United States District Court, D. Maryland, Northern Division
March 24, 2015
MELVIN F. SHERIN, et al., Plaintiffs,
JOHN CRANE-HOUDAILLE, INC., et al., Defendants.
WILLIAM D. QUARLES, Jr., District Judge.
Melvin F. Sherin, individually and as personal representative of the Estate of Roberta L. Sherin, and others (collectively, the "Plaintiffs"), sued Union Carbide Corporation ("Union Carbide") in an asbestos product liability action. Pending is the Plaintiffs' motion to remand. ECF No. 203. No hearing is necessary. Local Rule 105.6 (D. Md. 2014). For the following reasons, the motion will be denied.
The facts of this case are stated in the Court's September 16, 2014 Memorandum Opinion, ECF No. 200. Briefly, this suit arises from Mrs. Sherin's fatal mesothelioma, allegedly caused by her exposure to asbestos fibers brought home on Mr. Sherin's person and clothing when he worked at the Staten Island, New York U.S. Coast Guard Yard from 1958 to 1960 and as a flooring salesperson from 1969 to 1975,  and, from 1969 to 1970, during construction of their new home. ECF No. 203 ¶ 1.
On September 9, 2010, the Plaintiffs sued Union Carbide, and others,  under various tort theories of recovery. ECF No. 2. On December 21, 2011, Wayne, Hopeman Brothers, and Lofton (collectively, the "removing defendants") removed the suit to this Court. ECF No. 1.
On September 16, 2014, the Court denied Union Carbide's motion in limine to exclude hearsay and speculative product identification testimony, granted in part and denied in part Union Carbide's motion for summary judgment,  and granted Union Carbide's motion for partial summary judgment. ECF No. 201.
On October 23, 2014, the Plaintiffs moved to remand the remaining claims against Union Carbide and A.W. Chesterton to the Circuit Court for Baltimore City. ECF No. 203. On November 10, 2014, Union Carbide opposed the motion. ECF No. 205. On November 24, 2014, the Plaintiffs replied. ECF No. 206.
A. Removal Jurisdiction
Under 28 U.S.C. § 1441(a), "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant... to the district court of the United States for the district and division embracing where such action is pending." The removing party has the burden of proving subject matter jurisdiction. Md. Stadium Auth. v. Ellerbe Becket, Inc., 407 F.3d 255, 260 (4th Cir. 2005). Because removal raises "significant federalism concerns, " the removal statutes must be strictly construed, and all doubts must be resolved in favor of remanding the case to state court. Id.
Relying on Mr. Sherin's employment at the Coast Guard Yard, the removing defendants asserted federal officer jurisdiction under 28 U.S.C. § 1442,  and federal enclave jurisdiction under U.S. Const. Art. 1 § 8,  as grounds for removal. ECF No. 1 at 3, 4.
B. The Plaintiffs' Motion
The Plaintiffs do not assert that removal was improper; rather, they assert that federal jurisdiction is now lacking because every defendant whose asbestos products were present at the Coast Guard Yard has been granted summary judgment or dismissed from the complaint. ECF No. 203 ¶¶ 3, 7. Union Carbide asserts that this Court has federal jurisdiction because Owens-Illinois - whose asbestos products Mr. Sherin acknowledged being exposed to at the Coast Guard Yard - is a cross-defendant for contribution. ECF Nos. 205 at 3; 205-2 at 3. In essence, Union Carbide argues that its cross-claim for contribution against Owens-Illinois independently gives rise to federal jurisdiction over the Plaintiffs' claims against it. Union Carbide is incorrect.
Federal courts exercising federal officer or federal enclave jurisdiction may exercise supplemental jurisdiction over non-federal elements of the controversy. See 28 U.S.C. § 1367(a) ("[T]he district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy...."). Accordingly, the Court's federal jurisdiction over claims arising from Mr. Sherin's asbestos exposure at the Coast Guard Yard provided the Court with supplemental jurisdiction over claims - such as those against Union Carbide - that are purely matters of state law.
Union Carbide has not cited - nor has the Court located-authority for the proposition that a cross-claim gives rise to independent federal jurisdiction. Adopting the majority view, the Fourth Circuit has held that cross-claim defendants may not remove a suit to federal court under 28 U.S.C. § 1441(a). See Palisades Collections LLC v. Shorts, 552 F.3d 327, 333-34 (4th Cir.2008); see also Sanford v. Premier Millwork & Lumber Co., 234 F.Supp.2d 569, 571 (E.D. Va. 2002) ("[T]he majority rule, and, in the eyes of this court, the better view, is that third-party defendants are not the true defendants in the first instance and are not, therefore, entitled to remov[al]."). Because Owens-Illinois could not have removed the suit to this Court on the basis of Union Carbide's cross-claim, strict construction of the removal statute compels the Court to conclude that it lacks independent federal jurisdiction solely on the basis of Owens-Illinois's status as a cross-claim defendant. See Md. Stadium Auth., 407 F.3d at 260.
Union Carbide alternatively - and, more persuasively - argues that the Court should continue exercising supplemental jurisdiction over the Plaintiffs' claims against it. ECF No. 205 at 4. Union Carbide contends that the Plaintiffs could have sought remand about two years ago; because they chose not to, the Court and the parties have expended "significant resources" on the matter, including litigating and deciding Union Carbide's summary judgment motions. Id. at 4-5. Union Carbide further contends that "there is essentially nothing left to remand": the remaining "defective design and/or construction'" and "negligent failure to develop and distribute asbestos free insulation products" claims "do not apply to Union Carbide." Id. at 6. The Plaintiffs contend that judicial economy would be served by remand because the Circuit Court for Baltimore City has an "established framework" for trying asbestos cases,  and has "more courtrooms and more judges than does the [U.S.] District Court for the District of Maryland, Northern Division." ECF No. 206 at 2. The Plaintiffs further contend that Union Carbide's assertion that there is nothing to remand "should be the subject of a different motion." Id. at 3.
Under 28 U.S.C. § 1367(c), the Court may decline to exercise its supplemental jurisdiction over those claims if (1) they "raise a novel or complex issue of State law." (2) they "substantially predominate" over the federal claims, (3) the Court "has dismissed all claims over which it ha[d] original jurisdiction, " or (4) there are "other compelling reasons for declining jurisdiction." A state claim "substantially predominates" over the claim that forms the basis of jurisdiction, if that claim "is only an incident or adjunct of the state claim and... the state claim is the crux of the action." Jones v. Baugher, 689 F.Supp.2d 825, 834 (W.D. Va. 2010) (quoting Spaulding v. Mingo Cnty. Bd. of Educ., 897 F.Supp. 284, 289 (S.D. W.Va. 1995)).
Although the Plaintiffs contend that they have settled their claims against Owens-Illinois, see ECF No. 203 ¶ 6, the Court has not been formally notified of the settlement, nor has Owens-Illinois been terminated from this case. See Docket. Thus, on the current record, the Court has federal jurisdiction over those claims; remand under the third § 1367(c) ground would be premature. Assuming, however, that settlement is imminent, it is reasonable to conclude that the Plaintiffs' state law tort claims against Union Carbide are the "crux" of what remains of this suit. See Jones, 689 F.Supp.2d at 834. Accordingly, the Court may remand those claims under the second § 1367(c) ground.
However, when one of the statutory grounds for remand applies, the Court should also consider whether "principles of economy, convenience, fairness, and comity'" support remand. See Hinson v. Norwest Fin. S. Carolina, Inc., 239 F.3d 611, 617 (4th Cir. 2001) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)); see also Joyner, 2013 WL 877125, at *10.
Although the Court is mindful of the Circuit Court's experience in trying asbestos cases and its interest in adjudicating issues of state law, the strict liability and negligence claims asserted here are not so novel or complex that principles of comity favor remand. See Coppage v. Mann, 906 F.Supp. 1025, 1046-47 (E.D. Va. 1995); Joyner, 2013 WL 877125, at *10.
Additionally, considerations of judicial economy and convenience disfavor remand. Aside from conducting depositions on the issue of damages, discovery in this case has been completed. See ECF No. 204 ¶ A. Having ruled upon dispositive motions, the Court is familiar with the facts of this case. See ECF No. 201; supra note 9. At the very least, the Court will retain federal jurisdiction over the Plaintiffs' claims against Owens-Illinois until they are dismissed pursuant to settlement. See Local Rule 111. The Plaintiffs have had three years to object to the Court's supplemental jurisdiction. As one court presented with similar facts has noted, "[i]n a sense, we are at least in the seventh inning in this contest and in these circumstances there is little to be gained by declining to adjudicate the state claims." See Coppage, 906 F.Supp. at 1047 (retaining supplemental jurisdiction when parties have completed discovery and are prepared for trial). Accordingly, the Court will retain supplemental jurisdiction.
For the reasons stated above, the Plaintiffs' motion to remand will be denied.