Brotherhood Mutual Insurance Company v. Central West Virginia Regional Airport Authority, Inc. et al

Filing 79

MEMORANDUM OPINION AND ORDER granting the 48 MOTION by Brotherhood Mutual Insurance Company to Remand Case to Circuit Court of Kanawha County; granting the 50 MOTION by Central West Virginia Regional Airport Authority, Inc. to Remand Case to Circuit Court of Kanawha County. Signed by Judge John T. Copenhaver, Jr. on 6/28/2016. (cc: counsel of record; any unrepresented parties; Clerk, Circuit Court of Kanawha County) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
BROTHERHOOD MUTUAL INSURANCE
COMPANY , as subrogee of
THE KEYSTONE APOSTOLIC CHURCH, formerly
known as THE PENTECOSTAL ASSEMBLY
OF JESUS CHRIST,
Plaintiff,
v.

Civil Action No. 2:16-cv-03118

CENTRAL WEST VIRIGINIA REGIONAL
AIRPORT AUTHORITY, INC., TRIAD
ENGINEERING, INC., CAST & BAKER
CORPORATION, MICHAEL BAKER
INTERNATIONAL, INC., WEST VIRGINIA
PAVING, INC., SENEX EXPLOSIVES INC.,
AFFORDABLE ASPHALT MAINTENANCE CORPORATION,
ENGINEERED ARRESTING SYSTEMS CORPORATION,
ROYAL TEN CATE (USA), INC., NOVEL
GEO - ENVIRONMENTAL, LLC, JMD COMPANY, INC.,
AND JOHN DOES NOS. 1-10,
Defendants.
MEMORANDUM OPINION AND ORDER

Pending is plaintiff Brotherhood Mutual Insurance
Company’s motion to remand, filed April 29, 2016, and defendant
Central Regional West Virginia Airport Authority’s motion to
remand, filed May 1, 2016.

This case arises from the March 12, 2015 landslide at
Yeager Airport in Charleston, West Virginia.

The asserted

causes of the landslide, and the events leading up to it, have

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been summarized elsewhere and need not be repeated for purposes
of this motion.

See Cent. W. Virginia Reg'l Airport Auth., Inc.

v. Triad Eng'g, Inc., No. 2:15-CV-11818, 2016 WL 685086, at *1
(S.D.W. Va. Feb. 18, 2016).

Defendant Engineered Arresting Systems Corporation
(“Zodiac”) removed this action pursuant to “28 U.S.C. §§ 1331,
1441, 1442, 1446, and 1367.”

Notice of Removal at 2.

Inasmuch

as Zodiac relied on 28 U.S.C. § 1442 as one basis for removal,
it was unnecessary for Zodiac to secure the consent of other
parties in removing the case.

Akin v. Ashland Chem. Co., 156

F.3d 1030, 1034 (10th Cir. 1998)(“Federal officer removal
constitutes an exception to the general removal rule under 28
U.S.C. § 1441 and § 1446 which require all defendants to join in
the removal petition.”); see also 28 U.S.C. § 1442(a)(“A civil
action . . . that is against or directed to any of the following
may be removed by them to the district court of the United
States for the district . . . wherein it is pending: (1) The
United States or any agency thereof or any officer (or any
person acting under that officer) of the United States . . .
.”)(emphasis added).

In a response to the motions to remand filed May 17,
2016, however, Zodiac announced that it “does not oppose the
[Central Regional West Virginia Airport Authority’s] motion” to

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remand the case.

Response of Engineered Arresting Systems Corp.

to Mot. to Remand at 1.

Zodiac’s change of heart came after the

Third Circuit’s recent ruling in Sikkelee v. Precision Airmotive
Corp., No. 14-4193, 2016 WL 1567236 (3d Cir. Apr. 19, 2016),
which evidently was not consistent with Zodiac’s legal theory.
Inasmuch as Zodiac asserted the right to remove under § 1442,
and has now acquiesced in the motion to remand, and inasmuch
also as no other party has come forward to renew the request to
remove pursuant to § 1442 or any other statute, the court will
grant the motions to remand.

The court is somewhat troubled by Zodiac’s statement
that, “[s]hould Sikkelee be reversed or otherwise overturned by
subsequent proceedings, [Zodiac] reserves the right to re-file a
notice of removal.”

Response of Engineered Arresting Systems

Corp. to Mot. to Remand at 2.

Under 28 U.S.C. § 1446, a case

that is not removed following service of an initial pleading
upon some defendant may be removed only upon receipt of “an
amended pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has become
removable.”

The question, then, is whether changing appellate

authority from another circuit or the Supreme Court would count
as an “order” or “other paper” sufficient to allow an otherwise
untimely removal.

Leading authorities on this issue strongly

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suggest that it would not, at least absent highly unusual
circumstances.1

Zodiac cannot change application of the removal

statute by “reserving the right” to remove this case a second
time.

Any successive removal will withstand a motion to remand

only if it complies with relevant rules, including § 1446.

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In

The “language of section 1446(b) . . . refers, as most cases
hold . . . to pleadings, etc., filed in the suit sought to be
removed, not in some other suit (‘amended’ is a clue).”
Wisconsin v. Amgen, Inc., 516 F.3d 530, 533 (7th Cir.
2008)(Posner, J.); see also Allen v. Monsanto Co., 396 F. Supp.
2d 728, 731 (S.D.W. Va. 2005)(“Although the Fourth Circuit has
never ruled on this issue, an overwhelming majority of courts .
. . hold that an intervening Supreme Court case does not provide
the basis for removal.”); Wright, Miller and Cooper, 14C Federal
Practice & Procedure § 3731 (4th ed.)(West 2016)(“[T]he
publication of opinions by other courts dealing with subjects
that potentially could affect a state court suit’s removability,
and documents not generated within the state litigation
generally are not recognized as ‘other papers,’ receipt of which
can start a 30-day removal period under Section 1446(b).”).
The Third and Fifth Circuits appear to be the only courts
of appeals to have explicitly allowed untimely removals based on
orders issued in a separate case. Each circuit has upheld such
a removal precisely once. Green v. R.J. Reynolds Tobacco Co.,
274 F.3d 263, 266 (5th Cir. 2001); Doe v. Am. Red Cross, 14 F.3d
196, 197 (3d Cir. 1993). “In both of those cases, however, the
defendant seeking to remove was also a party in the separate
case which generated the decision creating a basis for federal
jurisdiction.” Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965,
969-70 (8th Cir. 2007). Moreover, both courts stressed the
narrowness of the doctrine. In Doe, the Third Circuit held that
the Supreme Court’s opinion in Am. Nat'l Red Cross v. S.G., 505
U.S. 247 (1992), “gave the ‘specific and unequivocal direction
that the Red Cross [was] “thereby authorized to remov[e] from
state to federal court of any state-law action it is
defending.”’” A.S. ex rel. Miller v. SmithKline Beecham Corp.,
769 F.3d 204, 210 (3d Cir. 2014)(quoting Doe, 14 F.3d at 201).
In Green, the Fifth Circuit explicitly confined its use of the
doctrine to situations where an order was issued in another case
“involving the same defendants, and a similar factual situation
and legal issue.” Green, 274 F.3d at 268.

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Defendants.
ORDER AND NOTICE
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following dates are hereby fixed as the time by or on which
short, this order should not be construed as an endorsement of
certain events must occur:
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
Zodiac’s statement that it may, if it chooses, remove a second
supporting briefs, memoranda, affidavits, or other
such of a in support thereof. (All motions
time simply becausematterchange in law.
unsupported by memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
02/08/2016 Based on the foregoing, the court ORDERS that the
Last day for Rule 26(f) meeting.
motions to
02/15/2016 remand be, and they hereby are, granted. The court
Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
will, by companion order entered contemporaneously herewith,
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
remand this action to the CircuitCourthouseKanawha County. before
Byrd United States Court of in Charleston,
the undersigned, unless canceled. Lead counsel
directed to appear.
The Clerk is directed to forward a copy of this
02/29/2016
Entry of scheduling order.
written opinion andday to to counsel of record and any
03/08/2016
Last order serve F.R. Civ. P 26(a)(1) disclosures.
unrepresented parties and a certified copy to the clerk of court
The Clerk is requested to transmit this Order and
for theto all counsel of Kanawhaand to any unrepresented
Notice Circuit Court
record County.
parties.
DATED:
DATED:

January 2016
June 28,5, 2016

John T. Copenhaver, Jr.
United States District Judge

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