BRUST et al v. ACF INDUSTRIES, LLC et al

Filing 59

OPINION. Signed by Judge Joseph H. Rodriguez on 12/21/2011. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SANDRA BRUST, et al.,
v.
ACF INDUSTRIES, LLC, et al.

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Hon. Joseph H. Rodriguez
Civil Action No. 11-4839
OPINION

Presently before the Court is Plaintiffs’ Motion for Remand and for an Award of
Attorney’s Fees and Costs.
I. Background
This is an asbestos litigation. Plaintiff Sandra Brust has been diagnosed with, and
currently suffers from, retroperitoneal malignant mesothelioma. She instituted this
action against, inter alia, the Delaware River Port Authority (“DRPA”) and the Port
Authority Transit Corporation (“PATCO”) on July 18, 2011 in the Superior Court of New
Jersey, Law Division, Middlesex County. Among other claims against numerous other
defendants, she alleges against the DRPA and PATCO common-law premises liability
claims predicated upon secondary asbestos exposure. In short, Brust claims that her
father, in his employment with DRPA and PATCO, was exposed to and then carried
home on his clothing and person, asbestos.1 She alleges this caused her to develop
mesothelioma.
The DRPA removed this action to federal court on August 19, 2011, asserting

1

This type of exposure is commonly referred to as “take home” or secondary
exposure. This opinion will refer to the exposure under both names.
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federal question jurisdiction. Plaintiffs claim that the removal of this case was a delay
tactic, done for the express purpose of frustrating the prosecution of Brust’s claims
during her lifetime. Defendants disclaim any illicit purpose and contend that Plaintiffs’
claims raise questions of interpretation of the DRPA’s inter-state compact, which gives
rise to federal question jurisdiction pursuant to 28 U.S.C. § 1331. However, the DRPA
only asks remand be denied. Although it argues the common law claims alleged against
it are improper, because it cannot be sued under the law of only one of its member
states, it does not move for dismissal at this time.
The DRPA is a bi-state entity formed by a Congressionally approved compact.
Construction of a Congressionally approved compact is a federal question. Cuyler v.
Adams, 449 U.S. 433, 440 (1981). As a result, the limited issue here is whether there is a
federal question presented on the face of Plaintiff’s complaint.
II. Standard of Review
A. Motion for Remand
As the party removing the case, Defendants bear the burden of proving that
federal court jurisdiction is proper at all stages of the litigation. See Samuel-Bassett v.
KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004); Boyer v. Snap-On Tools Corp.,
913 F.2d 108, 111 (3d Cir. 1990). The district court must resolve all contested issues of
fact and uncertainties of law in favor of the plaintiff. See Boyer, 913 F.2d at 111.
Moreover, the court should strictly construe removal statutes and resolve all doubts in
favor of remand. See Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985).
The strict construction of removal statutes honors Congress' power to determine the
contours of the federal court's limited subject matter jurisdiction. See Bowles v. Russell,
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551 U.S. 205, 212-13 (2007) (internal citation omitted) (“Because Congress decides
whether federal courts can hear cases at all, it can also determine when, and under what
conditions, federal courts can hear them.”).
B. Arising Under Jurisdiction
The DRPA contends that the Court has federal question jurisdiction to hear the
case. See 28 U.S.C. § 1441(a); U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 389 (3d
Cir. 2002). The DRPA alleges that because this case involves the interpretation of an
interstate compact, federal question jurisdiction exists. See 28 U.S.C. § 1331; U.S.
Express, 281 F.3d at 389. Federal question jurisdiction applies to “all civil actions
arising under the Constitution, laws, or treatises of the United States.” 28 U.S.C. § 1331.
Only one claim conferring federal question jurisdiction is necessary for the entire case to
be removed to federal court. See id. § 1441(c). The district court, however, may exercise
its discretionary powers to remand all matters to state court in which state law
predominates. See id.
C. Well Pleaded Complaint Rule
Pursuant to § 1331's “all civil actions arising under” language, only cases “in
which a well-pleaded complaint establishes either [1] that federal law creates the cause
of action or [2] that the plaintiff's right to relief necessarily depends on resolution of a
substantial question of federal law” confer federal question jurisdiction. Franchise Tax
Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 28 (1983). Under the well-pleaded
complaint rule, the face of the plaintiffs’ complaint must provide the basis for federal
question jurisdiction by raising issues of federal law. See City of Chicago v. Int'l Coll. of
Surgeons, 522 U.S. 156, 163 (1997); see also Krashna v. Oliver Realty, Inc., 895 F.2d 111,
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113 (3d Cir. 1990) (“In order for a case to be removable under § 1441 and § 1331, the
well-pleaded complaint rule requires that the federal question be properly presented on
the face of the plaintiff's properly pleaded complaint.’”) (quoting Railway Labor
Executives Ass'n v. Pittsburgh & L.E.R.R., 858 F.2d 936, 939 (3d Cir. 1988)).
The basis for federal question jurisdiction must exist within the four corners of
the complaint. See id. “The rule makes the plaintiff the master of the claim; he or she
may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar, Inc. v.
Williams, 482 U.S. 386, 392 (1987) (footnote omitted). Therefore, a defense that raises a
federal question does not confer federal jurisdiction. See Merrell Dow Pharm. Inc. v.
Thompson, 478 U.S. 804 (1986).
D. Bi-State Entities
A bi-state entity, such as the DRPA, is “not subject to the unilateral control of any
one of the States that compose the federal system.” Hess v. Port Auth. Trans-Husdon
Corp., 513 U.S. 30, 42 (1994). “[T]he applicability of state laws to a bi-state agency is
determined by examining the language of the Compact.” King v. Port Auth. Of New York
& New Jersey, 909 F. Supp. 938, 944 (D.N.J. 1995) aff’d, 106 F.3d 385 (3d Cir. 1996).
As a result, the presence of the DRPA as a defendant in this matter complicates the
analysis of the Plaintiffs’ claims.
“As one commentator recently observed, ‘[c]ompact agencies and entities are said
to exist in a no-man’s land. They lie somewhere in the space between independent and
dependent, sovereign and subject, state and federal.’” Spence-Parker v. Delaware River
and Bay Authority, 616 F.Supp.2d 509, 516, n.6 (D.N.J. 2009) (quoting Matthew S.
Tripolitsiotis, Bridge Over Troubled Waters: The Application of State Law to Compact
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Clause Entities, 23 Yale L. & Pol’y Rev. 163, 167 (2005)).2 As noted by the Third Circuit
in International Union of Operating Engineers, Local 542 v. Delaware River Joint Toll
Bridge Commission, 311 F.3d 273 (3d Cir. 2002), there have been various approaches
taken by courts in construing interstate compact. The disparate decisions are driven, in
large measure, by the unique status of a bistate entities, which “typically are creations of
three discrete sovereigns: two States and the Federal Government.” Hess, 513 U.S. at 40
(internal quotations and citations omitted). Thus, bistate entities are “beholden neither
to the states, since they gave up sovereignty for efficiency's sake, nor to Congress, since,
once approved, Congress has no more executory powers over compact entities than it
does over any private corporation.” 23 Yale L. & Pol’y Rev. at 181.
E. Application of State Law to Bistate Entities
To determine whether New Jersey’s laws apply to the DRPA, this Circuit has
adopted the “express intent”standard. Local 542, 311 F.3d 273.3 In Local 542, the issue
before the Court was whether the DRPA was subject to New Jersey’s collective
bargaining laws. Id. The Compact was silent regarding the collective bargaining rights of
the employees. The Court held that collective bargaining laws could only apply to the
DRPA if the legislation exhibited an express intent to bind the DRPA. Id. at 280-1. “We
are persuaded, first, by the fact that the Compact does not contain any provision

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Tripolitsiotis’ article is particularly helpful in that it carefully analyzes the
interplay between interstate compacts and the member states’ laws and the various
approaches to reconciling the present issue. Moreover, the article highlights the tension
in this area of the law through the examination of cases implicating the DRPA.
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Local 542 rejected the New Jersey Supreme Court’s complimentary and parallel
standard announced in Bunk v. Port Auth. of New York & New Jersey, 144 N.J. 176, 676
A.2d 118, 122 (1996). 311 F.3d at 280-1.
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enabling either state to modify it through legislation ‘concurred in’ by the other, and
second, by the logic of the reasoning underpinning the . . . express intent standard
[which is] persuasive.” Id. at 280.
Local 542 does not address how this standard would or could apply to common
law claims which are not the product of the State’s legislative body. “The common law,
unlike statutory law, is ‘flexible’ and adapts itself to varying conditions” and, as a result,
could not express an intent to bind the DRPA. Ballinger v. Delalware River Port
Authority, 172 N.J. 586 (2002). In addition, the “concurred in” language at issue in
Local 542, by its plain terms, does not inform the analysis. See N.J.S.A. 32:3-5(b); 36 Pa.
C.S.A. § 3503 (“the commission shall also have such additional powers as may hereafter
be delegated to or imposed upon it from time to time by the action of either State
concurred in by the legislation of the other.”) (emphasis added).
Plaintiffs’ common law claims lie within the tension between Local 542 and
Yancoskie v. Delaware River Port Authority, 528 F.2d 722 (3d Cir. 1975), where the
plaintiff sought damages relating to the death of her husband who was killed during
construction of a bridge between New Jersey and Pennsylvania. In Yancoskie, plaintiff
alleged purely state law wrongful death claims, but filed in federal court. Among other
reasons, she asserted that the basis for federal jurisdiction was the existence of the sue
or be sued clause of the compact. Id. at 725. On review, the Third Circuit rejected the
proposition that the “sue or be sued clause” of the compact made § 1331 applicable to
Plaintiffs’ case. The Circuit stated that jurisdiction was not “conferred by the existence
in the compact of a ‘sue and be sued’ clause although its construction might arguably
become crucial in this case. The question of arguably federal law is not properly part of
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plaintiff’s statement of her own cause of action. Rather, it is an answer to an anticipated
defense.” Id. at 726 (footnote omitted).
The mere fact that the DRPA is sued does not always implicate the compact, as
evidenced by Yancoskie.4 To navigate the murky waters of which claims impact an
interstate compact, one approach distinguishes the claims based on those that impact
the internal operations of the DRPA and those that affect external relations. See Agesen
v. Catherwood, 26 N.Y.2d 521, 260 N.E.2d 525 (N.Y. 1970)(“The distinction between the
internal operations and conduct affecting external relations of the Authority is crucial in
charting the areas permitting unilateral action.). The common thread in statutory
claims that attempt to ascribe additional obligations upon the DRPA, such as wage
regulations, collective bargaining rules, and whistle blower protections, is that these
claims implicate the operating procedures of the DRPA, which are set forth in the
compact. See, e.g., Local 542, 311 F.3d at 280 (considering a statutory claim that would
give workers collective bargaining rights and compel the DRPA to recognize the union);
Spence-Parker, 616 F.Supp.2d 509 (considering claims that would regulate a bistate
entity’s employment practices). As a result, analysis of statutory claims against a bistate
entity necessarily implicate the compact and present a federal question.
On the other hand, claims that seek redress for tortious conduct or breach of
contract often impact only the external operations of the DRPA without implicating the

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Although Congressional ratification of the compact transformed its
construction into a federal question, Congress did not expressly provide for a federal
forum at the expense of the well pleaded complaint rule. See, e.g., Oklahoma Tax
Commission v. Graham, 489 U.S. 838, 841 (1989) (collecting cases where Congress has,
by statute indicated its desire to have federal courts “adjudicate defenses based on
federal immunities.”).
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compact. See, e.g., Yancoskie, 528 F.2d 277 (wrongful death claim), Chafin v. Delaware
River and Bay Authority, 1:CV 06-836, 2006 WL 378065, at *4 (D.N.J. Dec. 20, 2006)
(Recognizing a distinction between state legislation and common law claims against a
bistate entity); Martin v. Port Authority Transit Corp., 1: CV 09-3165, 2010 WL 1257730,
at * 2 (D.N.J. Mar. 25, 2010) (Characterizing jurisdiction over Plaintiff’s common law
claims against a bistate entity as supplemental). Although there is no commonality as to
how the common law claims are construed, as evidenced above, at least some common
law claims do not require construction of the compact.
The questions before the Court are whether Plaintiffs’ claims implicate the
compact and if so, whether construction of the compact trumps the well pleaded
complaint rule. Based on the above, the Court is persuaded that the common law claims
alleged by Plaintiff do not implicate the operation of the DRPA, and by extension, do not
implicate the terms of the compact. Thus, as in Yancoskie, the Court will apply the well
pleaded complaint rule.
III. Analysis
A. Plaintiffs’ Motion to Remand
Here, Plaintiffs’ “well-pleaded complaint” does not state a claim based on federal
law. Plaintiffs’ complaint alleges purely state law causes of action, one of which is a
common law premises liability claim against the DRPA. NOR, Ex. A, Compl., Count Six.
Plaintiffs’ complaint also “specifically disclaims any federal cause of action or any claim
that would give rise to federal jurisdiction.” NOR, Ex. A., Complaint at 15.
In addition, Plaintiffs’ claim against the DRPA does not turn on an issue of
federal law. Where a federal issue is embedded in a state law claim, the federal court has
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jurisdiction over the claim when it “necessarily raise[s] a stated federal issue, actually
disputed and substantial, which a federal forum may entertain without disturbing any
congressionally approved balance of federal and state judicial responsibilities.” See
Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005); see
also United Jersey Banks v. Parell, 783 F.2d 360, 366 (3d Cir. 1986). Thus, federal
jurisdiction exists “only if that question also ‘is a necessary element of one of the
well-pleaded state claims.’” Parell, 783 F.2d at 366 (emphasis added).
Grable involved a quiet title state law claim, resolution of which turned on
whether Grable was given adequate notice within the meaning of a federal tax statute.
Id. The parties disputed the meaning of the statute and the Court found resolution of
Grable’s claims required interpretation of the statute. Id. Thus, Grable fit into the “slim
category” of cases in which a federal question was embedded into a state law claim. Id.
(citing Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 701 (2006).
Unlike Grable, Plaintiffs’ common law claim of premises liability claim does not
require resolution of a federal question to prove any element of the claim. As the
master of their claim, Plaintiffs here have plead strictly state law claims and, like
Yancoskie, there is no federal element embedded in those claims.5 Moreover, like
Yancoskie, Plaintiffs’ complaint avers common law, as opposed to statutory, claims.
Defendants’ arguments, however, are not wholly without merit. The Court agrees
that the question of whether the Plaintiffs’ claims are viable against the DRPA may

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While Yancoskie presents a plaintiff trying to implicate the inter-state compact
to manufacture federal jurisdiction, the Third Circuit’s characterization of the
construction of the compact as a defense is persuasive, particularly here, where the
DRPA asks the Court only to look at the face of the Complaint on a motion for remand.
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become relevant.6 The law applicable to bistate entities has been treated differently by
state and federal tribunals. Compare Local 542, Local 542, 311 F.3d at 280 (employing
the express intent standard to ascertain unilateral application of state claims to a bistate
entity) with Ballinger v. Delaware River Port Authority, 172 N.J. 586, 599, 800 A.2d 97
(2002) (employing the substantial similarity test to ascertain unilateral application of
statutory and common law claims to a bistate entity). But whereas the DRPA contends
that Plaintiffs’ claims puts construction of the compact on the face of the Complaint, the
Court construes this to be a defense.
Given that this is a common law claim, like Yancoskie, relevance of the compact is
more akin to a defense in this case. Such defenses are insufficient to confer federal
question jurisdiction. See Graham, 489 U.S. at 841 (citing Gully v. First National Bank,
299 U.S. 109 (1936)). The claims asserted here are analogous to the state-law tax claims
alleged in Oklahoma Tax . In that case, the state attempted to sue a tribe of Indians for
breaches of the state tax code in state court. Id. The tribe removed to federal court on
the basis of tribal immunity. The Supreme Court held that the fact that the state law

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Defendants argue that neither Plaintiffs’ home state of Georgia nor the
Commonwealth of Pennsylvania recognize the existence of tort liability of an employer
for claims by an employee’s relative who allegedly was “secondarily” exposed to asbestos
brought home on the employee’s clothes or person. As a result, the issue of whether
New Jersey’s common law applies to the DRPA requires interpretation of the compact to
determine “if the agency’s compact expressly provides for unilateral action” or “the
agency has impliedly consented to the exercise of single-state jurisdiction.” Int’l Union
of Operating Engineers, Local 68, AFL-CIO, 147 N.J. at 446. Defendants argue that
because interpretation of the compact is necessary to determine whether Plaintiffs’ state
law claims apply to the DRPA, the Complaint contains a facial allegation of federal law.
For the reasons stated above, the Court disagrees that this presents a facial
allegation of federal law.
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claims may not ultimately impose liability upon the defendants because of a federal
immunity was of no consequence to the application of the well pleaded complaint rule.
Id. at 841-2. Applying the well pleaded complaint rule, the Supreme Court held the
removal improper.
Here, the fact that the construction of the compact is governed by federal law and
may preclude liability for the claims alleged does not convert the common law claim into
a federal question. In addition, the mere presence of the DRPA as a defendant is not
enough to confer federal jurisdiction. Id. Thus, while construction of the compact may
become relevant if the DRPA moves to dismiss the action, the four corners of the
Complaint do not espouse federal jurisdiction in this case under §§ 1331 or 1337.
As a result, the Court finds that interpretation of the compact is not a necessary
component of Plaintiffs’ common law claim against the DRPA. Rather, it is an
anticipated defense to suit. Yancoskie, 528 F.2d 722. Plaintiffs’ causes of action are
governed by state common law. Because the Defendants have limited its request, the
Court is constrained to look at the four corners of the Complaint and concludes that
“arising under” jurisdiction is lacking. The matter will remanded to the State Court.
B. Motion for Costs and Fees
Plaintiffs claim that the DRPA removed this matter from state court to delay
consideration of Plaintiff Sandra Brust’s claims during her lifetime and seek an award of
costs and fees. Pursuant to 28 U.S.C. § 1447 (c), “[a]n order remanding [a] case may
require payment of just costs and any actual expenses, including attorney fees, incurred
as a result of the removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).
Such an award is appropriate where the Defendant lacked an objectively reasonable
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basis for seeking removal.
Plaintiffs’ claim of delay has some merit. The DRPA could have moved for
dismissal of the claims in the state court, on the ground advanced here; that the DRPA is
not subject to Plaintiffs’ claim. But Defendants removed the action to federal court and
ask this Court to recognize only the presence of a federal question, without answering
that question, even though it argues that the answer would result in dismissal of the
claims against it. In asbestos litigation, courts have recognized the economic value of
delay to the defendant. See, e.g., In re Maine Asbestos Cases, 44 F.Supp.2d 368, 374,
n.2 (D.Me. 1999). Thus, is not unreasonable for Plaintiffs to conclude that the DRPA’s
motive is to delay the case from moving forward.
However, given the unsettled state of the law applicable to construing claims
against a bistate entity, such as the DRPA, the Court cannot conclude that the removal of
this case was without an objectively reasonable basis. Martin, 546 U.S. at 141.
Ultimately, the Court found federal jurisdiction lacking, but other courts have
recognized federal jurisdiction over common law claims against the DRPA. See Moore v.
Delaware River Port Authority, 80 F.Supp.2d 264 (D.N.J. 1999) (recognizing federal
question jurisdiction over plaintiff’s breach of implied employment contract claim
against the DRPA). As a result, an award of fees and costs is not warranted.
IV. Conclusion
For the reasons set forth above, Plaintiffs’ Complaint does not state a claim based
on federal law. The motion to remand is granted. Plaintiffs’ motion for an award of
costs and fees is denied, consistent with the Opinion.
An appropriate Order shall issue.
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Dated: December 21, 2011
/s/ Joseph H. Rodriguez
Hon. Joseph H. Rodriguez
UNITED STATES DISTRICT JUDGE

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