Neal v. Ameron International Corporation

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA BARRY J. NEAL CIVIL ACTION VERSUS AMERON INTERNATIONAL NO, 20-00172-BAJ-RLB CORPORATION, ET AL.

RULING AND ORDER Before the Court is the United States Magistrate Judge’s Report and Recommendation (Doc. 61) pursuant to 28 U.S.C. § 636(b)(1). The Report and Recommendation addresses Plaintiffs Motion to Remand (Doc. 13). This Report and Recommendation is unopposed. The Magistrate Judge recommends that Plaintiff's Motion to Remand be denied.

Defendants removed this action on March 23, 2020, asserting that the Court has subject matter jurisdiction based on the federal officer removal statute, 28 U.S.C. § 1442(a). Defendants cited the Fifth Circuit’s decision in Latiolas v. Huntington Ingalls, Inc., 951 F.3d 286 (5th Cir. Feb. 24, 2020) in support of removal.

Defendants argued that the decision constituted an “order or other paper” under 28 U.S.C. § 1446(b)@), thus permitting the otherwise untimely removal. While Defendants claims would not have been removeable under previous Fifth Circuit jurisprudence, Latiolas overruled various decisions to establish that asbestos-related negligence claims were removeable under the federal officer removal statute.

Plaintiff argued in his motion for remand that removal was untimely.

Generally, a decision in an unrelated case may not constitute an “order or other paper” under 28 U.S.C. § 1446(b)(3). However, the Magistrate Judge noted that Defendants’ claims fall under an exception carved out by Green v. Rd. Reynolds Tobacco Co., 274 F.3d 2638 (5th Cir. 2001). The Court in Green held that a decision in an unrelated case may constitute an “order” upon which removal can be based where the same party was a defendant in both cases, the cases involve similar factual circumstances, and the decision resolved a legal issue that has the effect of making the case removeable. As Avondale was a defendant in both cases, the facts are incredibly similar, and the Latiolas decision resolved a legal issue that made the case removeable, this exception applies. Plaintiff does not object to the Magistrate Judge’s analysis.

Having independently considered Plaintiffs Complaint and related filings, the Court APPROVES the Magistrate Judge’s Report And Recommendation (Doc.

61), and ADOPTS it as the Court’s opinion herein.

Accordingly, IT IS ORDERED that Plaintiffs Motion to Remand (Doc. 13) is DENIED.

qe Baton Rouge, Louisiana, this 7 day of October, 2020 JUDGE BRIAN a UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA