City of Neodesha Kansas v. BP Corporation North America Inc et al
Filing
10
ORDER denying 3 defendants' motion to consolidate cases. Signed by Magistrate Judge James P. O'Hara on 03/18/2015. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CITY OF NEODESHA,
Plaintiff,
v.
Case No. 15-4855-KHV
BP CORPORATION NORTH
AMERICA INC., et al.,
Defendants.
ORDER
On February 26, 2015, defendants BP Corporation North America Inc. (ABP@) and
Tammy Brendel removed more than 800 actions from the Municipal Court of Neodesha,
Kansas, to this court.1 In the actions, the City of Neodesha, Kansas (Athe City@), alleged
that BP contaminated various tracts of real property in the City.2 It is undisputed that
these recently removed actions relate to 831 actions that defendants had removed to this
court one month earlier, in which the City alleged contamination by BP of other tracts of
real property in the City.
3
On February 9, 2015, the court consolidated the
earlier-removed actions for the sole purpose of addressing matters of remand.
1
4
ECF doc. 1. It is unclear whether the removal was procedurally proper because
defendants removed multiple state cases into this single federal case.
2
The parties dispute whether the actions are criminal or civil in nature.
3
Case Nos. 15-4014, 15-4016 through 15-4844, and 15-4847.
4
Case No. 15-4014 (designated as the lead consolidated case), ECF doc. 11.
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Defendants have now filed a motion to consolidate this case (and the hundreds of actions
removed herein) with the earlier-removed actions consolidated for remand purposes under
lead Case No. 15-4014 (ECF doc. 3). The motion asks the court to apply in the recently
removed actions an agreement reached by the parties in the earlier-removed actions to
dismiss Brendel as a party with the understanding that her dismissal would have no
jurisdictional significance.5 The court finds no legal basis in these cases to force the City
to abide by the agreement reached in the other cases. As a result, the motion to remand
the actions underlying this case will raise certain legal and factual issues not raised in the
earlier-removed actions. In this situation, the court declines to consolidate the actions.
The motion to consolidate is denied.
I.
Background
As indicated above, the City filed the underlying actions in the Municipal Court of
Neodesha, Kansas. The City named BP as a defendant in all of the 1600-plus actions
and, at least initially, Brendel as a defendant in ten of the earlier-removed actions and in
all of the recently removed actions. The City asserts that it served the actions on BP (but
BP disputes service as to the recently removed actions), but not on Brendel. The timing
of service is important for reasons that will be discussed later: the City claims that it
served BP with three of the earlier-removed actions and all of the recently removed
5
See Case No. 15-4014, ECF doc. 11 at 3B4.
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actions on November 18, 2014; it is undisputed that the City served BP with the
remainder of the earlier-removed actions on December 29, 2014.
On January 27, 2015, the City filed in the municipal court a notice of dismissal of
Brendel in all of the cases in which she was named as a defendant.
On January 28, 2015, BP removed to this court 830 of the earlier-removed
actions.6 That same day, Brendel removed the one remaining earlier-removed action.7
On February 26, 2015, BP and Brendel jointly removed the recently removed actions.8
6
Case Nos. 15-4016 through 15-4844, and 15-4847.
7
Case No. 15-4014.
8
Case No. 15-4855.
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On February 9, 2015, the undersigned U.S. Magistrate Judge, James P. O=Hara,
conducted a telephone status conference to address consolidation of the earlier-removed
cases. During the conference, Brendel=s status as a party was discussed. The parties
noted that she, rather than BP, had removed one of the 831 cases. The City took the
position that the notice of dismissal was self-executing, such that Brendel was not a party
to these actions after January 27, 2015, and therefore could not have properly removed
the case on January 28, 2015. Defendants took the position that Brendel remained a
party to the actions in which she was named because the court had not taken an
affirmative act dismissing her. The parties then reached an oral stipulation that Brendel
would be dismissed as a party from any of the earlier-removed cases in which she was
named as a defendant. 9 But, as noted in the undersigned=s order memorializing the
conference, they did so with the provision Athat her dismissal shall not be deemed to have
jurisdictional significance, whether in connection with removal or otherwise.@
10
Essentially, then, the City agreed not to challenge removal of the case ostensibly removed
by Brendel on the ground that Brendel had no standing to effectuate the removal.
As noted above, the court ultimately consolidated the earlier-removed actions for
the sole purpose of addressing matters of remand. 11 The court found that the actions
9
Case No. 15-4014, ECF doc. 11 at 3B4.
10
Id.
11
Case No. 15-4014, ECF doc. 11.
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involve common questions of law and fact, and that judicial efficiency is served by
consolidation of those cases for remand purposes.
II.
Consolidation Request
Defendants= current motion seeks to consolidate the recently removed actions with
the earlier-removed actions, such that all 1600-plus cases are consolidated for the purpose
of addressing removal from the municipal court. At first blush, consolidation seemed
appropriateCall of the cases arise from the same alleged pollution and contamination of
property tracts in the City, and counsel are the same in all the cases. But a closer look at
the situation shows that the parties= factual and legal arguments on the remand issue will
be significantly different in the recently removed actions, such that their consolidation
with the earlier-removed actions (again, for the sole purpose of deciding the
appropriateness of remand) would not save judicial resources and, in the end, would
result in little more than a messy record.
In the recently removed actions, the City asserts (and plans to develop in its
petition for remand) unique arguments that are potentially dispositive of the remand issue.
The City contends that BP was served in the underlying actions on November 18, 2014,
such that the statutory deadline for BP to remove the actions was December 18, 2014.12
It is undisputed that BP did not remove the actions by that date, but instead, with Brendel,
jointly removed the actions on February 26, 2015. The City asserts that such removal by
12
See 28 U.S.C. ' 1446(b).
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BP was untimely and that the removal was not saved by the fact that Brendel ostensibly
removed the actions because Brendel was no longer a party to the actions on February 26,
2015. As noted above, the City filed a notice of Brendel=s dismissal in the underlying
municipal actions on January 27, 2015. Based on this, the City contends Brendel had no
standing to effectuate the removal.
Defendants raise three arguments that their removal was timely: (1) this is an in
rem dispute that was artificially divided, such that BP=s timely removal of the
earlier-removed actions makes the removal of actions in this case timely; (2) service on
BP in the actions underlying this case did not conform to Kansas state law and was
therefore ineffective, and (3) BP was never served on November 18, 2015, with the
actions at issue in this case.13 According to defendants, their removal was timely for any
one of these reasons. Defendants also assert that Brendel is still a party to the actions
underlying this case because the Municipal Court of Neodesha, Kansas, has not entered
an order dismissing her.
Defendants dispute the City=s claims that the notices of
dismissal were self-effectuating. Moreover, defendants assert that Brendel should be
considered a party (at least at the time of removal) for the purpose of removing the
800-plus recently removed actions based on the fact that the parties reached an agreement
13
BP admits that it was served on November 18, 2014, with one of the
earlier-removed actions, municipal Case No. 1148 (assigned D. Kan. Case No. 15-4014
upon removal). See Case No. 15-4014, ECF doc. 25, at 3.
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in the earlier-removed actions that Brendel would be dismissed but that the dismissal
would have no jurisdictional effect.
As the City notes, extending the stipulation regarding Brendel=s party status to the
recently removed cases was never discussed during the February 9, 2015 phone
conference. Agreeing to make a concession in the name of efficiency, i.e., effectively
recognizing Brendel as a defendant at the time of removal in the single case that she,
rather than BP, removed in order to simplify the issues on remand for all of the 831
earlier-removed actions, is appreciated by the court and will not be used as a potential
detriment to the City=s position in this case. Defendants= argumentCthat dismissing
Brendel from the recently removed cases is only logical given the City=s notices of
dismissal in the underlying casesCmight ultimately be a winner, but the question is more
appropriately decided on a motion to dismiss, rather than a motion to consolidate for a
limited purpose.
There thus remain two significant questions that the court will be asked to answer
in the to-be-filed remand motions in this case: (1) when (if ever) was BP served with the
complaints underlying this case, and (2) was Brendel a party at the time of removal. In
answering these questions, the court will confront issues not raised in the remand briefs
filed in the consolidated, earlier-removed actions.
Given the questions and arguments unique to this case on the matter of removal,
the court declines to consolidate it with the earlier-removed actions to determine whether
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remand is proper. This is not to say, however, that in the instances when legal arguments
transcend both sets of cases the parties are precluded from referencing their briefs in the
earlier-removed actions.14 To the contrary, the court encourages such cross-referencing
where applicable. The court has no doubt that although this case raises legal and factual
issues not relevant to the earlier-removed consolidated actions, many of the parties= other
arguments for or against removal will overlap both sets of actions. To create a clean
record and avoid confusion, where the parties seek to incorporate their arguments from
Case No. 15-4014 into their briefs supporting or opposing remand in this case, they
should either Acut and paste@ those arguments or they should give exact page-number
citations to the arguments they wish to incorporate.
IT IS THEREFORE ORDERED:
1.
The motion to consolidate is denied.
2.
The City shall timely file its motion for remand and supporting brief. Once
fully briefed under the deadlines set in D. Kan. Rule 6.1(d)(2), the presiding U.S. District
Judge, Kathryn H. Vratil, will decide the motion for remand.
3.
The deadlines for defendants to answer or otherwise respond to the
complaints in the underlying actions are stayed pending further order of the court. This
14
The court notes, for example, that BP devotes quite a few pages to the question
of whether it was served with the recently removed actions in BP=s response to the motion
to remand (primary) filed in Case No. 15-4014, ECF doc. 23, and addresses the criminal
versus civil nature of the statutes allegedly violated in BP=s response to the motion to
remand (subset of ten cases) filed in Case No. 15-4014, ECF doc. 25.
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stay is with the understanding that if Judge Vratil denies the City=s motion for remand,
then within 14 days of her ruling the parties must meet and confer, and jointly file a status
report addressing the following:
(a)
A deadline for the filing of answers or dispositive motions (the latter
are anticipated);
(b)
The possible consolidation of this case with the earlier-removed
actions moving forward. In other words, if remand is denied in
both sets of cases, the parties should address the possibility of the
following: the City filing an amended consolidated complaint, BP
filing a consolidated dispositive motion applicable to all cases even
if the City does not file a consolidated complaint, consolidating the
cases for purposes of discovery, consolidating the cases for certain
issues at trial; and
(c)
The appropriateness of staying or otherwise staging discovery in the
cases pending a ruling on the anticipated dispositive motions.
4.
Until the remand motion is decided, all discovery is stayed.
Dated March 18, 2015, at Kansas City, Kansas.
s/James P. O=Hara
James P. O=Hara
U.S. Magistrate Judge
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