A. et al v. Doe Run Resources Corporation et al
Filing
45
MEMORANDUM OPINION. Separate Orders consistent with this Memorandum and Opinion will be entered this same date. Signed by Honorable Catherine D. Perry on 6/22/2011. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
A.O.A., et al.,
Plaintiffs,
vs.
DOE RUN RESOURCES
CORPORATION, et al.,
Defendants.
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Case Nos. 4:11CV44 CDP
4:11CV45 CDP
4:11CV46 CDP
4:11CV47 CDP
4:11CV48 CDP
4:11CV49 CDP
4:11CV50 CDP
4:11CV52 CDP
4:11CV55 CDP
4:11CV56 CDP
4:11CV59 CDP
MEMORANDUM OPINION
Plaintiffs are numerous Peruvian children who allege that they have been
injured by exposure to toxic substances from the La Oroya Complex, a
metallurgical smelting and refining complex operating in La Oroya, Peru. Through
their next friends, they filed these eleven actions in Missouri state court, alleging
state tort claims against the American companies who they say control the mine.
Defendants The Renco Group Inc., DR Acquisition Corporation, Renco Holdings
Inc., and Ira L. Rennet removed the case on January 7, 2011, claiming that
plaintiffs’ actions are related to an arbitration currently set between The Renco
Group and the government of Peru, and that the cases are therefore removable
under the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards.
Plaintiffs move to remand the cases, contending that defendants are
procedurally barred from removing the cases under general removal law and that
their claims are not related to the pending arbitration between The Renco Group
and Peru. I conclude that plaintiffs’ actions are related to the pending arbitration,
and that defendants are not procedurally barred from removing these cases.
Accordingly, I will deny plaintiffs’ motions to remand the cases by separate
Orders.
Background
The La Oroya Complex has been operating in La Oroya, Peru for almost 100
years. Originally founded in 1922 by a private company, the Complex consists of
smelters and refineries that process minerals mined from the Andes mountains into
copper, lead, zinc, and other metals. The government of Peru expropriated the
Complex in 1974 and transferred its ownership and operations to Centromin, a
Peruvian government-owned company. In the 1990s, Centromin began studying
the Complex’s environmental impacts on La Oroya and its surrounding area.
These studies revealed significant pollution of the environment, including lead
contamination in the soil, and culminated in a set of environmental proposals and
projects designed to improve the environment. The proposals were codified into
Peruvian law as the Programa de Adecación y Manejo Ambiental (PAMA), which
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required Centromin to complete certain environmental projects around the
Complex by 2007.
In 1997, defendant The Renco Group (Renco) and other American investors
purchased the Complex from Centromin pursuant to a Share Transfer Agreement.
Centromin agreed to continue some environmental clean-up projects begun under
PAMA, including remedying the environment around the La Oroya Complex.
Centromin also agreed to assume all liability for any claims by third parties arising
from their toxic emissions released before the sale. Peru guaranteed Centromin’s
agreements in a separate Guaranty. Renco and the investors agreed to continue
some clean-up efforts, and to be responsible to third parties for any damages they
alone caused.
Plaintiffs are children from La Oroya, Peru who allege they were injured by
exposure to toxic substances emitted from the Complex, including lead. For
several years they and numerous other Peruvian children have brought claims
against the American companies that purchased and invested in the Complex,
including defendants The Renco Group, Doe Run Resources Corporation, D.R.
Acquisition Corporation, and Renco Holdings. They also have sued several
executives at these companies – Marvin Kaiser, Albert Bruce Neil, Jeffrey Zelms,
Theodore Fox, Daniel Vornberg, and Ira Rennert. Plaintiffs allege that these
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defendants are responsible for the toxic emissions that have caused their injuries.
Defendants have unsuccessfully attempted removal of the cases several times.
The first case was filed on October 4, 2007 in Missouri state court by Sisters
Kate Reid and Megan Heeney as next friends of 137 Peruvian citizens. Doe Run
Resources Corporation, D.R. Acquisition Corporation, Marvin Kaiser, Albert
Bruce Neil, Jeffrey Zelms, Theodore Fox, Daniel Vornberg, Renco Holdings Inc.,
and Ira Rennet were named as defendants. Defendants removed the case to this
Court on November 2, 2007, alleging that federal question jurisdiction existed
because plaintiffs’ claims raised substantial questions relating to the acts and
obligations of a foreign state (Peru), international law, and foreign policy issues.
That case, bearing cause number 4:07CV1874 CDP, was remanded to state court
for lack of subject-matter jurisdiction on March 18, 2008. See A.A.Z.A. v. Doe Run
Res. Corp., Civil Case No. 4:07CV1874 CDP [#61]. As explained in the
Memorandum and Order of Remand, plaintiffs’ complaint only raised state law
claims and alleged only acts and damages that occurred when the American
defendants owned and controlled the Complex. Although defendants argued that
Peru was involved in or responsible for some of the activities that caused plaintiffs’
injuries, I held that these arguments constituted defenses under the well-pleaded
complaint rule and, accordingly, could not form the basis for federal subject-matter
jurisdiction.
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Back in state court, plaintiffs amended their petition and added The Renco
Group as a corporate defendant. Renco removed the action to this Court for a
second time, asserting federal diversity jurisdiction under 28 U.S.C. § 1332(d),
because the plaintiffs’ claims constituted a qualifying mass action under the Class
Action Fairness Act of 2005 (CAFA). That case was assigned Case Number
4:08CV525 CDP. Plaintiffs again moved for remand. A hearing was set for
August 5, 2008, but plaintiffs voluntarily dismissed their claims as of right under
Rule 41(a)(1)(A)(i), Fed. R. Civ. P, two days before. The case was dismissed
without prejudice in accordance with plaintiffs’ notice of dismissal on August 6,
2008. See A.A.Z.A. v. Doe Run Res. Corp., Civil Case No. 4:08CV525 CDP.
On August 7, 2008, two new cases brought by the same next friends on
behalf of eight different Peruvian children were filed in Missouri state court,
alleging the same facts and asserting the same claims against the same defendants
as before. All defendants removed both cases to this Court on September 17, 2008,
asserting federal diversity and federal question jurisdiction. Those cases were
assigned case numbers 4:08CV1416 CDP and 4:08CV1420 CDP. In their Notices
of Removal, defendants contended that these cases were removable because they
constituted a qualifying mass action under CAFA, and because the Court had
federal-question jurisdiction under the federal common law of foreign relations. I
disagreed, and remanded the cases sua sponte on October 9, 2008. See A.O.A. v.
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Doe Run Res. Corp., Civil Case No. 4:08CV1416 CDP [#19]; K.G.C. v. Doe Run
Res. Corp., Civil Case No. 4:08CV1420 CDP [#19].
Upon remand, defendants filed a motion to transfer venue of the two cases
from the City of St. Louis to St. Louis County on November 21, 2008. Plaintiffs
also filed another nine cases (involving seventeen more plaintiffs) on December 9,
2008, raising the same claims against the same defendants. Defendants filed
motions to transfer venue in those cases as well. Meanwhile, defendants attempted
unsuccessfully to get Peru to enter into these cases and defend them against
plaintiffs’ claims. Defendants contend that plaintiffs’ injuries, if any, were caused
by exposure to toxic substances emitted by the Complex while Peru owned and
operated it through Centromin, and not by any of their actions after purchasing the
Complex. They also assert that Peru has failed to complete environmental clean-up
projects around La Oroya as promised in the Share Transfer Agreement. When the
government of Peru ultimately refused to enter these cases on November 26, 2010,
Renco notified Peru of its intent to arbitrate its disputed claims pursuant to the
United States - Peru Trade Promotion Agreement of April 12, 2006. This Treaty
provides for the arbitration of any investment disputes between American
companies and Peru.
At the same time, the Missouri trial court denied defendants’ motion to
transfer venue in all eleven cases. Defendants filed a Writ of Prohibition with the
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Missouri Court of Appeals, seeking to overturn the trial court’s ruling. When the
Writ was unsuccessful, defendants filed another Writ with the Missouri Supreme
Court; that writ was denied on December 21, 2010. On December 29, 2010, Renco
submitted its claims against Peru to arbitration, and the removing defendants
removed these eleven actions on January 7, 2011. In their Notices of Removal,
defendants assert that plaintiffs’ claims are related to the pending arbitration and
thus are removable under the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards. The remaining defendants joined the Notices of
Removal on that same date. Plaintiffs moved to remand all eleven cases on March
7, 2011, and also move for attorney’s fees and costs.
Discussion
In removing these cases, defendants rely on the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21
U.S.T. 2517, as implemented by 9 U.S.C. §§ 201 et seq. (Convention). Congress
ratified the Convention in 1970 to ensure that United States citizens would have
predictable enforcement of their arbitration agreements and awards in the courts of
the United States and other signatory nations. 21 U.S.T. 2517; see also McDermott
Int’l, Inc. v. Lloydd’s Underwriters of London, 944 F.2d 1199, 1207 (5th Cir.
1991) (describing the Convention’s ratification). In order to implement the
Convention, Congress enacted what many courts refer to as the “Convention Act,”
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9 U.S.C. §§ 201 et seq. Convention Act § 202 describes what arbitration
agreements and awards fall under the Convention: agreements or awards arising
out of legal relationships, “whether contractual or not,” and which [are] considered
as commercial,” between United States citizens and foreign citizens, or between
two United States citizens, if the subject matter of their agreement involves
property abroad or has some other relationship with a foreign state. Section 203
creates original jurisdiction in federal courts for actions falling under the
Convention. See 9 U.S.C. § 203 (“An action or proceeding falling under the
Convention shall be deemed to arise under the laws and treaties of the United
States.”).
Most importantly for this case, § 205 allows removal of any action in state
court in which “the subject matter . . . relates to an arbitration agreement or award
falling under the Convention . . . .” As discussed in more detail below, several
courts have interpreted § 205’s “relates to” language quite broadly. See, e.g.,
Beiser v. Weyler, 284 F.3d 665, 669 (5th Cir. 2002) (“Similarly, whenever an
arbitration agreement falling under the Convention could conceivably affect the
outcome of the plaintiff’s case, the agreement ‘relates to’ the plaintiff’s suit.”)
(emphasis in original). With regard to the procedures for removal under § 205, that
section states:
The procedure for removal of causes otherwise provided by law shall
apply, except that the grounds for removal provided in this section
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need not appear on the face of the complaint but may be shown in the
petition for removal . . . .
See also Transit Cas. Co. v. Certain Underwriters at Lloyd’s of London, 119 F.3d
619, 625 (8th Cir. 1997) (“General removal law applies to cases which are
removed under the Convention’s removal provision because § 205 incorporates the
procedure for removal of causes otherwise provided by law, which means 28
U.S.C. §§ 1441-1452 . . . In particular, this language includes § 1447(c),
authorizing remand for defects in the removal procedure . . . .”). Additionally, §
205 allows a defendant to remove a case “at any time before trial,” rather than
within thirty days of receiving notice of the basis for removal set out in 28 U.S.C. §
1446(b).
I.
Whether Plaintiffs’ Claims Relate to the Pending Arbitration
Here, the parties dispute whether plaintiffs’ actions “relate to” the pending
arbitration between The Renco Group and Peru, and therefore are removable under
§ 205.1 Although the Eighth Circuit Court of Appeals has not yet considered this
issue, the Fifth and Ninth Circuit Courts of Appeals have. When confronting the
1
It is undisputed that the arbitration provision in the U.S.-Peru Treaty falls under the
Convention. See United States - Peru Trade Promotion Agreement, art. 10.17, Apr. 12, 2006
(the Government of Peru agrees that its consent to submit a disputed investor claim to arbitration
“shall satisfy the requirements of . . . Article II of the . . . Convention for an “‘agreement in
writing’ . . . .”), available at http://www.ustr.gov/trade-agreements/free-trade-agreements (last
visited June 20, 2011); cf. also Argentine Republic v. National Grid PLC, 637 F.3d 365, 366-67,
369 (D.C. Cir. 2011) (affirming, under the Convention, the district court’s confirmation of an
arbitral award issued by an arbitration panel convened pursuant to a Bilateral Investment Treaty
between Argentina and the United Kingdom and declaring that Argentina violated the treaty).
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issue of what actions “relate to” arbitration agreements under the Convention and,
thus, are removable under § 205, the Fifth and Ninth Circuits have both held that
“whenever an arbitration agreement falling under the Convention could
conceivably affect the outcome of plaintiff’s case, the agreement ‘relates to’ the
plaintiff’s suit,” and the case is removable under § 205. Beiser, 284 F.3d at 669
(emphasis in original); accord Infuturia Global Ltd. v. Sequus Pharms., Inc., 631
F.3d. 1133, 1138 (9th Cir. 2011). As the Beiser court explained:
[T]he district court will have jurisdiction over just about any suit in
which a defendant contends that an arbitration clause falling under the
Convention provides a defense. As long as the defendant’s assertion
is not completely absurd or impossible, it is at least conceivable that
the arbitration clause will impact the disposition fo the case. That is
all that is required to meet the low bar of “relates to.”
Beiser, 284 F.3d at 669.
Applying this “low bar” for removal jurisdiction, the Beiser court
determined that the plaintiff’s tortious interference case was removable from state
court under § 205, when a pending arbitration could conceivably affect it. Id. at
669-70. Plaintiff had filed suit in his individual capacity against several corporate
defendants in Texas state court, alleging that defendants had wrongfully deprived
him of his financial interests in a Hungarian gas field. Id. at 666-67. Plaintiff’s
company – of which he was the sole shareholder and director – had made
agreements with these defendants to develop the gas field together; the agreements
provided for arbitration of any disputes arising from the agreements. Id.
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Accordingly, when plaintiff filed suit individually against these defendants in state
court for wrongful interference with his financial interest in the gas field,
defendants removed the case pursuant to § 205, contending the state-court action
was related to the arbitration agreements. Id. at 667.
The Fifth Circuit concluded it was related, because although plaintiff as an
individual was not a party the arbitration agreements, his state-court action was
still related to the agreements. In particular, the arbitration panel’s decision could
conceivably affect plaintiff’s claims: “Although Beiser did not formally commit to
any of the agreements, it is at least conceivable that a court might pierce the
corporate veil and hold him personally responsible for the contracts designed to
secure his personal involvement on the Hungary development.” Id. at 669-70.
Accordingly, the case was removable pursuant to § 205. See id. at 670; see also
Infuturia, 631 F.3d at 1137-39 (plaintiff’s tortious interference case removable
pursuant to § 205 when defendants raised defense of collateral estoppel based on
Israeli arbitration panel’s decision, because “the arbitral award ‘could conceivably
affect the outcome’ of the case”) (quoting Beiser, 284 F.3d at 669)).
In this case, defendants argue that plaintiffs were actually injured, if at all,
by exposure to toxic substances released by the government of Peru while it owned
and operated the La Oroya Complex through its company, Centromin. They also
contend that the government of Peru breached its Share Transfer Agreement with
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them and other American investors by failing to complete environmental clean-up
projects around La Oroya – including remediating the lead-contaminated soil – and
by failing to enter into these eleven cases and defend them against plaintiffs’
claims. Defendants also assert that plaintiffs would not have been injured if Peru
had completed the soil contamination remediation projects as promised in the
Share Transfer Agreement. Renco has alleged these claims in its notice of
arbitration with Peru pursuant to Section B of the U.S. - Peru Treaty. See United
States - Peru Trade Promotion Agreement, § B, art. 10.16, Apr. 12, 2006, available
at http://www.ustr.gov/trade-agreements/free-trade-agreements (last visited June
20, 2011).
Because the arbitration panel’s decision will determine whether Peru
violated the Share Transfer Agreement by failing to clean up the environment
around La Oroya and by failing to defend those investors in these actions, I
conclude that the arbitration panel’s decision could conceivably affect plaintiffs’
claims and that these eleven cases are therefore removable pursuant to § 205. In
particular, the arbitration panel will decide whether Peru was required by its
Agreement with investors to clean up the soil around Peru. If the panel determines
that Peru failed to fulfill this contractual obligation, this determination will in turn
affect the issues in this case of whether defendants polluted the environment in La
Oroya, whether defendants’ alleged pollution caused plaintiffs’ injuries, and
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whether Peru’s alleged pollution caused the injuries. Additionally, if the
arbitration panel determines that Peru is contractually obligated to defend Renco
and the other defendants, Peru could be required to enter into these cases as a
defendant. Plaintiffs contend that only the defendants’ actions caused their
injuries, not Peru’s, but this is a question of fact that cannot be determined simply
by the pleadings, and an arbitration panel’s determination that Peru failed to
remedy some of the environmental contamination in the years after the 1997 sale
could be relevant to that question. Accordingly, because the arbitration panel’s
decision on the claims raised by Renco before that panel – including Peru’s
responsibility for and failure to clean up the environment around La Oroya – could
conceivably affect the issues in this case, these actions are removable under § 205.
Plaintiffs’ other arguments against this Court’s subject-matter jurisdiction
under § 205 also fail.2 Plaintiffs claim that they must be parties to the arbitration
agreement for this case to be removable. However, both the Fifth and Ninth
Circuit Courts of Appeal have rejected such a privity requirement. See Infuturia,
2
Plaintiffs also argue that defendants’ claims against Peru are time barred by the U.S. Peru treaty, because the Treaty provides a three-year statute of limitations for arbitrating claims
arising under it. As defendants point out, however, the Treaty did not enter force until February
1, 2009, and defendants could not have sought arbitral relief against Peru until after that date.
Moreover, Peru did not formally reject defendants’ claims until November 26, 2010, and so the
statute of limitations will not run on defendants’ claims until the fall of 2013. It is also
undisputed that Renco submitted its claims to arbitration on December 29, 2010. Finally,
whether a party’s arbitral rights have been timely raised is a question for the arbitration panel,
not for this Court. Cf. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85 (2002)
(“Following this precedent, we find that the applicability of the NSAD time limit rule is a matter
presumptively for the arbitrator, not for the judge.”).
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631 F.3d at 1138 (rejecting a district court’s privity requirement, because such a
requirement “finds no support in the language of the statute”); Beiser, 284 F.3d at
669-70 (even though plaintiff did not sign arbitration agreement in his personal
capacity, his tortious interference claims were removable under § 205 because the
arbitration could conceivably affect his claims). Plaintiffs also argue that this case
is not removable under § 205 because their claims are not “commercial” in nature,
and only commercial claims are removable under § 205. Plaintiffs are incorrect.
Convention Act § 202 provides that the Act applies to agreements that arise out of
legal relationships that are “commercial.” An agreement to arbitrate that is
commercial in nature, such as that here, is covered by the statute. The Convention
Act does not say that only commercial actions are removable under § 205. Instead,
it allows for the removal of any action that “relates to” an agreement to arbitrate.
See 9 U.S.C. § 205 (“Where the subject matter of an action or proceeding pending
in a State court relates to an arbitration agreement . . .” the case is removable).
Several courts have upheld the removal of personal-injury actions like plaintiffs’
under § 205 if they relate to an arbitration agreement or award. See, e.g., Lannes v.
Operators Int’l, No. Civ.A. 04-584, 2004 WL 2984327, at *7 (E.D. La. Dec. 20,
2004).
For all of these reasons, I conclude that the claims in these eleven cases are
covered by the Convention Act’s grant of subject-matter jurisdiction.
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II.
Procedural Defects in the Notices of Removal
Plaintiffs also argue that, even if the suits are related to the pending
arbitration, there are procedural defects in defendants’ Notices of Removal that
require remand to state court. I disagree. The event that made the removals proper
– the commencement of arbitration proceedings – did not happen until shortly
before the removals, and under the circumstances of this case the particular
common-law rules that plaintiffs assert are inconsistent with this statute.3
As noted above, § 205 provides that general removal rules apply, except that
the defendant may remove an action at any time before trial, and the basis for
removal need not appear on the face of plaintiff’s Complaint. See 9 U.S.C. § 205
(“The procedure for removal of causes otherwise provided by law shall apply,
except that the ground for removal provided in this section need not appear on the
face of the complaint . . . .”); see also Transit Cas., 119 F.3d at 625 (plain text of §
205 incorporates general removal law to removals under § 205).
3
Defendants argue that no common-law rules for removal apply to removals under § 205.
I disagree. To the extent that common-law rules do not conflict with § 205’s abrogation of the
well-pleaded complaint rule, or with a party’s ability to remove a case at anytime before trial,
they apply according to the plain text of that section. See 9 U.S.C. § 205; see also Transit Cas.
Co. v. Certain Underwriters at Lloyd’s of London, 119 F.3d 619, 625 (8th Cir. 1997) (§ 205
incorporates general removal laws); Employers Ins. of Wausau v. Certain Underwriters at
Lloyd’s, London, 787 F. Supp. 165, 169 (W.D. Wis. 1992) (“Except for these two provisions,
general removal law applies.”); but see Costa v. Master Maint. & Constr., 52 F. Supp. 2d 699,
708-09 (M.D. La. 1999) (case removable under § 205 even though not all defendants consented
to removal), aff’d on other grounds, 452 F.3d 373 (5th Cir. 2006).
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Plaintiffs first argue that this is an improper second attempt to remove two
actions that were previously removed and remanded to state court. In particular,
they argue that no new jurisdictional grounds exist that would make defendants’
second attempt at removal of those two cases appropriate. Plaintiffs are correct
that a defendant may not remove an action based on the same ground after a case
has already been remanded to state court. See, e.g., St. Paul & C. Ry. Co. McLean,
108 U.S. 212, 216-17 (1883) (“[A] party is not entitled, under existing laws, to file
a second petition for removal upon the same grounds, where upon the first removal
by the same party, the federal court declined to proceed and remanded the suit,
because of his failure to file the required copy within the time fixed by the
statute.”); accord S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir.
1996). Here, however, defendants do not attempt removal based on the same
ground or facts; rather, they allege for the first time in their notices of removal that
plaintiffs’ claims are related to the pending arbitration between Renco and Peru
and that the actions are therefore removable under § 205. See S.W.S., 72 F.3d at
493 (a case may become removable a second time if later pleadings or events
reveal a new jurisdictional fact making removal appropriate). Moreover, Renco
only gave notice of this arbitration in December of 2010 – more than two years
after the cases were remanded. Accordingly, defendants’ notices of removal allege
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a new factual ground for removal, and their successive attempt at removal is
appropriate under the general rules for removal. See id. at 494.
Plaintiffs next argue that the new grounds making second removal
appropriate must be the result of their voluntary actions. Plaintiffs refer to the
“voluntary-involuntary rule,” which applies to removals based on diversity and
federal question jurisdiction. This rule provides that “a suit which, at the time of
filing could not have been brought in federal court must remain in state court
unless a ‘voluntary’ act of the plaintiff brings about a change that renders the case
removable.” E.g., People of State of Cal. By and Through Lungren v. Keating, 986
F.3d 346, 348 (9th Cir. 1993); see also Knudson v. Systems Painters, Inc., 634 F.3d
968, 976 (8th Cir. 2011) (stating that “only a voluntary act of the plaintiff could
bring about removal to federal court”) (internal quotation marks and citations
omitted). I agree with plaintiffs that the new basis for removing these actions – the
pending arbitration – did not come as a result of their voluntary actions, but I
conclude that this rule cannot apply to removals under § 205, especially in light of
that section’s abrogation of the well-pleaded complaint rule.
As courts have explained while examining the voluntary-involuntary rule in
the other contexts, the voluntary-involuntary rule and the well-pleaded complaint
rule are consistent and reinforce each other. That is, in the typical lawsuit, a case
does not become removable because of defendants’ actions or because of
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allegations or arguments made outside of the plaintiffs’ complaint. “The basic
premise is that because a plaintiff is the master of his own complaint, involuntary
changes caused by a party other than the plaintiff cannot make a case removable.”
Henderson v. City of Chattanooga, No. 1:02-CV-045, 2002 WL 32060139, at *5
(E.D. Tenn. Mar. 15, 2002).
Section 205, however, expressly abrogates the well-pleaded complaint rule.
Because of that abrogation, I cannot conclude that Congress also intended the
“voluntary-involuntary” rule to apply to removals under § 205. Such a result
would thwart the purposes of the section. On one hand, a defendant would be
allowed to remove at any time before trial based on allegations that are not in
plaintiff’s complaint, but on the other, that defendant would not be allowed to
remove if those allegations were not the result of plaintiffs’ voluntary actions. For
instance, in this case, these eleven actions are related to the pending arbitration and
are therefore removable under § 205, even though the arbitration is not mentioned
in plaintiffs’ petitions. However, if the voluntary-involuntary rule were to apply,
defendants would still not be able to remove them, because plaintiffs are not parties
to the pending arbitration and have had no involvement in it. This is clearly not the
result Congress intended, for, by removing the well-pleaded complaint rule for
removals under § 205, Congress intended to make it “easy for defendants in statefiled Convention cases to remove to federal court.” Beiser, 284 F.3d at 674
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(internal quotation marks and citation omitted). That intent would be thwarted if a
defendant were not allowed to remove a case when the basis for removal was its
own pending arbitration or agreement to arbitrate, which will be likely true in
many of the cases removed under § 205. Accordingly, I conclude that the
voluntary-involuntary rule does not apply to removals under § 205, and these cases
are removable even though the basis for removal did not come about as result of
plaintiffs’ voluntary actions.
Finally, plaintiffs argue that defendants waived their right to remove by
filing motions to transfer venue in state court. It is true that in other circumstances
a defendant may waive its right to remove “by taking some substantial offensive or
defensive action in the state court action indicating a willingness to litigate in that
tribunal before filing a notice of removal with the federal court . . . .” Yusefzadeh
v. Nelson, Mullins, Riley, & Scarborough, LLP, 365 F.3d 1244, 1246 (11th Cir.
2004) (quoting 14B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 3721 (2003)). However, § 205 expressly allows a defendant to
remove a case at any time before trial. By providing for removal any time before
trial, Congress necessarily assumed that the parties could engage in litigation
activities in the state court before the removal. If engaging in the normal litigation
activities that lead up to a trial could be a waiver of the right to remove under §
205, the provision that the case could be removed at any time before trial would be
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meaningless. As with the “voluntary-involuntary rule” this common-law rule is at
odds with the text of § 205 and with the pro-removal policies underlying that
section. Defendants did not waive their right to remove under § 205 by seeking a
change of venue in state court.
III.
Conclusion and Attorney’s Fees
Because these cases are related to the pending arbitration – including its
consideration of the Peruvian government’s involvement in polluting the
environment around the La Oroya Complex – they are removable under § 205.
Moreover, defendants are not procedurally barred from removing these cases, and
so plaintiffs’ motions to remand will all be denied by separate Orders.
Defendants have moved for a determination of whether they should file the
entire state court file for each removed case, or whether they should only file
selected documents in each file. I will direct the defendants only to file the entire
state court file in the lowest-numbered case in this Court, A.O.A. v. Doe Run Res.
Corp., Civil Case No. 4:11CV44 CDP. Defendants should file notice in the other
ten cases indicating that the entire state-court file for Case No. 4:11CV44 CDP is
filed there, and that the state court file for each case is essentially the same as that
one. If a party later determines that a particular document from the state court file
in one case is unique and necessary for resolution of any issue in a case, that party
shall supplement the record in the particular case.
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Separate Orders consistent with this Memorandum and Opinion will be
entered this same date.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of June, 2011.
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