Melancon v. Lamorak Insurance Company (E.D. La., Jan. 19, 2018)

Our plain-English summary of Melancon v. Lamorak Insurance Company (U.S. District Court, Eastern District of Louisiana, January 19, 2018).

Sandra Melancon, widow of Tyrone Melancon, and his daughter Lynn Melancon sued in Louisiana state court. They alleged that Mr. Melancon was exposed to asbestos while working at Avondale Shipyard and developed mesothelioma. They claimed negligence and failure to warn. Huntington Ingalls (Avondale's successor), two individuals and an insurer removed the case to federal court under the federal officer removal statute. They said the Navy and Coast Guard vessels Avondale built were made under federal direction. The family asked the court to send the case back. The court granted the motion. It found the claims were about how Avondale handled asbestos, and the defendants showed no evidence that the Navy controlled safety procedures or warnings. It also rejected the argument that the claims were strict liability claims. As to co-defendant Foster Wheeler, Mr. Melancon worked in the electrical department. He spent only a couple of months on the one Navy ship with a Foster Wheeler boiler and did not work in its engine room. The only other boilers he could have encountered were commercial, so Foster Wheeler was not acting under a federal officer.

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: January 19, 2018
• Docket: Civil Action No. 17-12367
• Stage: Jurisdiction, venue or removal
• State: Louisiana

Outcome. The court granted the Melancon family's motion to remand the case to state court, rejecting Huntington Ingalls' and the other defendants' federal officer removal.

What the court held. 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.

Issues decided: Government Contractor Defense and Removal, Maritime Law and Navy Ships, Venue, Removal and Transfer.

The people and their exposure

• Tyrone Melancon: mesothelioma

Who	Work	Where	When	Products
Tyrone Melancon	worked exclusively in the Electrical Department (shipyards and maritime work)	Avondale Shipyard, Louisiana	1965-2002	pipe and block insulation, Foster Wheeler boilers

The defendants

• Huntington Ingalls Incorporated (employer)
• Lamorak Insurance Company (insurer)
• Foster Wheeler LLC (manufacturer)
• J Melton Garrett
• Albert Bossier, Jr.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• 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.
• Blouin v. Huntington Ingalls Inc. (U.S. District Court, Eastern District of Louisiana, 2017). The district court granted the Blouin family's motion to remand and sent the case back to Louisiana state court, rejecting Huntington Ingalls (Avondale)'s federal officer removal.
• Legendre v. Huntington Ingalls Inc. (U.S. District Court, Eastern District of Louisiana, 2017). The federal district court granted the Legendre brothers' motion to remand their wrongful death suit against Huntington Ingalls (Avondale) to Louisiana state court, rejecting Avondale's federal officer removal.
• Mayeaux v. Taylor-Seidenbach, Inc. (U.S. District Court, Eastern District of Louisiana, 2017). The federal district court granted George Mayeaux's motion to remand and sent the case back to the Civil District Court for the Parish of Orleans, rejecting Avondale/Huntington Ingalls and OneBeacon's federal officer removal.

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.

MELANCON ET AL,

v.

LAMORAK INSURANCE COMPANY ET AL., SECTION (1).

Civil Action No. 17-12367.

January 19, 2018.

United States District Court, E.D. Louisiana.

Sandra Vicknair Melancon & Lynn M Melancon, Plaintiffs, represented by Gerolyn Petit Roussel, Roussel & Clement, Benjamin Peter Dinehart, Roussel & Clement, Jonathan Brett Clement, Roussel & Clement, Lauren Roussel Clement, Roussel & Clement & Perry Joseph Roussel, Jr., Roussel & Clement.

Lamorak Insurance Company, as successor in interest to the liability for policies of insurance Commercial Union Insurance Company,Employers Commercial Union Insurance Company, and American Employers Insurance Company issued by, Defendant, represented by Gary Allen Lee, Lee, Futrell & Perles, LLP, Adam Devlin deMahy, Taylor, Wellons, Politz & Duhe, APLC, Daphne M. Lancaster, Lee, Futrell & Perles, LLP, Richard Marshall Perles, Lee, Futrell & Perles, LLP & Samuel Milton Rosamond, III, Taylor, Wellons, Politz & Duhe, APLC.

Huntington Ingalls Incorporated, formerly known as Northrop Grumman Shipbuilding, Inc. formerly known as Northrop Grumman Ship Systems, Inc. formerly known as Avondale Industries, Inc. formerly known as Avondale Shipyards, Inc formerly known as Avondale Marine Ways, Inc., Defendant, represented by Brian C. Bossier, Blue Williams, LLP, Christopher Thomas Grace, III, Blue Williams, LLP, Edwin A. Ellinghausen, III, Blue Williams, LLP, Erin Helen Boyd, Blue Williams, LLP, Laura M. Gillen, Blue Williams, LLP & Patrick Kevin Shockey, Blue Williams, LLP.

Albert Bossier, Jr. & J Melton Garrett, Defendants, represented by Gary Allen Lee, Lee, Futrell & Perles, LLP, Anita Ann Cates, Lee, Futrell & Perles, LLP, John M. Futrell, Lee, Futrell & Perles, LLP, Michael Scott Minyard, Lee, Futrell & Perles, LLP, Natasha Z. Wilson, Lee, Futrell & Perles, LLP & Richard Marshall Perles, Lee, Futrell & Perles, LLP. Bayer CropScience, Inc., successor to Rhone Poulenc AG Company formerly known as Amchem Products, Inc. formerly known as Benjamin Foster Company, Defendant, represented by McGready Lewis Richeson, Pugh, Accardo, Haas, Radecker & Carey, David M. Stein, Pugh, Accardo, Haas, Radecker & Carey, Ernest G. Foundas, Pugh, Accardo, LLC, Francis Xavier deBlanc, III, Pugh, Accardo, Haas, Radecker & Carey, Kathleen Erin Jordan, Pugh, Accardo, Haas, Radecker & Carey, Milele N. St. Julien, Pugh, Accardo, Haas, Radecker & Carey & Perrey S. Lee, Pugh, Accardo, LLC. Foster Wheeler LLC, formerly known as Foster Wheeler Corporation, General Electric Company & CBS Corporation, successor by merger to CBS Corporation, a Pennsylvania corporation formerly known as Westinghouse Electric Corporatioin formerly known as Viacom Inc, Defendants, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., Barry C. Campbell, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Kelly L. Long, Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C. & Magali Ann Puente-Martin, Frilot L.L.C.

Hopeman Brothers, Inc., Defendant, represented by Kaye N. Courington, Courington, Kiefer & Sommers, LLC, Blaine Augusta Moore, Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg, Courington, Kiefer & Sommers, LLC, Mathilde Villere Semmes, Courington, Kiefer & Sommers, LLC & Troy Nathan Bell, Courington, Kiefer & Sommers, LLC. McCarty Corporation, successor to McCarty Branton, Inc. and predecessor and successor to McCarty Insulation Sales, Inc. & Eagle, Inc., formerly known as Eagle Asbestos & Packing Company, Inc., Defendants, represented by Susan Beth Kohn, Simon, Peragine, Smith & Redfearn, LLP, April Ann McQuillar, Simon, Peragine, Smith & Redfearn, LLP, Douglas Kinler, Simon, Peragine, Smith & Redfearn, LLP & James R. Guidry, Simon, Peragine, Smith & Redfearn, LLP.

Reilly-Benton Company, Inc., Defendant, represented by Thomas L. Cougill, Willingham Fultz & Cougill, LLP, Jamie M. Zanovec, Willingham Fultz & Cougill, LLP, Jennifer H. McLaughlin, Willingham Fultz & Cougill, LLP & Jennifer D. Zajac, Willingham Fultz & Cougill, LLP.

Taylor Seidenbach, Inc., Defendant, represented by Christopher Kelly Lightfoot, Hailey, McNamara, Hall, Larmann & Papale, LLP, Edward J. Lassus, Jr., Hailey, McNamara, Hall, Larmann & Papale, LLP & Richard J. Garvey, Jr., Hailey, McNamara, Hall, Larmann & Papale, LLP.

3M Company, Defendant, represented by Stephen G.A. Myers, Irwin Fritchie Urquhart & Moore, LLC, Jay M. Mattappally, Irwin Fritchie Urquhart & Moore, LLC & Kelly E. Brilleaux, Irwin Fritchie Urquhart & Moore, LLC.

Berkshire Hathaway Specialty Insurance Company, formerly known as Stonewall Insurance Company, Defendant, represented by Paula Marcello Wellons, Taylor, Wellons, Politz & Duhe, APLC & Jared A. Davidson, Taylor, Wellons, Politz & Duhe, APLC.

United States Fidelity and Guaranty Company & Travelers Indemnity Company, Defendants, represented by Katherine Osborne Hannan, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard & Kristopher T. Wilson, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard.

American Insurance Company, Defendant, represented by Julia Ann Dietz, Degan, Blanchard & Nash, Jill R. Menard, Degan, Blanchard & Nash, Keith A. Kornman, Degan, Blanchard & Nash & Renee F. Smith Auld, Degan, Blanchard & Nash. Louisiana Insurance Guaranty Association, Defendant, represented by Dawn Danna Marullo, Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg, Courington, Kiefer & Sommers, LLC, Kaye N. Courington, Courington, Kiefer & Sommers, LLC & Troy Nathan Bell, Courington, Kiefer & Sommers, LLC.

Houston General Insurance Company, erroneously referred to as Bedivere Insurance Company, Defendant, represented by James R. Sutterfield, Sutterfield & Webb, LLC & David Allen Pote, Sutterfield & Webb, LLC.

J Melton Garrett & Albert Bossier, Jr., Third Party Plaintiffs, represented by Gary Allen Lee, Lee, Futrell & Perles, LLP, Anita Ann Cates, Lee, Futrell & Perles, LLP, Michael Scott Minyard, Lee, Futrell & Perles, LLP, Natasha Z. Wilson, Lee, Futrell & Perles, LLP, Richard Marshall Perles, Lee, Futrell & Perles, LLP & John M. Futrell, Lee, Futrell & Perles, LLP. Houston General Insurance Company, Third Party Defendant, represented by James R. Sutterfield, Sutterfield & Webb, LLC & David Allen Pote, Sutterfield & Webb, LLC.

J Melton Garrett & Albert Bossier, Jr., Cross Claimants, represented by Gary Allen Lee, Lee, Futrell & Perles, LLP, Anita Ann Cates, Lee, Futrell & Perles, LLP, Michael Scott Minyard, Lee, Futrell & Perles, LLP, Natasha Z. Wilson, Lee, Futrell & Perles, LLP, Richard Marshall Perles, Lee, Futrell & Perles, LLP & John M. Futrell, Lee, Futrell & Perles, LLP. 3M Company, Cross Defendant, represented by Stephen G.A. Myers, Irwin Fritchie Urquhart & Moore, LLC, Jay M. Mattappally, Irwin Fritchie Urquhart & Moore, LLC & Kelly E. Brilleaux, Irwin Fritchie Urquhart & Moore, LLC. American Insurance Company, Cross Defendant, represented by Julia Ann Dietz, Degan, Blanchard & Nash, Jill R. Menard, Degan, Blanchard & Nash, Keith A. Kornman, Degan, Blanchard & Nash & Renee F. Smith Auld, Degan, Blanchard & Nash. Bayer CropScience, Inc., successor to Rhone Poulenc AG Company, Cross Defendant, represented by McGready Lewis Richeson, Pugh, Accardo, Haas, Radecker & Carey, David M. Stein, Pugh, Accardo, Haas, Radecker & Carey, Ernest G. Foundas, Pugh, Accardo, LLC, Francis Xavier deBlanc, III, Pugh, Accardo, Haas, Radecker & Carey, Kathleen Erin Jordan, Pugh, Accardo, Haas, Radecker & Carey, Milele N. St. Julien, Pugh, Accardo, Haas, Radecker & Carey & Perrey S. Lee, Pugh, Accardo, LLC.

Berkshire Hathaway Specialty Insurance Company, Cross Defendant, represented by Paula Marcello Wellons, Taylor, Wellons, Politz & Duhe, APLC & Jared A. Davidson, Taylor, Wellons, Politz & Duhe, APLC.

CBS Corporation, successor by merger to CBS Corporation, a Pennsylvania corporation, Foster Wheeler LLC & General Electric Company, Cross Defendants, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., Barry C. Campbell, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Kelly L. Long, Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C. & Magali Ann Puente-Martin, Frilot L.L.C.

Eagle, Inc. & McCarty Corporation, successor to McCarty Branton, Inc. and predecessor and successor to McCarty Insulation Sales, Inc., Cross Defendants, represented by Susan Beth Kohn, Simon, Peragine, Smith & Redfearn, LLP, April

Ann McQuillar, Simon, Peragine, Smith & Redfearn, LLP, Douglas Kinler, Simon, Peragine, Smith & Redfearn, LLP & James R. Guidry, Simon, Peragine, Smith & Redfearn, LLP.

Hopeman Brothers, Inc., Cross Defendant, represented by Kaye N. Courington, Courington, Kiefer & Sommers, LLC, Blaine Augusta Moore, Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg, Courington, Kiefer & Sommers, LLC, Mathilde Villere Semmes, Courington, Kiefer & Sommers, LLC & Troy Nathan Bell, Courington, Kiefer & Sommers, LLC. Louisiana Insurance Guaranty Association, Cross Defendant, represented by Dawn Danna Marullo, Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg, Courington, Kiefer & Sommers, LLC, Kaye N. Courington, Courington, Kiefer & Sommers, LLC & Troy Nathan Bell, Courington, Kiefer & Sommers, LLC.

Taylor Seidenbach, Inc., Cross Defendant, represented by Christopher Kelly Lightfoot, Hailey, McNamara, Hall, Larmann & Papale, LLP, Edward J. Lassus, Jr., Hailey, McNamara, Hall, Larmann & Papale, LLP & Richard J. Garvey, Jr., Hailey, McNamara, Hall, Larmann & Papale, LLP.

United States Fidelity and Guaranty Company, Cross Defendant, represented by Katherine Osborne Hannan, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard & Kristopher T. Wilson, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard.

Huntington Ingalls Incorporated, Cross Claimant, represented by Brian C. Bossier, Blue Williams, LLP, Christopher Thomas Grace, III, Blue Williams, LLP, Edwin A. Ellinghausen, III, Blue Williams, LLP, Erin Helen Boyd, Blue Williams, LLP, Laura M. Gillen, Blue Williams, LLP & Patrick Kevin Shockey, Blue Williams, LLP.

Houston General Insurance Company & Houston General Insurance Company, erroneously referred to as Bedivere Insurance Company, Cross Defendants, represented by James R. Sutterfield, Sutterfield & Webb, LLC & David Allen Pote, Sutterfield & Webb, LLC.

ORDER & REASONS

ELDON E. FALLON, District Judge.

Before the Court is Plaintiff's motion to remand. R. Doc. 36. Defendants respond in opposition. R. Doc. 53. Having heard oral argument, read the parties' briefs, and reviewed the applicable law, the Court now issues this Order & Reasons. I. BACKGROUND

Plaintiffs Sandra Melancon, widow of Tyrone Melancon, and Lynn Melancon, daughter of Tyrone Melancon, filed this case in the Civil District Court of Orleans and allege that Tyrone Melacon, their husband and father, was exposed to asbestos when he worked for Avondale Shipyard. This exposure, Plaintiffs allege, resulted in Tyrone Melancon contracting mesothelioma. In their petition, Plaintiffs assert the following theories of recovery: negligence and failure to warn.

On November 13, 2017, Defendants J Melton Garrett, Lamorak Insurance Company, Huntington Ingalls Incorporated (Avondale Shipyard's successor), and Albert Bossier, Jr. (together "Huntington Ingalls") removed the case to this Court under the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1). In support of its Notice of Removal, Huntington Ingalls states that in deposition testimony given for another case Tyrone Melancon said that he worked on Navy Destroyer Escorts and Coast Guard Cutters. Therefore, Huntington Ingalls asserts that this Court has jurisdiction pursuant to the Federal Officer Removal Statute because Huntington Ingalls was "acting under an officer of the United States or an agency thereof" when it built the Destroyer Escorts and Cutters in question. R. Doc. 1 at 4-5. Additionally, Huntington Ingalls claims two federal defenses: 1) government contractor immunity and 2) pre-emption and bar under the provisions of the Longshore and Harbor Workers' Compensation Act ("LHWCA"). R. Doc. 1 at 6.

II. PENDING MOTION

a. Plaintiffs' Motion to Remand (R. Doc. 36)

Plaintiffs argue that this Court does not have jurisdiction pursuant to the Federal Officer Removal Status and avers that this Court, along with other Eastern District and Fifth Circuit Judges, have rejected identical removal arguments put forth by these and other defendants. R. Doc. 36-1 at 2-5. Moreover, Plaintiffs note that Courts have rejected Federal Officer Removal arguments for military shipbuilders based solely on evidence that the military required contactorbuilders to follow military plans and specifications. R. Doc. 36-1 at 6.

Looking to the specific facts of this case, Plaintiffs claim that "Avondale controlled all of the activities in regard to the construction of commercial and Navy vessels" and "government inspectors had absolutely no control over nor did they direct the Avondale safety department." R. Doc. 36-1 at 15. Rather, Plaintiffs allege that "[t]he Navy was a customer just like any other customer of Avondale." R. Doc. 36-1 at 15. Based on these facts, Plaintiffs argue that Huntington Ingalls cannot meet the requirements for Federal Officer Removal. Additionally, Plaintiffs cite the deposition of former Navy ship inspector at the Avondale Shipyards, Felix Albert, who testified that "[t]he United States government inspectors neither monitored nor enforced safety regulations. On the job safety during the construction of vessels for the United States government was the responsibility of Avondale Shipyards' safety department." R. Doc. 36-1 at 15.

b. Defendants' Response (R. Doc. 53)

Huntington Ingalls opposes the motion. R. Doc. 53. Huntington Ingalls argues that this case is removable on three grounds: 1) plaintiffs' allegations of strict liability, 2) plaintiffs' negligence claims, and 3) plaintiffs' strict products liability claim against Co-Defendant Foster Wheeler. R. Doc. 53 at 10.

Huntington Ingalls alleges that Plaintiffs have brought a strict liability claim against it because in paragraph 14 of the complaint there are care, custody, and control allegations similar to those held by the Fifth Circuit to allege strict liability claims. R. Doc. 53 at 17. Huntington Ingalls argues that these claims relate to its conduct under color of federal office. R. Doc. 53 at 20. Huntington Ingalls also argues that the "relating to" element is satisfied by Plaintiffs' negligence claims under the new test for this element. R. Doc. 53 at 21. Huntington Ingalls argues that under Zeringue v. Crane Co., 846 F.3d 785 (5th Cir. 2017), the 2011 amendment to the federal officer removal statute created a new, broader test that merely requires an association or connection with the federal office. R. Doc. 53 at 22, 27. Huntington Ingalls further avers that the facts here are different from those in Bartel v. Alcoa S.S. Co., 805 F.3d 169 (5th Cir. 2015), because here the Navy and Coast Guard required Huntington Ingalls to use asbestos and maintained oversight of the projects. R. Doc. 53 at 26. Finally, Huntington Ingalls argues that this case is properly removed based on strict liability claims against Co-Defendant Foster Wheeler. R. Doc. 53 at 43. Huntington Ingalls argues that there are strict liability claims against Foster Wheeler for use of asbestos in boilers that were installed on U.S. Navy vessels. R. Doc. 53 at 44. Huntington Ingalls further argues that Foster Wheeler meets all of the requirements of the federal officer removal statute. R. Doc. 53 at 45-47. Finally, Huntington Ingalls argues that it does not matter than Foster Wheeler has withdrawn its notice of removal because jurisdiction is determined at the time of removal. R. Doc. 53 at 47. For these reasons, Huntington Ingalls asks the Court to deny Plaintiffs' motion for remand. R. Doc. 53.

III. LAW & ANALYSIS

a. Legal Standard

The removing defendant carries the burden of showing the existence of federal jurisdiction. See Jernigan v. Ashland Oil, Inc., 989 F.3d 812, 815 (5th Cir. 1993). The Defendants base their removal on the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1), which provides, in pertinent part:

(a) A civil action. . . commenced in a State Court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) The United States. . . or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for or relating to any act under color of such office. . . .

28 U.S.C. 1442(a)(1).

Though generally remand to state court is favored when removal jurisdiction is questionable, removal jurisdiction under the Federal Officer Removal Statute must be broadly construed. See Willingham v. Morgan, 395 U.S. 402, 407 (1969); Watson v. Philip Morris Companies, 551 U.S. 142 (2007). The Court must interpret the statute liberally, resolving any factual disputes in favor of federal jurisdiction. See Louisiana v. Sparks, 978 F.2d 226 (5th Cir. 1992).

However, liberal construction does not mean that the statute's broad language should be interpreted to imply limitless application. Watson, 551 U.S. at 3 (reviewing statutory history, context, purpose and language and finding that the fact that a federal agency directs, supervises, and monitors a company's activities in considerable detail does not bring a company within the scope of the statute's language). As the purpose of this statute is to provide a federal forum in cases where federal officials are entitled to raise a defense arising out of their official duties, see Arizona v. Manypenny, 451 U.S. 232, 241 (1981); Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387, 398 (5th Cir. 1998), the United States Supreme Court has consistently repeated that the "statute authorized removal by private parties `only' if they were authorized to act with or for federal officers or agents in affirmatively executing duties under. . . federal law." Watson, 551 U.S. at 7. The Federal Officer Removal Statute only confers jurisdiction if the removing defendant can demonstrate that (1) the defendant is a "person" within the meaning of the statute; (2) the defendant acted pursuant to a federal officer's directions when committing the acts that allegedly give rise to the injury at issue; and (3) that a causal connection exists between the defendant's actions under color of federal office and the plaintiff's claims. Bartel v. Alcoa S.S. Company, 805 F.3d 169, 172 (5th Cir. 2015). Finally, the defendant must also show that it can assert a colorable defense. Savoie v. Huntington Ingalls, 817 F.3d 457, 460 (5th Cir. 2016).

b. Huntington Ingalls

Here, it is clear that Huntington Ingalls is a person within the meaning of the statute and was acting pursuant to a federal officer's directions when it built the vessels on which Mr. Melancon worked. Therefore, the primary question concerning the claims against Huntington Ingalls is whether Huntington Ingalls has established the requisite causal nexus. i. Causal Nexus Requirement

The causal nexus requirement serves to limit claims that can be removed to those where there is a legitimate federal interest. This is accomplished by requiring that defendant's act or omission, on which the plaintiff's claims are based, were done under direction of a federal officer. See Winters, 149 F.3d at 398. With respect to negligence claims, the Fifth Circuit has found that the claims do not support removal because the claims challenge discretionary acts rather than acts directed by a federal officer. Savoie, 817 F.3d at 463; see also Bartel, 805 F.3d at 173 (finding that defendant's safety measures were not directed by a federal officer).[1]

In Bartel v. Alcoa S.S. Company, the Fifth Circuit reasoned that in considering the causal nexus prong, it is "important to understand the nature of the plaintiffs' allegations [for] failure to warn, failure to train, and failure to adopt procedures for the safe installation and removal of asbestos." 805 F.3d at 173. Therefore, the Court must "consider whether the federal government exercised control over safety requirements such that a failure to warn was caused by the government's instructions." Mayeaux v. Taylor-Seidenbach, Inc., No. 16-16813, 2017 WL 3499242, at [*10] (E.D. La. Aug. 15, 2017) (citing Bartel, 805 F.3d at 173). Remand is proper when defendants can show only that the government owns the relevant vessels and fails to produce evidence that the government distributed safety procedures regarding use of asbestos. See Bartel, 805 F.3d at 174; Templet v. Avondale Industries, Inc., No. 17-5935, 2017 WL 3332644 (E.D. La. Aug. 4, 2017) (holding that employer failed to show causal nexus when its discretionary decisions alleged in plaintiff's claims were not related to its actions under color of federal office); Legendre v. Huntington Ingalls Inc., No. 17-2162, 2017 WL 1458209 (E.D. La. Apr. 25, 2017) (same).

c. Negligence & Failure to Warn Claims

Here, Plaintiffs' claims do not depend on the fact that Huntington Ingalls possessed asbestos, because the mere possession of asbestos did not allegedly cause Plaintiffs' injury. Rather, Plaintiffs go out of their way to demonstrate that their claims rest on Huntington Ingalls' alleged failure to properly handle asbestos, causing injury to Tyrone Melancon. In other words,

Huntington Ingalls' failure to use the asbestos safely, and not the mere use of asbestos, gives rise to Plaintiffs' claims. This distinction, as highlighted by this Court and the Fifth Circuit, makes the claims against Huntington Ingalls negligence claims. Like the plaintiffs in Bartel, Plaintiffs here have asserted negligence claims against Huntington Ingalls. Because these claims center on how Huntington Ingalls chose to handle asbestos, the evidence brought by Huntington Ingalls fails to satisfy the causal nexus requirement for these theories of liability. It is clear that the U.S. Navy mandated the use of asbestos in constructing its vessels. However, Huntington Ingalls has failed to present the Court with evidence that the U.S. Navy mandated how Huntington Ingalls handled those materials. Huntington Ingalls has not demonstrated any government control over safety procedures or use of asbestos, nor shown that the government prevented Huntington Ingalls from taking protective measures suggested by Plaintiffs. Such control is necessary to satisfy the causal nexus requirement. Furthermore, Huntington Ingalls has failed to demonstrate any evidence that the U.S. Navy restricted their ability to warn their employees of the present of asbestos in their work environment and of the dangers of this exposure. "In other words, [Huntington Ingalls] has not demonstrated that its own discretionary decisions to allegedly fail to warn or protect [Tyrone Melancon] from the damages of asbestos while [he] was employed by Avondale resulted from or is `related to' its actions under color of federal office." Templet, No. 17-5935, 2017 WL 3332644, at [*10]. Additionally, Huntington Ingalls has failed to distinguish this case from clear Fifth Circuit precedent and numerous holdings by this Court. Thus, Huntington Ingalls fails to satisfy the causal nexus requirement and the claims against Huntington Ingalls cannot support federal officer removal.

Huntington Ingalls next argues that, in their complaint, Plaintiffs have specifically alleged strict liability claims. Huntington Ingalls avers that Plaintiffs' claims here are identical to the strict liability claims in Savoie. See Savoie, 817 F.3d at 463-64.[2] However, Plaintiffs' claims are critically different than those in Savoie because they do not in fact allege strict liability. [3] Furthermore, the Fifth Circuit has upheld this Court's prior interpretation of similar claims as negligence claims. See Wilde v. Huntington Ingalls, Inc., 616 F. App'x 710, 715 (5th Cir. 2015). Therefore, the Court finds that Plaintiffs have not alleged strict liability claims against Huntington Ingalls.

Because Huntington Ingalls cannot establish the requisite federal causal nexus, there is no need to discuss whether it has asserted a colorable federal defense.

d. Foster Wheeler

Finally, Huntington Ingalls argues that this case is properly removed based on Plaintiffs' strict liability claims against Co-Defendant Foster Wheeler. In their complaint, Plaintiffs' allege the following:

The asbestos-containing products manufactured, distributed and/or sold by. . . Foster Wheeler LLC were unreasonably dangerous per se, were defective in design, and constituted a breach of warranty from said manufacturers. Further, these defendants failed and refused to warn Mr. Melancon of the danger of exposure to such products. They also failed to warn of the invisible nature of the asbestos and that it could cause diseases such as mesothelioma, cancer, asbestosis, pleural diseases, and other ill health effects.

R. Doc. 1-14 at 21 (emphasis added). Huntington Ingalls alleges that this paragraph contains a strict liability claim against Foster Wheeler which entitles Foster Wheeler to Federal Officer Removal. Plaintiffs' complaint does allege a strict liability claim against Foster Wheeler and there is no question that Foster Wheeler is a person within the meaning of the federal officer removal statute. Therefore, the Court will focus on the next element and whether Foster Wheeler was acting under a federal officer when committing the acts that allegedly gave rise to the Plaintiffs' injuries.

In order to be acting under the color of federal authority for the purposes of federal officer removal, the Supreme Court has looked to whether the defendant "is helping the Government to produce an item that it needs [or is] perform[ing] a job that, in the absence of a contract with a private firm, the Government itself would have had to perform." Watson, 551 U.S. at 153-54. Huntington Ingalls avers that Foster Wheeler produced boilers for installation on U.S. Navy vessels pursuant to the direction of the U.S. Navy. Presumably, the federal government would have had to produce these boilers in the absence of a contract with Foster Wheeler or other manufacturer.

However, the problem here is that there is no evidence that Mr. Melancon was ever exposed to Foster Wheeler boilers produced for the federal government. For decades Foster Wheeler manufactured boilers that were installed on both

commercial and U.S. Navy vessels. When producing boilers for use on U.S. Navy vessels, Foster Wheeler was acting under a federal officer. See Pitre, etal. v. Huntington Ingalls, Inc., etal., 2017 WL 6033032 at [*8] (E.D. La. Dec. 6, 2017). However, when producing boilers for commercial use Foster Wheeler was not acting under a federal officer because the military had no authority to provide directions or specifications for the production of commercial boilers.

Plaintiffs allege that Mr. Melancon was exposed to asbestos by a Foster Wheeler product. R. Doc. 1-14 at 21. Plaintiffs further allege that Foster Wheeler manufactured boilers for use on both commercial and U.S. Navy vessels. R. Doc. 1-14 at 29-30. Plaintiffs do not allege that Mr. Melancon was exposed to Foster Wheeler boilers manufactured for use on a U.S. Navy vessel. These pleadings are broad and not definitive as to whether Foster Wheeler was acting under a federal officer in relation to Plaintiffs' claims. Therefore, the Court will look to the facts to make that determination. Huntington Ingalls suggests that Mr. Melancon was exposed to Foster Wheeler boilers while working aboard U.S. Navy Destroyer Escorts. According to his deposition testimony, Mr. Melancon worked at Avondale Shipyards from 1965-2002. R. Doc. 63-4 at 5. During that time he worked exclusively in the Electrical Department. R. Doc. 63-4 at 5. At the time Mr. Melancon was working for Avondale, nearly all of the U.S. Navy vessels produced there contained boilers built by companies other than Foster Wheeler. R. Doc. 63-5. Huntington Ingalls points to one vessel, built in 1965, that contained a Foster Wheeler boiler. This vessel was the Destroyer Escort 1045. The DE 1045 was being finished when Mr. Melancon began his career. Mr. Melancon testified that he "worked on the last 1045 that was being completed." R. Doc. 63-4 at 7. Mr. Melancon's work on the 1045 lasted "a couple of months." R. Doc. 63-4 at 7. Describing his work at the time, Mr. Melancon stated that he "did the cable pulling and the equipment installation" and that he worked in the "radio room, teletype room, C.I.C., [and] pilothouse." R. Doc. 63-4 at 8. Mr. Melancon specifically testified that his "job wasn't involved in the engine room" where the boilers were located. R. Doc. 63-4 at 9. Because Mr. Melancon was not working in the engine room of the 1045 in 1965 and there were no Foster Wheeler boilers installed on the other U.S. Navy ships on which he worked, there is no basis to suggest that Mr. Melancon was exposed to asbestos via a Foster Wheeler boiler produced for the U.S. Navy. "Federal jurisdiction rests on a `federal interest in the matter,' the very basic interest in the enforcement of federal law through federal officials." Willingham, 395 U.S. at 406 (internal citations omitted). Here, because the only other Foster Wheeler boilers to which Mr. Melancon could have been exposed were manufactured for commercial use, Foster Wheeler was not acting under a federal officer when producing them and there is no federal interest in the matter.[4] Therefore, Foster Wheeler fails the acting under requirement and Plaintiffs' claims against Foster Wheeler cannot support federal officer removal.

IV. CONCLUSION

For the aforementioned reasons,

IT IS ORDERED that Plaintiffs' Motion to Remand, R. Doc. 36, is GRANTED.

[1] Huntington Ingalls has suggested that Bartel and Savoie are no longer good law. However, subsequent case law has only affirmed and/or distinguished these cases and Huntington Ingalls has been unable to show that Bartel should be distinguished here. See Blouin v. Huntington Ingalls Inc., 2017 WL 2628103, at [*6] (E.D. La. June 19, 2017), appeal docketed.

[2] "All defendants had care, custody, and control of the asbestos, which asbestos was defective and which presented an unreasonable risk of harm, which asbestos resulted in the injury of Mr. Savoie and for which these defendants are strictly liable under Louisiana law." Savoie, 817 F.3d at 463-64 (emphasis added).

[3] "All asbestos companies had care, custody, and control of the asbestos, which asbestos was defective and which presented an unreasonable risk of harm, which asbestos resulted in the injury of Mr. Melancon and for which these defendants are liable under Louisiana law." R. Doc. 1-14 at 6.

[4] Avondale supports its argument for federal officer removal via Foster Wheeler by pointing to Pitre, etal. v. Huntington Ingalls, Inc., etal., 2017 WL 6033032 (E.D. La. Dec. 6, 2017). In Pitre the Court found that there were Foster Wheeler boilers on three ships produced for the U.S. Navy during the time plaintiff worked at Avondale and it was highly likely that plaintiff worked on those vessels. Id. at 7. The facts of this case are easily distinguished because there is no evidence that Mr. Melancon was exposed to Foster Wheeler boiler aboard a U.S. Navy ship. In fact, he only worked for a couple of months on a ship that even had a Foster Wheeler boiler installed.

Sources

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