Opinion
No. C 04-2066 SBA, [Docket Nos. 10 26].
September 27, 2004
ORDER
This matter comes before the Court on the motion of Plaintiff Tom Baker to remand this action to California Superior Court, and for his fees and costs associated with bringing the motion [Docket No. 10]. In addition, the Court sought supplemental briefing from the parties on whether proceedings should be stayed pending potential transfer of the action to the Judicial Panel on Multidistrict Litigation ("JPML").
Having read and considered the arguments presented by the parties in their moving papers, the Court finds this matter appropriate for disposition without a hearing. The Court HEREBY GRANTS Plaintiff's Motion to Remand, and DENIES Plaintiff's request for fees and costs. The Court also declines to exercise its discretion to stay proceedings. The Court STRIKES Plaintiff's Second Supplemental Memorandum, filed on September 7, 2004 [Docket No. 26] from the record and directs the Clerk of the Court to return the document to Plaintiff.
BACKGROUND
Plaintiff Tom Baker ("Plaintiff") initially filed this action in San Francisco Superior Court on April 4, 2004, seeking damages for asbestos-related personal injuries and disease stemming from occupational exposure to asbestos-containing products. (Opposition to Motion to Remand ("Opp."), at 1.) Plaintiff claimed that he had been exposed to asbestos while working as a mechanic in the United States Navy between 1960-1967 and from 1969-1973. (Id., at 2.) On April 28, 2004, Plaintiff amended his Complaint to add several defendants, including Defendant Textron ("Defendant"), through its "Alternate Entity" "Textron Lycoming." (Id., at 1.) On May 6, 2004, Defendant was served, and on May 28, 2004, Defendant removed the action to federal court. (Id.) Attached to the removal papers was a letter indicating that Defendant would advise the Clerk of the JPML that this was a "tag-along" action that should be transferred to the designated Transferee Court. (See Motion to Remand ("Motion"), at 1.) The JPML has established a Transferee Court for federal court asbestos litigation in the Eastern District of Pennsylvania. (Defendant's Supp. Briefing, at 1-2.) Defendant has not yet notified the JPML of the instant action. (Plaintiff's Supp. Briefing, at 5.)
Plaintiff filed the instant Motion to Remand on June 15, 2004. (Opp., at 1.) Subsequently, Defendant served a set of interrogatories on Plaintiff seeking to identify which of Defendant's products were at issue in the instant case. (Reply to Motion to Remand ("Reply"), at 1.) Plaintiff objected to the discovery, and Defendant has not sought a motion to compel its production. (Id.)
On June 15, 2004, Plaintiff requested an earlier hearing date for his Motion to Remand. On August 9, 2004, the Court denied Plaintiff's request because the Court's calendar was full. The Court also requested supplemental briefing on whether the Court should stay proceedings pending transfer to the JPML, and whether the MDL Transferee Court regularly reviews motions to remand these actions to state court.
1. Plaintiff's Motion to Remand to California Superior Court
A. Legal Standard:
On a motion for remand, the burden of proving the propriety of removal rests in the party who removed. United Computer Systems v. ATT Corp., 298 F.3d 756, 763 (9th Cir. 2002). "[A] cause of action arises under federal law only when the plaintiff's well pleaded complaint raises issues of federal law." Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 63 (1987); Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-10 (1983). Thus, claims "brought under state law may `arise under' federal law if vindication of the state right necessarily turns upon construction of a substantial question of federal law, i.e., if federal law is a necessary element of one of the well-pleaded claims." Ultramar America, Ltd. v. Dwelle, 900 F.2d 1412, 1414 (9th Cir. 1990).
Removal jurisdiction is proper under 28 U.S.C. § 1442(a)(1) when "[a]ny officer of the United States . . . or person acting for him, for any act under color of such office" seeks removal to federal court. 28 U.S.C. § 1442(a)(1); see also, Blackman v. Asbestos Defendants, (BHC), 1997 WL 703773, *1 (N.D. Cal. Nov. 3, 1997). In order to remove under 28 U.S.C. § 1442(a)(1), the defendant must: (1) demonstrate that it acted under the direction of a federal officer; (2) raise a colorable federal defense to the plaintiff's claims; and (3) demonstrate a causal nexus between the plaintiff's claims and the acts the defendant performed under color of federal office. See Mesa v. California, 489 U.S. 121, 125-139 (1989). A corporation can be a "person" for purposes of 28 U.S.C. § 1442(a)(1). See, e.g., Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387 (5th Cir. 1998) (holding corporation can be a "person" for purposes of § 1442).
B. Analysis:
Here, Defendant has failed to meet its burden. In its Opposition, Defendant speculates that Plaintiff must have been exposed to asbestos while working in the Navy on the Bell UH-1D and UH-1E Helicopters ("UH-1 Helicopters"). (Opp., at 2-3.) Defendant bases this determination on the fact that its "Alternate Entity" Lycoming was named in the amended complaint. (Id.) Defendant reasons that because Lycoming's only involvement with the Navy was through the UH-1 Helicopters, Plaintiff's exposure must have occurred when working on those helicopters. (Id.) Therefore, Defendant has justified removal under 28 U.S.C. § 1442(a)(1) on the following grounds: (1) that production of its UH-1 Helicopters was "directed and controlled" by the U.S. government; (2) that it has a colorable federal contractor defense because the U.S. government approved the specifications of the UH-1 Helicopters; and (3) that there is a causal nexus between the plaintiff's claims and the acts the defendant performed under color of federal office because the government directly controlled the design and development of the UH-1 Helicopters. (Opp., at 5-9.) Plaintiff, however, has declared unequivocally that its claims against Defendant do not relate, in any way, to the UH-1 Helicopters. (Reply, at 2; Supplemental Declaration of David Fiol, at ¶ 4.) Because the UH-1 Helicopters are not related to Plaintiff's claims against Defendant, and because Defendant bases its removal jurisdiction entirely on the application of 28 U.S.C. § 1442 to the manufacture and design of the UH-1 Helicopters, Defendant has failed to demonstrate that removal is appropriate. Therefore, Plaintiff's Motion to Remand is granted.
2. Plaintiff's Request for Costs and Attorneys Fees
A. Legal Standard:
An order remanding a case may require payment of just costs and any actual expenses, including attorney's fees, incurred as a result of the removal. 28 U.S.C. § 1447(c). A court has "wide discretion" in deciding whether to award attorney's fees under this provision. Moore v. Permanente Med. Group, 981 F.2d 443, 447 (9th Cir. 1992).
B. Analysis:
Although the Court finds that Defendant has failed to meet its burden of showing that removal was appropriate under 28 U.S.C. § 1442, Defendant's arguments were not completely unfounded. Because Plaintiff named "Textron Lycoming" in his Complaint, Defendant had reason to assume that Textron's involvement in the litigation was through Lycoming. (Opp., at 2.) Plaintiff asserted that he was exposed to asbestos while working as a helicopter mechanic in the Navy, and Lycoming's only involvement with the Navy was through the UH-1 Helicopters. (Id.) Thus, although Defendant incorrectly assumed that Plaintiff's claims were based on exposure to asbestos from UH-1 Helicopters, the Court declines to impose costs or attorney's fees.
3. Stay of the present action pending a ruling on transfer by the JPML.
A. Legal Standard:
The Court admonishes Plaintiff that Court orders regarding the length of supplemental briefs are to be strictly followed. After submitting an initial 10-page brief pursuant to the Court's August 9, 2004 Order, Plaintiff submitted a second 10-page brief regarding the same topic. The Court's order clearly limited the briefs for each party to 10-pages. If Plaintiff believed additional briefing was necessary, he should have sought leave of the Court. The Court therefore orders that Plaintiff's Second Supplemental Memorandum, filed on September 7, 2004, be stricken from the record and returned to Plaintiff by the Clerk of the Court.
The decision to grant or deny a temporary stay of proceedings pending a ruling on the transfer of the matter to the JPML lies within this Court's discretion. See Landis v. North American Co., 299 U.S. 248, 254-55 (1936); Good v. Prudential Ins. Co. of Am., 5 F.Supp.2d 804, 809 (N.D. Cal. 1998). Such a stay is appropriate when deferring to the MDL Transferee Court for resolution of a motion to remand would provide uniformity and efficiency in litigation that underlies the multidistrict litigation system. See 28 U.S.C. § 1407. Motions to remand are often decided by the district court in which the motion was filed before consideration of transfer to the JPML. See e.g., Fung v. Abex Corp., 816 F.Supp. 569, 573 (N.D. Cal. 1992) (ruling on Motion for Remand before recommending transfer to the JPML);Morgan v. Asbestos Defendants, 2003 WL 945987, *1-3 (N.D. Cal. 2003) (remanding action to California Superior Court before potential transfer by JPML); Schlitz v. A.P. Green Industries, Inc., 2002 WL 102608, *1 (N.D. Cal. 2002) (same).
B. Analysis:
Here, the Court chooses not to exercise its discretion to stay proceedings pending notification of the JPML because a stay would not serve the interests of consistency or efficiency. Defendant asserts that "remand motions are routinely deferred to transferee courts." (Opp., at 2.) In support of its position, Defendant first cites Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1362 (C.D. Cal. 1997). In Rivers, however, the district court held that a stay was appropriate in part because no jurisdictional questions were at issue. Id., at 1361-62. Indeed, motions to remand are often heard by a district court despite the fact that a relevant MDL Transferor Court has already been created. See, e.g., Fung v. Abex Corp., 816 F.Supp. at 573. In Fung, plaintiffs claimed injuries from exposure to asbestos. Id., at 570-71. Defendant removed to federal court.Id., at 571. While the Fung court declined to rule on Defendants' Motion to Dismiss, it did choose to rule on Plaintiff's Motion for Remand in order to establish federal court jurisdiction. See id. Only after denying Plaintiff's Motion to Remand did the district court find it appropriate to notify the JPML of the action. Id. In the instant case, it would not serve the interests of judicial economy to notify the JPML of an action that is not properly before the federal courts. As discussed supra, because Defendant in the instant action has clearly failed to demonstrate that removal was appropriate under 28 U.S.C. § 1442, the only result of staying proceedings will be unnecessary delay.
Tellingly, only one of the cases Defendant cites for this proposition involves a district court declining to rule on a motion to remand pending transfer to the JPML. (Defendant's Supp. Briefing, at 2) citing Weinke v. Microsoft Corp., 84 F.Supp. 2d 989, 990 (E.D. Wis. 2000).
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED THAT Plaintiff's Motion to Remand [Docket 10] is GRANTED. Plaintiff's request for costs and fees is DENIED.
IT FURTHER ORDERED THAT Plaintiff's Second Supplemental Memorandum, filed on September 7, 2004, [Docket 26] is STRICKEN from the Record and the Court directs the Clerk of the Court to return the document to Plaintiff.
IT IS FURTHER ORDERED THAT the above captioned action is REMANDED to the Superior Court of California for San Francisco County. All matters calendared in this action are VACATED. The Clerk shall close the file and terminate any pending matters.
IT IS SO ORDERED.