Jurisdiction: United States District Court for the Middle District of Louisiana
Plaintiffs Claudette Washington Skidmore and Courtney Skidmore Williams brought claims against several defendants after the death of their husband and father, Kurt Lawrence Skidmore.
Plaintiffs’ claims relate to defendants’ “mining, processing, manufacturing, installation, maintenance, sale, distribution, and/or use of asbestos and asbestos-containing products”. Plaintiffs further allege decedent was exposed to asbestos throughout 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.
Plaintiffs’ original and amended petition were initially filed in state court. Plaintiffs named, among others, Avondale (a contractor for the U.S. government) and Hopeman (Avondale’s subcontractor that worked on U.S. Coast Guard vessels) as defendants in their petitions. However, defendants filed a successful motion to have the matter removed to the federal court, specifically the U.S. District Court for the Middle District Court of Louisiana, pursuant to 28 U.S.C. § 1442(a).
Plaintiffs thereafter filed a motion to remand this matter back to state court. Plaintiffs motion initially argued removal was improper because, although the Avondale defendants may have been operating under a 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. Plaintiffs further agued removal was improper because defendants cannot sufficiently demonstrate that they have a colorable federal defense.
In opposition to plaintiffs’ motion to remand, the Avondale defendants argued federal jurisdiction was proper because, among other things, defendant Avondale’s contracts were with the U.S. government, which required the use of asbestos, the use of asbestos was monitored by federal inspectors, Avondale adhered to federal regulations regarding repeated asbestos exposure, and that federal officials had the authority to halt operations if in violation of these federal regulations.
Hopeman, meanwhile, specifically opposed plaintiffs’ motion to remand by including federal specifications for Coast Guard cutters and MARAD vessels, which required that components containing asbestos be installed. Lastly, defendants argued the federal court retains jurisdiction so long as jurisdiction was proper at time of removal.
To properly remove a matter from state court to federal court under 28 U.S.C. § 1442(a), a defendant must show: (1) it has asserted a colorable federal defense; (2) it is a “person” within the meaning of the statute; (3) it has acted pursuant to a federal officer’s directions; and (4) the charged conduct is connected or associated with an act pursuant to a federal officer’s directions. See Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 296 (5th Cir. 2020). 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. Id. at 291. In its unanimous, en banc decision in Latiolais, which involved a similar asbestos-exposure claim asserted against Avondale, the Fifth Circuit significantly expanded the law regarding removal. Id. at 289-90. Now, instead of a “causal nexus”, a defendant must only show that the charged conduct “is connected or associated with an act pursuant to a federal officer’s directions” (if the other statutory requirements are met). Id. at 296.
Post-Latiolais, this court, and at least one other district court in the circuit, have found removal was proper under facts substantially similar to those facts established in this matter. See Neal v. Ameron Int’l Corp., 495 F. Supp. 3d 375 (M.D. La. 2020); see also Reulet v. Lamorak Ins. Co., Civil Action No.: 20-404-BAJ-EWD, 2021 U.S. Dist. LEXIS 58780, 2021 WL 1151568 (Decided March 4, 2021). In those cases -— which both involved Avondale defendants — this court determined removal was proper. Firstly, it was beyond dispute that the Avondale defendants were a person within the meaning of the statute. The court next found the Avondale defendants asserted a “colorable federal defense” by claiming government contractor immunity and derivative sovereign immunity. Lastly, the court held the Avondale defendants had established the requisite third and fourth prongs for removal (respectively requiring a defendant to sufficiently demonstrate that it “acted pursuant to a federal officer’s directions” and “the charged conduct is connected or associated with an act pursuant to a federal officer’s directions”) because the contractors’ work was performed under the federal government’s “approved reasonably precise specifications”, the work performed had conformed to the government’s specifications, and that the government was aware of asbestos hazards associated with the work performed. In that regard, the defendants’ specifically performed work as contractors for the federal government involving the construction and refurbishment of military vessels in accordance with Federal government regulations, which required the use of asbestos during the relevant time period.
In view of the above, the court ultimately held the Avondale defendants had sufficiently established removal was proper pursuant to 28 U.S.C. § 1442(a). The federal court therefore denied plaintiffs’ motion to remand and maintained jurisdiction over this matter.
Read the full decision here.
