GRIMES et al v. AT&T et al

Filing 241

OPINION. Signed by Judge Kevin McNulty on 8/17/18. (cm, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ESTELLE GRIMES, Individually
and as Administrator for the
Estate of Thomas Grimes, and
Individual Heirs of the Estate of
Thomas Grimes,

Civ. No. 15-8466 (1(M) (MAIl)
OPINION

Plaintiff,
v.
AT&T CORP., et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:

Plaintiff Estelle Grimes, individually and as the administrator of the
estate of her husband, Thomas Gdnws, and on behalf of his individual heirs
(“Grimes”), brings suit againsL among others, AT&T Corp. (“AT&T”), Bayonne
Plumbing Supply Co., Inc. (“Bayonne Plumbing”), Koenig Industrial Hardware
(“Koenig”), and Mooney Brothers Corp. (“Mooney”), alleging that Mr. Grimes’s
mesothelioma was caused by exposure to asbestos or asbestos-containing
products mined, milled, manufactured, sold, supplied, purchased, marketed,
installed and/or removed by the defendants.
Before the Court are four motions for summary’ judgment: 1) AT&T’s
(ECF No. 184); 2) Bayonne Plumbing’s (ECF No. 185); 3) Koenig’s (ECF No.
187); and 4) Mooney’s (ECF No. 188). For the reasons set forth below, I will sua

sponte remand the case to the Superior Court of New Jersey, Middlesex County
on jurisdictional grounds.
I,

Procedural History

On October 28, 2015, Thomas Grimes and Estelle Grimes. who are
husband and wife, filed their initial Complaint in the Superior Court of New

1

Jersey, Law Division, Middlesex County. (ECF No. 1-1 at p. 3-29). The
Complaint alleged that Mr. Grimes was “exposed to dust from asbestos and
asbestos-containing products” while serving in the Navy and while working at
Western Electric in Kearny. New Jersey. (Id. at 3). The Complaint was filed
against 37 Defendants, each of which allegedly “mined, milled, manufactured,
sold, supplied, purchased, marketed, installed and/or removed asbestos or
asbestos-containing products” to which Mr. Grimes was exposed. (Id. at 3-1 1).
The Defendants were:
1) AT&T, individually and as successor-in-interest to Western Electric
Company:
2) Asbestos Corporation Limited, in itself and as successor to Johnson’s
Company (“ACL”);
3) Bell Asbestos Mines LTD (“Bell”);
4) Allied Building Products Corp. (“Allied Building”):
5) Allied Glove & Safety Products Manufacturing Corp. (“Allied Glove”);
6) Bayonne Plumbing, individually, as successor to and doing business as
the PAL Corporation and Bayonne Plumbing & Supply Co.;
7) Bergen Industrial Supply Co. Inc. (“Bergen Industrial”);
8) Binskey & Snyder, Inc. (“Binskey & Snyder”):
9) Buffalo Pumps, Inc., individually and as successor to Buffalo Forge Co.
(“Buffalo Pumps”):
Calon Insulation Corp. (‘talon Insulation”):
10)
CBS Corp., f/k/a Westinghouse Electric Corporation (“CBS Corp.”):
11)
Central Jersey Supply Company (“Central Jersey Supply”):
12)
Certainteed Corporation, formerly CertainTeed Products
13)
Corporation, individually and as successor to Keasbey and Mattison
Company and Unisul (‘tertainteed”);
Crane Company (“Crane”);
14)
Elizabeth Industrial Supply, a division of Charles F. Guyon
15)
(“Elizabeth Industrial”):
FMC Corporation, individually and as successor to Peerless Pumps
16)
(“FMC”)
Flowsenre US Inc. (“Flowsenre”):
17)
18)
Foster Wheeler Corporation (“Foster Wheeler”):
General Electric Company (“General Electric”):
19)
20)
Gould Pumps, Inc. (“Gould Pumps”):
21)
IMO Industries Inc., individually and as successor-in-interest to,
and f/k/a Delaval Turbine Inc., TransAmerica Delaval and IMO Delaval
(“lMO”);
Ingersoll-Rand Company (“Ingersoll-Rand”):
22)
Koenig, individually and as successor to Koenig Hardware
23)
Company:
2

Mooney, individually and doing business as Chem. Flow
Corporation, its wholly owned subsidiary;
Notte Safety Appliance Company (“Notte Safety”);
25)
Onyx Industrial, Inc.. individually, as successor to and doing
26)
business as Brand Insulations, Inc., the Brand Companies, Inc., and
Waste Management, Inc. (“Onyx Industrial”);
Raritan Supply Company, individually and as successor to Bridge
27)
Supply Co. (“Raritan Supply”):
28)
RICO, Inc. (‘RICO”);
Safeguard Industrial Equipment Co. (“Safeguard Industrial”);
29)
Somerset Plumbing Supply Co. Inc., individually and as successor
30)
to Somerset Supply Co. (“Somerset Plumbing”);
Tyco Valves and Controls, Inc. (“Tyco Valves”):
31)
32)
Tyco International (US) Inc. (“Tyco International”);
Union Carbide Corporation (“Union Carbide”);
33)
Warren Pumps Inc. (“Warren Pumps”);
34)
Weir Valves and Controls USA Inc., f/k/a Atwood & Mornil (“Weir
35)
Valves”);
John Doe Corporations 1-25; and
36)
John Doe Corporations 25-50.
37)
24)

Mr. and Mrs. Grimes asserted 11 state-law claims, including negligence.
breach of warranty, intentional and negligent misrepresentation, civil
conspiracy, and loss of consortium. IECF No. 1-1 at 11-25).
On or about October 30, 2015, Mr. Grimes answered Middlesex County
Standard Interrogatories. (ECF No. 185-3, Exh. B).
On December 4, 2015, Defendant Crane filed a Notice of Removal to the
United States District Court pursuant to the federal officer removal
statute, 28 U.S.C.

§

1442(a)(1). (ECF No. 1).

On February 24, 2016, Grimes voluntarily dismissed all counts against
Notte Safety with prejudice pursuant to a stipulation of dismissal entered by
the Court on the next day. IECF No. 45).
Mr. Grimes died in May 2016. On August 1, 2016, the Complaint was
amended to name Estelle Grimes as Plaintiff, individually and as the
administrator for the estate of Thomas Grimes, and individual heirs of the
estate of Thomas Grimes. The Amended Complaint asserted 13 state-law

3

claims.’ (ECF No. 101 at 11-28). The Defendants were the same 37 entities that
were identified in the original Complaint, and the claims in Counts 1-11 were
earlier asserted in the original Complaint. (Id. at 11-26). In addition to Counts
1-11, Grimes brings a claim of wrongful death (Count 12) and a survival action
(Count 13) under New Jersey law pursuant to N.J.S.A.

§

2A:31-1 and 2A: 15-3.

(Id. at 26-28). 17 Defendants each filed Answers, Affirmative Defenses,
Crossclaims for indemnification and contribution, and Answers to the
crossclaims.2
On August 4, 2016, Defendants ACL and Bell each filed minor-image
motions to dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P.
12(b)(2). (ECF Nos. 99, 100). 1 denied the motions as presented without
prejudice, subject to renewal pending the completion of limited jurisdictional
discovery. (ECF No. 132). Thereafter, Grimes voluntarily dismissed all counts
against ACL and Bell with prejudice pursuant to stipulations of dismissal
entered by the Court on February 14, 2017 (ECF No. 137) and March 20, 2017
(ECF No. 143). Accordingly, ACL and Bell were terminated from the case.
On November 15, 2017, Emerson Electric Co. (“Emerson”), “incorrectly
named on the Summons as Emerson Electric Company, as successor to

On August 10, 2016, a corrected copy of the Amended Complaint was filed.
(ECF No. 101). In an accompanying letter. counsel explained that the original
Amended Complaint included an incorrect caption. (ECF No. 102).
The Defendants are: 1) Bayonne Plumbing (ECF no. 105); 2) Allied Glove (ECF
no. 108); 3) RICO (ECF no. 109); 4) Central Jersey Supply (ECF no. 110); 5) Flowsewe
(ECF no. 1111; 6) Raritan Supply (ECF no. 112): 7) Weir Valves (ECF no. 113): 8)
Binskey & Snyder (ECF no. 114); 9) Mooney (ECF no. 115): 10) Onyx (ECF no. 116);
ial
11) Warren Pumps (ECF no. 120); 12) Koenig (ECF no. 124); 13) Elizabeth Industr
(ECF no. 154); 14) CBS Corp. (ECF no. 160); 15) Foster Wheeler (ECF no. 161); 16)
General Electric (ECF no. 162); and 17) AT&T (ECF no. 167).

2

In its Answer, Onyx states that it was improperly pled as “Onyx Industrial Inc.
individually, as successor to and doing business as Brand Insulations, Inc., The
Brand Companies, Inc. and Waste Management”).” (ECF no. 116 at 1). It states that it
should have been identified as “Brand Insulations, Inc.” (Id.) To avoid confusion,
however, I will refer to that defendant as Onyx.

4

Pentair Valves and Controls, formerly known as ‘l’yco Valves and Controls,
Inc.,” filed a motion to dismiss for lack ofjurisdiction pursuant to Federal
Rules of Civil Procedure 12(b)(2), 12(bfl5), and 12(bfl6). (ECFNo. 170 at 1).
On November 29, 2015, Counsel for Grimes filed a letter stating that he
had no objection to the Amended Order (ECF No. 171) to Dismiss with
Prejudice. (ECF No. 172). This Court subsequently issued an Order on January
2, 2018 granting Emerson’s motion to dismiss. (ECF No. 173).
On July 11, 2018, Grimes sought leave from this Court to supplement its
opposition to AT&T’s Summary Judgment Motion (ECF No. 212) with the
transcript from a New Jersey Superior Court opinion issued recently in William
Savage v. AT&T Corporation, CL. al. MID-L- 07305-15. (ECF No. 232). The next
day, AT&T filed a letter asking this Court to deny the request, and in the
alternative, requesting that this Court 1) grant it leave to argue the merits of
Savage, and 2) order Grimes to submit the ruling in its entirety. (ECF No. 233).
On July 13, 2018, I granted Grimes’ request for leave subject to the conditions
suggested by AT&T. (ECF No. 234). Thereafter, Grimes submitted the entire
transcript of the Savage hearing. (ECF No. 235). This Court then issued a text
order giving Grimes the option to submit a letter regarding the significance of
the transcript to the pending summary judgment motion, and also allowing
AT&T to submit a reply. (ECF No. 236). Pursuant to that Order, Grimes filed a
letter (ECF No. 237), and AT&T filed a reply (ECF No. 238).
Numerous defendants, including Crane, the entity which removed the
case to this Court, filed summary judgment motions under Fed. R. Civ. P. 56.
(See ECF No. 190). Grimes did not file papers in opposition to the motions of
certain defendants, including Crane. In response to an inquiry from a clerk on
behalf of the Court, on July 26, 2018, counsel for Grimes filed a letter
affirmatively acknowledging that she does not oppose judgment in favor of
certain defendants, including Crane. (ECF No. 239). The next day, this Court
issued an Order granting summary judgment as unopposed and entering
judgment in favor of those defendants, including Crane. (ECF No. 240).

b

Accordingly, before this Court are the remaining four motions for
summary judgment submitted by: 1) AT&T (ECF No. 184): 2) Bayonne
Plumbing (ECF No. 185); 3) Koenig (ECF No. 187); and 4) Mooney (ECF No.
188).

II.

Subject Matter Jurisdiction
Before addressing the merits of those motions, I must address

jurisdiction. Although no party has challenged this Court’s jurisdiction,
“because subject matter jurisdiction is non-waivable, courts have an
independent obligation to satisfy themselves ofjudsdiction if it is in doubt.” Mt.

Healthy City Sch. Dist. Bd. of Ethic. v. Doyle, 429 U.S. 274, 278 (1977). Here,
given that Crane, the jurisdiction-confen-ing defendant, is no longer a party to
the case, this Court’s jurisdiction is indeed in doubt.
As I noted in my previous Memorandum & Order addressing motions to
dismiss flied by defendants ACL and Bell, Crane based its removal petition on
on the federal officer removal statute, 28 U.S.C.

§

1442(afll). (See ECF No. 1;

ECF No. 132 at 2 n.2). The federal officer removal statute is “a pure
jurisdictional statute, seeking to do nothing more than grant district court
jurisdiction over cases in which a federal officer is a defendant.” Mesa

ii

Calfomia, 489 U.S. 121, 136 (1989). Its “central aim is protecting officers of
the federal government from interference by litigation in state court while those
officers are trying to carry out their duties. The statute has been amended over
the years to permit removal in a broader set of circumstances.” Papp v. Fore
Kast Sales Co., 842 F.3d 805, 811 (3d Cir. 2016) (internal citation omitted).4
General Electric had also filed a motion for summary judgment. (ECE no. 201).
However, on April 5. 2018. counsel for General Electric flied a letter indicating that it
had settled the case with Grimes. and therefore withdrew its motion (ECF no. 201) for
summary judgment. (ECF No. 229). This Court then issued an Order withdrawing
General Electric’s motion. (ECF No. 230).

See 14C Wright & Miller, Federal Practice & Procedure § 3726 (4th ed.)
(“Sections 1442 and 1442a are lineal descendants of Section 3 of the ‘Force Act,’ which
was enacted on March 2. 1833. That statute sought to protect federal officers who
were engaged in enforcing the revenue laws of the United States from attempts
(primarily by South Carolina) to nullify the national laws by local statutes.”).
6

Section 1442(a) provides as follows:
that is commenced in a State Court and that is
a civil action
against or directed to [ the United States or any agency thereof or
of the United States or any agency thereof, in an official
any officer
or individual capacity, for or relating to any act under color of such
office ...] may be removed by them to the district court of the United
States for the district and division embracing the place wherein it is
pending.
...

...

28 U.S.C.

§

1442(a)(l). It is an exception to the well-pleaded complaint

rule. See Mesa. 489 U.S. at 136 (“The removal statute itself merely serves to
overcome the ‘well-pleaded complaint’ rule which would otherwise preclude
removal even if a federal defense were alleged.”); Jefferson County v. Acker, 527
Under
U.S. 423, 430-31 (1999) (“Suits against federal officers are exceptional
the federal officer removal statute, suits against federal officers may be
removed despite the nonfederal cast of the complaint; the federal question
element is met if the defense depends on federal law.”).
In order to properly remove a case under

§

1442(a)(1), a defendant must

meet four requirements:
(1) [the defendant] is a ‘person’ within the meaning of the statute; (2)
the [plaintiffs] claims are based upon the Idefendant’s] conduct
‘acting under’ the United States, its agencies. or its officers: (3) the
[plaintiffs] claims against [the defendant] are ‘for, or relating to’ an
act under color of federal office; and (4) [the defendant] raises a
colorable federal defense to the [plaintiffsl claims,
Papp, 842 F.3d at 812 (citation omitted). Here, defendant Crane, though not a
federal officer as such, asserted that it could avail itself of a “government
contractor” defense. See Boyle v. United Techs Corn.. 487 U.S. 500 (1988).
Although no party challenged Crane’s claim to a governmental contractor
defense, I nevertheless addressed jurisdiction and concluded that at the
motion-to-dismiss stage, Crane had presented sufficient indications of a
colorable federal defense for the purposes of federal court jurisdiction under 28
U.S.C.

§

1442. (See ECE No. 132 at 2 n.2).

7

Now, at present day, as a result of my July 27, 2018 Order granting
summary judgment and entering judgment in favor of Crane, see (ECF No.
240), Crane was terminated from this case. I must therefore, sin sponte,
reconsider jurisdiction:
Because Section 1442(afll) authorizes removal of the entire action
even if only one of the controversies it raises involves a federal officer
or agency, the section creates a species of statutorily-mandated
supplemental subject-matter jurisdiction. The district court can
exercise its discretion to decline jurisdiction over the supplemental
claims if the federal agency drops out of the case, or even if the
federal defendant remains a litigant.
Wright

& Miller, supra.

§

3726 (footnotes omitted).5 “If the federal party is

eliminated from the suit after removal under [Section 1442(a)(lfl, the district
court does not lose its ancillary or pendent-party jurisdiction over the state law
claims against the remaining non-federal parties. Instead, the district court
retains the power either to adjudicate the underlying state law claims or to
remand the case to state court.” D.C.

i,.

Merit Sys. Prot. Bc!., 762 F.2d 129, 132—

33 (D.C. Cir. 1985) (internal citations omitted).
In State of N.J. Dep’t of Envtl. Prot. v. Gloucester Envtl. Mgmt. Serus., Inc.,
a judge of this District Court recognized this principle: “When an action is

properly removed pursuant to section 1442(a)(1), a federal court can exercise
ancillary jurisdiction over the enure controversy. If a court dismisses the
federal defendant from such a case, it must use its discretion to decide whether
to remand the remaining ancillary claims to state court or to maintain
jurisdiction over those claims.” 719 F. Supp. 325, 334 (D.N.J. 1989) (internal

See D.C. ii. Merit Sys. Pitt. Bcl., 762 F.2d 129. 132—33 (D.C. Cir. 1985) (inLemal
citations omitted) (“If the federal party is eliminated from the suit after removal under
[Section l442(a)(1)j. the district court does not lose its ancillary or pendent-party
jurisdiction over the state law claims against the remaining non-federal parties.
Instead, the district court retains the power either to adjudicate the underlying state
law claims or to remand the case to state court.”): but see Wright & Miller, suprn, §
3726 (acknowledging that “[sjome courts, however, have held that once a federal court
properly acquires jurisdiction by removal under Section l442(afll), the federal court
has no discretion to remand any portion of a case,” and listing cases in footnote).

9

8

WL
citations omitted). See Cohen i.,. Estate of Lionel, No. CV 201 1-0077, 2016
ed, and the
1039551, at *4 (D.V.I. Mar. 10, 2016) (“[1}f a case is properly remov
al is
basis for that removal—the federal defendant—is dismissed after remov

effected, the district court is charged with exercising its discretion as to
whether it will continue to exercise jurisdiction over the case.”)
Now that Crane’s unopposed motion for summary judgment has been
s,
granted and judgment entered in its favor, no federal defendant remain and
claim,
the only claims remaining arise under state law. There is no federal law
see 28 U.S.C. § 1331, or claim of diversity of citizenship, see (ci. § 1332.
ted
Subject matter jurisdiction over these state law claims could only be predica
re
on the supplemental jurisdiction statute, see Id. § 1367, I must therefo
ction
decide whether it is appropriate to decline to exercise supplemental jurisdi
and remand the case to state court.
Under 28 U.S.C.

§

1367(c), a court may decline to exercise supplemental

jurisdiction over a state-law claim where
(1) the claim raises a novel or complex issue of State law,
or claims
(2) the claim substantially predominates over the claim
over which the district court has original jurisdiction,
it has
(3) the district court has dismissed all claims over which
original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons
for declining jurisdiction.
1367(c). That statute “grants district courts the discretion to refuse
to exercise supplemental jurisdiction when ‘values of judicial economy,
state
convenience, fairness, and comity’ counsel that the district court remand
142 F.3d
claims to a state forum.” Hudson United Banic zi. LiTenda Mortg. Corp..
28 U.S.C.

§

U.S.
151, 157 (3d Cir. 1998) (quoting City of ChL v. Int’l Coil, of Surgeons, 522
156, 173—74 (1997)).
I find that

§

s
13671c)’s discretionary factors weigh in favor of this Court’

declining to exercise supplemental jurisdiction.

9

The first three factors apply. Grimes and her husband initially filed this
case in the Superior Court of New Jersey, Middlesex County, intending to
pursue it there. All of the claims alleged in the Amended Complaint (and the
initial Complaint) are predicated on New Jersey state law. In other words, this
is a pure state law case which presumptively is better adjudicated in New
Jersey state court. Of particular significance is the fact that this is an asbestos
case implicating complex state law issues. New Jersey has centralized asbestos
litigation in Middlesex County; all asbestos-related cases in New Jersey are
handled by a single judge in that vicinage with the assistance of a special
master. Above and beyond the usual presumption that state courts are best
equipped to handle state cases, that particular state court has developed a
specialized expertise.6
It is true that there have been substantial proceedings in this, the federal
case. Much of it. however, has consisted of weeding out defendants against
which the plaintiff seems to have never had any substantial basis for a claim.
Indeed, one of these was Crane, the single defendant upon which federal
jurisdiction was based. The plaintiff remained silent in response to Crane’s
summary judgment motion and, upon inquiry, consented to entry of judgment
t the
in Crane’s favor. The progress of the federal case, then, must be set agains
insubstantiality of the claims against the only putative federal defendant.

See Notice to the Bar. Mass Torts Asbestos Litigation. dated April 11, 2008,
Nip: //www.judiciaiy.state.nj.us/notices/2008/n0804 14b.pdf (advising that the New
Jersey Supreme Court issued an Order on April 8, 2008 designating all New Jersey
state court asbestos litigation as a mass tort (multi-county litigation) and assigning
that litigation to Judge Ann G. McCormick in the Middlesex Vicinage for centralized
management, and providing copy of the Order); Supreme Court of New Jersey Order,
dated July 10, 2012, https:/ /www.njcourts.gov/notices/20 12/ni 2080 lj .pdPcachelD
or
=H3TIyJa (amending the April 8, 2008 Order “so as to reassign all matters to Superi
effective September 1, 2012);
Court Judge Vincent LeBlon in the Middlesex Vicinage,”
Supreme Court of New Jersey Order, dated February 10, 2014 (further amending the
April 8, 2008 Order, as amended by Order dated July 10, 2012, “so as to reassign all
such matters to Superior Court Judge Ana C. Viscomi in the Middlesex Vicinage,”
effective March 1, 2014).
-

10

The inconvenience of remand, moreover, is not great. Although this case
is now at the summary judgment stage, the relevant motions are easily
transplanted. The parties may refile their motions for summary judgment and
obtain a ruling on these state law issues in that forum. See. e.g., Makwana v.
*4..5 (D.N.J. 2016) (declining
Medco Health Services, Inc., 2016 WL 7477755, at
to exercise supplemental jurisdiction over the plaintiffs’ remaining state law
claims, and recognizing that although “remand will certainly delay decision on
the remaining summary judgment issues, the parties’ central facts and
substantive arguments should remain the same. Remand would serve the goals
of judicial economy and comity by allowing the New Jersey courts to apply New
Jersey law”).
Weighing all of the factors, I exercise my discretion to decline the exercise
of supplemental jurisdiction over the state law claims. A remand to New Jersey
Superior Court in Middlesex County will best serve the interests of comity,
fairness, and judicial economy here.
Conclusion

Ill.

For the reasons stated above, it is hereby ordered that the action is
remanded to the Superior Court of New Jersey, Middlesex Counts’.
The Clerk shall close the file and terminate all pending matters
including, but not limited to, the following motions for summary judgment: 1)
AT&T’s motion for summary’ judgment (ECF No. 184); 2) Bayonne Plumbing’s
motion for summary judgment (ECF No. 185); 3) Koenig’s motion for summary
judgment (ECF No. 187); and 4) Mooney’s motion for summary judgment (ECF
No. 188),
An Order will be entered in accordance with this Opinion.
Dated: August 17, 2018

Hon. Kevin McNulty
United States District Judge

11