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Kent Sullivan, Linda Sullivan v. Cottrell

February 29, 2012


The opinion of the court was delivered by: Hon. Hugh B. Scott


Before the Court are defendant Cottrell, Inc., motions for a stay pending determination of Multidistrict Litigation ("MDL") transfer (Docket No. 18*fn1 ) and for the stay of briefing of pending motions or expedited consideration (Docket No. 19*fn2 ). Plaintiff responded to these motions (Docket No. 20), and this Court set any reply to be due by February 6, 2012 (Docket No. 21). The motion was argued on February 10, 2012 (Docket Nos. 25 (minute entry), 21 (scheduling notice)), and this Court reserved decision.

Also pending (which Cottrell seeks stayed or decided prior to the MDL transfer decision) are Cottrell's motion to dismiss (Docket No. 13) and plaintiffs' motion to remand the case to New York State court (Docket No. 14).


This is a removed action pursuant to 28 U.S.C. §§ 1331 (federal question), 1441, 1446 (removal), and the Labor Management Relations Act, 29 U.S.C. §§ 141, 185, et seq. ("LMRA") (Docket No. 1, Notice of Removal). Plaintiffs strenuously contest the bases for this removal and that is the subject of their motion for remand (see Docket No. 14).

The state Complaint alleges negligence, breach of warranties, negligent design, against Cottrell, seeking compensatory damages, punitive damages for plaintiff Kent Sullivan and loss of consortium claims by plaintiff Linda Sullivan (Docket No. 1, Notice of Removal, Ex. B, Compl.). Cottrell was named as a defendant in this action commenced in New York State Supreme Court in May 29, 2007, for damages from an accident arising from plaintiff Kent Sullivan driving as a member of the International Brotherhood of Teamsters ("Teamsters") (id., Notice of Removal ¶¶ 2-3). Although plaintiffs allege that Kent Sullivan was a car hauler, he did not allege membership in the Teamsters. Cottrell answered (id., Ex. C) and defendant Columbus McKinnon amended its Answer (id., Ex. D) in state court.

In removing this action, Cottrell argued that the claims against it (and Columbus McKinnon) are "completely preempted" by section 301 the Labor Management Relations Act, 29 U.S.C. § 185 (id. ¶ 5), that plaintiffs' claims arose out of or "are inextricably related" to the Collective Bargaining Agreement ("CBA") the Teamsters had with various employers (id. ¶ 8).

According to the decision of the New York State Supreme Court (on a motion for leave to amend and for summary judgment), plaintiff Kent Sullivan was employed by Allied Systems, Ltd., as a car hauler driver (id., Ex. E, Notice of Appeal, Ex. A, Order of Hon. Paula Feroleto, filed July 19, 2010, at 1). Plaintiffs sued Cottrell, the manufacturer of a "rig," a car carrier vehicle that includes a ratchet/chain system used to "tie down" automobiles carried on the rig, and Columbus McKinnon, the manufacturer of the chain (id.). Plaintiffs allege that the ratchet/tie down system malfunctioned and broke causing injuries to Kent Sullivan on three occasions in 2006 and 2007 (id. at 1-2).

As noted by Cottrell in its initial Memorandum in Support of Notice of Removal (Docket No. 2, at 2) this action is one of fifteen removed actions Cottrell has filed arising from Teamster members' individual actions in state courts alleging personal injury or product liability. The Clerk of this Court noted to the Judicial Panel on Multidistrict Litigation (or "JPML") that this action was removed to this Court (text remark, Dec. 23, 2011).

A scheduling conference was set (Docket No. 11), when motion practice commenced. First, Cottrell filed a notice of filing a motion to transfer to the MDL court (Docket No. 12) and moved to dismiss the action (Docket No. 13). Two days later, plaintiffs moved to remand the case back to state court (Docket No. 14). This Court canceled the pending scheduling conference (Docket No. 15) and, after receiving dispositive referral jurisdiction from Chief Judge Skretny (Docket No. 16), scheduled briefing of these motions, with responses due February 21, 2012, replies by March 1, 2012, and argument scheduled for March 7, 2012 (Docket No. 17).

Motions to Stay Action and Particular Proceedings Therein Cottrell then filed the two motions being considered in this Order. First, Cottrell moves to stay the entire case pending determination of its MDL motion and/or determination of the complete preemption issue underlying Cottrell's contentions in this case (Docket No. 18). Cottrell notes that there are four what it terms "Teamster Cases" pending in other federal courts; in two of these cases the issue of LMRA complete preemption has been briefed and is awaiting decision (id., Def. Memo. at 3). Second, Cottrell also moved to stay or adjourn the briefing schedule for the pending motions to dismiss and to remand or shorten the motion practice pending for Cottrell's earlier stay motion (Docket No. 19).

Plaintiffs counter that this case was first removed based upon a paper filed in an unrelated case and had "somehow revealed the 'true nature of plaintiffs' claims' in this case and somehow now provides federal jurisdiction under a collective bargaining agreement" to which Cottrell is not a party (Docket No. 20, Pls. Memo. at 1-2). They point out that in eight other cases like this one, courts have remanded similar actions, including the case (McNary) that Cottrell relies upon (id. at 2). Plaintiffs note there will be delay in consideration of their jurisdictional objection if the case is transferred to the MDL court (id. at 4). They argue that Cottrell has not shown "a clear case of hardship or inequity in being required to go forward," Landis v. North American Co., 299 U.S. 254, 259 (1936), in this Court (id. at 4-5). They also contend that Cottrell waived its removal rights by prosecuting this case in state court on the merits, failing to file a timely removal notice, and engaging in extensive discovery in state court prior to the removal (id. at 5-6). These arguments are still better addressed with plaintiffs fully briefed motion to remand. They dispute whether this case is appropriate for MDL transfer (id. at 6), but also those arguments are best addressed either by the JPML or on the merits of plaintiffs' fully briefed and argued motion to remand. Plaintiffs accuse Cottrell of forum shopping for an action commenced in New York in 2007 and extensively litigated since (id. at 7-8). Finally, plaintiffs dispute Cottrell's contention that judicial economy and efficiency would be served by transferring this action (or staying this case pending a transfer) (id. at 9).

In reply, Cottrell argues that the Complaint challenges the tie-down method required by the Teamsters' CBA, hence these purported product liability or personal injury claims are preempted by the LMRA (Docket No. 22, Cottrell Reply Memo. at 2-3). Since plaintiff Kent Sullivan's employer had to buy rigs that complied with the CBA, plaintiff's relief was by a grievance under that CBA (id. at 5). Cottrell terms the bargained-for product specifications to be a case of first impression (id. at 6). Cottrell emphasizes that the United States District Court for the Southern District of Illinois (the court with many of the Teamster cases cited by all parties) had granted a stay pending determination of Cottrell's pending MDL transfer motion (id., Ex. H), Dorrell v. Cottrell, Inc., No. 11-CV-1115-WDS, Order (S.D. Ill., Jan. 18, 2012). Cottrell also notes that the eight Southern District of Illinois cases plaintiffs cited are on appeal before the United States Court of Appeals for the Seventh Circuit (id. at 7), with appellees in those appeals to address Cottrell's jurisdictional memorandum by February 23, 2012 (Docket No. 26, Cottrell Supp. to Motion ¶ 4, Ex. 3), arguing many of the same points urged here.

Cottrell supplements its papers discussing updates from the other cases (id.). In Lewis v. Cottrell, Inc., No. WMN-11-2632, Order of Feb. 14, 2012, at 2, the court granted a stay because the issue in the motion to dismiss there would be considered by the transferee court if the JPML grants the transfer motion (id. ΒΆ 1, Ex. 1). Judge Nickerson in Lewis also noted that the JPML will ...

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