Falgout v. Anco Insulations, Inc. (2021)

Our plain-English summary of Falgout v. Anco Insulations, Inc. (U.S. District Court, Eastern District of Louisiana, October 4, 2021).

Ruby Lee Marie Falgout sued several companies in Orleans Parish state court in March 2021. She alleged that she developed mesothelioma from asbestos exposure when she laundered her husband's work clothes. Her husband worked at Avondale's shipyard in Bridge City, Louisiana. Hopeman Brothers removed the case to federal court under the federal officer removal statute, 28 U.S.C. § 1442, and Avondale joined the removal. Falgout moved to remand the case to state court as to each company. The federal district court denied both motions. It noted that removal under this statute is not read narrowly and that the removing party must still show federal jurisdiction. As to Avondale, it relied on earlier decisions, including a Fifth Circuit case, that let Avondale remove under this statute, and it found no new facts or issues. As to Hopeman, it followed its reasoning in Jackson v. Avondale and held that Hopeman could also remove. The case remains in federal court.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Eastern District of Louisiana
• Decided: October 4, 2021
• Docket: Civil Action No. 2.21-CV-1443
• Stage: Jurisdiction, venue or removal
• State: Louisiana

Outcome. The district court denied the plaintiff's motions to remand, so the case against Avondale and Hopeman Brothers stays in federal court under the federal officer removal statute.

What the court held. Avondale and Hopeman Brothers can remove an asbestos case under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), following earlier decisions that allowed it.

Issues decided: Government Contractor Defense and Removal, Venue, Removal and Transfer.

The people and their exposure

• Ruby Lee Marie Falgout (family member): mesothelioma

The defendants

• Avondale Industries, Inc. (employer)
• Hopeman Brothers (contractor)
• Anco Insulations, Inc.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Latiolais v. Huntington Ingalls, Incorporated (U.S. Court of Appeals, Fifth Circuit, 2020). The en banc Fifth Circuit vacated the district court's order remanding the case to state court and remanded for further proceedings in federal court, ruling for Avondale (Huntington Ingalls) and against Latiolais on removal.
• Savoie v. Huntington Ingalls, Incorporated (U.S. Court of Appeals, Fifth Circuit, 2016). The Fifth Circuit vacated the district court's order remanding the case to state court, holding the shipyard showed a causal nexus for the survival strict liability claims, and remanded for the district court to decide whether the shipyard has a colorable federal defense; the Savoie family lost on the remand ruling.
• Jackson v. Avondale Industries, Inc. (U.S. District Court, Eastern District of Louisiana, 2020). The district court granted Hopeman Brothers' motion for reconsideration, vacated its earlier order remanding the case to state court, and denied plaintiff Patricia Jackson's motion to strike Hopeman's exhibits, finding federal officer removal jurisdiction.

Later decisions citing this one

2 later decisions in our library cite this one:

• Constanza v. Sparta Insurance Company (U.S. District Court, Eastern District of Louisiana, 2024). The district court denied the plaintiffs' motion to remand, holding that Avondale (Huntington Ingalls) properly removed the case under the federal officer removal statute, so the case stays in federal court.
• Marcella v. Huntington Ingalls Inc. (U.S. District Court, Eastern District of Louisiana, 2024). The court denied the plaintiffs' motion to remand, so the case stays in federal court, because Avondale (with Hopeman and Wayne) raised colorable federal defenses under the federal-officer removal statute.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

RUBY LEE MARIE FALGOUT, Plaintiff,

v.

ANCO INSULATIONS, INC., ET AL, SECTION J(3), Defendants.

Civil Action No. 2.21-CV-1443.

October 4, 2021.

United States District Court, E.D. Louisiana.

ORDER & REASONS

CARL J. BARBIER, District Judge.

Before the Court is a Motion to Remand (Rec. Doc. 10) filed by Ruby Lee Marie Falgout against Defendant, Avondale Industries, Inc. (hereinafter "Avondale"), a Motion to Remand (Rec. Doc. 12) filed by Plaintiff against Defendant, Hopeman Brothers (hereinafter "Hopeman," collectively with Avondale "Defendants), an opposition filed by Hopeman (Rec. Doc. 33), and an opposition filed by Avondale (Rec. Doc. 34). Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that both motions should be DENIED.

FACTS AND PROCEDURAL BACKGROUND

Plaintiff alleges that she contracted mesothelioma as a result of asbestos exposure by laundering her husband's work clothes, who worked at Avondale's Bridge City, LA shipyard. Plaintiff filed suit against numerous parties in the Orleans Parish on March 26, 2021. On July 29, 2021, Hopeman filed for removal asserting jurisdiction under 28 U.S.C. § 1442. On August 4, 2021, Avondale filed a Notice of Joinder to Hopeman's removal. On August 27, 2021, Plaintiff filed Motions to Remand as to both Avondale and Hopeman. On September 28, 2021, Hopeman filed an Opposition to Plaintiff's Motion to Remand, and on September 29, 2021, Avondale filed their Opposition.

LAW

Although federal courts are courts of limited jurisdiction, "federal officer removal under 28 U.S.C. § 1442 is unlike other removal doctrines: it is not narrow or limited." State v. Kleinert, 855 F.3d 305, 311 (5th Cir. 2017); Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). Although the principle of limited federal court jurisdiction ordinarily compels federal courts to resolve any doubt about removal in favor of remand, courts should analyze removal under § 1442(a)(1) "without a thumb on the remand side of the scale." Savoie v. Huntington Ingalls, Inc., 817 F. 3d 457, 462 (5th Cir. 2016). Nevertheless, it remains the removing party's burden of showing that federal jurisdiction exists. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

Under 28 U.S.C. § 1442(a)(1), the federal officer removal statute, a federal court has subject matter jurisdiction if the defendant is "any person acting under [an officer] of the United States or of any agency thereof. . . . for or relating to any act under color of such office." 28 U.S.C. § 1442(a)(1). To qualify for removal under § 1442(a)(1), a defendant must show: (1) it has asserted a colorable federal defense, (2) it is a "person" within the meaning of the statute, (3) that 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. Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 296 (5th Cir. 2020).

DISCUSSION

As to Avondale, courts have repeatedly held that Avondale can remove under the federal officer removal statute. Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 296 (5th Cir. 2020); Savoie v. Pa. Gen. Ins. Co., 2017 U.S. Dist. LEXIS 94904 (E.D. La. June 2, 2017); Pennino v. Reilly-Benton Co., Inc., No. CV 21-363, 2021 WL 3783184 (E.D. La. Aug. 26, 2021). There

are no new facts or issues in the present case that would cause this Court to break with precedent. As to Hopeman, for the reasons stated in Jackson v. Avondale, the Court concludes that Hopeman also can remove to federal court under the federal officer removal statute. See 469 F. Supp. 3d 689 (E.D. La. 2020).

CONCLUSION

Accordingly,

IT IS ORDERED Plaintiff's Motion to Remand (Rec. Doc. 10) is DENIED.

IT IS FURTHER ORDERED Plaintiff's Motion to Remand (Rec. Doc. 12) is DENIED.

IT IS FURTHER ORDERED that oral argument schedule for October 6, 2021 is CANCELLED.

Sources

• The opinion on Google Scholar
• Louisiana asbestos laws
• Louisiana asbestos exposure sites