Plaintiffs file this Motion to Remand and would respectfully show the Court as follows:
Table Of Contents
Plaintiffs filed this civil action in the Circuit Court of Jefferson County, Mississippi, seeking compensation for asbestos-related injuries. Without obtaining consent from the other Defendants in the case, or explaining to this Court why consent was not necessary, Defendants DaimlerChrysler Corporation (“Chrysler”) and Ford Motor Company (“Ford”) removed this case on September 20, 2001. Chrysler and Ford amended their notice of removal on October 5, 2001, still declining to demonstrate that the other Defendants had consented or explain why their consent was not necessary. Chrysler and Ford allege that removal is proper because two of the Plaintiffs were exposed on “federal enclaves.” Chrysler and Ford have been aware of this alleged basis for removal for nearly two years, making their removal untimely. In addition to the fatal procedural defects in Defendants’ Notice of Removal, they have failed to carry their burden of proving a proper basis for federal jurisdiction. The case should therefore be remanded to state court without further delay.
ARGUMENT AND AUTHORITIES
All Defendants Have Not Consented to the Removal.
In cases removed under 28 U.S.C. § 1441, all defendants must consent to removal. Doe v. Kerwood, 969 F.2d 165, 167 (5th Cir. 1992); United Plumbing & Heating Co., Inc. v. Lewis, 113 F.Supp.2d 1041, 1042 (S.D. Miss. 2000). While the issue usually arises in diversity cases, “the requirement that defendants unanimously join in a removal petition extends to federal question cases” such as this one. Spillers v. Tillman, 959 F.Supp. 364, 369 (S.D. Miss. 1997). Each defendant “must communicate his consent to the court by way of an official filing or voicing of consent.” Id. (citations omitted).
With the exception of Chrysler and Ford, none of the Defendants in this case has consented to removal. Defendants’ failure to obtain consent from their fellow Defendants, or to explain why that consent is not necessary, renders their notice of removal “inadequate as a matter of law.” See Egle Nursing Home, Inc. v. Erie Ins. Group, 981 F.Supp. 932, 936 (D. Md. 1997).
The Removal Is Untimely.
Defendants claim that their removal is timely, citing Hines v. AC&S, Inc., 128 F.Supp.2d 1003 (N.D. Tex. 2001). A closer reading of Hines demonstrates that Defendants’ removal is nearly two years too late. In Hines, defendants removed on the basis that the plaintiff was exposed to asbestos at a federal enclave. Id. at 1005. The court determined the timeliness of the removal under 28 U.S.C § 1446(b), which requires that the notice of removal be filed within thirty days after receipt of “other paper from which it may first be ascertained that the case is one which is or has become removable.” Id. at 1005-06. The court found that the thirty-day period began to run when the plaintiff listed a federal enclave among his work sites in response to master discovery requests. The court observed that so long as Plaintiffs have revealed the location of their exposure, “[n]othing requires Plaintiffs to take the step of adding a footnote, parenthetical, or caveat stating that the exposure locale happened to be a federal enclave.” Id. at 1008. The court added that a diligent investigation by the Defendants may be considered “[t]he price of removal under this obscure jurisdictional basis.” Id.
The facts of this case parallel the facts in Hines. The only specific federal enclave that Defendants list is Stennis Space Center in Hancock County, Mississippi. Plaintiffs disclosed this exposure to Defendants nearly two years ago. On November 10, 1999, Plaintiffs sent documents showing exposure locations to counsel for Chrysler and Ford. See Transmittal Letters dated Nov. 10, 1999, attached as Exhibit A. These documents stated that Plaintiff Nolan Ladner was exposed to asbestos at Stennis Space Center in Hancock County, Mississippi. See Client Data Sheet, attached as Exhibit B. Under Hines, the listing of a federal enclave among Plaintiffs’ work sites begins the thirty-day removal period. The time for removal on the basis of federal enclave jurisdiction has long since passed.
There Is No Basis for Federal Jurisdiction over This Case.
Even if the notice of removal were not procedurally defective, Defendants have not demonstrated a sound basis for the exercise of federal jurisdiction. This case involves personal injury claims under Mississippi law. This case does not “arise under” federal law and does not belong in federal court. Defendants’ assertion of federal jurisdiction is based on an unwarranted expansion of what has come to be known as “federal enclave” jurisdiction.
At the outset, it should be emphasized that Defendants have the burden of establishing federal jurisdiction. Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988). Defendants must prove that this case “arises under” federal law. It is not sufficient that some federal issue might be involved in the case. An incidental or collateral federal issue “is not enough to deprive the state court of jurisdiction upon petition for removal by the defendant.” Armstrong v. Alliance Trust Co., 126 F.2d 164, 167 (5th Cir. 1942); see also Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 807 (1986) (“Although the constitutional meaning of ‘arising under’ may extend to all cases in which a federal question is ‘an ingredient’ of the action, we have long construed the statutory grant of federal-question jurisdiction as conferring a more limited power”).
As Justice Cardozo explained in Gully v. First National Bank in Meridian, 299 U.S. 109 (1936), “[t]o bring a case within [section 1331], a right or immunity created by the Constitution or the laws of the United States must be an element and an essential one, of the plaintiff’s cause of action.” Id. at 112. The federal right “must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they received another.” Id. In frequently quoted language, Justice Cardozo observed:
What is needed is something of that common sense accommodation of judgment to kaleidoscopic situations which characterizes the law in its treatment of problems of causation. One could carry the search for causes backward, almost without end. . . . Instead, there has been a selective process which picks the substantial causes out of the web and lays the others aside. As in problems of causation, so here in the search for the underlying law. If we follow the ascent far enough, countless claims of right can be discovered to have their source in the operative limits in the provisions of a federal statute or in the Constitution itself . . . .
Id. at 100. The Fifth Circuit embraced this common-sense approach in Willy, explaining that incidental federal issues do not create federal jurisdiction over a claim that is “in essence one under state law.” Id. at 1171.
Justice Cardozo’s observation is remarkably prescient in the context of a modern toxic tort case. Cases involving toxic substances frequently involve multiple exposures, many of which may fortuitously occur in post offices, military bases or national parks. It simply defies common sense to extend federal jurisdiction to every tobacco case in which a plaintiff smoked a cigarette in a national park, or every DES case in which a plaintiff took the medication while stationed on an Army base. It is equally nonsensical to assert federal jurisdiction over this case because two of the thousands of Plaintiffs may have been exposed to asbestos on federal property.
The Fifth Circuit has never embraced such an expansive application of “federal enclave” jurisdiction. Plaintiffs are aware of only one case in which the Fifth Circuit recognized federal enclave jurisdiction in a tort case, in Mater v. Holley, 200 F.2d 123 (5th Cir. 1952). In Mater, the plaintiff claimed that she suffered personal injuries “as a result of the negligence of appellees within the boundaries of Fort McPherson, Georgia,” a federal enclave. Id. at 123. Because the plaintiff filed her case in federal court originally, the court did not apply the stricter standards used in removed cases.
Assuming, for the sake of argument, that Mater could be read to permit the exercise of federal jurisdiction over any tort committed on federal property, Defendants’ expansion of the “federal enclave” doctrine is not justified. The fact that some relevant event may have taken place on federal property is not a basis for federal jurisdiction. For example, in Miller v. Wackenhut Services, Inc., 808 F.Supp. 697 (W.D. Mo. 1992), the plaintiff complained of harassing calls made from a federal facility to her home. The court reasoned that although the calls originated on federal property, the resulting distress took place in the plaintiff’s home in Missouri; “[t]herefore, [plaintiff’s] Missouri common law claims cannot be dismissed on the ground that the tort occurred on federal property.” Id. at 700.
In support of their jurisdictional claim, Defendants cite three cases: Akin v. Ashland Chemical Co., 156 F.3d 1030 (10th Cir. 1998), Akin v. Big Three Industries, Inc., 851 F.Supp. 819 (E.D. Tex.1994), and Reed v. Fina Oil & Chem. Co., 995 F.Supp. 705 (E.D. Tex.1998). Akin v. Ashland Chemical Co. and Akin v. Big Three Industries, Inc. both involved toxic exposures that occurred entirely within federal installations. The court in Akin v. Big Three Industries, Inc. specifically noted that “[h]ad some of the exposure occurred off-base, the defendants’ burden of establishing enclave jurisdiction would have been heavier,” reasoning that “[w]hen exposures allegedly occur partially inside and partially outside the boundaries of an enclave an argument would surface that the state’s interest increases proportionally, while the federal interest decreases.” Id. at 825 & n. 4.
Quoting this language, the Eastern District of Virginia declined to extend Akin to an asbestos case in which the defendants argued that “some of the exposure occurred” on a federal enclave. Anderson v. Crown Cork & Seal, 93 F.Supp.2d 697, 701 (E.D. Va. 2000). The court also noted that Reed v. Fina Oil & Chemical Co. was not directly relevant because it relied primarily on federal officer jurisdiction as a basis for removal. The discussion of federal enclave jurisdiction in Reed was “merely dicta.” Id. at 703. In fact, the court in Reed acknowledged that it was applying “a more liberal interpretation of the removal statute” because the defendants were claiming federal officer jurisdiction under 28 U.S.C. § 1442. Reed, supra, at 710 n. 5. Because there is no allegation of federal officer jurisdiction in this case, the “more liberal interpretation” given in Reed would be inappropriate. On the contrary, in a case removed under 28 U.S.C. § 1441, “[t]he importance of respecting our federal system of government places a burden on federal district courts to strictly construe removal jurisdiction.” Virgil v. Reorganized M.W. Co., Inc., 156 F.Supp.2d 624, 630 (S.D. Miss. 2001) (citation omitted). If there is a “close call” as to whether federal enclave jurisdiction exists, the case should be remanded. See Anderson, supra, at 703 (“[T]o the extent the Court considers these legal determinations ‘close calls,’ the law regarding whether remand provides guidance to courts considering ‘close-calls.’ That is, where there is any doubt, the court should resolve the matter in favor of the plaintiff and for remand.”).
There is, to say the least, doubt about whether the Plaintiffs’ state law claims can be deemed to “arise under” federal law. Defendants’ claim of federal jurisdiction rests on an absolutist approach that conflicts with the Fifth Circuit’s common-sense analysis of jurisdictional issues. Plaintiffs have pled causes of action that arise exclusively under Mississippi law. Federal law is not an element of any cause of action of any Plaintiff in this case, much less an essential or dominant element. Defendants ask this court to assert jurisdiction because two Plaintiffs, out of a total of 5,971, may have suffered a portion of their exposure to the Defendants’ asbestos-containing products at facilities alleged to be federal enclaves.  All of the claims in this case arises under Mississippi law and should be resolved in the Mississippi court system.
Defendants have failed to satisfy either the procedural or substantive requirements for removal. Plaintiffs respectfully ask this Court to remand their case to state court.
- ↑ Inexplicably, Defendants also cite Hines v. AC&S, Inc., 128 F.Supp.2d 1003 (N.D. Tex. 2001). As discussed above, the court in Hines remanded the case because the removal was untimely, as this one is. The court never reached the substantive question of federal jurisdiction.
- ↑ Even if 100 of the Plaintiffs in this case had suffered a portion of their injurious exposure to the Defendants’ asbestos-containing products at federal enclaves, such cases would still amount to fewer than two percent of the total number of Plaintiffs properly joined in this case.