaintiffs do not seriously contest that their strict liability claim s against Avondale are removable under 28 U.S.C. § 1442(a)(1). 47 Plaintiffs instead m aintain that their strict liability allegations against Avondale were brought in error, and have since been deleted in the am ended com plaint. 48 As discussed above, a good faith error m ay justify granting leave to am end. But plaintiffs’ error does not create a jurisdictional defect in the notice of rem oval. Accordingly, the Court finds that Avondale’s notice of rem oval is valid and that federal jurisdiction exists over this m atter. 2. Cla im s Ag a in s t Fo s t e r W h e e le r Plaintiffs argue that, even if the Court properly acquired jurisdiction, the am ended com plaint has rem oved the federal question in this case and the Court has discretion to rem and the rem aining state law claim s. 49 But, although plaintiffs’ am ended com plaint deleted the strict liability claim s as to Avondale, plaintiffs continue to press strict liability claim s against Foster Wheeler. 50 Foster Wheeler asserts in its opposition to the motion to rem and 47 Plaintiffs’ m otion to rem and assum es that the strict liability claim s against Avondale have been deleted and instead argues that plaintiffs’ failure to warn and other negligence claim s against Avondale do not trigger federal jurisdiction under § 1442(a)(1). See generally R. Doc. 20 -1. 48 R. Doc. 20 -1 at 2. 49 Id. at 3. 50 See R. Doc. 4-1 at 9-10 ; R. Doc. 32. 17 that it independently qualifies for federal officer rem oval and has a colorable federal defense in this case. 51 As a threshold matter, the Court must determ ine whether Foster Wheeler can invoke federal jurisdiction at this stage of the litigation. Plaintiffs contend that Foster Wheeler has forfeited its right to assert federal jurisdiction under § 1442(a)(1) because it did not join in the original notice of rem oval or file its own tim ely supplem ental notice of rem oval. 52 Plaintiffs cite m ultiple cases that stand for the proposition that a defective notice of rem oval cannot be cured by untim ely attem pts to assert new bases for federal jurisdiction. 53 But such cases are inapposite to the posture of this case because Avondale’s notice of rem oval was not defective, and the Court properly acquired rem oval jurisdiction. The inquiry at this tim e is not whether the case was properly rem oved, but rather whether the Court can and should relinquish jurisdiction. The Fifth Circuit has held that a district court has no discretion to rem and a case over which it continues to exercise federal question jurisdiction, even if the federal officer who originally rem oved the m atter is dism issed from the case. See Buchner v. FDIC, 981 F.2d 816, 818, 821 (5th Cir. 1993) (“The fact that 51 52 53 R. Doc. 24. R. Doc. 28 at 1-2. Id. at 2-5. 18 the FDIC waived its right to rem ove the instant case is irrelevant to the determ ination of whether the case should have or could have been rem anded once it had been properly rem oved by another party who had not waived the right to rem ove.”). When two defendants independently assert federal officer rem oval jurisdiction, separate notices of rem oval are not strictly required to protect each defendant’s right to a federal forum . In Hum phries, the Fifth Circuit held that a defendant served after rem oval preserves its right to invoke federal jurisdiction under § 1442(a)(1) by asserting a governm ent contractor defense in its answer. 760 F.3d at 417. The Hum phries court explained that rem oval under §1442(a)(1) does not require the consent of codefendants, and defendants in cases that have already been rem oved to federal court are not required “to file a meaningless ‘notice of rem oval’ or unnecessary ‘joinder’ in order to preserve their right to a federal forum .” Id. Although Foster Wheeler was served before rem oval, it asserted a federal contractor defense in its answer to plaintiff’s state court petition, 54 and incorporated this defense into its answer to the am ended petition in 54 R. Doc. 4-1 at 139, 143-44. Foster Wheeler stated that, to the extent plaintiffs allege exposure to products m anufactured by Foster Wheeler for a governm ent contract, Foster Wheeler com plied with governm ent specifications, worked under the directions of a federal officer, and is entitled to federal contractor im m unity. See id. at 143-44. 19 federal court. 55 Given that Avondale properly rem oved this m atter to federal court, the Court finds that barring Foster Wheeler from invoking federal jurisdiction sim ply because it did not file a separate notice of rem oval would be an im perm issibly “‘narrow, grudging interpretation’ of § 1442(a)(1).” Id. (citing W illingham , 395 U.S. at 40 7). Having found that Foster Wheeler preserved its right to assert federal jurisdiction, the Court next considers whether Foster Wheeler meets the requirements of § 1442(a)(1). Plaintiffs’ state court petition alleges that Foster Wheeler produced, m anufactured, and sold boilers with asbestoscontaining insulation, and that Mr. Pitre inhaled asbestos dust from this insulation during the course of his employm ent at Avondale. 56 Specifically, plaintiffs assert that Foster Wheeler’s boilers were unreasonably dangerous per se, that Foster Wheeler failed to place adequate warnings on its boilers regarding the dangers of asbestos, and that Foster Wheeler is strictly liable for defective product design because it failed to design its products in such a m anner as to m inim ize exposure to asbestos. 57 With regard to plaintiffs’ design defect claim s, Foster Wheeler asserts that it produced boilers for use aboard three Navy ships built at Avondale 55 56 57 R. Doc. 17 at 2; see also R. Doc. 24 at 3 n.7. R. Doc. 4-1 at 9 ¶ 33. Id. at 9-10 ¶¶ 34-35. 20 during the period Mr. Pitre worked there, and these boilers were m anufactured in com pliance with detailed Navy specifications. 58 Foster Wheeler points to the deposition testim ony of Chester Rodrigue, who testified that Mr. Pitre worked on “just about all” of the Navy Destroyer Escorts built at Avondale. 59 Foster Wheeler also offers deposition testim ony and affidavits from J . Thom as Schroppe and Adm iral Ben Lehm an. 60 Schroppe, a form er Foster Wheeler executive, testified that Foster Wheeler supplied boilers to ships constructed at Avondale, including the Edw ard McDonnel, the Brum by , and the Davidson. 61 Vessel construction records indicate that these three vessels were built for the U.S. Navy at Avondale and delivered in 1965. 62 In an affidavit, Schroppe further attests that Foster Wheeler fabricated and furnished m arine propulsion boilers for the U.S. Navy according to the m ilitary’s detailed specifications. 63 These specifications extended to the m aterials required to fabricate the boiler and its components, including insulation m aterials. 64 58 59 60 61 62 63 64 R. Doc. 24 at 2, 7-8. R. Doc. 23-1 at 10 . R. Doc. 24-4; R. Doc. 24-5. R. Doc. 24-2 at 8-9; see also R. Doc. 24 at 2. R. Doc. 24-3. R. Doc. 24-4 at 1-2. Id. at 2-3 21 Adm iral Lehman, an engineer and retired Rear Adm iral in the U.S. Navy, sim ilarly attests that boilers used on Navy com bat vessels, including Foster Wheeler boilers, were designed and m anufactured according to detailed specifications written, approved, and issued by the U.S. Navy. 65 Adm iral Lehm an further explains that naval inspectors were responsible for assuring that contractors like Foster Wheeler com plied with contract specifications in every detail, and the U.S. Navy retained final say over the design of any piece of equipm ent. 66 In addition to these affidavits, Foster Wheeler has provided copies of relevant m ilitary specifications, including m achinery and piping therm al insulation requirements from 1966 that state that asbestos m aterials shall be used for certain insulation. 67 The Court finds that Foster Wheeler has presented sufficient evidence to show that it satisfies the requirements of § 1442(a)(1) as to plaintiffs’ design defect claim s. Plaintiffs do not dispute that Foster Wheeler is a person under the statute. See Dupre v. Todd Shipy ards Corp., No. 11-20 97, 20 11 WL 4551439, at *5 (E.D. La. 20 11). Further, Foster Wheeler has shown that it acted under the U.S. Navy’s directions during the period that Mr. Pitre was em ployed at Avondale, and that an apparent causal nexus exists between 65 66 67 R. Doc. 24-5 at 1-2. Id. at 4-5. R. Doc. 24-7; see also R. Doc. 24-6; R. Doc. 25-8; R. Doc. 24-9. 22 its actions under color of federal office and plaintiffs’ design defect claims. Foster Wheeler has offered evidence that it was required to construct its boilers in conform ity with detailed Navy specifications, that its relationship with Mr. Pitre derived from its official authority to provide products to the Navy, and that this authority relates to Foster Wheeler’s alleged use of asbestos in its boiler products. See Zeringue, 846 F.3d at 79-94; see also Dupre, 20 11 WL 4551439, at *6. Further, Foster Wheeler has stated a colorable defense of federal contractor im m unity. Federal contractors cannot be held liable under state law for design defects in m ilitary equipm ent when, as outlined above, “(1) the United States approved reasonably precise specifications; (2) the equipm ent conform ed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipm ent that were known to the supplier but not to the United States.” Boy le, 487 U.S. at 512. The abovedescribed evidence supports the inference that the U.S. Navy required Foster Wheeler’s boilers to conform to precise specifications. Further, Adm iral Lehman attests that Navy inspectors would refuse to approve or authorize shipment of any products that failed to com ply with contract specifications. 68 68 See, e.g., R. Doc. 24-5 at 4. 23 This suggests that the boilers likely conform ed to m ilitary specifications. 69 See Miller, 275 F.3d at 420 . Finally, as with Avondale, Foster Wheeler’s evidence suggests that the U.S. Navy knew as m uch or m ore about the dangers of asbestos as Foster Wheeler. Adm iral Lehm an explains that the U.S. Navy conducted extensive research on the dangers of asbestos exposure beginning in the 1930 s, and he attests that the Navy m ade a conscious decision regarding how asbestos would be used on its ships in light of its knowledge of these hazards. 70 Plaintiffs have not contested the substance of Foster Wheeler’s federal contractor defense, and the Court perceives no basis to distinguish this case from Zeringue, 846 F.3d 785. 71 As the Zeringue court explained, although Foster Wheeler has not provided “definitive proof that [the] asbestos exposure resulted from the Navy’s” discretionary decision to use asbestos, definitive proof is not necessary to establish a colorable defense of federal contractor im m unity. Id. at 792; see also Dupre, 20 11 WL 4551439, at *7 69 See, e.g., R. Doc. 24-5 at 4. Id. at 6-7. 71 Notably, in arguing that their failure to warn claim s against Avondale are not controlled by Zeringue, plaintiffs emphasize that Zeringue involved strict liability claim s against a product m anufacturer premised on the mere use of asbestos. See R. Doc. 20 -1 at 15. This argument is unavailing as to Foster Wheeler because Foster Wheeler is a product m anufacturer and plaintiffs’ claim s against it are based on its use of asbestos-containing insulation. See R. Doc. 4-1 at 9-10 . 24 70 (holding that Foster Wheeler asserted a colorable federal contractor im m unity defense as to strict liability claim s); cf. Saw y er v. Foster W heeler, LLC, 860 F.3d 249, 256-57 (4th Cir. 20 17) (finding that Foster Wheeler had a colorable federal defense as to failure to warn claim s). Accordingly, the Court finds that Foster Wheeler satisfies the requirements to invoke federal jurisdiction under § 1442(a)(1) based on plaintiffs’ design defect claim s. The Court retains federal question jurisdiction in this m atter, and plaintiffs’ m otion to rem and m ust therefore be denied. The Court need not and does not reach Avondale’s and Foster Wheeler’s argum ents that it also has federal question jurisdiction over plaintiffs’ failure to warn and other negligence claims. IV. CON CLU SION For the foregoing reasons, the Court DENIES the m otion to review the Magistrate J udge’s order granting plaintiffs leave to amend. Further, the Court DENIES plaintiffs’ m otion to rem and. New Orleans, Louisiana, this _ _6th _ day of Decem ber, 20 17. __ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 25
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
