Carter v. Monsanto Co.

• Decision Date: 19 June 2009
• Docket Number: Civil Action No. 3:08-cv-01359.
• Citation: 635 F.Supp.2d 479
• Parties: Robert C. CARTER, Plaintiff, v. MONSANTO COMPANY, et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

635 F.Supp.2d 479

Robert C. CARTER, Plaintiff, v. MONSANTO COMPANY, et al., Defendants.

Civil Action No. 3:08-cv-01359.

United States District Court, S.D. West Virginia, Huntington Division.

June 19, 2009.

COPYRIGHT MATERIAL OMITTED

David H. Carriger, The Calwell Practice, James F. Humphreys, James F. Humphreys & Associates, Jennifer Narog Taylor, W. Stuart Calwell, The Calwell Practice, Charleston, WV, for Plaintiff.

Charles M. Love, III, Fazal A. Shere, Diana Leigh Johnson, Fazal A. Shere, P. Michael Pleska, Bowles Rice McDavid Graff & Love, Charleston, WV, Elissa J. Glasband, Patton Boggs, New York, NY, James E. Tyrrell, Jr., Patton Boggs, New York, NY, for Defendants.

ORDER

JOSEPH R. GOODWIN, Chief Judge.

Pending before the court in this class action suit is the plaintiffs' Motion to Remand for Lack of Subject Matter Jurisdiction [Docket 35] and Motion to Remand for Voluntary Dismissal or in the Alternative for Voluntary Dismissal [Docket 50]. For the reasons herein, the Motion to Remand for Lack of Subject Matter Jurisdiction is GRANTED and the Motion to Remand for Voluntary Dismissal is DENIED.

I. Background

This class action suit raises several claims based on the defendants' alleged disposal of the agricultural herbicide 2, 4, 5-trichlorophenoxyacetic acid ("2, 4, 5-T") and the herbicide's toxic byproducts from its chemical plant in Nitro, West Virginia (the "Nitro Plant"). Defendant Monsanto¹ began producing 2, 4, 5-T at the Nitro Plant in 1948 and continued producing the herbicide until about 1971. During the Vietnam War, Defendant Monsanto sold 2, 4, 5-T to the federal government to be used as a primary active component of the military herbicide Agent Orange. (Notice Removal, Ex. 1, Corrected 4th Am. Compl. ¶ 7.) The production of 2, 4, 5-T results in the formation of a toxic byproduct called 2, 3, 7, 8-tetracholorodibenzoparadioxin, or "dioxin," and dibenzo furans ("furans"). (Id. ¶ 7.)

The class members in this case allege that the defendants' disposal of dioxins, furans and other hazardous waste materials generated by the production of 2, 4, 5-T into the Manila Creek dump site caused injury to persons living near and downstream from that dump site. (Id. ¶¶ 8-2 1.) The class in this case is defined by geographic parameters and includes "[c]urrent property owners in the 100-year flood plain of Manila Creek . . . Heizer Creek . . . and the Potalico River . . . in Putnam County," which are all locations downstream from the Manila Creek dump site. (Notice Removal, Ex. 2, Class Certification Order 2.)

This class action is just one of fifty-five civil suits filed in the Circuit Court of Putnam County of West Virginia ("Circuit Court"), seeking damages based on exposure to the substances produced at the Nitro Plant and their byproducts. These suits, which I will collectively call the "Parallel Litigations," include fifty-three individual suits ("Individual Litigations"), and two class actions, including the instant matter and Bibb et al. v. Monsanto Co. et al., No. 04-C-465 (Circuit Court, Putnam County, W. Va.). The defendants removed all fifty-five Parallel Litigations to this court on November 21, 2008. (Notice Removal.) The defendants asserted that this court had subject matter jurisdiction over the Parallel Litigations based on the plaintiffs' recent revelation that their cases were based in part on injuries caused by the production of 2, 4, 5-T rather than just the disposal of that substance and its byproducts. (Id. at 2-3.) "[B]ecause Monsanto performed these production activities, or a substantial portion of them, under the aegis of the federal government and as a federal officer . . ." the defendants explained that they could "assert[] federal defenses sufficient for removal under [the federal officer removal statute, 28 U.S.C.] § 1442." (Id. at 3, 6.) Specifically, the defendants asserted as federal defenses the government contractor defense and an immunity defense under the Defense Production Act, 50 App. U.S.C. § 2061 et seq. (Id. at 6.) The plaintiffs subsequently filed a motion to remand all of the Parallel Litigations on procedural grounds [Docket 9]. On December 19, 2008, I remanded all of the Parallel Litigations, except for this one, because their removal was untimely.

On March 20, 2009, the plaintiffs in this matter filed a new Motion to Remand [Docket 35] based on this court's lack of subject matter jurisdiction. Unlike the first motion to remand, in which the plaintiffs asserted procedural defects in removal, the instant motion challenges this court's subject matter jurisdiction. Specifically, the plaintiffs argue that they only seek relief from injuries caused by the disposal of 2, 4, 5-T waste into the Manila Creek dump site, which was not an activity "under the aegis of the federal government and as a federal officer." Contrary to the defendants' assertion, the plaintiffs argue that they are not seeking relief from any injuries caused by the production of 2, 4, 5-T.

Before this court ruled on the Motion to Remand, the plaintiffs filed another motion in which it renewed its Motion to Remand ("Renewed Motion to Remand") [Docket 50]. In that motion, the plaintiffs state additional grounds for remand. Specifically, the plaintiffs assert their intention to seek leave to voluntarily dismiss this action once it is remanded to the Putnam County Circuit Court. Because the Circuit Court is more familiar with the instant matter than this court, the plaintiffs argue that the Circuit Court is better suited to address the complicated issues associated with dismissing a class action. They further assert that remanding this matter for dismissal would "obviate any need by this Court to address the other issues relating to this Court's jurisdiction. . . ." (Pls.' Mem. Supp. Renewed Mot. Remand 5 [Docket 50].) In the alternative, the plaintiffs seek permission from this court to voluntarily dismiss the case.

The defendants filed a response to the plaintiffs' Renewed Motion for Remand [Docket 56]. The defendants argue that the plaintiffs' Renewed Motion is inappropriate because: (1) they are "not entitled to raise additional arguments in support of a fully briefed motion pending before the court," (2) "the relative efficiencies of the state court are not a valid basis for remand," and (3) the motion was time barred because it was a motion for remand on grounds other than the court's lack of subject matter jurisdiction and was filed more than thirty days after removal. (Defs.' Mem. Opp'n Renewed Motion Remand 2, 6.) The defendants also argue that this court should not grant the plaintiffs' alternative motion for voluntary dismissal because such a ruling would render the past nine years of litigation a waste and would deprive the defendants of the right to have the question of government contractor immunity determined by a federal court.² The plaintiffs subsequently filed a Reply [Docket 58].³

II. Discussion

A. Motion to Remand Based on Plaintiffs' Intention to Voluntarily Dismiss

Because the plaintiffs' Renewed Motion to Remand suggests that I need not resolve the issues raised in its original Motion to Remand, I will address the plaintiffs' arguments in the Renewed Motion and the defendants' response first. As an initial matter, it would be inappropriate for me to allow the voluntary dismissal of this matter prior to confirming this court's jurisdiction. The plaintiffs' Motion to Remand has called this court's subject matter jurisdiction into question and I have not yet ruled on that question. When a court has doubts about its subject matter jurisdiction, it should resolve those doubts before ruling on a motion for voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2). Taylor v. Com. of Va., Dep't of Transp., 170 F.R.D. 10, 12 (E.D.Va.1996). Accordingly, I decline the plaintiffs' invitation to dismiss this matter prior to ruling on the pending Motion to Remand.

Further, I reject the plaintiffs' suggestion that the Circuit Court's superior efficiency and familiarity with this matter justifies remand. Though such considerations may be appropriate for a federal court deciding whether to exercise supplemental jurisdiction over state law claims, they are inappropriate in this case because the case was removed based on federal officer removal. The underlying purpose of the federal officer removal statute, 28 U.S.C. § 1442(a), is to "protect[] . . . the exercise of legitimate federal authority by government agents against interference by individual states through their courts. . . ." Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 3d § 3727 at 136 (1998). Such vital interests of the federal government take precedence over concerns for judicial economy and efficiency. Because I FIND it inappropriate to remand this matter for voluntary dismissal in state court and also to permit voluntary dismissal in this court, the plaintiffs' Renewed Motion to Remand [Docket 50] is DENIED.

Having denied that motion, I will proceed with my inquiry into this court's subject matter jurisdiction over this class action. "If at any time before the final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). Therefore, I must determine whether the defendants can establish grounds for federal officer removal and whether this court has subject matter jurisdiction over this action.

B. Motion to Remand Due to this Court's Lack of Subject Matter Jurisdiction

The plaintiffs argue that this matter should be remanded because unlike the other Parallel Litigations, which had raised claims based on the emission of toxins from the Nitro plant that occurred during 2, 4, 5-T production, this action only concerns damages based on the defendants' disposal of 2, 4, 5-T waste at the Manila Creek dump site. (Pls.' Mem. Supp. Mot. Remand Subject Matter Juris. 4 [Docket 36].) Because that disposal was not...