John Humphries v. OneBeacon America Ins Co.
2014 U.S. App. LEXIS 13986
5th Cir.2014Background
- Humphries sued multiple defendants in Louisiana state court for asbestos exposure; DuPont was an original defendant alleged to have operated a federal facility.
- Humphries later amended to add Elliott (a contractor who designed/manufactured turbines for DuPont); Elliott had not yet been served when DuPont removed the case to federal court under 28 U.S.C. § 1442(a)(1) asserting the government-contractor defense.
- After removal, Elliott was served and, without filing a separate removal or joinder, filed an answer in federal court asserting the government-contractor defense.
- Humphries settled with DuPont and others; the district court sua sponte remanded the remaining claims to state court, concluding no federal questions remained and that Elliott had waived any federal defense by failing to join or file a removal.
- Elliott moved for reconsideration; the district court denied it, prompting Elliott’s appeal. The Fifth Circuit stayed remand and expedited the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a later-served defendant must file a notice of removal or joinder to preserve § 1442 rights after an earlier defendant removed | Humphries: Elliott waived federal removal rights by not joining or filing a separate removal before appearing in federal court | Elliott: Not required to file a redundant notice or joinder after DuPont removed; preserved rights by asserting defense in its post-removal answer | Held: No joinder/notice requirement for later-served defendant; asserting the § 1442 grounds in the answer after removal preserves the right to a federal forum |
| Whether the district court properly treated Elliott’s government-contractor defense as irrelevant because it wasn’t raised in a removal notice | Humphries: Court should treat absence of joinder/removal as waiver | Elliott: Substance of defense should be considered; procedural omission was meaningless because DuPont had already removed | Held: District court erred; it must consider the defense’s substance because Elliott preserved it via its answer |
| Whether appellate court should decide the merits (colorability) of Elliott’s government-contractor defense now | Humphries: Court can decide if no federal questions remain | Elliott: Merits should be considered to determine jurisdiction | Held: Court declined to decide merits; vacated remand and remanded for district court to address the substance because district court never addressed it |
| Whether Mesa requires a later-served defendant to file a removal petition joinder | Humphries: Mesa implies the officer must raise federal question in removal petition for Article III purposes | Elliott: Mesa doesn’t control later-served defendant procedure; it concerned different facts | Held: Mesa does not impose such a rule; it does not require a later-served defendant to file a new removal or joinder |
Key Cases Cited
- Willingham v. Morgan, 395 U.S. 402 (1969) (§ 1442 must be construed broadly to secure a federal forum for federal officers)
- Arizona v. Manypenny, 451 U.S. 232 (1981) (purpose of § 1442 is to ensure federal forum when federal official may raise defenses arising from official duties)
- Mesa v. California, 489 U.S. 121 (1989) (discussed the role of a removal petition in identifying federal-law questions for Article III purposes)
- Boyle v. United Technologies Corp., 487 U.S. 500 (1988) (articulated the government-contractor defense test for preemption/immunity from state tort law)
- Doe v. Kerwood, 969 F.2d 165 (5th Cir. 1992) (contrasts § 1442 removal with § 1441; co-defendant consent rules differ)