Meyers et al v. Crane Company et al

Filing 114

ORDER & REASONS that 111 Defendant Crane Co.'s Motion for Reconsideration of the Court's Order and Reasons, issued May 20, 2015 is DENIED. IT IS FURTHER ORDERED that Defendant's Motion to Stay Remand Pending Appeal is DENIED. Signed by Judge Eldon E. Fallon on 6/18/15. (dno)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DEBRA DUMMITT MEYERS AND
RONALD PALMERO

CIVIL ACTION

VERSUS

NO. 15-292

A.W. CHESTERTON, ET AL.

SECTION "L"

ORDER AND REASONS
Before the Court is Defendant Crane Co.’s Motion for Reconsideration of the Court’s
Order and Reasons, issued May 20, 2015, which granted Plaintiffs’ Motion to Remand to State
Court. (Rec. Doc. 111). If the Court denies the Motion to Reconsider, Crane indicates its
intention to appeal. Therefore, in the alternative, Crane’s Motion asks the Court to issue an order
staying the remand pending that appeal. Id. Having considered the parties’ briefs and the
applicable law, the Court now issues this order.
I.

BACKGROUND
As Plaintiffs Debra Meyers and Ronald Palermo (“Plaintiffs”) allege, they are the adult

children of Ronald Dummitt (“Mr. Dummitt”), who died of malignant mesothelioma. From 1960
to 1988, Mr. Dummitt worked as a boiler technician for the U.S. Navy. He served aboard various
naval vessels. Plaintiffs allege that Mr. Dummitt was exposed to asbestos at various facilities
during his work. Plaintiffs further allege that Mr. Dummitt was exposed to asbestos at various
shipyards while his naval vessels were being repaired, maintained, or refitted. Plaintiffs allege
that this exposure caused Mr. Dummitt’s malignant mesothelioma, resulting in his death.
Plaintiffs filed suit in Louisiana state court seeking damages from a number of
Defendants, who allegedly were miners, manufacturers, sellers, users, distributors and/or

suppliers of asbestos products and whose actions or omissions caused Mr. Dummitt’s exposure.
Thereafter, Plaintiffs moved to amend their complaint, seeking to disclaim any cause of action
for recovery for wrongful acts that were required by or committed at the direction of a federal
officer. Later that same day, before the state court ruled on the motion to amend, Defendant GE
(“GE”), joined by other Defendants, removed the case to this Court under the Federal Officer
Removal Statute. Defendants asserted that their actions were compelled by federal officers – that
is, Navy officials. The next day – after removal – the state court issued an untimely order to grant
the motion to amend. Plaintiffs filed a similar motion for leave to amend in this Court, which
was granted. Plaintiffs thus filed in this Court a First Amended Complaint disclaiming (and
agreeing to be bound by such disclaimer) any cause of action against any Defendant, if such acts
or omissions were required by and/or committed at the direction of any officer of the United
States. (Rec. Doc. 75)
On March 10, 2015, Plaintiffs filed a Motion to Remand to State Court. (Rec. Doc. 39).
Plaintiffs asserted two reasons for remand. First, they argued that they specifically disclaimed
any claim against Defendants with regard to design-defect or strict-liability where Defendants’
actions were compelled by federal officers. Second, Plaintiffs argued that Defendants could not
remove on failure to warn because Defendants could not demonstrate that their failure to warn
was compelled by federal officers. Plaintiffs asserted that the evidence presented by Defendants
did not demonstrate that the Navy prevented Defendants from complying with their duties to
warn under state law. Thus, Plaintiffs argued that Defendants could not show a causal nexus or a
colorable federal contractor defense.
After considering the parties’ briefs and the relevant law, the Court issued an Order and
Reasons, granting the Plaintiffs’ Motion to Remand to State Court. (Rec. Doc. 109). In addition

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to finding that Defendants could not remove based on Plaintiffs’ disclaimed strict-liability and
design-defect claims, the Court further held that Defendants could not remove based on
Plaintiffs’ failure to warn claims because Defendants could not establish the “casual nexus
prong” of the Federal Officer Removal Statute. As this Court explained in Cole v. Northrop
Grumman Ship Sys., Inc., 07-3049, 2008 WL 2651428, at *4 (E.D. La. July 7, 2008) (Fallon, J.),
the causal nexus prong requires a showing of direct government control over warnings, such that
the government’s “direction and control directly interfered with the defendant's ability to fulfill
its state law obligation to warn employees of safety hazards.” Cole, 2008 WL 2651428, at *4.
Although the Navy exercised some degree of control over labeling and packaging, the evidence
did not show that the Navy prohibited the defendants from providing asbestos warnings. Thus,
the Court held that Defendants could not remove based on Plaintiffs’ failure to warn claims.
II.

PRESENT MOTION
Defendant Crane puts before the Court a Motion for Reconsideration of the Court’s Order

& Reasons issued March 20, 2015 and, in the alternative asks the Court to issue an order staying
the remand pending an appeal. (Rec. Doc. 111). Plaintiff files the Motion for Reconsideration on
the grounds that the Court erred by holding that Crane failed to establish the casual-nexus
element of the government-contractor defense with respect to Plaintiffs’ failure to warn claims.
Crane realleges that it established the necessary elements, including the causal-nexus element, of
the government contract defense for failure to warn claims. (Rec. Doc. 111 at 2-3). Plaintiffs
oppose this motion and argue that Crane is merely rehashing the arguments and citations the
Court already decided were inadequate. (Rec. Doc. 112). Plaintiffs aver that Crane is merely
unsatisfied with the Court’s ruling and now seeks a second hearing, which is prohibited by
settled law. (Rec. Doc. 112 at 1). Plaintiffs also contend that Crane cannot seek a stay of the
Court’s remand order as the Court already executed the order and therefore divested itself of
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jurisdiction in favor the state court. Further, Plaintiffs argue that even if a stay could be ordered,
it is not warranted given the improbability of success on appeal along with important comity
concerns weighs against a stay. (Rec. Doc. 112 at 2).
III.

LAW & ANALYSIS
A.

Motion for Reconsideration

The Federal Rules of Civil Procedure do not specifically recognize a motion for
reconsideration. St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir.
1997). However, when a movant seeks review of a judgment, such as in the present case, courts
treat a motion for reconsideration as either a Rule 59(e) motion to alter or amend judgment, or as
a Rule 60(b) motion for relief from a judgment or order. Lavespere v. Niagara Mach. & Tools
Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990). The motion is considered a Rule 59(e) motion if
filed no later than 28 days from the entry of a judgment, and a Rule 60(b) motion if filed after
this time period. See Fed. R. Civ. P. 59(e). Here, Defendant filed its Motion within 28 days of
entry of the Court’s Order & Reasons; thus, the Motion is treated as a Rule 59(e) motion to alter
or amend judgment.
A Rule 59(e) motion “is not the proper vehicle for rehashing evidence, legal theories, or
arguments that could have been offered or raised before the entry of judgment.” Templet v.
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004)(citing Simon v. United States, 891 F.2d
1154, 1159 (5th Cir. 1990)). Rather, Rule 59(e) serves the narrow purpose of correcting
manifest errors or law or fact, or presenting newly discovered evidence. Lavespere v. Niagra
Mach. & Tool Works, Inc., 910 F.2d 1667, 174 (5th Cir. 1990); Templet, 367 F.3d at 479
(quoting Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)). “Reconsideration of a
judgment after its entry is an extraordinary remedy that should be used sparingly.” Id. (citing
Clancy v. Empl’rs Health Ins. Co., 101 F.Supp.2d 463, 465 (E.D. La. 2000)). “A Rule 59(e)
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motion should not be used to re-litigate prior matters that...simply have been resolved to the
movant’s dissatisfaction.” Voisin v. Tetra Technologies, Inc., 2010 WL 3943522, at *2 (E.D. La.
Oct. 6, 2010). District courts have “considerable discretion in deciding whether to grant or deny
a motion to alter a judgment.” Hale v. Townley, 45 F.3d 914, 921 (5th Cir. 1995).
In the present case, Crane urges the Court to reconsider its previous Order & Reasons but
fails to articulate any new argument or cite any new evidence that demands such a remedy.
Rather, Crane rehashes the same arguments that he has already put before this Court. Crane, for
example, highlights three out-of-circuit cases it claims support its position that it already cited to
in its opposition. The Court did not find these cases persuasive in Crane’s opposition and
continues to hold that Crane’s position is contrary to the settled law of this Circuit. Thus, the
Court refuses to grant Defendant Crane’s Motion for Reconsideration as it fails to show any
manifest error in the Court’s order of remand and merely signifies an attempt to relitigate issues
already decided by this Court.
B.

Motion for Stay

Pursuant to 28 U.S.C. § 1447(c), once a certified copy of the remand order is mailed to
the State court clerk, “[t]he State court may thereupon proceed with such case.” The statutory
language is clear that jurisdiction over a removed matter shifts back to the state court when the
clerk certifies and mails out a remand order. Given the clear statutory language, the Court must
abstain from entering orders that conflict with the state court’s proper exercise of jurisdiction.
Further, the Fifth Circuit case law supports this statutory construction. See Arnold v. Garlock,
Inc., 278 F.3d 426, 438 (5th Cir. 2001)(noting that § 1447(c) “creates legal significance in the
mailing of a certified copy of the remand order in terms of determining the time at which the
district court is divested of jurisdiction”). Thus, the Court is divested of its jurisdiction to issue a

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stay in this case as the clerk of this Court forwarded a certified copy of the remand order to the
state court on May 21, 2015.
However, even if the Court found that it retained jurisdiction to stay the remand order
pending appeal, the Court would not exercise its discretion to stay the proceeding. When
presented with a motion for a stay pending appeal, the Court employs the following four-part
test: (1) whether the movant has made a showing of likelihood of success on the merits, (2)
whether the movant has made a showing of irreparable injury if the stay is not granted, (3)
whether the granting of the stay would substantially harm the other parties, and (4) whether the
granting of the stay would serve the public interest. Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir.
1982). These factors do not weigh in favor of a stay. The first requirement is the most critical
requirement as “it is a widely held view that a stay can never be granted unless the movant has
shown that success on appeal is probable.” Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981).
Given that the Court correctly applied the law in determining that Defendant Crane failed to
demonstrate federal removal jurisdiction over the Plaintiffs’ claims, Crane cannot show that
success on the appeal is probable. Further, Crane has failed to prove that any of the other three
factors are “heavily tilted in the movant’s favor” as required by law. See 666 F.2d at 56-57).
Crane has not satisfied its burden of proof. Consequently, even if the Court had jurisdiction, it
would not exercise its discretion to stay the proceedings.
IV.

CONCLUSION
For the foregoing reasons, IT IS ORDERED that Defendant Crane’s Motion for

Reconsideration is DENIED. IT IS FURTHER ORDERED that Defendant’s Motion to Stay
Remand Pending Appeal is DENIED.
New Orleans, Louisiana, this 18th day of June, 2015.

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________________________________
UNITED STATES DISTRICT JUDGE

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