821 F.Supp.2d 811 (D.Md. 2012), Civ. WDQ-11-3442, Ackerman v. ExxonMobil Corp.
| Date | 12 January 2012 |
| Citation | 821 F.Supp.2d 811 |
| Docket Number | Civil WDQ-11-3442. |
| Parties | Kenneth ACKERMAN, et al., Plaintiffs, v. EXXONMOBIL CORPORATION, et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
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MEMORANDUM OPINION
Kenneth Ackerman and others 1 (the " Plaintiffs" or the " Ackerman Plaintiffs" ) sued ExxonMobil Corporation (" Exxon" ) and John R. Hicks (collectively the " Defendants" )
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in the Circuit Court for Harford County, for gasoline contamination of their properties. The Defendants removed the case to this Court. For the following reasons, the Plaintiffs' motion to remand or, in the alternative, abstain will be granted in part and denied in part.
I. Background
On June 30, 2004, hundreds of Fallston, Maryland, residents filed a putative class action (" Koch" ) 2 against Exxon and Hicks, alleging that gasoline from an Exxon station operated by Hicks had contaminated their properties. 3 ECF No. 1, Ex. 1. The putative class sought relief for negligence, nuisance, trespass, and violations of § 4-409 of the Environment Article of the Maryland Code, which governs liability for oil spills. Id. On October 15, 2004, Exxon removed the case, which was transferred to the Multidistrict Litigation Panel and assigned to the Southern District of New York. ECF No. 1, Ex. 2.
On August 8, 2005, President George W. Bush signed the Energy Policy Act of 2005, which provides that state court lawsuits alleging MTBE contamination filed after that date may be removed to federal court. Pub.L. No. 109-58, § 1503, 119 Stat. 594, 1076 (2005) (" Energy Policy Act" ).
In 2006, document discovery began in Koch, and the Defendants deposed the named class representatives. ECF No. 26, Ex. 1 at 1-2.
On August 17, 2007, Koch was remanded to the Harford County Circuit Court after the Second Circuit decided that the case had been removed improperly. ECF No. 1, Ex. 3; In re MTBE Prods. Liab. Litig., 488 F.3d 112 (2d Cir.2007).
In 2009, the Defendants again deposed the named class representatives in Koch . ECF No. 26, Ex. 1 at 2.
On February 18, 2010, the Circuit Court for Harford County certified the class. ECF No. 1, Ex. 4. In fall 2010, the Plaintiffs reiterated written and oral demands for documents they had requested from the Defendants in 2006. ECF No. 26, Ex. 1 at 1.
In early 2011, the Defendants deposed four proposed class representatives. Id. at 2. In March 2011, the Defendants deposed the Plaintiffs' hydrogeologic expert and received thousands of documents from her files. Id. In April 2011, the state judge met with counsel in chambers to discuss case administration. Id. In June 2011, the state court granted the Plaintiffs' motion to compel written discovery. ECF No. 26, Ex. 1 at 1. The parties have served interrogatories and requests for production of documents, and have exchanged thousands of documents and photographs. Id. at 2.
On June 16, 2011, the court decertified the class. ECF No. 1, Ex. 6. By this time, the Koch plaintiffs had amended their complaint to allege negligence, nuisance, trespass, and strict liability. See ECF No. 1, Ex. 6 at 1. On October 26, 2011, the judge again met with counsel in chambers and asked the Koch plaintiffs to file new actions for the former class members, which he would consolidate with Koch . ECF No. 26, Ex. 1 at 2.
On November 2, 2011, more than 750 former class members filed this action in the Harford County Circuit Court, asserting the same facts and state law causes of
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action as Koch (negligence, nuisance, trespass, and strict liability). See ECF No. 1, Ex. 7, Ex. 8. On the same day, the Koch plaintiffs told the court that they intended to amend their complaint. ECF No. 1, Ex. 7.
On November 18, 2011, the court told the parties it would " issue, at some point, some sort of an Order of Consolidation" combining Koch with this action. ECF No. 1, Ex. 9. On November 28, 2011, the court told counsel that it had " held off" issuing a consolidation order only because it had not yet determined the budget, location, and other logistics of trial. ECF No. 1, Ex. 10.
On November 29, 2011, the Defendants removed this action. ECF No. 2. On December 1, 2011, the Koch plaintiffs amended their complaint to add all the individual Plaintiffs named in this action, and the Plaintiffs moved to remand this case or, in the alternative, abstain. ECF No. 1, Ex. 11; ECF No. 1.
Through the week of December 12, 2011, the Koch plaintiffs continued to receive thousands of documents in discovery from Exxon's subcontractors. ECF No. 26, Ex. 1 at 2.
On December 19, 2011, the Defendants opposed the Plaintiffs' motion to remand this case. ECF No. 24. On December 21, 2011, the Plaintiffs filed a reply. ECF No. 26.
II. Analysis
In moving to remand, the Plaintiffs argue that (1) the Defendants' removal is time-barred, and (2) the Defendants waived their right to remove by litigating Koch in state court for many years. ECF No. 1 at 5-9. Alternatively, the Plaintiffs ask the Court to abstain from exercising jurisdiction because " [p]roceeding with this separate action will only introduce delay, inevitably duplicate the efforts of another court, squander scarce judicial resources, and risk the entry of inconsistent verdicts." Id. at 12.
A. Remand
The Defendants' removal was timely. Section 1503 of the Energy Policy Act provides that state court lawsuits that allege MTBE contamination and are filed after August 8, 2005, may be removed to federal court.4 Notice of removal of the civil action must be filed within 30 days after the defendant receives " the initial pleading." 28 U.S.C. § 1446(b). This case was filed on November 2, 2011, and the Defendants removed it on November 29, 2011— within 30 days of receiving the initial pleading (the complaint).
The Plaintiffs wrongly contend that the Koch complaint is the initial pleading for purposes of the removal deadline. ECF No. 1 at 6. They argue that the Koch putative class encompassed the Plaintiffs, the class was certified, the Plaintiffs " reaffirmed their participation in this litigation" by filing this complaint after class decertification, and the state court " always intended to consolidate" the two cases. Id. Thus, the Plaintiffs contend that " [i]t strains credulity" that the Defendants first learned of the Plaintiffs' claims in 2011. Id. at 6-7.
The flaw in the Plaintiffs' argument is that this case is distinct from Koch, even if it asserts identical facts and legal theories. " [A]n individual class member's claim is extinguished when a class is decertified." 5
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Former class members may file individual actions, and the statute of limitations will begin running only after the class is decertified. 6 But the Court has not found— and the Plaintiffs have not cited— any Maryland case holding that the former class members' individual actions relate back to the date that the putative class action was filed.
When the state court decertified the Koch class action, it effectively dismissed without prejudice the former class members' individual claims, allowing them to file this action. That the state court intended to consolidate this case with Koch did not change the Defendants' deadline to remove under 28 U.S.C. § 1446(b). When the Defendants removed this action, it remained distinct from Koch, and the initial pleading, for purposes of the removal deadline, was the complaint in this action. Removal was timely.
The Defendants did not waive their right to remove by litigating Koch in Harford County. A defendant waives its right to removal only by demonstrating " clear and unequivocal intent to remain in state court," and " such a waiver should only be found in extreme situations." Grubb v. Donegal Mut. Ins. Co., 935 F.2d 57, 59 (4th Cir.1991). A defendant who takes no " substantial affirmative steps in state court" has not made such a waiver. See id. After the Plaintiffs filed this action, the Defendants filed no motions or answer. They promptly removed within 30 days. Because Koch is a separate action, the Defendants' litigation of Koch in state court did not waive their right to remove this action. Thus, the Court will deny the Plaintiffs' motion to remand.
B. Abstention
The Plaintiffs argue alternatively that the Court should abstain from exercising jurisdiction because this case duplicates Koch, a contemporaneous state proceeding. ECF No. 1 at 9. The Defendants counter that this action and Koch are not parallel, and no exceptional circumstances justify abstention. ECF No. 24 at 11-16.
Under the Colorado River abstention doctrine,7 a district court may abstain from exercising jurisdiction " in the exceptional circumstances where a federal case duplicates contemporaneous state proceedings, and wise judicial administration, giving regard to conservation of judicial resources, and comprehensive disposition of litigation clearly favors abstention." Vulcan Chem. Techs., Inc. v. Barker, 297 F.3d 332, 340-41 (2002) (internal citation and quotation marks omitted).
The Supreme Court has " declined to prescribe a hard and fast rule" for determining whether Colorado River abstention is appropriate. Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 15, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). The " threshold question" is " whether there are parallel federal and state suits." Great Am. Ins. Co. v. Gross, 468 F.3d 199, 207 (4th Cir.2006)...
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