Bell et al v. Arvin Meritor, Inc. et al

Filing 51

ORDER by Judge Samuel Conti denying 25 Motion to Remand; granting 42 Ex Parte Application (sclc1, COURT STAFF) (Filed on 4/2/2012)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 DONALD BELL and SUMIKO BELL, Plaintiffs, 10 Northern District of California United States District Court 9 11 v. 12 ARVIN MERITOR, INC, et al., 13 Defendants. 14 15 I. ) ) ) ) ) ) ) ) ) ) ) Case No. 12-00131-SC ORDER DENYING PLAINTIFFS' MOTION TO REMAND AND GRANTING DEFENDANT'S MOTION TO STAY INTRODUCTION 16 Plaintiffs Donald Bell ("Bell") and Sumiko Bell (collectively, 17 "Plaintiffs") brought this personal injury action in Alameda County 18 Superior Court. 19 Plaintiffs allege that Bell suffered injuries as a result of his 20 exposure to Defendants' asbestos-containing products. 21 12. 22 court. 23 motion to remand, filed on February 9, 2012. 24 Remand").1 25 Industries, Inc. ("Hennessy") have opposed the Motion. 26 1 27 28 ECF No. 1 ("Not. of Removal") Ex. A ("Compl."). Compl. ¶¶ 9- On January 6, 2012, Defendants removed the action to federal Not. of Removal. Now before the Court is Plaintiffs' ECF No. 25 ("Mot. to Defendants Pneumo Abex LLC ("Abex") and Hennessy ECF Nos. 34 On February 9, 2012, Plaintiffs erroneously filed their Motion with the previously assigned magistrate judge, after the case had been reassigned to this Court. See ECF No. 21. Plaintiffs subsequently re-filed their amended briefing with this Court on February 10, 2012. 1 ("Hennessy Opp'n"), 35 ("Abex Opp'n"). 2 reply. 3 parte application for an order staying all proceedings pending a 4 decision by the Judicial Panel on Multidistrict Litigation 5 ("JPML"), which Plaintiffs have opposed. 6 Stay"); 43 ("Pls.' Opp'n"). 7 arguments, the Court finds these matters appropriate for decision 8 without oral argument. 9 Remand and STAYS further proceedings in this action pending a United States District Court For the Northern District of California 10 ECF No. 44 ("Pls.' Reply"). Plaintiffs have filed a Abex has also filed an ex ECF Nos. 42 ("Mot. to Having reviewed all of the parties' The Court DENIES Plaintiffs' Motion to decision by the JPML. 11 12 II. DISCUSSION 13 A. 14 Plaintiff argues that Defendants' removal was defective 15 because it was untimely and because one of the Defendants, Honda, 16 did not consent to removal. 17 arguments since Plaintiffs' Motion to Remand is itself untimely. 18 Under 28 U.S.C. § 1447(c), "[a] motion to remand the case on the 19 basis of any defect other than lack of subject matter jurisdiction 20 must be made within 30 days after the filing of the notice of 21 removal . . . ." (emphasis added). 22 observe the thirty-day deadline for filing motions to remand." 23 Alter v. Bell Helicopter Textron, Inc., 944 F. Supp. 531, 535 (S.D. 24 Tex. 1996). 25 January 6, 2012, but Plaintiffs did not move to remand until 26 thirty-four days later, on February 9, 2012. 27 Plaintiffs Motion to Remand is untimely. 28 Plaintiffs' Motion to Remand is Untimely The Court need not reach these "Federal courts strictly Here, Defendants filed the Notice of Removal on Accordingly, Plaintiff contends that, under 28 U.S.C. 1446(d), the thirty- 2 1 day window for filing a motion to remand was not triggered until 2 January 9, 2012, when they were served with Defendants' Notice of 3 Removal. 4 foremost, Section 1447(c) expressly requires that a motion to 5 remand be made within thirty days of the "filing" of a notice of 6 removal, not within thirty days of service. 7 1446(d) has no bearing on the time period for moving for remand. 8 That provision merely requires that a removing party provide notice 9 to adverse parties, but says nothing about whether that notice United States District Court For the Northern District of California 10 Pls.' Reply at 4. This is not the law. First and Second, Section affects the deadline for filing a motion to remand. 11 Plaintiff relies on an out-of-circuit case, N.J. Dept. of 12 Envtl. Prot. v. Exxon Mobil Corp., 381 F. Supp. 2d 398 (D.N.J. 13 2005), which held that, under Federal Rule of Civil Procedure 6(e), 14 a party has an additional three days to file a motion to remand 15 where the notice of removal is served by mail.2 16 Exxon is inapposite. 17 that Defendants mailed the Notice of Removal to Plaintiffs.3 18 Additionally, Exxon is contrary to the weight of authority in this 19 and other circuits. 20 52 F.3d 560, 566 (5th Cir. 1995) ("Rule 6(e) does not extend the 21 thirty-day period of § 1447(c)."); Borchers v. Std. Fire Ins. Co., 22 No. C-10-1706 MMC, 2010 U.S. Dist. LEXIS 75414, at *3-4 (N.D. Cal. 23 June 25, 2010) (same); Rodriguez v. Hall Ambulance, No. 1:06-CV- 24 01580 OWW TAG, 2007 U.S. Dist. LEXIS 9504, at *32 (E.D. Cal. Feb. 25 2 26 27 28 Pls.' Reply at 4. As an initial matter, there is no indication See Pavone v. Miss. Riverboat Amusement Corp., In 2007, Rule 6(e)'s substantive provisions were incorporated into Rule 6(d). 3 None of the parties filed a proof of service for the Notice of Removal with the Court. The Notice of Removal was filed on January 6, 2012 and entered in the electronic court filing system ("ECF") on January 10, 2012. 3 1 9, 2007) (same); In re Edward Jones Holders Litig., 453 F. Supp. 2d 2 1210, 1213 (C.D. Cal. 2006) (same); Delew v. Las Vegas Metro. 3 Police Dep't, 108 F. Supp. 2d 1146, 1148 (D. Nev. 2000) (same). 4 B. The Court Has Federal Enclave Jurisdiction 5 Abex removed this action to federal court on the basis of 6 "federal enclave" jurisdiction. Not. of Removal at 5. 7 government has exclusive authority "in all Cases whatsoever . . . 8 over all places purchased" by the government "for the erection of 9 forts, magazines, arsenals, dockyards, and other needful United States District Court For the Northern District of California 10 buildings." 11 known as "federal enclaves." 12 from incidents occurring in federal enclaves may be removed to 13 federal district court as a part of federal question jurisdiction." 14 Akin v. Ashland Chem. Co., 156 F.3d 1030, 1034 (10th Cir. 1998). 15 U.S. Const. art. I, § 8, cl. 17. The federal Such places are "Personal injury actions which arise Plaintiffs allege that Bell was exposed to asbestos during his 16 employment as a mechanic with the United States Army at "Aberdeen, 17 Maryland; Sendai, Japan; Fort Ord, California; Sapporo, Japan; 18 Tokyo, Japan; Fort Wachika, Arizona; Fort Riley, Kansas; Seoul, 19 Korea; New Orleans, Louisiana; Kaiserslautern, Germany; Fort 20 Leonard Wood, Missouri." 21 Abex argued that federal jurisdiction was proper since at least 22 some of these locations -- which include various army bases -- are 23 federal enclaves. 24 Compl. Ex. A. In its Notice of Removal, The Court agrees. Plaintiffs argue that Defendants have failed to satisfy their 25 burden of establishing that the locations identified by Plaintiffs 26 are federal enclaves. 27 unavailing. 28 Army facilities named in the Complaint do not constitute federal Mot. to Remand at 8. This argument is Plaintiffs cannot credibly contend that the various 4 1 enclaves. 2 definition of federal enclaves, which includes "forts" and 3 "arsenals." 4 notes that Plaintiffs' arguments in this area are in significant 5 tension with other arguments advanced in their Motion to Remand. 6 For example, Plaintiffs argued that the Complaint put Defendants on 7 "unequivocal notice" that Bell may have been exposed to asbestos in 8 federal enclaves and, thus, Defendants should have removed within 9 thirty days of service of the Complaint. United States District Court For the Northern District of California 10 11 These facilities clearly fall under the Constitution's See U.S. Const. art. I, § 8, cl. 17. The Court also Mot to Remand at 4-5. For these reasons, the Court finds that it has authority to exercise jurisdiction over this matter. 12 C. A Stay Pending the JPML's Decision is Appropriate 13 Abex has the requested a stay of further proceedings pending a 14 final decision by the JPML as to whether to transfer this case to 15 the Multi District Litigation on asbestos (the "asbestos MDL"). 16 Mot to Transfer at 1-3. 17 of this motion. 18 should be denied or continued until the Court rules on Plaintiffs' 19 Motion to Remand. 20 remand is inappropriate and that Abex's Motion to Stay has merit, 21 the Court GRANTS Abex's Motion to Stay. Plaintiffs have not opposed the substance However, Plaintiffs argue that Abex's motion Pls.' Opp'n at 2. As the Court finds that 22 23 24 III. CONCLUSION For the reasons set forth above, the Court DENIES Plaintiffs 25 Donald Bell and Sumiko Bell's Motion to Remand and retains 26 jurisdiction over this matter. 27 Pneumo Abex LLC's Motion to Stay and STAYS all further proceedings 28 in this case pending a decision by the JPML as to whether this case The Court also GRANTS Defendant 5 1 should be transferred. The parties shall immediately notify the 2 Court when this issue has been resolved. 3 4 IT IS SO ORDERED. 5 6 7 Dated: April 2, 2012 UNITED STATES DISTRICT JUDGE 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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