United States District Court, D. Maryland
Catherine Blake United States District Judge.
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
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,
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.)
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.)
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).
Thirty-day filing deadline in 28 U.S.C. §
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.
Motion to sever and remand
does not appear to contest the removal,  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,
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)).
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. 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."). In Crocker, for example, another
federal district court severed ...