Shonkwiler et al v. A.W. Chesterton Company et al

Filing 136

Memorandum Opinion and Order of Remand: Plaintiffs' motion to remand (Doc. No. 104 ) is granted, and this matter is remanded to the Cuyahoga County Court of Common Pleas. Judge Sara Lioi on 3/17/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

RAPLPH T. SHONKWILER, et al.,

PLAINTIFFS,
vs.

A.W. CHESTERTON COMPANY, et al.,

DEFENDANTS.

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CASE NO. 1:16-cv-2749

JUDGE SARA LIOI

MEMORANDUM OPINION AND
ORDER OF REMAND

Before the Court is the motion of plaintiffs to remand this case to the Cuyahoga County
Court of Common Pleas. (Doc. No. 104 [“Mot.”].) Defendant Warren Pumps LLC (“Warren
Pumps”) filed a brief in opposition (Doc. No. 134 [“Opp’n”]), and plaintiffs filed a combined
motion to dismiss Warren Pumps and reply memorandum in support of remand. (Doc. No. 135
[“Reply”].) The remaining defendants have failed to file a response to the motion, and the time
for responding has passed. For the reasons discussed below, the motion to remand is granted.
I. BACKGROUND
On July 11, 2016, plaintiffs, Ralph and Joyce Shonkwiler, brought suit in state court
against various corporations alleged to have “manufactured, sold, distributed, marketed,
supplied, advertised, designed, developed, labeled, researched, and/or installed” products
containing asbestos. (Doc. No. 134-1 (Amended Complaint [“Compl.”]) ¶¶ 2, 4, 16.) Plaintiffs
alleged that Ralph Shonkwiler’s exposure to these products “directly and proximately caused
him to develop mesothelioma.” (Id. ¶ 6.) On its face, the complaint raised only state law claims

for negligence, strict liability, breach of express warranty, breach of implied warranty, statutory
products liability, conspiracy, and loss of consortium. Plaintiffs seek compensatory and punitive
damages, costs, expenses, and attorney’s fees.
On November 11, 2016, defendant CBS Corporation (“Westinghouse”) removed the
action to federal court on the basis of federal question jurisdiction, maintaining that this Court
had original subject matter jurisdiction because Ralph Shonkwiler’s alleged exposure to
Westinghouse’s product, a Navy turbine, occurred while Mr. Shonkwiler was stationed aboard
the U.S.S. Ingram. (Doc. No. 1 (Notice of Removal) ¶ 6.) Accordingly, Westinghouse
represented that the action could be removed to this Court pursuant to 28 U.S.C. § 1442(a)(1),
the federal officer statute, because Westinghouse designed and built the turbine “under the
direction of a federal officer or agency[.]”. (Id. ¶¶ 7-10.) Upon removal, the Court assumed
supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(a). On January 3,
2017, upon plaintiffs’ representations that all claims against Westinghouse had been resolved,
the Court dismissed Westinghouse from this litigation. (Doc. No. 121; see Doc. No. 103.)
Plaintiffs moved to remand the action on the ground that, with the dismissal of
Westinghouse, no federal question remained and the Court lacked subject matter jurisdiction.
(Mot. at 720.) Warren Pumps opposed the motion to remand, suggesting that, it too, could rely
on the federal officer statute (28 U.S.C. § 1442(a)(1)). While underscoring the fact that there
were “no allegations, testimony or document” demonstrating a link between Mr. Shonkwiler’s
illness and any product manufactured by Warren Pumps, it surmised that any exposure Mr.
Shonkwiler would have had to one of its products likely “relate[d] to [Mr. Shonkwiler’s] claimed
exposures during his military service aboard a Navy vessel.” (Opp’n at 797.)
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In its motion to dismiss Warren Pumps, plaintiffs represent that “[a]fter a four day
discovery deposition, Mr. Shonkwiler did not identify any product that Warren [Pumps] would
be responsible for.” (Reply at 3069.) Noting that “[u]nder Ohio law, a plaintiff must be able to
identify the asbestos-containing products they were exposed to in order to hold a manufacturer
liable[,]” plaintiffs insist that dismissal of Warren Pumps is appropriate. (Id., citation omitted.)
The Court agrees, and construes plaintiffs’ motion to dismiss under Rule 41(a)(2) of the Federal
Rules of Civil Procedure as a motion to dismiss a single party under Rule 21 and grants the
same. Anticipating Warren Pump’s dismissal from this action, plaintiffs posit that all federal
questions will be extinguished because no other defendant has indicated that it intends to rely on
28 U.S.C. § 1442(a)(1). (Reply at 3071.)
II. LAW AND DISCUSSION
Since the Court has permitted Westinghouse and Warren Pumps to be dismissed from
this action, only state law claims remain, and there is no evidence that any other defendant could
invoke the federal officer statute. The Court may, in its discretion, either retain jurisdiction over
those state law claims and proceed on the merits, Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S.
635, 639-40, 129 S. Ct. 1862, 173 L. Ed. 2d 843 (2009), or decline jurisdiction and remand the
complaint to the state court. See 28 U.S.C. § 1367(c)(3). When determining whether to exercise
supplemental jurisdiction, “a federal court should consider and weigh in each case, and at every
stage of the litigation, the values of judicial economy, convenience, fairness, and comity[.]”
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S. Ct. 614, 98 L. Ed. 2d 720 (1988).
“Comity to state courts is considered a substantial interest; therefore, [the] Court applies a
strong presumption against the exercise of supplemental jurisdiction once federal claims have
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been dismissed—retaining residual jurisdiction ‘only in cases where the interests of judicial
economy and the avoidance of multiplicity of litigation outweigh [any] concern over needlessly
deciding state law issues.’” Packard v. Farmers Inc. Co. of Columbus Inc., 423 F. App’x 580,
584 (6th Cir. 2011) (quoting Moon v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006)
(further citation omitted)). “[G]enerally ‘[w]hen all federal claims are dismissed before trial, the
balance of considerations usually will point to dismissing the state law claims, or remanding
them to state court if the action was removed.’” Id. at 585 (quoting Musson Theatrical v. Fed.
Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996) (further citations omitted)).
Here, this matter is in an early pretrial procedural posture. The Court has yet to set any
dates and deadlines. Additionally, the Court has not had the opportunity to rule on the substance
of any of the state law claims. Under these circumstances, judicial economy and the avoidance of
multiplicity of litigation do not counsel in favor of retaining this case. Accordingly, the balance
of considerations points toward returning the state law claims raised in the complaint to state
court. See Moon, 465 F.3d at 728 (where federal claims have been dismissed before trial, a
federal court ordinarily should not reach the plaintiffs’ state law claims) (citations omitted);
Thurman v. DaimlerChrysler, Inc., 397 F.3d 352, 359 (6th Cir. 2004) (similar) (citations
omitted).
In reaching this conclusion, the Court rejects the argument of Warren Pumps—made
prior to its dismissal—that plaintiffs may not defeat federal jurisdiction by dismissing certain
parties. (Opp’n at 797.) A decision relied upon by Warren Pumps, St. Paul Mercury Indem. Co.
v. Red. Cab Co., 303 U.S. 283, 58 S. Ct. 586, 82 L. Ed. 2d 845 (1938), actually illuminates the
weakness of this argument. There, a plaintiff brought suit in state court demanding damages in
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excess of the federal jurisdiction amount for diversity cases. Id. at 284-85. After the defendant
removed on diversity grounds, plaintiffs attempted to return to state court by amending the
complaint demanding less than the jurisdictional amount to defeat jurisdiction. Id. at 285.
Following a trial and appeal, on certiorari review, the Supreme Court held that plaintiff could not
escape the reach of federal jurisdiction by altering the jurisdictional amount. Id. at 293.
In so ruling, the Court distinguished cases, such as the present one, where a plaintiff had
resolved all claims with parties who could invoke federal subject matter jurisdiction:
In the case of a separable controversy, if, after removal, the plaintiff discontinues
or dismisses as to the defendant who removed, so that there no longer exists any
separable controversy, the cause must be remanded. If a cause be removed on this
ground the whole case, including the controversy between citizens of the same
state, is taken over by the federal court only because one or more of the
defendants is entitled to invoke its jurisdiction. The basis of federal jurisdiction
failing, it is proper that the remaining parties, who were involuntarily taken into
the federal court, should, upon the cessation of the separable controversy which
was the cause of their transmission to another tribunal, have their case returned
to state court.
Id. at 295 (footnote omitted) (emphasis added). Likewise here, having dismissed the only parties
that appear to be able to invoke federal subject matter jurisdiction, remand to state court is
warranted.
III. CONCLUSION
For all of the foregoing reasons, plaintiffs’ motion to remand (Doc. No. 104) is granted,
and this matter is remanded to the Cuyahoga County Court of Common Pleas.
IT IS SO ORDERED.

Dated: March 17, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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