Venue, Removal and Transfer in Asbestos Cases

Decisions in our library in which the court ruled on venue: 496 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

Louisiana

• Deaville v. Exxon Mobil Corporation (4th Circuit, 2021). Under La. C.C.P. art. 73(B), venue stays proper in a parish after the last defendant domiciled there is dismissed only if that defendant's claim was compromised or dismissed after trial. A unilateral dismissal without prejudice, with each party bearing its own costs, is not a compromise.
• Falgout v. Anco Insulations, Inc. (2021). 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.
• Labarre v. Bienville Auto Parts, Inc. (2021). A federal-officer removal clock under 28 U.S.C. 1446(b)(3) starts only when an amended pleading or other paper makes the basis for removal unequivocally clear and certain; a suspicion from experience or vague references to federal vessels is not enough.
• Legendre v. Lamorak Insurance Company (2021). Under the federal officer removal statute, a contractor need only show a colorable federal defense and a connection to acts taken under federal direction. Factual disputes are resolved in favor of federal jurisdiction, and a government contractor defense is colorable when it is plausible.
• Masters v. Graybar Electric Company, Inc. (2021). Under the voluntary-involuntary rule, a case becomes removable only if the plaintiff clearly and expressly abandons claims against the non-diverse defendant; counsel's closing-argument suggestion that the jury find no negligence, with that defendant still on the verdict form, was not abandonment, and ambiguities favor remand.
• Ragusa v. Louisiana Ins. Guar. Association (2021). Under the federal officer removal statute, the connection requirement is read broadly, so asbestos exposure at a shipyard building federal vessels satisfies it even if the plaintiff never boarded one. The 30-day removal clock starts only when the plaintiff's pleading unequivocally reveals why the case is removable, and a defendant may remove before then.
• Ragusa v. Louisiana Insurance Guaranty Association (2021). Federal officer removal's connection prong is met where federal vessels were under construction at the shipyard during the exposure period, even if plaintiff never boarded one; the 30-day removal clock runs only from a plaintiff's pleading that unequivocally shows why the case is removable, so removal before that trigger is timely.
• Roy v. Colgate Palmolive Co. (2021). A removing defendant must show no reasonable possibility of recovery against the non-diverse defendant. Under pre-1988 Louisiana law, a retailer could be liable as a professional vendor or if it should have known the product was defective, so the in-state retailer was properly joined.
• Williams v. Lockheed Martin Corporation (2021). A defendant may remove under the federal officer statute based on the full state-court record if it raises a colorable government contractor defense. Mesothelioma claims accruing after the 1975 Louisiana workers' compensation amendment are barred by the exclusive remedy provision, and plaintiffs needed evidence of significant asbestos exposure before that date to avoid the bar.
• Williams v. Seidenbach (2021). Under Louisiana law, a plaintiff must show significant exposure to the defendant's asbestos product as a substantial factor in causing the injury, and the burden is not relaxed in a long-latency, multiple-defendant case. Federal officer removal was proper because the contractor raised a colorable government contractor defense.
• Bourgeois v. Huntington Ingalls Inc. (2020). After the Fifth Circuit's en banc decision in Latiolais, an asbestos negligence claim against a shipyard is removable under the federal officer statute if connected to work done at a federal officer's direction and a colorable federal defense exists. Latiolais also counts as an "order" under 28 U.S.C. § 1446(b)(3) that started a new 30-day removal period.
• Brindell v. Carlisle Industrial Brake and Friction Inc. (2020). A removing defendant bears a heavy burden to show improper joinder, and if the petition survives a Rule 12(b)(6) challenge there is ordinarily no improper joinder. In a summary inquiry, disputed facts are resolved in the plaintiff's favor, and the defendant must put forward evidence negating any possibility of recovery against the in-state defendant.
• Broussard v. Huntington Ingalls, Inc. (2020). A Fifth Circuit en banc decision in an unrelated case can be an "order" under 28 U.S.C. § 1446(b)(3) when it involves the same defendant and a similar situation and resolves the legal issue that makes the case removable. The removal clock therefore started only after Latiolais, and the defendants met the requirements for federal officer removal under § 1442(a)(1).
• Calamia v. Parish of Jefferson (5th Circuit, 2020). A suit filed in an improper venue interrupts prescription only as to a defendant properly served within the prescriptive period. Plaintiffs did not show proper venue or proper service on the Parish in the earlier Orleans Parish suit, so prescription was not interrupted.
• Cortez v. Lamorak Insurance Co. (2020). Receipt of a deposition transcript revealing previously unstated facts can be an "order or other paper" that starts the 30-day removal clock. A defendant meets the federal officer removal test by colorably showing a Boyle government contractor defense, person status, action under a federal officer's direction, and a connection to that act, with the statute construed liberally.
• Hernandez v. Huntington Ingalls, Inc. (2020). Under Latiolais (5th Cir. en banc), a shipbuilder that shows a colorable government contractor defense, status as a person, acting under federal direction, and a connection between the alleged negligence and that work may remove under the federal officer removal statute.
• Holmes v. Bossier (2020). A decision in a separate case can be an "order" under 28 U.S.C. § 1446(b)(3) that restarts the removal period when the cases share the same defendants and similar facts and the decision resolves a legal issue that makes the case removable. Latiolais met this test, so removal within thirty days of it was timely.
• Hotard v. Avondale Industries, Inc. (2020). Under Louisiana's fact-pleading rules, a petition names a party as a defendant through its caption and substantive allegations even if the party is omitted from the paragraph listing defendants. Such a party may remove, and service of process is not a prerequisite to removal.
• Hsieh v. Apache Deepwater, LLC (2020). A Rule 59(e) motion cannot be used to raise arguments that could have been made earlier. OCSLA jurisdiction was properly found based on the plaintiff's own sworn discovery responses and complaint, without a separate affidavit from the defendant on the work location.
• Jackson v. Avondale Industries, Inc. (2020). A subcontractor may remove under the federal officer removal statute if it shows a colorable federal defense, that it is a person, that it acted under a federal officer's directions, and that the charged conduct is connected or associated with those directions. At the removal stage the court may consider affidavits and deposition testimony from other cases without applying strict admissibility rules.
• Jackson v. Avondale Industries, Inc. (2020). Remand was warranted because the plaintiff had settled with the removing defendants and no claimed basis for removal jurisdiction existed as to the remaining defendants, so the court did not reach the validity or merits of the federal officer removal.
• Latiolais v. Huntington Ingalls, Incorporated (2020). After the 2011 amendment adding "relating to," a defendant may remove under the federal officer removal statute if it asserts a colorable federal defense, is a "person," acted pursuant to a federal officer's directions, and the charged conduct is connected or associated with that act. The earlier "causal nexus" test is overruled.
• Roussell v. Huntington Ingalls, Inc. (2020). A defendant seeking federal-officer removal under 28 U.S.C. § 1442(a)(1) need only show a colorable (plausible) federal defense, such as Boyle government contractor immunity, and that defense can rest on work on government-contract vessels built under federal specifications requiring asbestos.
• Sampey v. Huntington Ingalls Inc. (2020). The 30-day federal-officer removal clock under 28 U.S.C. § 1446(b)(3) runs from receipt of an "other paper" that makes removability unequivocally clear. A bare witness-list name with no stated connection to the claims does not start it.
• Waguespack v. Avondale Industries, Inc. (2020). In federal officer removal, the 30-day removal clock starts from the initial pleading only if it affirmatively reveals on its face the allegations supporting removal; otherwise a later 'other paper' such as a deposition transcript can start the clock under § 1446(b)(3).
• Bondurant v. 3M Company (2019). A corporation incorporated and headquartered elsewhere is not subject to general jurisdiction in Louisiana merely because it does business there. Registering to do business and appointing an agent for service does not amount to consent to jurisdiction, and specific jurisdiction requires a connection between the claim, the defendant and the forum.
• Bondurant v. 3M Company (2019). A boilerplate disclaimer of claims arising from federal officers' acts does not defeat federal officer removal where the plaintiff still brings strict liability claims and defendants show a colorable government contractor defense, federal direction and a causal nexus.
• In re Friede Goldman Halter, Inc. (2019). A bankruptcy court that has jurisdiction to interpret its own confirmation order does not have exclusive jurisdiction, and it may permissively abstain and equitably remand a removed state-law case even when mandatory abstention does not apply.
• Knight v. Huntington Ingalls Incorporated (2019). On the present record it was premature to sever claims, remand, or abstain in a case removed under the federal officer removal statute, and Colorado River abstention appeared inapplicable because removal of the entire case left no parallel state action.
• Latiolais v. Huntington Ingalls, Incorporated (2019). Under binding circuit precedent (Bartel, Legendre), federal officer removal requires a causal nexus between actions taken under federal direction and the plaintiff's claims, and negligent failure-to-warn claims about asbestos do not meet it where the government did not control the shipyard's safety practices. A panel cannot overrule that precedent despite the 2011 "relating to" amendment.
• Parfait v. Huntington Ingalls Incorporated (2019). A notice of removal under the federal officer removal statute is untimely when the state court petition itself set forth the facts supporting removal, so a later deposition does not restart the 30-day clock. Under binding Fifth Circuit law, no causal nexus exists where the plaintiff limits his claim against the contractor to negligence.
• Sizemore v. Reilly-Benton Company, Inc. (4th Circuit, 2019). After a defendant has appeared, a trial court has discretion to dismiss without prejudice unless the defendant would lose substantive rights or be deprived of a just defense. The court may also hear a late motion despite a scheduling order deadline.
• Brazan v. Lamorak Insurance Co. (2018). A case not removable on its initial pleadings becomes removable only through a voluntary act of the plaintiff, and a nondiverse defendant whose claims are stayed by its bankruptcy has not been voluntarily dismissed, so its citizenship still counts for diversity.
• Brown v. Avondale Industries, Inc. (2018). Federal officer removal under 28 U.S.C. § 1442(a)(1) requires a causal nexus between the federal officer's direction and the challenged conduct, and negligence claims for failure to warn or adopt safety procedures for asbestos do not meet it under Fifth Circuit precedent.
• Burkart v. PPG Industries, Inc. (2018). Following its decision in Guillot, the court held that Avondale did not show a causal nexus between the federal requirement to use asbestos-containing materials and its ability to comply with state-law duties to warn and safeguard, so federal officer removal failed.
• Guillot v. Avondale Industries, Inc. (2018). Federal officer removal under 28 U.S.C. § 1442(a)(1) still requires a causal nexus between the defendant's conduct under federal direction and the plaintiff's claims. The 2011 "relating to" amendment did not change this under binding Fifth Circuit precedent, and federal direction to use asbestos does not reach failure-to-warn or safety claims when the government did not control safety.
• Latiolais v. Huntington Ingalls Incorporated (2018). Under the federal officer removal statute, a shipyard sued only in negligence for its own safety practices must show the federal government controlled those practices to establish a causal nexus. A government requirement to use asbestos is not enough.
• Legendre v. Huntington Ingalls, Incorporated (2018). Under the circuit's binding Bartel precedent, federal officer removal of negligence claims requires a causal nexus, and none exists where the government did not restrict the contractor's freedom to adopt the safety measures the plaintiffs say would have prevented the injury.
• Lopez v. McDERMOTT, Inc. (2018). Under the Fifth Circuit's broad "but-for" test, OCSLA jurisdiction covers an asbestos injury claim when at least part of the exposure came from constructing, repairing or maintaining offshore platforms used in mineral operations on the Outer Continental Shelf. A plaintiff need not invoke OCSLA expressly.
• Melancon v. Lamorak Insurance Company (2018). To remove under the federal officer removal statute, a defendant must show a causal nexus between the government's direction and the charged conduct. Negligent failure to warn, train and adopt safety procedures about asbestos is private conduct that implicates no federal interest, so it does not meet that requirement.
• Melancon v. Lamorak Insurance Company (2018). Federal officer removal requires a causal nexus between the defendant's actions under federal direction and the plaintiff's claims. Negligence and failure-to-warn claims about how asbestos was handled do not meet it without evidence the government controlled safety procedures or warnings, and a boiler maker acts under a federal officer only for boilers made for the military.
• Michel v. Ford Motor Company (2018). A non-diverse defendant is improperly joined when the removing party shows through summary-type evidence that the plaintiff has no reasonable possibility of recovering against it; the 30-day removal period runs from the 'other paper' that first shows the case is removable, here the final expert deposition transcript.
• Morgan v. Huntington Ingalls, Incorporated (2018). The 30-day removal clock under 28 U.S.C. § 1446(b)(3) starts when the defendant receives the deposition transcript, not when the deposition testimony is given, because oral testimony is not an "other paper."
• Rivera v. Huntington Ingalls, Inc. (2018). A court decides a motion to remand under the federal officer removal statute on the claims pleaded at the time of removal, so a post-removal disclaimer of strict liability claims does not defeat the causal nexus. Avondale showed a colorable government contractor defense, and strict liability claims based on mere use of asbestos satisfy the causal nexus requirement.
• Rousseau v. Johnson & Johnson (2018). A removing defendant claiming improper joinder must show no reasonable possibility of recovery against the non-diverse defendant, a heavy burden with doubts resolved for remand. Here, the allegations that K&B was a professional vendor, with the case still at an early stage, left a possibility of recovery.
• Templet v. Huntington Ingalls, Incorporated (2018). Negligence claims for failure to warn, train or adopt asbestos safety procedures do not show the causal nexus needed for federal officer removal when the defendant does not show it was prevented from adopting those safety measures.
• Uzee v. Huntington Ingalls Incorporated (2018). Under Fifth Circuit precedent, federal officer removal's causal nexus is met for strict liability claims based on mere use of asbestos required by government contracts, but not for negligent failure to warn, train or adopt safety procedures; plaintiffs who disclaim strict liability cannot be forced into such claims.
• Blouin v. Huntington Ingalls Inc. (2017). Federal officer removal under 28 U.S.C. § 1442(a)(1) requires a colorable federal defense even after the 2011 amendment. A defendant sued only for negligent failure to warn, where government contract specifications did not stop it from following state-law duties, has no such defense.
• Bordelon v. Atlantic Richfield Co. (2017). A court weighing post-removal joinder of a non-diverse defendant applies the Hensgens factors, and a removing party must show federal jurisdiction. Here, a declaration that did not establish where the husband worked was disregarded, and the state-law petitions raised no federal question.
• Coleman v. Anco Insulations, Inc. (2017). In a diversity case, a complaint must allege citizenship as domicile for individuals and as state of incorporation and principal place of business for corporations; alleging that defendants are 'foreign corporations' is not enough.