A federal district court in the Eastern District of Louisiana recently held that it continued to have federal jurisdiction under the federal officer removal statute, even after the plaintiffs amended their petition to delete claims that gave rise to federal subject matter jurisdiction. The court reasoned that the original removal satisfied the proper requirements to invoke federal subject matter jurisdiction and exercised its discretion to retain the case.
This case, Pitre v. Huntington Ingalls, et al,[i] arose out of lung cancer allegedly caused by asbestos exposure while the decedent was employed at Avondale Shipyard in Avondale, Louisiana. The initial petition named numerous defendants and included, among other causes of action, failure to warn and other negligence claims against Avondale, as well as strict products liability and failure to warn claims against Foster Wheeler. The plaintiffs filed a first amended petition adding an additional defendant, Occidental Chemical, and asserting strict liability claims against the new defendant and against Avondale.
In discovery, a former coworker of the decedent testified that the decedent worked on U.S. navy ships built by Avondale, Destroyer Escorts. Within 30 days of this testimony, defendants Avondale and Lamorak removed the case to federal court and asserted that they were entitled to removal under the federal officer removal statute, 28 U.S.C. 1442(a)(1), as the plaintiffs’ claims were related to acts performed under color of federal office. After a federal magistrate judge granted the plaintiff’s motion for leave to file an amended complaint deleting their strict liability claims against Avondale, the defendants appealed the ruling to the district court. In their response to the appeal, plaintiffs moved to remand the action to state court.
The defendants argued that the effort to amend the original petition by deleting strict liability claims was a bad faith attempt to defeat federal jurisdiction. The district court denied defendants’ appeal and concluded that there was no error in granting the plaintiffs leave to amend, as courts are freely permitted to give leave to amend when justice so requires. However, that still left open the issue of the plaintiffs’ motion to remand.
The court cited Fifth Circuit opinions, IMFC Prof. Servs. of Fla. v. Inc. v. Latin Am. Home Health, Inc.[ii] and Bartel v. Alcoa S.S. Co., Inc.,[iii] in support of the principle that jurisdiction “is based on notice of removal, not the amended complaint.” Therefore, “although an amended complaint deleting federal claims may permit a discretionary remand, it does not destroy federal jurisdiction over a validly removed case.” The appellants’ original removal to federal court was properly supported by a colorable defense of federal contractor immunity. The plaintiffs did not seriously contest that their original claims were removable, arguing only that their strict liability claims were brought in error. The court held that though “a good faith error may justify granting leave to amend,” in this matter “plaintiffs’ error does not create a jurisdictional defect in notice of removal.” Furthermore, the court held that Foster Wheeler, a boiler manufacturer defendant, also had a colorable defense under the federal contractor defense, and that therefore there was proper federal officer removal jurisdiction based on the plaintiffs’ design defect claims. For these reasons, the court denied the plaintiffs’ motion to remand.
The holding in this case demonstrates a federal court’s use of its discretion to retain jurisdiction over properly removed cases, even after the deletion of removal of claims giving rise to federal jurisdiction. The court’s refusal to interpret the amendment of a complaint as hindering proper removal is the type of ruling that should deter plaintiffs from forum shopping by amending their original petitions. The decision also is consistent with language of the Fifth Circuit, which stated that, “policy favors the retention of jurisdiction.”[iv]
[i] Pitre v. Huntington Ingalls, Inc. 2017 WL 6033032, (E.D. La. Dec. 6, 2017).
[ii] IMFC Prof. Servs. of Florida, Inc. v. Latin Am. Home Health, Inc., 676 F.2d 152, 159 (5th Cir.1982).
[iii] Bartel v. Alcoa S.S. Co., Inc., 805 F.3d 169, 172 (5th Cir.2015)
[iv] IMFC Prof. Servs. of Fla,,676 F.2d at 159.