Charles C Curtis v. Abb Inc et al

Filing 324

MINUTES (IN CHAMBERS) COURT ORDER by Judge Percy Anderson. The Court orders Plaintiff to show cause in writing why the supplemental claims should not be dismissed because they fail to satisfy section 1367s same case or controversy requirement, or al ternatively, why the Court should not decline to exercise supplemental jurisdiction over the non-maritime claims pursuant to 28 U.S.C. § 1367(c). In responding to the order to show cause, Plaintiff shall identify with specificity each defendant over which he alleges the Court possesses maritime jurisdiction, and those defendants over which he alleges the Court possesses only supplemental jurisdiction. Plaintiffs response to the Order to Show Cause shall be filed no later than June 4, 2012. Should defendants wish to respond to the Order to Show Cause, they must meet and confer amongst themselves and prepare either a single joint defense response to the Order to Show Cause, or at most two joint defense responses, with one response from the maritime defendants and a second response from the non-maritime defendants. The joint defense response or responses to the Order to Show Cause, if any, shall be filed no later than June 11, 2012. SEE ORDER. (im)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-2014 PA (FMOx)

Title

Charles Curtis v. ABB, Inc., et al.

Present: The
Honorable

Date

May 24, 2012

PERCY ANDERSON, UNITED STATES DISTRICT JUDGE

Paul Songco

Not Reported

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None

None

Proceedings:

IN CHAMBERS - COURT ORDER

The Court has reviewed the Third Amended Complaint (“3rdAC”) filed by plaintiff Charles
Curtis (“Plaintiff”) against more than 50 defendants he alleges exposed him to asbestos. The Court had
dismissed the prior Complaints because of inadequate diversity jurisdiction allegations. In support of its
invocation of this Court’s jurisdiction, the 3rdAC alleges:
This court has federal-question jurisdiction over this case pursuant to 28
U.S.C. section 1331 because the Defendants will undoubtedly raise the
Governmental Contractor Defense (the the plaintiff should not be able to
impose on a government contractor a duty under state law that is contrary
to the duty imposed by a government contract) which is a federal
affirmative defense involving a federal question. (i.e., see Vernon P.
Lannes v. Air & Liquid Systems Corporation, et all, USCD Case No.
2:2012-cv-01876.) Therefore, Plaintiff’s right to relief necessarily
depends on the resolution of a substantial question of federal law.
Plaintiff has mesothelioma, an invariably fatal cancer. Plaintiff chose to
file his complaint in Federal Court to expedite [the matter] since the case
will inevitably be removed to Federal Court by the Defendants based on
the Governmental Contractor Defense.
This court also has federal-question jurisdiction over federal maritime
personal injury claims pursuant to 28 U.S.C. section 1333. This court has
supplemental jurisdiction over the state-law claims pursuant to 28 U.S.C.
section 1367.
(3rdAC 5:14-27.)
Plaintiff’s invocation of the governmental contractor defense as a basis for federal question
jurisdiction is improper. Federal question jurisdiction does not exist where the complaint is based on
state law, even if defendants are certain to raise issues of federal law, or a federal defense, to a plaintiff’s
claims. See Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127-28, 94 S. Ct. 1002, 1004 (1974)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-2014 PA (FMOx)

Date

Title

May 24, 2012

Charles Curtis v. ABB, Inc., et al.

(“The federal questions ‘must be disclosed upon the face of the complaint, unaided by the answer.’
Moreover, ‘the complaint itself will not avail as a basis of jurisdiction in so far as it goes beyond a
statement of the plaintiff’s cause of action and anticipates or replies to a probable defense.’”) (quoting
Gully v. First Nat’l Bank, 299 U.S. 109, 113, 57 S. Ct. 96, 98 (1936)); Louiville & Nashville R.R. Co. v.
Mottley, 211 U.S. 149, 152, 29 S. Ct. 42, 43 (1908) (“It is not enough that the plaintiff alleges some
anticipated defense to his cause of action.”). The fact that the Court may possess removal jurisdiction
over the action pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a), does not allow a
plaintiff to file a removable action in federal court in the first instance. Mir v. Fosburg, 646 F.2d 342,
344 (9th Cir. 1980) (“[U]nlike removal pursuant to 28 U.S.C. § 1441, a district court has jurisdiction to
hear an action removed pursuant to 28 U.S.C. § 1442(a) even if the initial action could not have been
commenced by the plaintiff in a federal forum.”).
Plaintiff also alleges that the Court possesses maritime jurisdiction over some of the claims and
supplemental jurisdiction over the remaining claims. According to the 3rdAC, Plaintiff alleges that he
was exposed to asbestos-containing products while he served in the Navy aboard the USS Hancock from
1955 to 1958, while employed as a general electrician from 1958 to 1998 in Tennessee, Arkansas,
Wyoming, Colorado, and Missouri, and while performing maintenance on his personal vehicles from
1959 to 1993. Plaintiff therefore appears to allege that his exposure while serving in the Navy triggers
the Court’s maritime jurisdiction, and that the Court possesses supplemental jurisdiction over the claims
arising out of his exposure while working as an electrician and performing maintenance on his vehicle.
28 U.S.C. section 1367 provides:
[I]n any civil action of which the district courts have original jurisdiction,
the district courts shall have supplemental jurisdiction over all other
claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy under
Article III of the United States Constitution. Such supplemental
jurisdiction shall include claims that involve the joinder or intervention of
additional parties.
28 U.S.C. § 1367(a).
Because Plaintiff was allegedly exposed to certain asbestos-containing products while serving in
the Navy, and other asbestos-containing products years later in different locations, it is not clear that
those exposures “form part of the same case or controversy” as the exposures supporting Plaintiff’s
assertion of the Court’s maritime jurisdiction. The Court therefore orders Plaintiff to show cause in
writing why the supplemental claims should not be dismissed because they fail to satisfy section 1367’s
same case or controversy requirement, or alternatively, why the Court should not decline to exercise
supplemental jurisdiction over the non-maritime claims pursuant to 28 U.S.C. § 1367(c). In responding
to the order to show cause, Plaintiff shall identify with specificity each defendant over which he alleges
the Court possesses maritime jurisdiction, and those defendants over which he alleges the Court
possesses only supplemental jurisdiction. Plaintiff’s response to the Order to Show Cause shall be filed
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-2014 PA (FMOx)

Date

Title

May 24, 2012

Charles Curtis v. ABB, Inc., et al.

no later than June 4, 2012. Should defendants wish to respond to the Order to Show Cause, they must
meet and confer amongst themselves and prepare either a single joint defense response to the Order to
Show Cause, or at most two joint defense responses, with one response from the maritime defendants
and a second response from the non-maritime defendants. The joint defense response or responses to
the Order to Show Cause, if any, shall be filed no later than June 11, 2012.
IT IS SO ORDERED.

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