Abbo-Bradley v. City of Niagara Falls
| Decision Date | 25 January 2021 |
| Docket Number | 1:20-cv-00136-FPG |
| Court | U.S. District Court — Western District of New York |
| Parties | JOANN ABBO-BRADLEY, Individually and as Parent and Natural Guardian of D.B., T.B., and C.B., infants; ZACHARY AND MELANIE HERR, Individually and as Parent and Natural Guardian of C.H. and H.H, infants; and NATHAN E. AND ELENA KORSON, Individually and as Parent and Natural Guardian of L.K., an infant, Plaintiffs, v. CITY OF NIAGARA FALLS; NIAGARA FALLS WATER BOARD; GLENN SPRINGS HOLDINGS, INC.; CONESTOGA-ROVERS & ASSOCIATES; CECOS INTERNATIONAL, INC.;DAVID GROSS CONTRACTING CORP.; GROSS PLUMBING & HEATING CO., INC.; MILLER SPRINGS REMEDIATION MANAGEMENT, INC.; OCCIDENTAL CHEMICAL CORPORATION, Individually and as Successor in Interest to Hooker Chemicals and Plastics Corporation; OP-TECH ENVIRONMENTAL SERVICES; ROY'S PLUMBING, INC.; SCOTT LAWN YARD, INC.; and SEVENSON ENVIRONMENTAL SERVICES, INC., Defendants. |
The above-captioned case is one of 19 related toxic tort cases that have been removed to this Court. Presently before the Court is United States Magistrate Judge Jeremiah J. McCarthy's Report and Recommendation ("R&R") on Plaintiffs' motion to remand.1 ECF No. 70. Judge McCarthy concluded that removal under section 1446(b)(3) was unavailable because none of the operative amended complaints in the 19 related cases presented a ground for removal for the firsttime. The removing defendants filed objections to the R&R. ECF No. 74. For the reasons that follow, the Court adopts Judge McCarthy's R&R in part and GRANTS Plaintiffs' motion to remand.
Generally, a court reviews portions of an R&R to which a party makes specific objections de novo. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). When a party does not object to the R&R, the court will review it for clear error. EEOC v. AZ Metro Distributors, LLC, 272 F. Supp. 3d 336, 339 (E.D.N.Y. 2017). In that case, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Boice v. M+W U.S., Inc., 130 F. Supp. 3d 677, 686 (N.D.N.Y. 2015) (internal quotation marks omitted). After conducting the appropriate review, the court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
The above-captioned case, Abbo-Bradley, et al. v. City of Niagara Falls, et al., began in 2012 in the State of New York Supreme Court, County of Niagara. Plaintiffs, residents of the City of Niagara Falls, alleged that Defendant Occidental Chemical Corporation had, for years, dumped hazardous chemical waste into a nearby disposal site known as the "Love Canal" landfill, and then ineffectively cleaned that site up. The chemicals migrated from the Love Canal waste disposal site to Plaintiffs' homes, making Plaintiffs sick and decimating their property values. Plaintiffs sued Occidental and others for personal injury and property damage based on common law tort theories. A second related case, Pierini v. City of Niagara Falls, et al., also based on allegations of toxic exposure from the Love Canal site, soon followed.
In 2013, Occidental2 removed Abbo-Bradley and Pierini to this Court on the basis of federal question jurisdiction. See 28 U.S.C. § 1331. It asserted that its remediation of the Love Canal site was undertaken in accordance with remedies crafted pursuant to a federal statute—the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601—and that those remedies were approved by a series of consent decrees in the Western District of New York. Occidental asserted that Plaintiffs were essentially challenging the sufficiency and effectiveness of the federally imposed CERCLA remedies, thereby triggering federal question jurisdiction.
On August 22, 2013, Judge John T. Curtin rejected Occidental's argument for federal question jurisdiction and remanded Abbo-Bradley and Pierini back to state court. See Abbo-Bradley v. City of Niagara Falls, No. 13-CV-487-JTC, 2013 U.S. Dist. LEXIS 119413, at *9 (W.D.N.Y. Aug. 21, 2013); Pierini v. City of Niagara Falls, No. 13-CV-498-JTC, 2013 U.S. Dist. LEXIS 119311, at *1 (W.D.N.Y. Aug. 21, 2013).
Between 2013 and 2017, 17 more related cases alleging toxic exposure from the Love Canal site were filed. All 19 related Love Canal cases remained in state court until 2020.
On January 6, 2020, Plaintiffs filed uniform amended complaints in all 19 cases to allege newly discovered toxic exposure from three additional CERCLA remedial sites, all Niagara Falls-area waste disposal sites used by Occidental. The 2020 amended complaints continued to assert exposure from the Love Canal site and continued to assert only common law tort claims.
On February 1, 2020, Occidental removed all 19 cases to this Court, Abbo-Bradley and Pierini for the second time and the other 17 cases for the first time. ECF No. 3. Occidental againraised federal question jurisdiction on the ground that Plaintiffs were really challenging the sufficiency and effectiveness of the CERCLA remedies at the three new sites. Additionally, for the first time, Occidental raised federal officer jurisdiction on the ground that it had acted under the direction or supervision of the federal government in implementing the CERCLA remedies at the three new sites. See 28 U.S.C. § 1442(a).
Procedurally, Occidental argued that removal was proper pursuant to 28 U.S.C. § 1446(b)(3), which permits removal of cases that were not initially removable where an amended complaint presents a ground for removal for the first time; or, alternatively, pursuant to the revival doctrine, which revives a defendant's lapsed right of removal if an amended pleading substantially changes the nature of the case.
Plaintiffs moved to remand. They argued that Occidental had already removed Abbo-Bradley and Pierini once and it could not remove those cases on the same ground—that the CERCLA remedies governing the waste disposal sites triggered federal question jurisdiction—again. As for the 17 other cases which had not already been removed, Plaintiffs argued that their addition of the allegations about the three new sites in the 2020 amended complaints did not raise a ground for federal question jurisdiction or federal officer jurisdiction that was not already apparent from the allegations about the Love Canal site in the older versions of the complaints, and thus the 2020 amended complaints did not present a ground for removal for the first time.
Judge McCarthy agreed with Plaintiffs and recommended that their motion for remand be granted. The Court has conducted a de novo review and finds no error in Judge McCarthy's recommendation. Therefore, Plaintiffs' motion for remand is GRANTED.
This decision involves 19 total cases, two procedural vehicles for removal (section 1446(b)(3) and the revival doctrine) and two substantive3 bases for removal (federal question jurisdiction and federal officer jurisdiction). A brief roadmap is in order.
The Court organizes this decision into two main sections. In Section I, the Court examines the propriety of removal under section 1446(b)(3), first with respect to the two cases which have already been removed once pursuant to federal question jurisdiction, and then with respect to the remaining 17 cases which are being removed for the first time based on both federal question and federal officer jurisdiction. In Section II, the Court examines the propriety of removal of all 19 cases—based on both federal question and federal officer jurisdiction—under the revival doctrine.
Occidental already removed Abbo-Bradley and Pierini once before. Section 1446(b)(3) does not automatically prohibit successive removals, but because it requires removal to be basedon a ground that is ascertainable for the first time, "a defendant may only 'file a second removal petition when subsequent pleadings or events reveal a new and different ground for removal.'"4 Bank of Am. v. Pastorelli-Cuseo, No. 3:17-cv-01666 (SRU), 2017 U.S. Dist. LEXIS 171885, at *5 (D. Conn. Oct. 17, 2017) (quoting One Sylvan Road N. Assocs. v. Lark Int'l, 889 F. Supp. 60, 62 (D. Conn. 1995)) (emphasis added); accord Kirkbride v. Cont'l Cas. Co., 933 F.2d 729, 732 (9th Cir. 1991).
"The 'different ground' does not refer to the type of federal jurisdiction, such as diversity jurisdiction, but to the pleading or event that made the case removable." Jennings v. Powermatic, No. 3:14-cv-250-J-32JRK, 2014 U.S. Dist. LEXIS 66881, at *3 (M.D. Fla. May 15, 2014); see also S.W.S. Erectors v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996). The phrase "different grounds" means "a different set of facts that state a new ground for removal." O'Bryan v. Chandler, 496 F.2d 403, 410 (10th Cir. 1974). "It is not enough to have new facts supporting removal; these new facts must provide a new ground for removal." Everett Fin., Inc. v. Kocher, No. 3:19-CV-1563-B, 2019 U.S. Dist. LEXIS 161477, at *6 (N.D. Tex. Sep. 20, 2019). Stated differently, the new facts must create a "relevant change of circumstances" that "alter[] the circumstances bearing on jurisdiction." Reyes v. Dollar Tree Stores, Inc., 781 F.3d 1185, 1188 (9th Cir. 2015). They must "put the defendant in a different position compared to where it stood during the first removal, in the sense that...
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