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IN RE METHYL TERTIARY BUTYL ETHER PRODUCTS LIABILITY LITIG.

September 16, 2005.

IN RE: METHYL TERTIARY BUTYL ETHER ("MTBE") PRODUCTS LIABILITY LITIGATION. This document relates to: Hope Koch, et al.
v.
John R. Hicks, et al., 05 Civ. 5745 (SAS).



The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

I. INTRODUCTION

This case is one of dozens in a multi-district litigation ("MDL"), in which numerous plaintiffs are seeking relief from contamination or threatened contamination of groundwater from various defendants' use of the gasoline additive methyl tertiary butyl ether ("MTBE").*fn1 This opinion relates only to Hope Koch, et al. v. John R. Hicks, et al., 05 Civ. 5745.

  On June 30, 2004, Hope and Frank Koch ("Koch plaintiffs") filed a class action complaint in Circuit Court for Harford County, Maryland claiming that John R. Hicks, operator of the Crossroads Exxon located at 2800 Fallston Road, in Fallston Maryland ("Crossroads Exxon"), and Exxon Mobil Corporation ("ExxonMobil") caused substantial property damage and materially increased the health risks to homeowners and/or residents of properties in the vicinity of the Crossroads Exxon through "unlawful and wrongful storage of MTBE."*fn2 The Koch plaintiffs asserted causes of action for: (1) public nuisance, (2) private nuisance, (3) trespass to property, (4) a violation of section 4-409 of Maryland's Environment Article, (5) negligence, and (6) "medical monitoring."*fn3 On September 1, 2004, Stephen and Traci A. Wagner, William and Joann Bellington, and Ernesto and Phyllis Ercolano ("Wagner plaintiffs") filed their second class action complaint against ExxonMobil and Hicks.*fn4 Plaintiffs had dismissed their first complaint when it was removed to federal court by ExxonMobil.*fn5 In this second complaint, plaintiffs dropped their strict liability claim and asserted causes of action for: (1) negligence, (2) private nuisance, (3) trespass, and (4) violation of section 4-409 of Maryland's Environment Article.*fn6 They alleged that defendants had "threatened and/or recklessly contaminated and poisoned the individual wells that supply water in the Fallston/Baldwin area of Harford County, Maryland."*fn7 On September 22, 2004, Judge Emory A. Plitt of the Circuit Court for Harford County, on his own initiative, consolidated the two Complaints, Koch and Wagner II, pursuant to Maryland Rule 2-503.*fn8 The Consolidation Order stated that the two cases, "involving common questions of law, fact, and subject matter, are . . . consolidated for all future purposes."*fn9 The court assigned a new consolidated docket number to the cases: Docket No. 12-C-04-1834 (the original docket number for Koch).

  On September 24, 2004, the Koch plaintiffs wrote to Judge Plitt stating they were concerned about the effect of consolidation on removal and requesting that he vacate his order. They proposed the order be re-issued with the following language: "The above-captioned case and the case of Wagner v. Hicks, Case No. 12-C-04-2448, involving common questions of law, fact, and subject matter, are, pursuant to Maryland Rule 2-503, consolidated for all pre-trial discovery, pre-trial motions practice, and for trial; but both cases are not consolidated as a single action."*fn10 Judge Plitt denied the Koch plaintiffs' request by letter stating "The Order of Consolidation that I issued shall stand as is. If as the matter progresses there is some need to separate any claims, Rule 2-503 provides appropriate mechanisms to do that."*fn11 That same day, he sent a separate letter to both sets of plaintiffs regarding pending motions and their requests for class certification.*fn12 In that letter, he made clear that each stage was to occur jointly for the consolidated cases and explained that if he decided class certification was appropriate he would determine what attorneys would be counsel for the class.*fn13

  On October 15, 2004, ExxonMobil removed the consolidated action to the District Court of the District of Maryland claiming that the district court had jurisdiction "with respect to claims asserted in one of two actions recently consolidated by court order."*fn14 ExxonMobil relied on MTBE III, holding that this Court has federal agent jurisdiction over the MTBE cases under 28 U.S.C. § 1442(a).*fn15 ExxonMobil claimed that the Wagner plaintiffs essentially admitted Wagner I was removable when they dismissed their Complaint after removal.*fn16 It then claimed that Wagner II was removable just as Wagner I was and that Koch became removable once it was consolidated with Wagner II.*fn17

  The Koch plaintiffs twice moved to remand their action to state court. First, they claimed that the removal notice as to the Koch action was untimely.*fn18 Second, they claimed that ExxonMobil failed to comply with Local Rule 103.5.a of the United States District Court for the District of Maryland at the time of removal.*fn19 In a later filing, the Koch plaintiffs also claimed that ExxonMobil's Notice of Removal violated 28 U.S.C. § 1446(a).*fn20

  On June 17, 2005, the Judicial Panel on Multidistrict Litigation transferred this case to this Court for inclusion in In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation, pursuant to Rule 7.4 of the Rules of the Judicial Panel on Multidistrict Litigation and 28 U.S.C. § 1407.

  II. APPLICABLE LAW

  A. Removal and Remand

  Section 1447(c) of Title 28 provides: "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." When a party challenges the removal of an action from state court, the burden falls on the removing party "to establish its right to a federal forum by `competent proof.'"*fn21 "In light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability."*fn22 If the removing party cannot establish its right to removal by "competent proof," the removal is improper, and the district court must remand the case to the court in which it was filed.*fn23

  A defendant may remove a civil action filed in state court to federal court if the claims "arise under" federal law.*fn24 A case "arises under" federal law when federal law provides for the cause of action,*fn25 or where "the vindication of a right turns on some construction of federal law."*fn26 The complaint must affirmatively allege a federal claim.*fn27 In determining if this federal claim exists, courts will "examine the `well-pleaded' allegations of the complaint and ignore potential defenses."*fn28 The presence of a federal defense does not raise a federal question, "even if the defense is anticipated in the plaintiff's complaint, and even if . . . the federal defense is the only question truly at issue."*fn29

  "A case is removable when the initial pleading enables the defendant to `intelligently ascertain' removability from the face of such pleading."*fn30 This standard "does not require a defendant to look beyond the initial pleading for facts giving rise to removability."*fn31 Nor does it require a defendant to "guess" whether the action is removable.*fn32 A court must thus consider the complaint at the time of removal to determine if removal was appropriate in the first place.*fn33 If the basis for federal subject matter jurisdiction later falls away, "[t]he modern rule . . . is that a federal court [has] the power to hear claims that would not be independently removable even after the basis for removal jurisdiction is dropped from the proceedings."*fn34 There is "a judicial reluctance to make jurisdiction hinge on fortuities or ex parte tactical moves."*fn35

  B. Federal Agent Jurisdiction The federal officer removal statute, 28 U.S.C. § 1442(a), can override the well-pleaded complaint rule.*fn36 The action must still raise an issue of federal law, but it may be in the federal officer's defense. Thus, persons acting under color of any federal office or agency may remove a case to federal court despite the absence of a federal cause of action when their removal petition alleges a ...


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