Hazelwood et al v. A.W.Chesterton Company et al

Filing 33

ORDER GRANTING PLAINTIFFS 31 RENEWED MOTION TO REMAND. Signed by Judge Claudia Wilken on 6/20/2012. (ndr, COURT STAFF) (Filed on 6/20/2012)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 MOYER HAZELWOOD; and SUE HAZELWOOD, ORDER GRANTING PLAINTIFFS’ RENEWED MOTION TO REMAND (Docket No. 31) Plaintiffs, 6 7 No. C 12-1313 CW v. 9 A.W. CHESTERTON COMPANY; PNEUMO ABEX LLC, successor in interest to ABEX CORPORATION; and HONEYWELL INTERNATIONAL INC., 10 Defendants. United States District Court For the Northern District of California 8 11 12 ________________________________/ Plaintiffs Moyer and Sue Hazelwood have renewed their motion 13 to remand to state court their case against Defendants Pneumo Abex 14 LLC, Honeywell International, Inc., and Carlisle Corporation. 15 Court takes judicial notice of the response to Plaintiffs’ motion 16 to remand filed by Pneumo Abex while this case was pending in the 17 Eastern District of Pennsylvania and takes the motion under 18 submission on the papers. 19 presented by the parties in their papers, the Court GRANTS 20 Plaintiffs’ motion. The Having considered the arguments 21 BACKGROUND 22 Plaintiffs initiated this action in the Alameda County 23 Superior Court on July 18, 2011, naming more than two dozen 24 corporations as Defendants. 25 On January 20, 2012, Plaintiffs served their settlement 26 conference statement pursuant to California Rule of Court section 27 3.1380(c), identifying as Defendants only Bridgestone Americas 28 Tire Operations, LLC, Pneumo Abex, Honeywell, Carlisle, Borg- 1 Warner Corporation, Kelsey Hayes Company, Eaton Corporation, 2 Thyssenkrupp Budd Corporation, Cummins, Inc. and Crane Co. 3 Decl., Ex. E. 4 California and none has its principal place of business inside of 5 California. 6 Worsey Each of these Defendants is incorporated outside of Worsey Decl., Exs. F-M. On January 27, 2012, the mandatory settlement conference took 7 place. 8 Defendants named in Plaintiffs’ statement, except Crane Co. 9 Worsey Decl., Ex. O. Worsey Decl. ¶ 25. It was attended by counsel for the Counsel also appeared on behalf of four United States District Court For the Northern District of California 10 Defendants not named in the statement; three of these attorneys 11 also represented Defendants who were so named. 12 four additional Defendants is incorporated outside of California 13 and none has its principal place of business inside of California. 14 Worsey Decl., Exs. P-R. 15 presiding judge asked if any other Defendants were expected, and 16 Plaintiffs responded in the negative and informed the judge that 17 all remaining active Defendants were present and that all other 18 Defendants had either settled or “would be” dismissed. 19 Decl. ¶¶ 29-31. 20 Supply, Inc., a corporate citizen of California, prior to the 21 settlement conference. 22 Id. Each of these At the settlement conference, the Worsey Plaintiffs had agreed to dismiss Allied Packing & Id. at ¶ 32. On March 6, 2012, Plaintiffs emailed Pneumo Abex, Carlisle 23 and Honeywell a proposed joint juror questionnaire, which 24 identified only Pneumo Abex, Honeywell, Carlisle and Borg-Warner 25 as Defendants. 26 a non-California entity, had already settled with Plaintiffs and 27 was included inadvertently in Plaintiffs’ proposed questionnaire. 28 Id. at ¶ 46. Worsey Decl. ¶¶ 42, 45, Ex. T. 2 Borg-Warner, also 1 On March 8, 2012, Carlisle emailed Plaintiffs, Honeywell and 2 Pneumo Abex a proposed joint juror questionnaire, which included 3 only Pneumo Abex, Honeywell and Carlisle as Defendants. 4 Decl. ¶¶ 43, 47, Ex. U. 5 Worsey Also on March 8, 2012, Plaintiffs, Pneumo Abex, Honeywell and 6 Carlisle had a telephone conference and discussed the juror 7 questionnaire and other pretrial matters. 8 Plaintiffs state that the parties largely adopted the juror 9 questionnaire proposed by Carlisle. United States District Court For the Northern District of California 10 Worsey Decl. ¶¶ 48-49. On March 9, 2012, the state court held a pretrial conference. 11 Worsey Decl. ¶ 50. 12 Abex, Honeywell and Carlisle. 13 2012, Plaintiffs filed a request for dismissal without prejudice 14 against Allied Packing, and the Court dismissed Allied Packing. 15 Prior to the start of trial, between March 5 and 13, 2012, The only attendees were Plaintiffs, Pneumo Id. On the same day, March 9, 16 the court held five additional days of settlement conferences. 17 Simes Decl. ¶ 4. 18 attended these sessions. 19 Cummins, another non-California entity, appeared on March 5 and 7, 20 2012 before settling with Plaintiffs. 21 conducted various other pretrial matters, including ruling on the 22 parties’ motions in limine on March 13, 2012. 23 (NOR), Ex. C (Trial Court docket). Plaintiffs, Pneumo Abex, Honeywell and Carlisle Id. at ¶¶ 4-5, Ex. A. Id. In addition, The court also Notice of Removal 24 On March 14, 2012, trial began in state court, and over that 25 day and the next, the state court went through the jury selection 26 process. 27 court or Plaintiffs that it intended to remove the case to federal 28 court. During that time, Pneumo Abex never informed the state 3 1 On March 16, 2012, Pneumo Abex removed the case to this 2 Court, with the consent of Carlisle and Honeywell. 3 Pneumo Abex stated, “Plaintiffs have made clear their intent to 4 proceed to trial in the State Action against only Pneumo Abex, 5 Carlisle and Honeywell. 6 with Plaintiffs’ collaboration, prepared a Juror Questionnaire 7 that identifies as the only defendants Pneumo Abex, Carlisle and 8 Honeywell.” 9 timely because it “is filed within 30 days of March 9, 2012, when NOR ¶ 10. Docket No. 1. Accordingly, the state court trial judge, It further declared that the NOR was United States District Court For the Northern District of California 10 the last California-based defendant, Allied Packing & Supply, 11 Inc., was voluntarily dismissed by Plaintiffs.” 12 13 Id. at ¶ 12. On March 29, 2012, Plaintiffs moved to remand this case to state court. 14 Docket No. 16. On April 3, 2012, this Court received an order from the 15 Judicial Panel on Multidistrict Litigation (JPML), transferring 16 the action to the Eastern District of Pennsylvania. 17 26. Docket No. 18 While the action was pending in the Eastern District of 19 Pennsylvania, Plaintiffs renewed their motion to remand, and 20 Pneumo Abex filed an opposition to it. 21 On April 30, 2012, Judge Eduardo C. Robreno in the Eastern 22 District of Pennsylvania filed a suggestion of remand with the 23 JPML, which issued a conditional remand order. 24 subsequently moved to vacate the conditional remand order. 25 26 27 28 Pneumo Abex On June 8, 2012, the JPML denied Pneumo Abex’s motion, and remanded the action to this Court. On June 13, 2012, Plaintiffs renewed their motion to remand again. Docket No. 31. 4 1 LEGAL STANDARD 2 A defendant may remove a civil action filed in state court to 3 federal district court so long as the district court could have 4 exercised original jurisdiction over the matter. 5 § 1441(a). 6 time before judgment, it appears that the district court lacks 7 subject matter jurisdiction over a case previously removed from 8 state court, the case must be remanded. 9 the scope of the removal statute must be strictly construed. 28 U.S.C. Title 28 U.S.C. § 1447(c) provides that if, at any On a motion to remand, Gaus United States District Court For the Northern District of California 10 v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 11 presumption’ against removal jurisdiction means that the defendant 12 always has the burden of establishing that removal is proper.” 13 Id. 14 remanding the case to state court. “The ‘strong Courts should resolve doubts as to removability in favor of Id. 15 DISCUSSION 16 Plaintiffs contend that, by waiting to file its Notice of 17 Removal until March 16, 2012 after two days of jury selection had 18 taken place, Pneumo Abex waived its right to remove. 19 The Ninth Circuit recognizes that a defendant may waive its 20 right to remove a case to federal court. 21 Corp. v. Long Term Credit Bank of Japan, 322 F.3d 635, 649 (9th 22 Cir. 2003); Resolution Trust Corp. v. Bayside Developers, 43 F.3d 23 1230, 1240 (9th Cir. 1994). 24 “‘waiver of the right of removal must be clear and unequivocal.’” 25 Resolution Trust Corp., 43 F.3d at 1240 (quoting Beighley v. FDIC, 26 868 F.2d 776, 782 (5th Cir. 1989). 27 removal is not lost by action in the state court short of 28 proceeding to an adjudication on the merits.’” See, e.g., Eie Guam It is well established that a 5 “In general, “the right of Id. at 1240 1 (quoting Beighley, 868 F.2d at 782. 2 necessary defensive action to avoid a judgment being entered 3 automatically against him, such action does not manifest an intent 4 to litigate in state court, and accordingly does not waive the 5 right to remove.” 6 Thus, where “a party takes a Id. “However, it is also well established that a defendant ‘may 7 waive the right to remove to federal court where, after it is 8 apparent that the case is removable, the defendant takes actions 9 in state court that manifest his or her intent to have the matter United States District Court For the Northern District of California 10 adjudicated there, and to abandon his or her right to a federal 11 forum.’” 12 1131 (S.D. Cal. 2002) (quoting Resolution Trust Corp., 43 F.3d at 13 1240)). Acosta v. Direct Merchs. Bank, 207 F. Supp. 2d 1129, 14 While a “case may be properly removed shortly before or 15 during trial proceedings in state court, . . . [t]o avoid waiving 16 the right to remove when grounds for removal become apparent 17 during trial proceedings, defendants must usually take prompt 18 action.” 19 94637, at *6 (W.D. Wash.) (citations omitted). 20 v. A C & S Co., 683 F. Supp. 91, 95 (D. Del. 1988) (“When a case 21 is on trial and becomes removable, a defendant should notify the 22 state court of its intent to remove the action as soon as 23 practical, and certainly before any further evidence or 24 substantive matters are presented to the court.”); Moore’s Federal 25 Practice § 107.18 (recognizing “[c]ontinuing with state court 26 trial when case became removable early in the proceedings” as an 27 act that, “when taken by a defendant, constitute[s] a waiver of 28 the defendant’s right to remove to federal court”). Barabin v. Albany Int’l Corp., 2007 U.S. Dist. LEXIS 6 See also Mancari For example, 1 in Waldron v. Skelly Oil Co., 101 F. Supp. 425 (D. Mo. 1951), the 2 court found that the defendant had waived its right to remove by 3 allowing the plaintiff’s attorney to dismiss the resident 4 defendants and continue to make his opening statement, without 5 interrupting the plaintiff’s counsel to request removal. 6 428 (noting that many courts have recognized that, “when a case 7 becomes removable during the process of a trial, the right to 8 remove may be waived by proceeding with the trial without 9 objection”). United States District Court For the Northern District of California 10 Id. at The cases cited by Pneumo Abex agree that a defendant must 11 notify the state court and plaintiffs of its intention to remove 12 before allowing the trial to advance to the next stage. 13 example, in Heniford v. Am. Motors Sales Corp., 471 F. Supp. 328 14 (D.S.C. 1979), the remarks of the plaintiff’s attorney in his 15 closing argument were effectively a dismissal of the non-diverse 16 defendant, leaving the non-resident defendant as the only 17 remaining defendant and making the case removable, and the 18 defendant filed a notice of removal on the following day. 19 331-32. 20 right to remove primarily because the defendant filed its removal 21 papers before the trial advanced to the next stage and could not 22 have averted additional proceedings in the state court by doing so 23 any sooner. 24 found that the defendant had waived its right to remove because it 25 “was aware of its right to remove this action sometime during the 26 evening of Monday, January 25th, and certainly no later than the 27 morning of Tuesday, January 26th, when the plaintiffs formally 28 notified the Court of the settlement with the other defendants, For Id. at The court concluded that the defendant had not waived its Id. at 336-37. Conversely, in Mancari, the court 7 1 . . . 2 plaintiffs that it was contemplating removing the action to the 3 district court, and, in fact, . . . continued in the trial of the 4 matter” before removing the case on January 27, two days after it 5 learned that the action had become removable. 6 gave no indication to either the superior court or to the 683 F. Supp. at 95. Here, Pneumo Abex knew of Plaintiffs’ abandonment of their 7 claims against any non-diverse Defendants at least by March 6, 8 2012, when Plaintiffs emailed their draft juror questionnaire to 9 the remaining Defendants, and conclusively by March 9, 2012, when United States District Court For the Northern District of California 10 they formally dismissed Allied Trust. 11 believe since January 2012 that Plaintiffs did not plan to go 12 forward against Allied Trust, the last remaining California 13 Defendant, and had an abundance of time to contemplate its 14 actions. Pneumo Abex had reason to 15 Yet Pneumo Abex failed to inform the state court promptly of 16 its desire to remove the case to federal court, as it became ever 17 more clear that it was removable. 18 various pretrial matters and the start of the jury trial before 19 filing its notice of removal, requiring the state court to devote 20 a considerable amount of its limited resources to these matters, 21 even though Pneumo Abex knew that such efforts would be wasted. 22 One hundred fifty citizens were called in for jury duty. 23 such delay especially prejudiced Plaintiffs in light of Moyer 24 Hazelwood’s advanced illness and limited life expectancy, of which 25 Pneumo Abex was well aware. 26 to federal court, its actions have continued to contribute to 27 delay and the unnecessary consumption of further judicial Instead, it proceeded through Further, Since Pneumo Abex removed this case 28 8 1 resources, including those of this Court, the Eastern District of 2 Pennsylvania and the JPML. 3 The Court finds that, having unequivocally manifested its 4 intent to have the matter adjudicated in state court by commencing 5 with trial after they knew that the case had become removable, 6 Pneumo Abex and the other removing Defendants have waived their 7 rights to remove this case to federal court. 8 GRANTS Plaintiffs’ motion to remand. 9 United States District Court For the Northern District of California 10 The Court therefore CONCLUSION For the reasons set forth above, the Court GRANTS Plaintiffs’ 11 renewed motion to remand (Docket No. 31). 12 be remanded, Honeywell International, Inc.’s motion for partial 13 summary judgment is DENIED as moot (Docket No. 29). 14 15 16 Because the case will The Clerk shall remand this action to Alameda County Superior Court and close the file. IT IS SO ORDERED. 17 18 19 Dated: 6/20/2012 CLAUDIA WILKEN United States District Judge 20 21 22 23 24 25 26 27 28 9

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