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Oliver v. Campbell McCormick, Inc.

United States District Court, D. Maryland

July 18, 2016



          Catherine Blake United States District Judge.

         Wayne Oliver sued Campbell-McCormick, Inc. ("Campbell-McCormick"), MCIC, Inc., and the Walter E. Campbell Company in Circuit Court for Baltimore City, alleging that exposure to asbestos in the defendants' products caused his mesothelioma. General Electric Company ("GE"), a third-party defendant in the Circuit Court, removed the case to federal court. Now pending is Oliver's motion to sever and remand all non-third party claims, and Campbell-McCormick's motion requesting that the court reconsider staying the proceedings. The issues in this case have been fully briefed, and no hearing is necessary. See Local R. 105.6 (D. Md. 2016). For the reasons that follow, Oliver's motion to sever and remand will be granted, and Campbell-McCormick's motion to reconsider will be granted in part and denied as moot in part.


         Oliver worked as a pipefitter's and drafting apprentice at Fore River Shipyard in Quincy, Massachusetts from 1967 to 1970. (Compl. ¶ 3, ECF No. 2.) He then worked as a piping systems field engineer at Calvert Cliffs Power Generating Station in Lusby, Maryland from approximately 1972 to 1978. (Id.) Oliver was diagnosed with mesothelioma in the spring of 2015, which he alleges was caused by exposure to the defendants' products that contained asbestos. (Id. ¶¶ 7, 12, 18; id. p. 7, Additional Information.)

         In August 2015, Oliver sued twenty-seven defendants, including GE, in Massachusetts state court, alleging that he was exposed to the defendants' "asbestos-containing materials" while working in Massachusetts and Maryland. (Notice of Removal Ex. A, Mass. Compl. ¶ 4, ECF No. 1-2.) That case was removed to the United States District Court for the District of Massachusetts on October 1, 2015. (Notice of Removal ¶ 2, ECF No. 1.) In December 2015, Oliver brought a separate lawsuit in Circuit Court for Baltimore City, alleging that, while working in Maryland, he "used, worked with and/or was exposed to asbestos products that were manufactured, supplied and/or installed" by the three defendants in this case. (Compl. ¶ 3.) On March 14, 2016, Campbell-McCormick moved to stay the Maryland proceedings until the Massachusetts case concluded or, in the alternative, to modify the pretrial schedule, (Campbell-McCormick Mot. Stay, ECF No. 15), which Oliver opposed, (Resp. Opp'n Stay, ECF No. 17). On March 23, 2016, Campbell-McCormick brought a third-party complaint against several companies, including GE, pursuant to Md. Code Ann., Cts. & Jud. Proc. § 3-1401, et seq., the Maryland Uniform Contribution Among Joint Tort-Feasors Act ("MUCAJTA"). (Campbell-McCormick Third-Party Compl. ¶ 6, ECF No. 16; see also Campbell-McCormick Cross-Claim, ECF No. 25.) On April 8, 2016, GE invoked the government contractor defense to tort liability and removed the case to federal court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). (Notice of Removal ¶¶ 6, 10-14.) Several other third-party defendants joined in GE's request for removal based on the federal contractor defense. (See ECF Nos. 43, 47, 49, 69.)

         On May 19, 2016, Oliver filed a motion to sever and remand all non-third party claims. (Mot. Sever and Remand, ECF No. 63.) Oliver argues that this court should decline to exercise supplemental jurisdiction over his state law claims because that jurisdiction "is premised entirely on Campbell McCormick's third party contribution claims against the removing defendants." (Id. ¶ 10.) Campbell-McCormick and several third-party defendants, including GE, filed responses in opposition. (See ECF Nos. 73-76, 78-80.) Oliver replied. (Reply, ECF No. 87.)

         On June 7, 2016, I denied Campbell-McCormick's request to stay the proceedings but granted the alternative modification of the pretrial schedule. (Order Mot. Stay, ECF No. 81.) On June 9, 2016, Campbell-McCormick filed a motion to reconsider the stay denial, (Mot. Recons., ECF No. 82), to which Oliver filed a response in opposition, (Mot. Recons. Resp. Opp'n, ECF No. 98), and Campbell-McCormick replied, (Mot Recons. Reply, ECF No. 103).


         I. Thirty-day filing deadline in 28 U.S.C. § 1447(c)

         Campbell-McCormick and the third-party defendants argue that Oliver's request for remand is untimely because it was not made within the thirty-day filing deadline required by 28 U.S.C. § 1447(c). The court agrees with Oliver that his request for severance and remand was made pursuant to 28 U.S.C. § 1367, (see Mot. Sever and Remand Mem. Law 2, 4, ECF No. 63-1), which does not contain a time limit. In Hinson v. Norwest Fin. S.C., Inc., the Fourth Circuit considered a case in which the plaintiffs filed a motion to remand under Section 1367(c), arguing, as Oliver does here, that state law predominated. See 239 F.3d 611, 614 (4th Cir. 2001). The defendant argued that the motion to remand was untimely under Section 1447(c) because it was made more than thirty days after the filing of the notice of removal. Id. The Fourth Circuit rejected that argument, and held that Section 1447(c) was not applicable because "the parties [did] not assert any defect in the removal process." Id. at 616; see also 28 U.S.C. § 1447(c) ("A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)." (emphasis added)). Here, no party contends there was a defect in the removal process. Instead, Oliver is invoking the court's discretionary remand power, which is "inherent in the statutory authorization to decline supplemental jurisdiction under § 1367(c)." Hinson, 239 F.3d at 617. Accordingly, the thirty-day filing deadline in Section 1447(c) is not a bar to Oliver's motion to sever and remand.

         II. Motion to sever and remand

         Oliver does not appear to contest the removal, [1] or that this court has supplemental jurisdiction over Oliver's state law claims. (See Mot. Sever and Remand Mem. Law 1-2, 3-5.) Instead, Oliver argues that the court should decline to exercise its supplemental jurisdiction by severing and remanding all non-third party claims because the state law claims predominate over the federal ones. (Id. at 2, 4-7.)

         A court's discretion to decline to exercise its supplemental jurisdiction is circumscribed by 28 U.S.C. § 1367(c). According to the statute, a declination is permitted only when (1) the claim over which the court has supplemental jurisdiction "raises a novel or complex issue of State law, " (2) the claim "substantially predominates over" the claim over which the court has original or removal jurisdiction, (3) the court has dismissed all claims over which it has original or removal jurisdiction, or (4) there are "exceptional circumstances" and "compelling reasons." 28 U.S.C. § 1367(c). And the court's discretion is further circumscribed by case law: after determining that one or more of these statutory factors would be satisfied, "the federal court should consider ‘principles of economy, convenience, fairness, and comity' and whether the efforts of a party in seeking remand amount to a ‘manipulative tactic.'" Hinson, 239 F.3d at 617 (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988)).

         Severance and remand is appropriate here because the state law claims substantially predominate over the federal contractor defense that gives this court original jurisdiction. As Oliver points out, I found severance to be appropriate in a similar case where all of the plaintiff's claims were based on state law and a defendant asserted a federal defense. See Joyner v. A.C. & R. Insulation Co., 2013 WL 877125, at *10 (D. Md. March 7, 2013), aff'd sub nom. Wood v. Crane Co., 764 F.3d 316 (4th Cir. 2014); see also Madden v. Able Supply Co., 205 F.Supp.2d 695, 702 (S.D. Tex. 2002). Here, Oliver's claims, and the defendants' third-party claims for contribution, are based entirely on state law. (See Compl. ¶¶ 2-19; Campbell-McCormick Third-Party Compl. ¶¶ 4, 6, 8.) Further, none of the defendants requested removal; only third-party defendants-against whom the plaintiff has not asserted any claims-did.[2] As the plaintiff points out, the federal contractor defense, the one claim that provides this court with original jurisdiction, would become relevant only if the defendants are found to be liable for Oliver's state law causes of action. See Haupt v. State, 667 A.2d 179, 186 (Md. 1995) ("[A] claim for indemnification or contribution does not accrue until judgment has been entered against the party seeking indemnification or contribution."). Several courts have relied on similar procedural postures to justify remand. See Crocker v. Borden, Inc., 852 F.Supp. 1322, 1331 (E.D. La. 1994) ("Many of the [third-party claims] may become moot . . . [because] if the plaintiffs lose in the state court trial against the defendants in the main demand, the third-party demand shall naturally fall."); Brown v. Ky. Utils. Co., 2015 WL 6476096, at *2 (W.D. Ky. Oct. 26, 2015) ("Plaintiffs' original claims against Defendants can proceed to trial, and [the defendant's] claims against [the third-party defendant] are necessarily premised upon [the defendant] having any liability to Plaintiffs for their injuries.").[3] In Crocker, for example, another federal district court severed ...

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