Summary
In Legendre, the Fifth Circuit affirmed the district court's order for remand and explained that the plaintiffs "provide unrebutted evidence that although the government required Avondale to use asbestos in the construction of the tugs, the government did nothing to restrict Avondale's safety practices."
Summary of this case from Latiolais v. Huntington Ingalls Inc.Opinion
CIVIL ACTION NUMBER 12-94-JJB-SCR
05-14-2012
ROBERT LEGENDRE, ET AL v. ANCO INSULATIONS, INC., ET AL
NOTICE
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U. S. District Court.
In accordance with 28 U.S.C. §636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
Baton Rouge, Louisiana, May 14, 2012.
/s/_________
STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE MAGISTRATE JUDGE'S REPORT
Before the court is a Motion to Remand filed by plaintiffs Marion L. Legendre, the surviving spouse of Robert Legendre, and Tina Labatut, Ricky Legendre, Roberta L. Watts and James Warren, as curator of his spouse Elizabeth Warren, who are the surviving children of Robert Legendre, suing individually and on behalf of Robert Legendre, deceased. Record document number 8. The motion is opposed by removing defendants OneBeacon America Insurance Company and Huntington Ingalls Incorporated, f/k/a, Northrop Grumman Shipbuilding, Inc., f/k/a Avondale Industries, Inc., f/k/a Avondale Shipyards, Inc. (collectively, "Avondale").
OneBeacon America stated that it was incorrectly identified in the petition as Commercial Union Insurance Company.
Record document number 11. Plaintiffs filed a reply memorandum. Record document number 15.
Background
Plaintiffs filed a Petition for Damages in state court against Avondale and numerous other defendants, alleging that during Robert Legendre's employment at Avondale shipyards and other facilities he was exposed to asbestos-containing products which resulted in his injuries and death. Plaintiffs alleged that Legendre was exposed to asbestos while he was employed as a pipefitter's helper and tacker at Avondale facilities in 1957 and from 1964 to 1966. Avondale removed the case to this court on February 16, 2012, alleging jurisdiction under 28 U.S.C. § 1442(a)(1), which provides a federal forum to the United States or its agencies and officers who are sued "for any act under color of such office." Plaintiffs moved to remand arguing that removal under the federal officer removal statute is not proper in this case.
The petition was amended twice. Record document numbers 1-2, p. 43, Plaintiffs' First Supplement and Amendment to the Original Petition for Damages, and p. 4, Second Supplement and Amendment to Original Petition for Damages. The original and amended petitions will be referred to collectively as the "Petition" unless otherwise noted.
Record document number 1-2, pp. 25-28, 35, Second Supplement and Amendment to Original Petition for Damages, ¶¶ 51-56 and Exhibit A.
Applicable Law
Section 1442(a)(1) provides for the removal of any action against the "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, sued in an official or individual capacity for any act under color of such office." The purpose of this removal statute is to protect the lawful activities of the federal government from undue state interference. It allows suits to be removed despite the non-federal cast of the complaint, and reflects a congressional policy that federal officers and the federal government itself require the protection of a federal forum. Unlike the general removal provision, which is strictly construed in favor of remand, the unique purpose of federal officer removal calls for the statute to be liberally construed. Willingham v. Morgan, 395 U.S. 402, 406, 89 S.Ct. 1813 (1969); Jefferson County v. Acker, 527 U.S. 423, 431, 119 S.Ct. 2069 (1999); Watson v. Philip Morris Cos. Inc., 551 U.S. 142, 147-48, 127 S.Ct. 2301, 2305 (2007).
Under the statute, a government contractor, such as Avondale, seeking to remove a civil action under Section 1442(a)(1) must show: 1) that it was a person acting under an officer of the United States or of an agency thereof; 2) that there was a causal connection between the plaintiff's claims and the defendant's actions under color of federal office; and, 3) that it has a colorable defense under federal law. Mesa v. California, 489 U.S. 121, 124-34, 109 S.Ct. 959, 962-67 (1989); Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387, 397-01 (5th Cir. 1998), cert. denied, 526 U.S. 1034, 119 S.Ct. 1286 (1999)).
One of the most important reasons for removal under § 1442(a)(1) is to have the validity of a defense arising out of official duties determined by a federal court. For removal purposes, a party is required only to raise a colorable claim to a federal defense, and is not required to prove it will succeed on the defense. Id.; Willingham, 395 U.S. at 407, 89 S.Ct. at 1816.
The federal government contractor immunity defense to liability under state tort law is based on principles of federal preemption set out by the Supreme Court in Boyle v. United Techs. Corp., 487 U.S. 500, 512, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). Displacement of state law will occur only where a "significant conflict" exists between an identifiable federal policy or interest and the operation of state law. Boyle, 487 U.S. at 507, 108 S.Ct. at 2516.
Liability...cannot be imposed, pursuant to state law, 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. The first two of these conditions assure that the suit is within the area where the policy of the "discretionary function" would be frustrated- i.e., they assure that the design feature in question was considered by a Government officer, and not merely by the contractor itself. The third condition is necessary because, in its absence, the displacement of state tort law would create some incentive for the manufacturer to withhold knowledge of risks, since conveying that knowledge might disrupt the contract but withholding it would produce no liability.Boyle, 487 U.S. at 512, 108 S.Ct. at 2518-19.
The Court explained that the government's immunity inures to the benefit of the contractor because it is derivative of the government's own immunity from suit "where the performance of a discretionary function is at issue." In re Air Disaster at Ramstein Air Base, Germany, 81 F.3d 570, 574 (5th Cir. 1996), citing, Boyle, 487 U.S. at 511, 108 S.Ct. at 2510); Winters, 149 F.3d at 400.
Arguments and Analysis
Plaintiffs argued that the disclaimer alleged in paragraph 11 of the Second Supplement and Amendment to Original Petition for Damages makes it unnecessary to address Avondale's argument that the strict liability claims they alleged support federal officer removal under § 1442(a)(1). Therefore, the plaintiffs' arguments in support of remand focused on the applicability of § 1442(a)(1) to the allegations that Avondale failed to warn of, and maintain a workplace that was safe from, the dangers of asbestos. According to the plaintiffs, as to these negligence claims Avondale has not met its burden of demonstrating federal officer removal was proper because it has failed to show: (1) that the government's direction and control interfered with its duty to maintain a safe workplace and warn employees of the safety hazards of asbestos; (2) that Legendre was exposed to asbestos only while working aboard government vessel construction projects, which is a condition precedent to federal officer removal; or, (3) that it has a colorable government contractor defense. Plaintiffs pointed out that comparable failure to warn and unsafe workplace allegations have been found insufficient to support federal officer removal. Plaintiff relied on decisions from this district and other Louisiana district courts, the deposition testimony and affidavit of Peter R. Territo, the deposition testimony and affidavit of Edward Blanchard, the affidavit of Felix Albert, the deposition testimony of Rudy Walker and Legendre, and the deposition and trial testimony of Ken Nelson.
Record document number 1-2, p.7, Second Supplement and Amendment to Original Petition for Damages, ¶ 11.
Record document number 15, reply memorandum, p. 1.
Record document numbers 8-15 and 8-16.
Record document numbers 8-6 and 8-7, exhibits 4 and 5.
Record document numbers 8-8 and 8-9, exhibits 6 and 7.
Record document number 8-10, exhibit 8.
Record document number 8-11, exhibit 9; record document number 15-1.
Record document numbers 8-12 and 8-14, exhibits 10 and 12.
Avondale maintained that its removal under the federal officer statute was proper. Avondale argued that the plaintiffs' entire argument in support of remand is based on the alleged negligent failure to warn claims, without any analysis of the strict premises liability claims alleged in the Second Supplement and Amendment to Original Petition for Damages. Avondale argued that the applicable law and the relevant information it has supplied show that the strict premises liability claims alleged by the plaintiffs meet the requirements for federal officer removal. Defendant argued that the plaintiffs' negligent failure to warn claims do not change this result.
See record document number 11-1, exhibit A, affidavit of Thomas McCaffery; record document number 11-6, exhibit F, affidavit of Edward Blanchard; record document number 11-7, exhibit G, Legendre deposition testimony. Avondale also submitted rulings in other cases and argued that the decisions relied on by the plaintiffs either do not support their position, or involve facts and allegations different from the present case.
Consideration of the plaintiffs' allegations in the state court Petition, the exhibits, and the applicable law supports Avondale's position. A review of the Petition shows that in addition to the negligence allegations related to warnings and workplace safety, the plaintiff also alleged that when Legendre was employed at Avondale in 1957 and from 1964 to 1966, he was continuously exposed to asbestos and asbestos-containing products that "were in the care, custody and control of Avondale, jointly with the premise defendants, and were unreasonably dangerous due to the presence of asbestos." Plaintiffs alleged that the presence of asbestos, i.e. the defective condition of the premises, was a proximate cause of Legendre's asbestos-related injuries, damages and death, and Avondale is strictly liable under Louisiana Civil Code article 2317.
Record document number 1-2, p. 25, Second Supplement and Amendment to Original Petition for Damages, ¶ 52 and Exhibit A; p. 27, ¶ 56,
Id. at 28, ¶ 57.
These allegations along with Avondale's removal allegations, the deposition testimony of Legendre, Territo and Blanchard, and Blanchard's affidavit, show that the ships that Legendre worked on at Avondale were constructed under contracts that incorporated by reference federal law, regulations and specifications which mandated the use of asbestos-containing materials in the construction of the vessels. Furthermore, during all aspects of the construction of the ships, officials of the U.S. Navy, Maritime Commission and U.S. Coast Guard closely and continuously monitored and inspected Avondale's work to ensure compliance with the contractual and federal regulatory provisions, including those that required the use of asbestos-containing materials.
Record document number 1, Notice of Removal, ¶¶ 7-10.
Record document numbers 11-6, 11-7, 8-6, and 8-8. Plaintiffs objected that McCaffery's affidavit, record document number 11-1, is hearsay, not made on personal knowledge, and relies on unidentified documents. Even if these arguments are accepted and the affidavit is disregarded, the record still supports Avondale's removal under the federal officer removal statute.
This information demonstrates that during the relevant time period, federal officers had direct and specific control of the plans and construction of the vessels built at Avondale, and equally demonstrates the causal connection between the plaintiff's strict liability allegations and the federal authority. The presence of the asbestos, which the plaintiff alleged created the defective condition of the premises in the control of Avondale and made it strictly liable, is directly connected to the contract, federal law, regulations and inspections that required asbestos to be on the site.
The federal direction and causal nexus elements of federal officer removal overlap and can be considered together. Winters, 149 F.3d at 398-400.
The record also establishes that Avondale has asserted a colorable federal defense under Boyle. With regard to the strict liability claims, Avondale's duty as custodian of the facilities to insure that they were free of unreasonably dangerous conditions, i.e. asbestos-containing materials, clearly conflicted with Avondale's duties under the contract which required the use of asbestos in the construction of the vessels.
Plaintiffs did not contest or address this point, and applied the Boyle test only to the failure to warn allegations contained in the Petition. Since Avondale raised a colorable federal contractor immunity defense, there is no need to analyze Avondale's arguments related to a defense under the Longshore and Harbor Workers' Compensation Act.
Plaintiffs did not refute or even address Avondale's contention that the allegations of strict premises liability support federal officer removal. Instead, relying on their alleged disclaimer, the plaintiffs argued that it makes Avondale's arguments on this point moot and establishes that the case was not removable from its inception. Plaintiffs relied on the following language in paragraph 11 of the Second Supplement and Amendment to Original Petition for Damages:
Record document number 8-1, supporting memorandum, p. 3, n. 4 and p. 5, n. 7.
Plaintiffs disclaim any cause of action or recovery for any injuries caused by any exposure to asbestos dust that occurred in a federal enclave. Plaintiffs also disclaim any cause of action or recovery for any injuries resulting from any exposure to asbestos dust caused by any acts or omissions of a party committed at the direction of an officer of the United States Government.
Plaintiffs' argument is unpersuasive, for several reasons. First, the disclaimer is an allegation; it is not a binding stipulation. Plaintiffs neither signed nor verified the Second Supplement and Amendment to Original Petition for Damages. Second, the plaintiffs have not shown that under Louisiana law such a disclaimer allegation is binding and irrevocable. Third, it is not clear what the plaintiffs mean by the term "federal enclave" in the context of this case. Accordingly, it is not clear what claims the plaintiffs purport to disclaim. Fourth, the disclaimer allegation does not clearly negate or eliminate the plaintiffs' strict premises liability allegations. Plaintiffs' strict premises liability claim is based on the alleged "defective condition of the [Avondale] facilities" due to the presence of asbestos. The disclaimer allegation applies to injuries caused by "acts or omissions of a party committed at the direction of an officer of the United States Government," by which the plaintiffs means the "failure to use asbestos safely, in accordance with its duty under state law," not the mere presence of asbestos at the Avondale shipyard.
Webster's Third New International Dictionary defined "encalve" as "a tract or territory enclosed within a foreign territory" and "a district or region ... set apart for a specified purpose." If by the term "federal enclave" the plaintiffs mean the Avondale shipyard where Robert Legendre worked, or even the part of that facility where the ships he worked on were located, then the plaintiff's disclaimer (were it to be given effect) would seemingly call for dismissal of their claims against Avondale.
Record document number 15, reply memorandum, p. 7
Plaintiffs also did not move to dismiss or obtain dismissal of these strict liability claims before removal. Thus, when the case was removed the allegations supporting jurisdiction under the federal officer statute were present in the state court Petition. In these circumstances, the alleged disclaimer contained in paragraph 11 is insufficient to defeat removal.
Propriety of the removal must be determined based on the allegations that are plead at the time the petition for removal is filed. Brown v. Southwestern Bell Telephone Co., 901 F.2d 1250, 1254 (5th Cir. 1990).
Conclusion
Based on the strict premises liability claims alleged by the plaintiffs against Avondale, Avondale has satisfied its burden of establishing that removal is proper under § 1442(a)(1). With regard to the remaining claims alleged by the plaintiffs, including any claims that Avondale failed to warn of the dangers of asbestos and failed to maintain a safe workplace for employees, the court has supplemental jurisdiction under 28 U.S.C. § 1367(a).
Because jurisdiction exits based on the strict premises liability claims, it is unnecessary to analyze the plaintiffs' arguments that the failure to warn and safe workplace allegations do not satisfy the standards of Mesa and Boyle.
See, Kluka v. Anco Insulations, Inc., 2008 WL 2444517 (M.D.La. April 28, 2008), citing, McFarlain v. Northrop Grumman Systems Corp., CV 05-1406-JJB-SCR, pp. 10-13. --------
Recommendation
It is the recommendation of the magistrate judge that the Motion to Remand filed by the plaintiffs be denied.
Baton Rouge, Louisiana, May 14, 2012.
/s/_________
STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE