Carter v. Cent. Reg'l W. Va. Airport Auth., Triad Eng'g, Inc., Civil Action No. 2:15-cv-13155
| Decision Date | 25 July 2016 |
| Docket Number | Civil Action No. 2:15-cv-13155 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | THEODORE CARTER AND REBECCA CARTER, Plaintiffs, v. CENTRAL REGIONAL WEST VIRGINIA AIRPORT AUTHORITY, TRIAD ENGINEERING, INC., CAST & BAKER CORPORATION, AND NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendants. |
THEODORE CARTER AND REBECCA CARTER, Plaintiffs,
v.
CENTRAL REGIONAL WEST VIRGINIA AIRPORT AUTHORITY,
TRIAD ENGINEERING, INC., CAST & BAKER CORPORATION,
AND NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendants.
Civil Action No. 2:15-cv-13155
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON
July 25, 2016
MEMORANDUM OPINION AND ORDER
Pending are motions to remand filed by plaintiffs Theodore and Rebecca Carter and defendant Central Regional West Virginia Airport Authority ("the Authority"), both on October 14, 2015, and a supplemental motion to remand by the Carters filed June 15, 2016.
This case arises from the March 12, 2015 landslide at Yeager Airport in Charleston, West Virginia. The Authority, a defendant in this case, is a political subdivision of West Virginia that owns and operates Yeager Airport. Pl. Compl. ¶ 2. The Carters are residents of Charleston whose home was located on Keystone Drive near Yeager at the time of the landslide.
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The court takes the following facts from the complaint. In the early 2000s, the Authority determined that Yeager would "become obsolete unless it extended its runway (Runway 5) or at least constructed a runway safety area ['RSA']." Pl. Compl. ¶ 9. The Authority hired Triad Engineering to perform consulting and engineering work on the project, and contracted with Cast & Baker for construction work. Pl. Compl. ¶¶ 11-12. These companies recommended that the RSA include an engineered material arresting system ("EMAS"), which is a "68,000-square-foot area of 4,200 foam and cement blocks, each between 7 and 21 inches thick," "designed to break down if an airplane overruns the runway." Pl. Compl. ¶¶ 10-12. Because Yeager is situated "at the top of a ridge" with limited additional space, the contractors built a "270-foot high slope" with an "asphalt bed" to make room for the EMAS blocks. Pl. Compl. ¶¶ 7-8, 12.
Thereafter, problems arose with the manmade slope supporting the EMAS. Cracks began to appear in the EMAS in mid-2013. Pl. Compl. ¶ 17. In late 2014 and early 2015, inspectors of the EMAS, as well as persons involved with a church near the airport, expressed serious concerns about the slope's stability. Pl. Compl. ¶¶ 49-51. "On March 11, 2015, the area of Keystone Drive directly below the [slope] was evacuated by the airport."
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Pl. Compl. ¶ 55. On March 12, 2015, the manmade slope collapsed, causing great damage to surrounding property.1 Pl. Compl. ¶ 14.
The collapse "led to the destruction of the [Carters'] home," and the loss of "most of their worldly possessions." Pl. Compl. ¶¶ 14, 57. They brought this lawsuit to seek compensation. The Carters filed claims against the Authority for strict liability, Pl. Compl. ¶¶ 58-64, and against the Authority, Triad Engineering, and Cast & Baker for negligence, Pl. Compl. ¶¶ 65-73, gross negligence, Pl. Compl. ¶¶ 74-75, public nuisance, Pl. Compl. ¶¶ 76-81, and private nuisance, Pl. Compl. ¶¶ 82-84, and they request punitive damages, Pl. Compl. ¶¶ 85-90. In this same action, the Carters have also brought a "declaratory judgment action" against their homeowner's insurer, Nationwide Mutual Fire Insurance Company, Pl. Compl. at 14-22, based on its unwillingness to pay their claim resulting from the landslide. All of their claims sound only in state law.
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The procedural background of this case is somewhat Byzantine in its complexity. As mentioned above, the Carters initially brought the case to recover damages for their destroyed home, suing the Authority, two contractors (Cast & Baker and Triad Engineering), and their homeowners' insurer (Nationwide Mutual Fire Ins. Co.). After the Carters filed their complaint, Nationwide and Cast & Baker moved to dismiss, and the Authority and Triad Engineering filed answers along with cross-claims against the other defendants (with the exception of Nationwide).
On September 14, 2015, the state court granted the Authority's motion to file an amended answer and cross-claims, as well as a third-party complaint.2 The Authority's third-party claims added a number of new defendants,3 and essentially raised the same claims that were pressed in the earlier Triad Engineering case, No. 2:15-CV-11818, 2016 WL 685086, regarding deficiencies in the overall design and construction of the manmade slope.
On that same day of September 14, 2015, one of the new third-party defendants, Engineered Arresting Systems Corporation
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d/b/a Zodiac ("Zodiac"), filed a notice of removal. The Authority alleged, in its third-party complaint, that Zodiac served as a "manufacturer[] and/or distributor[] [of] the EMAS . . . and its related components." Authority's Third-Party Compl. ¶ 50. The notice stated that Zodiac had removed the case "pursuant to 28 U.S.C. §§ 1331, 1441, 1442, 1446, and 1367." Notice of Removal at 1. It stated, more particularly, that Zodiac wished to rely on "28 U.S.C. § 1442(a) ('Federal Officer Removal Jurisdiction')" as well as "the doctrine of complete preemption." Notice of Removal ¶¶ 4-5. A few days later, on September 17, Zodiac moved to realign the parties in the case, contending that "[t]he Authority has commandeered a suit concerning a single property . . . and shoehorned into that claim a multi-million dollar controversy for alleged property damage to the Yeager Airport, and damage to the whole Keystone Drive community of Charleston, West Virginia. The Authority's claims are undeniably the 'primary and controlling matter in dispute.'" Mem. in Supp. of Mot. of Zodiac to Realign the Parties. at 2-3.
Days after Zodiac's removal, and prior to any answer by the added defendants,4 the Authority filed on September 23, 2015, a notice voluntarily dismissing its entire third-party complaint
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against the new defendants, including Zodiac, and also dismissing a number of the new cross-claims it had added against the original defendants, Cast & Baker and Triad Engineering.5 Consequently, the only remaining claim that the Authority presses against anyone in this action is a request for contribution and indemnity from its original co-defendants, Triad Engineering and Cast & Baker. See Am. Answer to Compl., Am. Cross-Claims and Third-Party Compl. ¶¶ 43-45.
Both the Carters and the Authority moved to remand on October 14. The Authority first contends that Zodiac's notice of removal failed to establish that it was acting under the direction of a federal officer as required by 28 U.S.C. § 1442(a). Authority's Mem. in Supp. of Mot. to Remand at 5-6. The Authority
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also states that Zodiac was not permitted to remove because "the preemptive effect of FAA regulation . . . does not . . . create a federal question' for removal," and instead supplies only a federal defense. Id. at 7-9. Finally, the Authority contends that Zodiac was not permitted to remove under 28 U.S.C. § 1441 because it was a third-party defendant, and because it "lacked the required consent of the Authority to remove." Id. at 9-11. The Carters make similar arguments, and also contend that Zodiac's absence from the case means that the court is permitted to exercise its discretion and remand it. Pl. Mem. in Supp. of Mot. to Remand at 2.
Cast & Baker and Nationwide filed responses opposing the motions soon thereafter. Cast & Baker contends that (1) dismissal of the litigant who effectuated removal does not affect the court's jurisdiction, (2) federal law completely preempts the state-law claims in the case, allowing for removal, (3) specific FAA regulations and directives allow for federal jurisdiction, and (4) should the court determine that the removal is procedurally defective for lack of consent by all defendants, the parties should be re-aligned. See generally Cast & Baker's Resp. in Opp. to Mot. to Remand.
Nationwide's arguments as to why the court should exercise jurisdiction over this case are not completely clear.
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Nationwide states that it has already filed, in federal court, a declaratory judgment action regarding its liability to the Carters under their homeowners' insurance policy, which is the only source of liability against Nationwide in the present case. Because of its earlier-filed suit, Nationwide suggests that the court is empowered to exercise jurisdiction over the present case, although it is not clear why this is so. See Nationwide's Resp. to Mot. to Remand at 4. Nationwide may also believe that the court has jurisdiction over the Carters' claims simply because they requested a declaratory judgment against Nationwide. Id. Nationwide notes, in particular, a number of policy reasons favoring federal jurisdiction in this case, including "comity and legal harmony" between federal and state courts, "a substantial risk of inconsistent judicial determinations," conservancy of judicial resources, and punishment of inappropriate forum-shopping behavior. Id. at 4-5.
On November 4, 2015, the Carters filed a reply to both Cast & Baker and Nationwide. Regarding Nationwide's response, the Carters state that (1) Nationwide's arguments did not address the key issues in the case, (2) it is permissible for federal and state courts to entertain suits concerning the same subject matter, and (3) in any case, the question of the Carters' right to join Nationwide as a party in this case should be addressed by the
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state court at the motion-to dismiss stage. See generally Pl. Repl. to Nationwide in Supp. of Mot. to Remand. Regarding Cast & Baker's response, the Carters state that (1) Cast & Baker cites no specific federal regulation or other federal material from which the Carters' claims arise, such that the doctrine of complete preemption will ground removal, (2) complete preemption only applies where Congress intended to create an exclusive federal cause of action, and (3) the parties should not be realigned. See generally Pl. Repl. to Cast & Baker in Supp. of Mot. to Remand.
On June 15, 2016 the Carters filed a "Supplemental Motion to Remand, Memorandum in Support...
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