West Virginia State University Board of Governors v. The Dow Chemical Company et al

Filing 80

MEMORANDUM OPINION AND ORDER directing that defendants' request for a temporary stay is granted insofar as they are entitled to a 30-day automatic stay under Rule 62(a); further directing that the court's 75 order on 6/1/2020, remanding t his civil action to the Circuit Court of Kanawha County, West Virginia be and it hereby is, stayed until 7/1/2020. Signed by Senior District Judge John T. Copenhaver, Jr. on 6/8/2020. (cc: counsel of record; Circuit Court of Kanawha County, West Virginia) (msa)

Case 2:17-cv-03558 Document 80 Filed 06/08/20 Page 1 of 3 PageID #: 2626

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
WEST VIRGINIA STATE UNIVERSITY
BOARD OF GOVERNORS, for and on
behalf of West Virginia State
University,
Plaintiff,
v.

Civil Action No. 2:17-cv-3558

THE DOW CHEMICAL COMPANY, and
UNION CARBIDE CORPORATION, and
BAYER CORPORATION, and BAYER CROPSCIENCE
LP, and BAYER CROPSCIENCE HOLDING
INC., and RHONE-POULENC INC., and
RHONE-POULENC AG COMPANY, and
RHONE-POULENC AG COMPANY, INC., and
AVENTIS CROPSCIENCE USA LP,
Defendants.
MEMORANDUM OPINION AND ORDER
On June 5, 2020, defendants Union Carbide Corporation
and The Dow Chemical Company filed a motion to stay pending
appeal.
Defendants request that the court stay its remand
order, entered on June 1, 2020, pending their appeal.

Under

Federal Rule of Civil Procedure 62(a), “execution on a judgment
and proceedings to enforce it are stayed for 30 days after its
entry, unless the court orders otherwise.”
62(a).

Fed. Rule Civ. P.

Rule 54(a) defines “judgment” as “a decree and any order

Case 2:17-cv-03558 Document 80 Filed 06/08/20 Page 2 of 3 PageID #: 2627

from which an appeal lies.”

Fed. R. Civ. P. 54(a).

Although

remand orders are not generally reviewable on appeal, “an order
remanding a case to the State court from which it was removed
pursuant to section 1442 or 1443 of this title shall be
reviewable by appeal.”

28 U.S.C. § 1447(d).

Defendants assert

that the court’s remand order is appealable inasmuch as this
case was removed based on federal officer removal.

28 U.S.C.

§ 1442(a)(1); see also Wood v. Crane Co., 764 F.3d 316, 320 (4th
Cir. 2014) (“This case was originally removed pursuant to
§ 1442(a)(1) and is thus reviewable.”).

Plaintiff has yet to

file a response.
Before the court reaches a decision on whether to
grant a stay pending appeal, defendants also request a temporary
stay to avoid the expiration of the 30-day automatic stay while
the instant motion is pending.

Inasmuch as this case was

removed pursuant to 28 U.S.C. § 1442, defendants are entitled to
a 30-day automatic stay on the execution of the remand order
from the date of its issuance.

See Norhtrop Grumman Tech.

Servs., Inc. v. DynCorp Int’l LLC, No. 1:16CV534(JCC/IDD), 2016
WL 3180775, at *2 (E.D. Va. June 7, 2016) (granting 14-day
temporary stay of court’s remand order because case was removed

2

Case 2:17-cv-03558 Document 80 Filed 06/08/20 Page 3 of 3 PageID #: 2628

from state court pursuant to § 1442).1

However, the court will

refrain from extending the 30-day automatic stay until
defendants’ motion is fully briefed or the court otherwise deems
such action is warranted.
Accordingly, it is ORDERED that defendants’ request
for a temporary stay is granted insofar as they are entitled to
a 30-day automatic stay under Rule 62(a).

It is further ORDERED

that the court’s order entered on June 1, 2020 remanding this
civil action to the Circuit Court of Kanawha County, West
Virginia be, and it hereby is, stayed until July 1, 2020.
The Clerk is requested to transmit this order to all
counsel of record and to the Circuit Court of Kanawha County,
West Virginia.
ENTER:

1

June 8, 2020

The 2018 Amendments to Rule 62(a) extended the period of the
automatic stay from 14 days to 30 days. See Fed. R. Civ. P. 62,
Advisory Committee’s Notes (2018).
3