Gibson et al v. Clean Harbors Environmental Services, Inc.

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS 17 ; REMANDING CASE TO STATE COURT; granting 10 Motion to Remand. Signed by Honorable Susan O. Hickey on January 24, 2014. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
CARLA GIBSON, WINDELL LAWSON,
JOYCE POWELL, JEFF ROGERS,
LEE WARDEN, KATHY WOODS, and
LILLIE WOODS, on behalf of themselves
and all others similarly situated
V.

PLAINTIFF

CIVIL NO. 1:13-cv-1040

CLEAN HARBORS ENVIRONMENTAL
SERVICES, INC.

DEFENDANT/
THIRD-PARTY PLAINTIFF

V.
BIOLAB, INC.

THIRD-PARTY DEFENDANT
ORDER

Before the Court is the Report and Recommendation filed October 16, 2013, by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
(ECF No. 17). Judge Bryant recommends that Plaintiffs’ Motion to Remand (ECF No. 10) be
granted. After reviewing the record de novo, the Court adopts Judge Bryant’s Report and
Recommendation as its own.
On January 4, 2013, Plaintiffs filed a class action complaint in the Circuit Court of Union
County, Arkansas. (ECF No. 1). Plaintiffs subsequently amended their complaint on February
2, 2013, to name the proper Defendant, Clean Harbors Environmental Services, Inc. (“Clean
Harbors”). Id. On February 8, 2013, Clean Harbors filed a Third-Party Complaint against
BioLab, Inc. (“BioLab”). Id. On March 12, 2013, Clean Harbors filed an Amended and
Substituted Third-Party Complaint against BioLab. Id.

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In the Amended Third-Party Complaint against BioLab, Clean Harbors alleges that
BioLab proximately caused the incident giving rise to Plaintiffs’ complaint. Specifically, Clean
Harbors alleges it incurred damages because BioLab breached its obligations and warranties to
Clean Harbors and negligently failed to warn Clean Harbors. Id. Clean Harbors also seeks a
“declaration that BioLab is obligated to defend and indemnify [Clean Harbors] for any judgment,
attorney’s fees, or costs arising from the incident giving rise to this Class Action Complaint”
and, in the alternative, “contribution and/or an apportionment of fault.” Id.
After Clean Harbors served BioLab, BioLab removed this action to the United States
District Court for the Western District of Arkansas pursuant to 28 U.S.C. § 1332, 28 U.S.C. §
1441, and 28 U.S.C. § 1453. Id. On May 20, 2013, Plaintiffs filed a Motion to Remand. (ECF
No. 10). After Judge Bryant filed his Report and Recommendation, BioLab and Clean Harbors
filed objections to the Report and Recommendation. (ECF No. 18 & 19). Plaintiffs filed
responses to the objections. (ECF No. 20 & 21).
BioLab and Clean Harbors object to the Report and Recommendation because Judge
Bryant did not consider Clean Harbors claim for damages against BioLab when he concluded the
suit was not removable under Lewis v. Windsor Door Company, 926 F.2d 729, 733 (8th Cir.
1991). In Lewis, the Eighth Circuit held that a third-party defendant may remove a suit if the
third-party complaint is “separate and independent” from Plaintiffs’ claims. Id. BioLab and
Clean Harbors argue that Clean Harbor’s claim for damages makes Clean Harbors third-party
complaint “separate and independent” from Plaintiffs’ claims.
The Court disagrees with BioLab and Clean Harbors. Judge Bryant properly concluded
that the suit is not removable under Lewis. As Judge Bryant stated, Lewis is not applicable to
this case. In Lewis, the Eighth Circuit held that 28 U.S.C. § 1441(c) did not permit removal by a

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third-party defendant unless the claim is “separate and independent” from the plaintiff’s claim.
Id. However, Congress amended Section 1441(c) in 1990 to apply only to removal of federal
question cases, not diversity cases or class actions. See 28 U.S.C. § 1441(c). BioLab removed
this case based on diversity of citizenship and the Class Action Fairness Act. Thus, Section
1441(c) and Lewis are not applicable. Therefore, the Court concludes that Judge Bryant properly
recommended that the case be remanded.
For the reasons set forth above, the Court overrules Defendants’ objections and adopts
Judge Bryant’s Report and Recommendation. (ECF No. 17). Accordingly, Plaintiffs’ Motion to
Remand (ECF No. 10) is GRANTED. The case is remanded to the Circuit Court of Union
County, Arkansas, for further proceedings
IT IS SO ORDERED, this 24th day of January, 2014.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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