Bartel ex rel. Estate of Dennis v. American Export Isbrandtsen
Bartel ex rel. Estate of Dennis v. American Export Isbrandtsen
Opinion of the Court
RULING
The court has carefully considered the petition, the record, the law applicable to this action, and the Report and Recommendation of United States Magistrate Judge Richard L. Bourgeois, Jr. dated November 6, 2014 (doc. no. 33). The defendants filed an objection which restates their prior argument. The Magistrate Judge’s application of the law is correct.
The court hereby approves the report and recommendation of the magistrate judge and adopts it as the court’s opinion herein. Accordingly, the plaintiffs Motion to Remand is GRANTED and this matter is REMANDED to the 19th Judicial District Court for the Parish of East Baton Rouge, State of Louisiana.
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Before the Court is a consolidated action in which two separate defendants have removed the same action filed in state court pursuant to two different removal statutes: 28 U.S.C. § 1441 and 28 U.S.C. § 1442. The Court has consolidated these actions for adjudication. Plaintiff has filed two Motions to Remand respectively addressing each basis for removal. (R. Docs. 18, 19).
I. BACKGROUND
William E. Bartel (Plaintiff), personal representative of the Estáte of Joseph L. Dennis (Decedent), filed the underlying state court action on March 12, 2014 in the 19th Judicial District Court for the Parish of East Baton Rouge, Louisiana. (Petition, R. Doc. 1-1). Plaintiff alleges that between 1951 and 1993, Decedent was employed by the following Defendants: American Export Isbrandtsen; Farrell Lines Incorporated Pk/a American South African Lines, on its own behalf and as successor in interest to American Export Lines, Inc. f/k/a American Export Is-brandtsen Lines, Inc. incorrectly named American Export Isbrandtsen; American Export Lines, Inc.; American President Lines Ltd.; American Trading & Production Corporation; American Trading Transp. Co.; Central Gulf Lines, Inc.; Chas. Kurz & Company; Eastern Gas & Fuel; Farrell Lines Inc.; Hess Oil & Chem Corp.; Mathiasen Tanker Ind. Inc.; and Trinidad Corporation. (Petition, ¶¶ 2, 7-19). Plaintiff alleges that Decedent contracted and died of lung cancer as a result of asbestos exposure while working on vessels owned or operated by Defendants.
Mathiasen’s Tanker Industries, Inc. (Mathiasen)
Hess Corporation as successor in interest to Hess Oil & Chemical Corporation (Hess) filed a Notice ,of Removal on April 30, 2014.
On May 28, 2014, Plaintiff filed both of his motions to remand this action to state court. (R. Doc. 18, 19). Plaintiff asserts that removal is improper because (1) his Jones Act claims are non-removable pursuant to 28 U.S.C. § 1445(a), (2) his general maritime law claims are nonremovable pursuant to the “saving to suitors” clause of 28 U.S.C. § 1333(1), and (3) Mathiasen cannot establish the “causal nexus” requirement for removal pursuant to the federal officer removal statute, 28 U.S.C. § 1442.
II. ARGUMENTS OF THE PARTIES
A. Removal Pursuant to 28 U.S.C. § 1441
Plaintiffs primary argument for remand of the removal made pursuant to 28 U.S.C. §. 1441 is that his Jones Act claims are made non-removable pursuant to 28 U.S.C. § 1445(a). (R. Doc. 19-1 at 2).- Plaintiff argues that because his general maritime claims arise out of the same operative facts as his'Jones Act claims, the entire action is non-removable. (R. Doc. 19-1 at 3 — 4). Plaintiff further argues that nothing in the 2011 amendments to 28 U.S.C. § 1441 permits the court to exercise removal jurisdic
Plaintiff also argues that his general maritime claims are not removable to federal court. (R. Doc. 19-1 at 5-9). Plaintiff argues that the “saving to suitors” clause in the admiralty jurisdiction statute is the historical basis for non-removability of general maritime claims. (R. Doc. 19-1 at 5-9). Accordingly, despite decisions holding otherwise by this court, the 2011 amendments to 28 U.S.C. § 1441 did not make general maritime claims removable. (R. Doc. 19-1 at 5-9).
Several Defendants filed an Opposition arguing that in light of the 2011 amendments to 28 U.S.C. § 1441, this Court has held that general maritime claims are removable and the assertion of Jones Act claims does not prevent the removal of actions in which general maritime claims are alleged. (R. Doc. 30 at 3-6). These same arguments are raised, in more detail, in the Opposition separately filed by Hess. (R. Doc. 31). Hess further argues that if the Jones Act claims cannot be removed, then they should be severed and remanded pursuant to either 28 U.S.C. § 1441(c) or Rule 21 of the Federal Rules of Civil Procedure. (R. Doc. 31 at 10). Defendants do not argue, however, that the Plaintiff has fraudulently pled the Jones Act claims or has otherwise waived any challenges to the removal of the Jones Act claims.
B. Removal Pursuant to 28 U.S.C. § 1442
Plaintiff argues that because his Jones Act claims are made non-removable pursuant to 28 U.S.C. § 1445(a), removal is improper pursuant to the federal officer removal statute, 28 U.S.C. § 1442. (R. Doc. 18-1 at 3-4). Plaintiff further argues that removal is also improper pursuant to 28 U.S.C. § 1442 because the Defendants cannot demonstrate that they have acted under the direction of a federal officer acting under “color of office” or that there is a “causal nexus” between acts committed under federal direction and the substance of the plaintiffs claims. (R. Doc. 18-1 at 2, 5).
Mathiasen filed an Opposition
In a separately filed Opposition, Hess further argues that that there is case law-suggesting that an action may be removed pursuant to § 1442 despite the presence of non-removable claims. (R. Doc. 32 at 4). Hess also argues that if. the Jones Act claims cannot be removed, then they should be severed and remanded pursuant to either 28 U.S.C. § 1441(c) or Rule 21 of
III. LAW AND ANALYSIS
A. Removal Jurisdiction Pursuant to 28 U.S.C. §§ 1441 and 1333
It is well settled that when faced with a motion to remand the removing party bears the burden of establishing the facts necessary to show that federal jurisdiction exists. Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). The federal removal statute “is subject to strict construction because a defendant’s use of that statute deprives a state court of a case properly before it and thereby implicates important federalism concerns.” Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir. 1997). Any doubts regarding whether removal- jurisdiction is proper should be resolved against federal jurisdiction. Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000).
The Jones Act, 46 U.S.C. § 30104, provides a cause of action in negligence for a seaman who is injured in the course of his employment.
Because Plaintiff alleges causes of action under both the Jones Act and general maritime law, the Court must determine whether his general maritime claim under § 1333(1) is removable under the current version of § 1441(c) when joined with his properly pled Jones Act claim. Section 1441(c) provides that actions involving both federal question claims and claims made non-removable by statute may be removed in their entirety, subject to severance and remand of the non-removable claim:
(1) If a civil action includes—
(A) a claim arising under the Constitution, laws, or treaties of the United States (within the meaning of section 1331 of this title), and
(B) a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute, the entire action may be removed if the action would be removable without the*863 inclusion of -the claim described in subparagraph (B).
(2) Upon removal of an action described in paragraph (1), the district court shall sever from the action all claims described in paragraph (1)(B) and shall remand the severed claims to the State court from which the action was removed. Only defendants against whom a claim described in paragraph (1)(A) has been asserted are required to join in or consent to the removal under paragraph (1).
28 U.S.C. § 1441(c)(l)-(2).
Section 1441(c) permits removal of a “claim” not within the original or supplemental jurisdiction of the district court, or a “claim” that has been made non-removable by statute, when joined with a claim arising under federal law. Both the preamendment and post-amendment versions of § 1441(c) require that the “civil action” include “a claim” within the meaning of § 1331.
Here, Plaintiff filed a civil action in state court alleging Jones Act and general maritime claims, and Defendants removed the action to federal court pursuant to 28 U.S.C. § 1441. Plaintiffs action does not assert a claim that arises under the Constitution, laws, or treaties of the United States within the meaning of 28 U.S.C. § 1331. The Supreme Court has held that maritime claims, for which federal courts have original jurisdiction under 28 U.S.C. § 1333, do not “arise under” the Constitution, law, or treaties of the United States within the meaning of 28 U.S.C. § 1331. See Romero v. International Terminal Operating Co., 358 U.S. 354, 378, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959) (finding it “clear that the words of [the ‘arising under’] statute do not extend, and could not reasonably be interpreted to extend, to cases of admiralty and maritime jurisdiction”), superseded by statute on other grounds, 45 U.S.C. § 59, as recognized in Miles v. Apex Marine Corp., 498 U.S. 19, 33, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990); In re Dutile, 935 F.2d 61, 63 (5th Cir. 1991) (“Emphatically, claims in admiralty, whether designated in rem or in personam, do not fall within” the category of claims arising under federal law.) (citing Romero, 358 U.S. at 378, 79 S.Ct. 468).
Accordingly, Plaintiffs action, which alleges a non-removable Jones Act claim but
Defendants do not raise any specific statutory argument for why the Court should find removal jurisdiction in this action. Instead, Defendants rely on decisions in this district holding that after the 2011 amendments, general maritime claims are removable in the absence of a separate basis for subject matter jurisdiction. See Provost v. Offshore Serv. Vessels, LLC, No. 14-89-SDD-SCR, 2014 WL 2515412, at *3-4 (M.D.La. June 4, 2014); Garza v. Phillips 66 Co., No. 13-742-SDD-SCR, 2014 WL 1330547, at *4-5 (MJD.La. Apr. 1, 2014); Harrold v. Liberty Ins. Underwriters, Inc., No. 13-762-JJB-SCR, 2014 WL 688984, at *3-4 (M.D.La. Feb. 20, 2014); Bridges v. Phillips 66 Co., No. 13-477-JJB-SCR, 2013 WL 6092803, at *4-5 (M.D.La. Nov. 19, 2013).
Here, Plaintiff has alleged a non-removable Jones Act claim. There is no allegation that the Court has original federal question jurisdiction. The Jones Act claims are brought against all Defendants, and none of those Defendants argues that the Jones Act claims are improperly pled. Although Plaintiff does invoke some jurisprudence engaging in pre-2011 “separate and independent” claim analysis, his primary arguments focus on the non-remova-bility of his Jones Act claims under the current version of § 1441(c). Accordingly, the four decisions in this district allowing for the removal of general maritime claims are distinguishable.
B. The Interplay Between 28 U.S.C. § 1442(a)(1) and 28 U.S.C. § 1445
The parties do not cite any decision to directly address whether an action made nonremovable pursuant to § 1445 is nevertheless removable pursuant to § 1442. The few courts that have addressed federal officer removal where the plaintiff has alleged a Jones Act claim do not decide whether non-removability pursuant to § 1445(a) trumps removal jurisdiction pursuant to § 1442(a)(1). Some courts faced with this interplay have first turned to § 1442, and finding no removal jurisdiction pursuant to that statute, rendered the issue of non-removability pursuant to § 1445 moot. See Morgan v. Great S. Dredging, Inc., No. 11-2461, 2012 WL
The parties assert that they have uncovered decisions that clarify the issue of the removability of Jones Act claims pursuant to § 1442. The decisions referenced by the parties are tangential at best.
Plaintiff relies on a footnote in a U.S. Supreme Court decision from 1934. In Gay v. Ruff, 292 U.S. 25, 35, 54 S.Ct. 608, 78 L.Ed. 1099 (1934), the defendant filed a civil suit for wrongful death of his son against the receiver of a railroad appointed by a federal district court. The plaintiff sought removal pursuant to § 33 of the Judicial Code, Act of Aug. 23, 1916, ch. 399, 39 Stat. 532, a predecessor version of the current federal officer removal statute. In remanding the action, the court noted that the federal officer removal provision is to be read “strictly in pari material with the other removal provisions.” Gay, 292 U.S. at 35, 54 S.Ct. 608. The Supreme Court stated that “Congress had by the Federal Employers’ Liability Act provided that suits for injuries resulting from negligence in the operation of a railroad, although arising- under a federal statute, could be brought in a state court, and if so brought, could not be removed to the federal court.” Id. at 36, 54 S.Ct. 608. In footnote 17, the Supreme Court noted the persistence of Congressional abridgment of federal jurisdiction since the Federal Employers’ Liability Act, specifically stating that “removal is prohibited of actions by seamen under section 33 of the Merchant Marine Act of June 5, 1920, c. 250, 41 Stat. 988 (46 USCA’s 688).” Id. at 36 n. 17, 54 S.Ct. 608. Although this footnote is a recognition that Congress has trended toward the non-removability of certain actions, it does not speak directly to the issue of whether the non-removability of an action by statute can be overcome by the presence of removal jurisdiction pursuant to the federal officer statute.
In its separately filed Opposition, Hess relies on a district court decision removing an entire action where only one of four causes of action were “removable” pursuant to 28 U.S.C. § 1442. See Nat'l Audubon Soc. v. Dep’t of Water & Power of City of Los Angeles, 496 F.Supp. 499, 509 (E.D.Cal. 1980). That decision is inapplicable here as it did not concern a nonremovable action pursuant to § 1445. Instead, the court denied remand of an action when one claim supported removal jurisdiction pursuant to § 1442, even though the three other claims were “non-removable” because they did not satisfy the elements of federal officer removal. See id.; see also Najolia v. Northrop Grumman Ship Sys., Inc., 883 F.Supp.2d 646, 656 (E.D.La. 2012)
Having found no governing law on the interplay between § 1442 and § 1445, the court will take the path chosen by most of the courts faced with this issue. The court will first determine whether removal jurisdiction is proper pursuant to § 1442(a)(1). Only if removal jurisdiction is proper pursuant to § 1442(a)(1) will the court address the issue of non-removability pursuant to § 1445(a).
C. Removal Jurisdiction Pursuant to 28 U.S.C. § 1442(a)(1)
The federal officer removal statute provides for the removal of a civil action 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, sued in an official or individual capacity for any act under color of such office.... ” 28 U.S.C. § 1442(a)(1). The purpose of this removal statute is to protect the lawful activities of the federal government from undue state interference. See Mesa v. California, 489 U.S. 121, 126, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989). Section 1442(a) serves to overcome the “well-pleaded complaint” rule that would otherwise preclude removal even if a federal defense is asserted. See id. at 136, 109 S.Ct. 959. Unlike the general removal provision, which is strictly construed in favor of remand, the federal officer removal statute is liberally construed in favor of removal. Watson v. Philip Morris Cos. Inc., 551 U.S. 142, 147-48, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007); Willingham v. Morgan, 395 U.S. 402, 406, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969).
As characterized by the Fifth Circuit, a defendant seeking to remove a civil action under § 1442(a)(1) must establish the following three prongs: (1) that the defendant is a person within the meaning of the statute; (2) that the defendant acted pursuant to a federal officer’s directions and that a causal nexus exists between the defendant’s actions under col- or of federal office and the plaintiffs claims; and (3) that the defendant has asserted a “colorable federal defense.” Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387, 397-401 (5th Cir. 1998), cert. denied, 526 U.S. 1034, 119 S.Ct. 1286, 143 L.Ed.2d 378 (1999). The party asserting federal jurisdiction in a case removed under § 1442 bears the burden of establishing that jurisdiction exists. Winters, 149 F.3d at 398.
Nothing in the Petition asserts a claim against the United States or any of the Defendants in their capacity as government contractors working under the direction of federal officers. Plaintiff does not allege that Mathiasen or any of the other Defendants operated vessels owned by the Navy. Nevertheless, because removal pursuant to Section 1442(a) may overcome the “well-pleaded complaint” rule, the court must determine whether Mathiasen has met its burden of establishing that removal is proper pursuant to the federal officer removal statute.
1. Whether Mathiasen is a Person
The parties do not dispute that Mathia-sen is a “person” for the purpose of § 1442(a)(1). The Fifth Circuit has held that corporations are considered “persons” for removal pursuant to § 1442. Winters, 149 F.3d at 398.
2. Whether Mathiasen Acted Under Direction of a Federal Officer and Whether a Causal Nexus Exists
Plaintiff asserts that Mathiasen has not established that there is a causal
Mathiasen claims that it acted under the direction of a federal officer because it operated a ship owned by the MSC when Plaintiff was employed by Mathiasen in 1971. (R. Doc. 29 at 4). While Mathiasen has provided its general contract with the Navy regarding the operation of Navy tankers, Mathiasen has not provided affidavits or any evidence that the MSC (much less a specific federal officer) directed it to do anything with regard to asbestos.
Even assuming that it did act under the direction of a federal officer simply by operating the vessel at issue pursuant to a contractual relationship with the MSC,' Mathiasen has failed to establish a casual nexus between its actions under the direction of a federal officer and Plaintiffs claims in this lawsuit. In support of its argument that the “causal nexus” element is satisfied, Mathiasen provides, with little reasoning, that “it is no stretch at all” to apply the reason of the Supreme Court’s decisions in Mesa and Willingham to the facts of this action. (R. Doc. 29 at 8-9). The court disagrees.
The Jones Act and general maritime claims asserted by Plaintiff invoke two lines of product liability cases concerning asbestos exposure and the federal officer removal statute. In the first line of eases, this district has found federal officer removal is appropriate where government contractors manufactured airplanes or ships pursuant to federal government contracts, and were subsequently sued in state court by individuals exposed to asbestos during the manufacturing process. In those cases, the causal nexus requirement was satisfied because the manufacturing defendants established the following upon removal: that the airplanes or ships they manufactured were pursuant to specific design specifications controlled by the United States military; that the government approved or supplied the component parts, including parts containing asbestos; that the government monitored and inspected the manufacturing process to ensure the specifications governed by federal law and regulations were met; and that manufacturing defendants had no contractual authority to alter the government’s specifications. See Leonard, v. Bd. of Supervisors of Louisiana State Univ. & Agr. & Mech. Coll., No. 13-565-JJB-SCR, 2014 WL 2197042 (M.D.La. Jan. 17, 2014) report, and recommendation adopted sub nom. Leonard v. Bd. of Supervisors of Louisiana State Univ. & Agric. & Mech. Coll., 2014 WL 2203876 (M.D.La. May 27, 2014); Legendre v. Anco Insulations, Inc., No. 12-94-JJB-SCR, 2012 WL 2064537 (M.D.La. May 14, 2012) report and recommendation adopted, 2012 WL 2064533 (M.D.La. June 7, 2012); Kluka v. Anco Insulations, Inc., No. 08-84-JJB-SCR,
In the second line of cases, plaintiffs alleged that their contractor-employers failed to warn them of asbestos in their work areas, including government-owned facilities. In these cases, courts have concluded that removal pursuant to the federal officer removal statute is unwarranted because there is no causal nexus between the plaintiffs’ exposure to asbestos and any direction of a federal officer. See, e.g., Ross v. Reilly Benton, Inc., No. 14-cv—1 161, 2014 WL 3514668 (E.D.La. July 15, 2014) (remanding action removed pursuant to § 1442(a)(1) where removing defendant “has pointed to no evidence demonstrating that its use of asbestos was done ‘pursuant to a federal officer’s directions.’ ”) (quoting Winters, 149 F.3d at 398); Weese v. Union Carbide Corp., 2007 WL 2908014, *7 (S.D.Ill. Oct. 3, 2007) (the second prong of the test for federal officer removal is not satisfied where the removing defendant “has adduced no evidence that a federal officer prevented it from furnishing adequate warnings about the dangers of exposure to asbestos”); Hilbert v. Aeroquip, Inc., 486 F.Supp.2d 135 (D.Mass. 2007) (finding insufficient an affidavit stating in conclusory fashion that Navy “had ultimate control” over whether a contractor warned of asbestos); Hampton v. Owens-Illinois, No. 06-cv-10929, 2007 WL 274794 (E.D.La. Jan. 29, 2007) (remanding action removed pursuant to § 1442(a)(1) where the removing defendant did not identify any evidence that shipyard where the plaintiff worked as a welder “was barred from instituting enhanced safety and warning procedures regarding asbestos”); Faulk v. Owens-Corning Fiberglass Corp., 48 F.Supp.2d 653, 664 (E.D.Tex. 1999) (although removing defendants established that there are “detailed, government specifications” relating to the products it manufactured, no federal officer provided any direction regarding providing warnings about asbestos); Mouton v. Flexitallic, Inc., No. 99-cv-0162, 1999 WL 225438 (EJD.La. Apr. 14, 1999) (“The federal government provided no direction on warnings when using asbestos, and further did not prevent Avondale from taking its own safety precautions above the minimum standards incorporated in the federal contracts. Thus, the Court finds that Avondale has failed to establish a causal connection between the Navy’s direction pursuant to the design contracts and plaintiffs failure to warn claims.”); cf. Winters, 149 F.3d at 397 (finding removal proper in a failure to warn case when government’s contract specifications for the manufacture of Agent Orange included provisions for packaging and transport, and specific prohibitions against warnings on the barrels).
Plaintiffs’ claims, though raised pursuant to the Jones Act and general maritime law, are analogous to the “failure to warn” claims addressed in the decisions above. Decedent is a civilian seaman who sailed on the vessels owned or operated by Math-iasen and the other Defendants. Plaintiff does not allege that Decedent manufac
Mathiasen represents that it “will demonstrate that the contracts under which it operated the MILLICOMA created a principal-agent relationship with the Government.” (R. Doc. 29 at 2). Mathiasen has attached a copy of its contract governing its operation of the MILLICOMA. (R. Doc. 29-3). Mathiasen argues that the following language establishes that it was acting under color of federal authority at the time of the alleged tort:
Article 1. Scope
a) The Contractor, subject to the provisions hereinafter set forth shall manage and conduct the business regarding the operation of such tankers as may be furnished to it by the Government from time to time....
b) The Contractor shall manage the conduct and the business of the Government with respect to such tankers in accordance with such written directions or orders as to voyages and cargoes, as the Commander, Military Sea Transportation Service may from time to time prescribe, and on the terms and conditions herein provided.... Commander, Military Sea Transportation Service shall issue to the Contractor operating instructions, which may be revised and supplemented from time to time. The Contractor shall authorize the Master of each vessel, in the Contractor’s behalf, to receive and carry out orders, directions or instructions as regards employment or operation of the tanker and prosecution of voyages, which may be issued by Commander, Military Sea Transportation Service....
Article 2. Status of Vessels.
All tankers utilized in the operation of the contract are owned by the Government and are public vessels, (emphasis added by Mathiasen)
Article 5. Primary Obligations
a) The Contractor . shall operate the tankers in such service as the government by written or telegraphic order may direct....
b) The Contractor shall equip, fuel, sup-' ply, maintain, man, victual and navigate the tankers.
c) The Contractor shall employ personnel necessary to fill the complement of each tanker....
(R. Doc. 29 at 4-5). This language broadly establishes that Mathiasen must “manage and conduct the business of the Government” with respect to the vessel as provided by the federal government. But it does not establish that a federal officer, through the contract or otherwise, provided Math-iasen any direction with regard to warning its employees regarding asbestos on the vessel or cargo brought on to the vessel. The contract does not provide any direction or control regarding the issuance of warnings to crew members of the presence of asbestos on the vessel. The contract does not provide any direction or control regarding the training or supervision of crew members with the use or handling of asbestos and asbestos-containing products. The contract does not specify the use of any safety or protective equipment for the purpose of using and handling asbestos and asbestos-containing products.
In short, the existence of a general operating contract, without more, is insufficient to establish that Mathiasen was provided any specific direction by a federal officer that is causally related to the torts alleged by Plaintiff. In a failure-to-warn case, a “causal nexus” can be established if the government precludes a contractor from issuing warnings as required by state law. See Winters, 149 F.3d at 397 (finding “causal nexus” between government’s direction to defendant to not place warnings on Agent Orange containers and plaintiffs failure-to-warn claims). Without such specific direction, however, defendants cannot establish a causal nexus based solely on the existence of a government contract. For example, one court has held that even where a government contract provided detailed specifications regarding the production of Avgas, buta-diene, and steel, there was no “casual nexus” between the defendants’ actions and the plaintiffs claim that the defendant failed to warm him of the danger of asbestos. See Faulk, 48 F.Supp.2d 653, 663. Similarly, where a government contract only provides “general references to safety regulations” but provides “no direction on warnings when using asbestos,” the contractor is not prevented “from taking its own safety precautions above the minimum standards incorporated in the federal contracts.” Mouton, 1999 WL 225438, at *3.
Here, the contract did not direct Mathia-sen not to provide adequate warnings, training, or supervision of crewmembers with regard to safety-related issues. The only mention of “safety” in the contract is in the context of determining “award fees” to be awarded to Mathiasen for superior performance. (R. Doc. 29-3 at 13). The contract does not mention asbestos at all. That the contract remained “completely silent as to whether to warn about the use of asbestos ... is fatal to the ‘causal nexus’ necessary for the second prong” of the test for federal officer removal. Faulk, 48 F.Supp.2d at 664.
For the foregoing reasons, and' in light of the lack of evidence submitted by Math-iasen in support of its removal, Mathiasen has failed to establish a causal connection between the MSC’s direction pursuant to the charter contracts and Plaintiffs claims.
3. Whether Mathiasen Has Asserted a Colorable Federal Defense
By arguing that his claims are made non-removable in light of § 1445, Plaintiff also implicitly challenges Mathiasen’s assertion of a colorable federal defense because Mathiasen’s asserted federal defense is premised on the inapplicability of § 1445.
Mathiasen argues that it is immune from the Plaintiffs suit and the Plaintiff must sue the United States, and not Mathiasen, pursuant to the Public Vessels Act, 46 U.S.C. §§ 3Í101 — 31113, and Suits in Admiralty Act, 46 U.S.C. §§ 30901-30918. (R. Doc. 29 at 5). Mathiasen quotes a former version of 46 U.S.C. § 30904 (formally cited as 46 U.S.C. § 745) to support its argument that “under circumstances such as this a seaman’s claim is against the government, not the operator.” (R. Doc. 29 at 5). Mathiasen relies upon two decisions in support of its asserted defense. (See R. Doc. 29 at 5-8 (discussing Petition of United States, 367 F.2d 505 (3d Cir. 1966) and
The Court need not address Mathiasen’s argument that it has a colorable federal defense in detail because, as discussed above, Mathiasen has not met its burden of establishing the second prong of the federal officer removal analysis.
IV. CONCLUSION
The Court finds that Plaintiffs Jones Act claims are not removable under § 1445(a) when removal is based on the general removal statute, § 1441. The Court need not determine whether Plaintiffs general maritime claims would be removable in the absence of Plaintiffs Jones Act claims.
Despite the broad purview of the federal officer removal statute, consideration of Plaintiffs claims, Mathiasen’s evidence in support of the removal, and the applicable law supports a finding that Mathiasen has not established that the court has jurisdiction over ■ this action pursuant to § 1442(a)(1).
RECOMMENDATION
IT IS THE RECOMMENDATION of the magistrate judge that Plaintiffs Motion to Remand be GRANTED, and the action be remanded to the 19th Judicial District Court for the Parish of East Baton Rouge, Louisiana.
Signed in Baton Rouge, Louisiana, on November 6, 2014.
. Unless otherwise indicated, the record document citations are to the lead case in these consolidated cases, Bartel v. American Export Isbrandtsen, No. 14-257-JJB-RLB [hereinafter Bartel I].
. Mathiasen states that it was incorrectly identified by Plaintiff as “Mathiasen Tanker Ind. Inc.” (R. Doc. 1 at 1).
. Removal pursuant to the federal officer removal statute does not require consent of the non-removing defendants. Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d 150, 152 (5th Cir. 1965).
. This filing is docketed in Bartel v. American Export Isbrandtsen., No. 14-cv-261-JJB-RLB [hereinafter Bartel II],
. According to Hess, Eastern Gas & Fuel had not been served at the time of removal. (Bar-tel II, R. Doc. 1 at 3.)
. This Opposition (R. Doc. 29) was filed on behalf of all Defendants represented by counsel for Mathiasen. The Court will reference the arguments in this Opposition as Mathia-sen’s arguments.
. "A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.” 46 U.S.C. § 30104 (personal injury to or death of seaman).
. “A civil action in any State court against a railroad or its receivers or trustees, arising under sections 1-4 and 5-10 of the Act of April 22, 1908 (45 U.S.C. 51-54, 55-60), may not be removed to any district court of the United States.” 28 U.S.C. § 1445(a).
.. Prior to the Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub.L. No. •112-63, § 1441, 125 Stat. 758, 759 (2011), § 1441(c) provided the following: "Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.” 28 U.S.C. § 1441(c) (2006).
. Section 1331 provides federal courts with original "federal question” jurisdiction: "The district courts shaü have original jurisdiction of aU cMl actions arising under the Constitu_ ^ kws, Qr treaties of the United states.” tt o ^ k , ,
. There is no other basis for removability pursuant to 28 U.S.C. § 1441.
. These decisions rely on the analysis in Ryan v. Hercules Offshore, Inc., 945 F.Supp.2d 772, 775-77 (S.D.Tex. 2013), which concluded that changes to the second sentence of 28 U.S.C. § 1441(b) (as it read prior to the 2011 amendments) removed the statutory basis for the non-removability of admiralty claims in the absence of another basis for jurisdiction as stated by the Fifth Circuit. See Id. at 775-77 (citing In re Dutile, 935 F.2d 61 (5th Cir. 1991)). Other decisions in the Southern District of Texas have viewed the Ryan analysis favorably. See Exxon Mobil Corp. v. Starr Indent. & Liab. Co., No. 14 — 1147, 2014 WL 2739309 (S.D.Tex. June 17, 2014), rev’d on other grounds by, 2014 WL 4167807 (S.D.Tex. Aug. 20, 2014); Carrigan v. M/V AMC Ambassador, No. 13-3208, 2014 WL 358353 (S.D.Tex. Jan. 31, 2014); Wells v. Abe’s Boat Rentals Inc., No. 13-1112, 2013 WL 3110322 (S.D.Tex. June 18, 2013).
A number of courts have disagreed with the analysis in Ryan, however, concluding that the changes to 28 U.S.C. § 1441 under the Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub.L. No. 112— 63, § 1441, 125 Stat. 758, 759 (2011), did not legislatively abolish the basis for non-removal of general maritime claims. See Gregoire v. Enter. Marine Servs., LLC, 38 F.Supp.3d 749, 2014 WL 3866589, (E.D.La. Aug. 6, 2014); Grasshopper Oysters, Inc. v. Great Lakes Dredge & Dock, LLC, No. 14-934, 2014 WL 3796150 (E.D.La. July 29, 2014); Perrier v. Shell Oil Co., No. 14-490, 2014 WL 2155258 (E.D.La. May 22, 2014); Porter v. Great Am. Ins. Co., No. 13-3069, 2014 WL 3385148 (W.D.La. July 9, 2014); Gabriles v. Chevron USA, Inc., No. 14-669, 2014 WL 2567101 (W.D.La. June 6, 2014); Figueroa v. Marine Inspection Servs., 28 F.Supp.3d 677 (S.D.Tex. 2014); Alexander v. Seago Consulting, LLC, No. 14 — 1292, 2014 WL 2960419 (S.D.Tex. June 23, 2014); Rogers v. BBC Chartering Am., LLC, No. 13-3741, 2014 WL 819400 (S.D.Tex. Mar. 3, 2014); Cassidy v. Murray, 34 F.Supp.3d 579 (D.Md. 2014); In re Foss Mar. Co., 29
. A properly pleaded Jones Act claim is not removable unless the defendant can successfully establish fraudulent joinder. See Burchett v. Cargill, Inc., 48 F.3d 173, 175-76 (5th Cir. 1995). Denial of a motion to remand on the basis that a Jones Act claim is fraudulently pleaded is proper where the court “determines, after resolving all disputed questions of fact and any ambiguities in the current controlling substantive law in plaintiffs favor, that there is no reasonable basis for predicting that the plaintiff might establish liability under the Jones Act.” Fields v. Pool Offshore, Inc., 182 F.3d 353, 357 (5th Cir. 1999). A removing defendant bears the "heavy burden" of showing a claim under the Jones Act is fraudulently pleaded. Zertuche v. Great Lakes Dredge & Dock Co., LLC, 306 Fed.Appx. 93, 97 (5th Cir. 2009).
. At least one court has held that "[ajcting . under the direction of the Navy ... is not the same as acting under the direct and detailed control of a federal officer.” Good v. Armstrong World Industries, Inc., 914 F.Supp. 1125, 1129 (E.D.Penn. 1996) (holding that the removing defendant did not establish in the notice of removal or by affidavit that a federal officer specified the use of asbestos in the design and manufacture of turbine generators).
. The cases cited by Mathiasen are not particularly helpful for resolving the "causal nexus” issue in this action. See Mesa, 489 U.S. 121, 109 S.Ct. 959 (removal of criminal actions against federal postal officers in state court for traffic violations while operating mail trucks was removable pursuant to § 1442); Willingham, 395 U.S. 402, 89 S.Ct. 1813 (removal of action brought by federal prisoner accusing warden and others of assaulting, beating, and torturing him was removable pursuant to § 1442).
Reference
- Full Case Name
- Willard E. BARTEL, as personal representative of the Estate of Joseph L. Dennis v. AMERICAN EXPORT ISBRANDTSEN
- Cited By
- 3 cases
- Status
- Published