Nelson et al v. Crane Company et al
ORDER DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION 96 . Signed by JUDGE LESLIE E. KOBAYASHI on 10/6/2011. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on October 7, 2011.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
IN RE: HAWAII STATE ASBESTOS
This Document Applies To:
ROGER E. NELSON and ROSALIE
CRANE COMPANY, etc., et al., )
CIVIL NO. 11-00400 LEK-KSC
ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION
Before the Court is Plaintiffs Roger E. Nelson and
Rosalie J. Nelson’s (“Plaintiffs”) Motion for Reconsideration
(“Motion”), filed on September 27, 2011.
On September 30, 2011,
this Court issued an EO which, inter alia, found the Motion
suitable for disposition without a hearing pursuant to Rule
LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
Court also stated that it would rule on the Motion without any
further briefing from the parties.
After careful consideration
of the Motion and the relevant legal authority, Plaintiffs’
Motion is HEREBY DENIED for the reasons set forth below.
On September 26 2011, this Court issued the Order
Granting Defendant’s Motion to Stay All Proceedings Pending a
Decision on Transfer by the Judicial Panel on Multidistrict
Litigation (“Stay Order”).1
The Court stayed the instant case,
including Plaintiffs’ Motion to Remand, until November 8, 2011 to
allow the Multidistrict Litigation Panel (“MDL Panel”) to render
a final decision on whether to transfer the instant case to the
United States District Court for the Eastern District of
Pennsylvania as part of MDL-875 (“MDL Court”).
[Stay Order at
The Court noted, inter alia, that “[e]ven if the Court
ruled on the Motion to Remand, the dissatisfied party could file
a motion for reconsideration, and that motion would likely be
pending when the MDL Panel renders its transfer decision[,]” and
that it would be possible for the parties to re-litigate the
remand issue before the MDL Court.
[Id. at 24-25.]
therefore found that denying the stay would have some prejudice
on Defendant and would waste this Court’s judicial resources.
[Id. at 25.]
In the instant Motion, Plaintiffs argue that the
Court should reconsider its Stay Order because, if the Court
The Stay Order addressed Plaintiffs’ Motion to Remand,
filed June 30, 2011, and the Motion to Stay All Proceedings
Pending a Decision on Transfer by the Judicial Panel on
Multidistrict Litigation (“Motion to Stay”), filed by Defendant
Air & Liquid Systems Corporation, successor-by-merger to Buffalo
Pumps, Inc. (“Buffalo”), on July 13, 2011.
issued a remand order pursuant to 28 U.S.C. § 1447(c), it would
not be subject to appeal or a motion for reconsideration.
this Court does have the power to make a final ruling on the
Motion to Remand.”
[Mem. in Supp. of Motion at 2.]
Plaintiffs also argue that the Court must reconsider
its analysis of the factors set forth in Ortiz v. Menu Foods,
Inc., 525 F. Supp. 2d 1220, 1232 (D. Hawai`i 2007).
considering the first Ortiz factor, whether Plaintiffs would be
prejudiced by a stay, the Court did not weigh the prejudice that
Plaintiffs will allegedly suffer if the case is transferred to
the MDL Court.
[Stay Order at 23.]
Plaintiffs contend that the
Court must consider their prejudice from transfer because, “[i]f
this court does not issue a decision on the remand motion within
this normal lag time [between the conditional transfer order and
the final decision on transfer], the case will certainly be
transferred to MDL-875, and Plaintiffs will suffer all of the
attendant delay and prejudice.”
[Mem. in Supp. of Motion at 2-
This district court recognizes three grounds for
granting reconsideration of an order: “(1) an intervening change
in controlling law; (2) the availability of new evidence; and (3)
the need to correct clear error or prevent manifest injustice.”
White v. Sabatino, 424 F. Supp. 2d 1271, 1274 (D. Hawai`i 2006)
(citing Mustafa v. Clark County Sch. Dist., 157 F.3d 1169,
1178-79 (9th Cir. 1998)) (some citations omitted); see also Local
“Mere disagreement with a previous order is an
insufficient basis for reconsideration.”
Id. (citation omitted).
Plaintiffs are correct that 28 U.S.C. § 1447(d) states
“[a]n order remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise,” and that
“[t]his language has been universally construed to preclude not
only appellate review but also reconsideration by the district
Seedman v. U.S. Dist. Court for the Cent. Dist. of Cal.,
837 F.2d 413, 414 (9th Cir. 1988).
If this Court granted
Plaintiffs’ Motion to Remand, the case would be sent immediately
back to the state court, and it would no longer be subject to
transfer by the MDL Panel.
Thus, the Stay Order does contain an
error of law insofar as it suggests that a motion for
reconsideration could be filed after either an order granting
Plaintiffs’ Motion for Remand or an order denying the motion.
Recognition of this error, however, does not change the Court’s
decision to stay the case.
If the Court denied Plaintiffs’ Motion for Remand, the
order would be subject to further review, and the parties could
re-litigate the issue after transfer to the MDL Court.
would impose “some hardship and inequity upon Buffalo” and would
result in duplicative litigation that wastes judicial resources.
[Stay Order at 25.]
Plaintiffs have not established that the
legal error in the Stay Order requires the Court to change its
ultimate decision to stay the case.
Similarly, Plaintiffs’ argument that this Court erred
in failing to consider the prejudice they allege they will suffer
if the case is transferred also assumes that, if the Court ruled
on the Motion to Remand immediately, it would grant the motion
and the case would no longer be eligible for transfer to the MDL
If the Court ruled on the Motion to Remand immediately
and denied the motion, however, the case would remain eligible
Plaintiffs would not be unduly prejudiced by a
brief stay in that instance.
Arguably, if it were a foregone
conclusion that Plaintiffs were entitled to remand, Plaintiffs
would be prejudiced if this Court’s decision to stay the case led
to the transfer of the case to the MDL Court.
It is not,
however, a foregone conclusion that Plaintiffs are entitled to
The Court stated in the Stay Order that “after a
preliminary assessment of the Motion to Remand, the Court cannot
find that the removal was improper.”
[Stay Order at 21.]
Court also found that “the jurisdictional issues in this case are
both difficult and similar or identical to those in cases
transferred or likely to be transferred.”
and internal quotation marks omitted).]
[Id. at 22 (citation
In fact, after the
hearing on the Motion to Remand and a preliminary review of the
parties’ memoranda, the Court is inclined to deny the Motion to
This Court therefore reaffirms its finding that the
prejudice Plaintiffs allege they will suffer if the case is
transferred to the MDL Court is not relevant to the issue whether
Plaintiffs will be unduly prejudiced by a brief stay of this case
to allow the MDL Panel to make a final decision on the transfer
of the case.
Plaintiffs have failed to establish any ground that
requires reconsideration of the Stay Order.
disagree with this Court’s ruling, and that is not a sufficient
basis for reconsideration.
See White, 424 F. Supp. 2d at 1274.
On the basis of the foregoing, Plaintiffs’ Motion for
Reconsideration, filed September 27, 2011, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, October 6, 2011.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
IN RE: HAWAII STATE ASBESTOS CASES; NELSON V. CRANE CO., ET AL;
The Court emphasizes that this is not the Court’s final
ruling on the Motion to Remand. The Court expresses its
inclination only as one of the reasons supporting its conclusion
that reconsideration of the Stay Order is not warranted.
CIVIL NO. 11-00400 LEK-KSC; ORDER DENYING PLAINTIFFS’ MOTION FOR
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