Sampey v. Huntington Ingalls Inc. (2020)

Our plain-English summary of Sampey v. Huntington Ingalls Inc. (U.S. District Court, Eastern District of Louisiana, December 7, 2020).

Ethel Sampey sued Huntington Ingalls, Lamorak Insurance, Foster Wheeler and others in state court after being diagnosed with malignant mesothelioma in May 2020. She alleged two sources of asbestos exposure: secondhand exposure from her uncle, who worked at Avondale Shipyard from 1957 to 1965, and exposure from Avondale workers she served as a bartender. The Avondale defendants removed the case to federal court under the federal-officer removal statute, saying the 30-day clock began when Sampey's September 25, 2020 discovery responses tied two names on her witness list to her exposure. Sampey moved to remand, arguing removal was untimely because the witness list had been emailed earlier. The court denied the motion. It found the two names were unexplained entries on a 37-person list, so nothing before the discovery responses made removability clear. It also found the defendants had asserted a colorable government contractor defense that Sampey did not challenge. The court did not decide Foster Wheeler's separate basis for removal.

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: December 7, 2020
• Docket: Civil Action No. 20-2779
• Stage: Jurisdiction, venue or removal
• State: Louisiana

Outcome. The court denied plaintiff Ethel Sampey's motion to remand, holding that the Avondale Interests' federal-officer removal was timely and rested on a colorable Boyle defense.

What the court held. 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.

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

The people and their exposure

• Ethel Sampey (family member): mesothelioma

Who	Work	Where	When	Products
Ethel Sampey	niece living in the home of an Avondale worker (uncle Huey Levron) (shipyards and maritime work); dust brought home	Avondale Shipyard, Louisiana	1957-1965
Ethel Sampey	bartender; worked near others using it	Westbank Bars (Capri Lounge, Terrace Lounge, Zodiac Lounge, and others), Louisiana

The defendants

• Huntington Ingalls Incorporated (premises owner)
• Lamorak Insurance Company (insurer)
• Foster Wheeler LLC (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Sampey v. Anco Insulations, Inc. (November 2, 2021). The court granted Hopeman's unopposed motion, joined by Avondale, Travelers, International Paper and Amchem, and dismissed with prejudice Ethel Sampey's loss of consortium, service and society claims against them.
• Sampey v. Anco Insulations, Inc. (April 28, 2022). The court granted the unopposed summary judgment motions of Grefco and Viking Pump and dismissed the claims against them by the plaintiffs and crossclaimant Avondale with prejudice.
• Sampey v. Anco Insulations, Inc. (May 26, 2022). The court granted Crescent Materials' unopposed motion for summary judgment and dismissed the plaintiffs' claims against it with prejudice.
• Sampey v. Anco Insulations, Inc. (June 23, 2022). The court granted the unopposed summary judgment motions of Goulds Pumps and Crown Cork & Seal and dismissed the plaintiffs' claims against them with prejudice.

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.
• Morgan v. Huntington Ingalls, Incorporated (U.S. Court of Appeals, Fifth Circuit, 2018). The Fifth Circuit vacated the district court's remand order, holding Huntington Ingalls (Avondale) removed on time, and remanded for the district court to decide the federal officer requirements; it dismissed Murphy Oil's appeal for lack of standing.
• 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.

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.

ETHEL SAMPEY,

v.

HUNTINGTON INGALLS INC., etal., SECTION M (2).

Civil Action No. 20-2779.

December 7, 2020.

United States District Court, E.D. Louisiana.

ORDER & REASONS

BARRY W. ASHE, District Judge.

Before the Court is the motion of plaintiff Ethel Sampey to remand.[1] Defendants Huntington Ingalls Incorporated and Lamorak Insurance Company ("the Avondale Interests")[2] and Foster Wheeler LLC ("Foster Wheeler")[3] oppose the motion. Having considered the parties' memoranda, the record, and the applicable law, the Court issues this Order & Reasons denying the motion to remand.[4]

I. BACKGROUND

This case arises from personal injuries allegedly caused by exposure to asbestos. On May 23, 2020, Sampey was diagnosed with malignant mesothelioma which she alleges was caused by (1) secondhand exposure to asbestos from her uncle, Huey Levron, who worked at Avondale Shipyard from 1957 until 1965, and (2) additional exposure from Avondale workers she served when working as a bartender.[5] On July 30, 2020, Sampey filed suit against the Avondale Interests and Foster Wheeler among other defendants.[6] On August 1, 2020, Sampey emailed to suspected defense counsel a courtesy copy of the original petition for damages and a link where defendants could download discovery documents — including her witness list.[7] On August 21, 2020, a perpetuation deposition of Sampey was taken and counsel for the Avondale Interests participated.[8] On September 1, 2020, the Avondale Interests were formally served with the petition for damages.[9] On September 25, 2020, Sampey responded to the Avondale Interests' discovery requests.[10] In response to an interrogatory asking her to "identify by name ... each former Avondale employee known to you or your counsel, that You allege exposed You to Asbestos at" the Westbank Bars,[11] Sampey referenced the exact same witness list that had been produced with her August 1, 2020 email.[12] Of significance, the list included the names of Stanley Gomez and Charles Bourg without any indication of their relationship to the claims or their employment history, including their work on federal ships.[13] On October 9, 2020, the Avondale Interests removed this case to federal court on the basis of federal-question jurisdiction under 28 U.S.C. § 1441 and federal-officer jurisdiction under 28 U.S.C. § 1442.[14] The notice of removal stated it was "filed within thirty days of the Avondale Interests' receipt of Plaintiff's discovery responses and Witness List on September 25, 2020, and is, therefore, timely under 28 U.S.C. § 1446."[15]

II. PENDING MOTION

In a case where no party disputes the substantive basis for federal-officer jurisdiction, it all comes down to the clock. Sampey argues that the basis for jurisdiction was apparent on the face of the petition and that the Avondale Interests removed the case more than 30 days after they were served.[16] She argues, then, that removal is untimely under 28 U.S.C. § 1446(b)(1) and the case should be remanded back to state court.[17] Sampey insists that the Avondale Interests cannot rely on 28 U.S.C. § 1446(b)(3) to start the 30-day window from receipt of "other paper" based on her discovery responses because the responses did not provide any new information to the Avondale Interests.[18] In response to interrogatories, she referenced the same witness list she previously disclosed by her email on August 1, 2020.[19]

In opposition, the Avondale Interests argue that neither the petition nor the witness list alone or together was enough to give them notice of a basis for federal-officer removal.[20] They assert that it was only after being told in discovery that Gomez and Bourg were alleged sources of asbestos exposure to Sampey that they could raise a colorable Boyle defense.[21] Therefore, their window for removal did not begin to run until September 25, 2020.[22] Additionally, because Sampey failed to specify a connection between her exposure and Gomez or Bourg, the Avondale Interests argue that they cannot be held accountable for knowledge they may have gained from other asbestos litigation.[23] In its opposition, Foster Wheeler contends that it has asserted "its own independent, timely basis for this Court to exercise `federal officer' jurisdiction pursuant to 28 U.S.C. § 1442(a)(1) over this matter."[24]

III. LAW & ANALYSIS

A. The Avondale Interests Removed the Case to Federal Court Within 30

Days of Receipt of "Other Paper" Demonstrating Federal-Officer

Jurisdiction.

Section 1442(a)(1) makes removable a civil action commenced in a state court against "[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, 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 statute allows federal officers to remove to federal court cases "that ordinary federal question removal would not reach." Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 290 (5th Cir. 2020). "In particular, section 1442(a) permits an officer to remove a case even if no federal question is raised in the well-pleaded complaint, so long as the officer asserts a federal defense in the response." Id. Removals under § 1442(a)(1) are subject to the time limits set forth in 28 U.S.C. § 1446(b). See Morgan v. Huntington Ingalls, Inc., 879 F.3d 602, 607 (5th Cir. 2018). Generally, a civil action must be removed within 30 days after the defendant receives a copy of the initial pleading "setting forth the claim for relief upon which such action or proceeding is based." 28 U.S.C. § 1446(b)(1). However, if the case is not removable based on the initial pleading, "a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." Id. § 1446(b) (3) (emphasis added). "The information supporting removal in a copy of an amended pleading, motion, order or other paper ... must be unequivocally clear and certain to start the time limit running." Morgan, 879 F.3d at 608-09 (alteration, internal quotation marks and citation omitted). For example, the Fifth Circuit has held that "[s]ection 1446(b)(3)'s removal clock begins ticking upon receipt of the deposition transcript" said to constitute the "other paper," and not from the date of the oral deposition. Id. at 612.

Here, the Avondale Interests could not have removed the case to federal court based on the first disclosure of the witness list. In this case, there are two alleged sources of asbestos exposure: Sampey's uncle who was living in her home, and bar patrons she served. Although Gomez and Bourg were named in the witness list originally provided, there was no indication on the list (or anywhere else) of what role they might play in the case or testimony they might offer.[25] Theirs are just two, unadorned names in a list of 37 potential witnesses. While Sampey now asserts they were clearly bar patrons, she did not say so in the list or when the list was first provided, and their testimony might just as easily have related to her uncle's experience working at Avondale. The Avondale Interests cannot be imputed with knowledge they may have gained in other asbestos cases absent any connection drawn by Sampey. See, e.g., Waguespack v. Avondale Indus., Inc., 2020 WL 5250340, at [*3] (E.D. La. Sept. 3, 2020) (explaining that where "the initial pleading ... did not affirmatively reveal on its face that [plaintiff's] alleged exposures were related to a federal vessel ... [w]hether Avondale could have nonetheless removed the case when it was first filed based on what it actually knew or could have pieced together from the old work records is beside the point" because the Fifth Circuit has rejected a due diligence requirement for determining whether a case is removable). Sampey cannot point to a full picture in the record of this case (before the one painted in the Avondale Interests' own notice of removal) that would trigger the Boyle defense and, as a result, start the clock for removal. In fact, her petition attempts to carve out any connection to federal activity, as she "explicitly disclaims any causes of action or potential recoveries for any injuries caused by any acts or omissions of a party committed at the direction of an officer of the United States of America."[26] This generalized disclaimer does not supply a factual predicate that would place the Avondale Interests on notice of their right to federal-officer removal. The Avondale Interests could not be sure that the Boyle defense

was in play until they knew that Gomez and Bourg were alleged to be sources of Sampey's exposure to asbestos. Therefore, the Avondale Interests' removal is timely.

B. The Avondale Interests Have Asserted a Colorable Federal Defense as a

Basis for Federal-Officer Jurisdiction.

"[T]o remove under section 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) 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, 951 F.3d at 296. Courts are to give a broad interpretation to § 1442(a). Id. at 290-91. Thus, the question whether to remand cases removed under the statute is weighed "without a thumb on the remand side of the scale." Morgan, 879 F.3d at 607 (quoting Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 462 (5th Cir. 2016)). In this case, the Avondale Interests raise the government contractor immunity defense under Boyle v. United Techs. Corp., 487 U.S. 500 (1988).[27] Under Boyle, the government contractor immunity defense applies "when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States." Id. at 512. The Avondale Interests relied on the same defense in Latiolais to successfully sustain their federal-officer removal. 951 F.3d at 297. In the case at bar, Sampey does not challenge the Avondale Interests' allegations of the substantive elements of the defense. Therefore, the notice of removal adequately alleges the elements of a colorable Boyle defense to support a basis for federal subject-matter jurisdiction.

IV. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that the motion of plaintiff Ethel Sampey to remand (R. Doc. 29) is DENIED.

[1] R. Doc. 29.

[2] R. Doc. 39.

[3] R. Doc. 42.

[4] For future reference, the parties should be cognizant of the Court's usual directive, set out in its scheduling orders, that with respect to motions or other filings: "The parties should only submit pertinent pages of deposition transcripts. Submission of an entire transcript is strongly discouraged."

[5] R. Doc. 29-2 at 4-5. The bars included the "Capri Lounge, Terrace Lounge, Zodiac Lounge, ANA, Bill's Lounge, Ms. Bootys [sic], Feisty's, Wishing Well, and Three Coins" (the "Westbank Bars"). Id. at 4.

[6] Id. at 1.

[7] R. Docs. 29-1 at 3; 29-3.

[8] R. Docs. 29-1 at 3; 29-6.

[9] R. Doc. 29 at 1.

[10] R. Docs. 29-1 at 4; 29-9.

[11] R. Doc. 1-3 at 5-6.

[12] R. Docs. 29-1 at 4; 29-9 at 7-8.

[13] R. Doc. 29-5 at 1; see, e.g., R. Docs. 39-1 at 16, 18-19; 39-2 at 83-84.

[14] R. Doc. 1 at 2.

[15] Id. at 5.

[16] R. Doc. 29-1 at 4.

[17] Id.

[18] Id. at 5-7.

[19] Id. at 5-6.

[20] R. Doc. 39 at 13-15.

[21] Id. at 15-16.

[22] Id.

[23] Id. at 11-12.

[24] R. Doc. 42 at 4. The Fifth Circuit has held "that where a party removes a case to federal court pursuant to § 1442, a later-served defendant preserves its right to a federal forum under § 1442 by asserting the grounds for same in its answer filed after removal." Humphries v. Elliott Co., 760 F.3d 414, 417 (5th Cir. 2014). Nevertheless, because the Court holds that the Avondale Interests have properly and timely alleged federal subject-matter jurisdiction, the Court does not reach the merits of whether Foster Wheeler has its own independent basis for federal-officer removal.

[25] R. Doc. 29-5 at 1.

[26] R. Doc. 29-2 at 5.

[27] R. Doc. 1 at 9. The Avondale Interests also raises the derivative sovereign immunity defense under Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18 (1940). R. Doc. 1 at 10. Because one federal defense is sufficient under § 1442(a)(1), it is unnecessary to analyze the Avondale Interests' Yearsley defense for purposes of federal-officer removal.

Sources

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