Holmes v. Ac & S, Inc., No. CIV.A. 2:04CV7633.

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Writing for the CourtFriedman
Citation388 F.Supp.2d 663
PartiesRobert HOLMES, et al., Plaintiff, v. AC & S, INC., et al., Defendants.
Decision Date29 December 2004
Docket NumberNo. CIV.A. 2:04CV7644.,No. CIV.A. 2:04CV7629.,No. CIV.A. 2:03CV7580.,No. CIV.A. 2:03CV7579.,No. CIV.A. 2:04CV7639.,No. CIV.A. 2:04CV7625.,No. CIV.A. 2:04CV7661.,No. CIV.A. 2:04CV7651.,No. CIV.A. 2:04CV7657.,No. CIV.A. 2:04CV7660.,No. CIV.A. 2:04CV7665.,No. CIV.A. 2:04CV7650.,No. CIV.A. 2:04CV7630.,No. CIV.A. 2:04CV7633.,No. CIV.A. 2:04CV7636.,No. CIV.A. 2:04CV7662.,No. CIV.A. 2:04CV7638.,No. CIV.A. 2:04CV7655.,No. CIV.A. 2:04CV7646.,No. CIV.A. 2:04CV7647.,No. CIV.A. 2:04CV7666.,No. CIV.A. 2:04CV7648.,No. CIV.A. 2:04CV7653.,No. CIV.A. 2:04CV7631.,No. CIV.A. 2:04CV7626.,No. CIV.A. 2:04CV7664.,No. CIV.A. 2:04CV7649.,No. CIV.A. 2:04CV7659.,No. CIV.A. 2:04CV7627.,No. CIV.A. 2:04CV7637.,No. CIV.A. 2:04CV7656.,NO. CIV.A. 2:04CV7632.,No. CIV.A. 2:04CV7628.,No. CIV.A. 2:04CV7640.,No. CIV.A. 2:04CV7663.,No. CIV.A. 2:04CV7642.,No. CIV.A. 2:04CV7635.,No. CIV.A. 2:04CV7643.,No. CIV.A. 2:04CV7634.,No. CIV.A. 2:04CV7641.,No. CIV.A. 2:04CV7658.,No. CIV.A. 2:04CV7654.,No. CIV.A. 2:04CV7581.,No. CIV.A. 2:04CV7645.

Page 663

388 F.Supp.2d 663
Robert HOLMES, et al., Plaintiff,
v.
AC & S, INC., et al., Defendants.
No. CIV.A. 2:04CV7633.
No. CIV.A. 2:03CV7579.
No. CIV.A. 2:03CV7580.
No. CIV.A. 2:04CV7581.
No. CIV.A. 2:04CV7625.
No. CIV.A. 2:04CV7626.
No. CIV.A. 2:04CV7627.
No. CIV.A. 2:04CV7628.
No. CIV.A. 2:04CV7629.
No. CIV.A. 2:04CV7630.
No. CIV.A. 2:04CV7631.
NO. CIV.A. 2:04CV7632.
No. CIV.A. 2:04CV7634.
No. CIV.A. 2:04CV7635.
No. CIV.A. 2:04CV7636.
No. CIV.A. 2:04CV7637.
No. CIV.A. 2:04CV7638.
No. CIV.A. 2:04CV7639.
No. CIV.A. 2:04CV7640.
No. CIV.A. 2:04CV7641.
No. CIV.A. 2:04CV7642.
No. CIV.A. 2:04CV7643.
No. CIV.A. 2:04CV7644.
No. CIV.A. 2:04CV7645.
No. CIV.A. 2:04CV7646.
No. CIV.A. 2:04CV7647.
No. CIV.A. 2:04CV7648.
No. CIV.A. 2:04CV7649.
No. CIV.A. 2:04CV7650.
No. CIV.A. 2:04CV7651.
No. CIV.A. 2:04CV7653.
No. CIV.A. 2:04CV7654.
No. CIV.A. 2:04CV7655.
No. CIV.A. 2:04CV7656.
No. CIV.A. 2:04CV7657.
No. CIV.A. 2:04CV7658.
No. CIV.A. 2:04CV7659.
No. CIV.A. 2:04CV7660.
No. CIV.A. 2:04CV7661.
No. CIV.A. 2:04CV7662.
No. CIV.A. 2:04CV7663.
No. CIV.A. 2:04CV7664.
No. CIV.A. 2:04CV7665.
No. CIV.A. 2:04CV7666.
United States District Court, E.D. Virginia, Norfolk Division.
December 29, 2004.

Page 664

Paul A. Weykamp, Law Offices of Paul A. Weykamp, Baltimore, MD, for Robert L. Holmes, Plaintiff.

Maurice Francis Mullins, Spotts Fain PC, Richmond, VA, for Viacom, Inc. f/k/a CBS Corporation f/k/a Westinghouse Electric Corporation, Waco Insulation, Inc. n/k/a Waco, Inc., Garlock, Inc., General Electric Co., Metropolitan Life Insurance Co., Defendants.

ORDER

FRIEDMAN, District Judge.


Pending before the court is a motion to lift the stay and dismiss this case for lack of subject matter jurisdiction, filed by defendant Viacom, Inc., successor by merger to CBS Corporation, formerly known as Westinghouse Electric Corporation (hereafter referred to as "Westinghouse" or

Page 665

"the defendant"). The plaintiff has responded to the motion to dismiss and moves the court to allow this case to be referred to the Judicial Panel on Multidistrict Litigation, which has consolidated all asbestos personal injury actions in the Eastern District of Pennsylvania. The court has reviewed the materials submitted by the parties and, for the reasons set forth herein, GRANTS the defendant's motion to lift the stay of this matter, but DENIES the defendant's motion to dismiss.

I. Procedural History

On or about May 31, 2002, the plaintiff commenced this action against Westinghouse and other defendants by filing a Motion for Judgment in the Circuit Court for the City of Newport News, Virginia. Thereafter, the case was transferred to the Circuit Court for the City of Norfolk, Virginia. The defendant was served with process on February 6, 2003.

In his Motion for Judgment, the plaintiff alleges that he was exposed to asbestos and asbestos-containing products while employed as an insulator and a maintenance worker for the Norfolk Naval Shipyard from 1966 to 1967 and 1970 to 1973, and as a maintenance worker for Colonnas Shipyard from 1967 to 1969. The Motion for Judgment does not identify the products manufactured by the defendant to which the plaintiff claims exposure. On December 12, 2003, however, the plaintiff's counsel sent a letter to the defendant in which the plaintiff alleged exposure to turbines containing asbestos that were manufactured by the defendant and installed on United States Navy vessels. This letter alleged that the plaintiff was exposed to such turbines during his labor on the USS Iowa and the USS Coral Sea. The defendant has verified that both of these ships contained Westinghouse products, including turbines and related equipment.

After reviewing the December 12, 2003 letter, the defendant determined that this case was removable to federal court. On January 2, 2004, the defendant filed a Notice of Removal, premised on 28 U.S.C. § 1442(a)(1), which permits removal of civil actions instituted against an officer or agency of the United States, or an individual acting under the authority of such officer. 28 U.S.C. § 1442(a)(1). The Notice was actually received by the Clerk's Office on December 29, 2003; however, it was not filed until January 2, 2004. Along with the Notice of Removal, the defendant filed a Notice of Tag-Along Action, notifying the court that this case may be subject to transfer to the Eastern District of Pennsylvania for consolidated pre-trial proceedings pursuant to 28 U.S.C. § 1407.

Prior to removal, while the plaintiff's case was still pending in the Circuit Court for the City of Norfolk, the plaintiff agreed to dismiss his case against defendant Dana Corporation. Apparently an order to this effect was drafted and submitted to the Circuit Court, which entered it on December 31, 2003. Due to an error in drafting, however, the Circuit Court's order dismissed the case against all of the defendants, in its entirety, with prejudice. Neither the defendant nor the plaintiff learned of the state court dismissal of this action until after the defendant filed its Notice of Removal.

As a result of this unexpected occurrence, the defendant, on March 3, 2004, filed a motion to stay the proceedings in this court. In this motion, the defendant maintained that neither the plaintiff nor the defendant learned of the error in the dismissal order until more than twenty-one days after it was entered by the Circuit Court. Accordingly, the plaintiff could not have relied on the Circuit Court's authority under Rule 1:1 of the Rules of the Supreme Court of Virginia to modify or vacate the dismissal order. In the motion to stay, the defendant further acknowledged that it understood that the dismissal order was not intended to dismiss all parties and terminate the case. The defendant revealed that the plaintiff had filed a Notice of Appeal of the dismissal order in the state court and expressed its belief that the plaintiff's appeal might be granted. The defendant requested that the federal

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court proceedings be stayed so that in the event the state court dismissal was overturned, the defendant's ability to remove the reinstated case would be preserved. As the plaintiff expressly consented to a stay, the court entered an order on March 9, 2004 staying all proceedings pending the outcome of the plaintiff's appeal.

The defendant filed its motion to lift the stay and dismiss this case on September 23, 2004. In this motion, the defendant claims that the plaintiff failed to perfect an appeal before the state court. Consequently, the Supreme Court of Virginia never considered the December 31, 2003 dismissal order. The defendant contends that the plaintiff's right to appeal the December 31, 2003 order has lapsed, making that order final. As a result, the defendant maintains that this court lacks jurisdiction over a case that has been dismissed in the state court prior to removal.

The plaintiff, in his responsive motion to refer this case to the Judicial Panel on Multidistrict Litigation and in opposing the defendant's motion to dismiss, maintains that after learning of the December 31, 2003 dismissal order, he noticed an appeal in the Circuit Court for the City of Norfolk, Virginia on January 30, 2004. The plaintiff maintains that because Virginia state courts have jurisdiction to receive and docket appeals up to thirty (30) days following an order of dismissal or judgment, an existing case and controversy remained at the time of removal. The plaintiff suggests that this court should exercise appellate jurisdiction over this case and that further proceedings be held on the issue of the error in the order of dismissal entered by the Circuit Court.

II. Discussion

The motions before the court present the somewhat novel question of the viability of a removed case, after judgment has been entered in state court, when the parties do not dispute that the state court judgment was in error and did not express the intent of the parties. Although it was the defendant that sought removal, the defendant now argues that removal was ineffective because there was no case or controversy to remove subsequent to the Circuit Court's dismissal order. The defendant also claims that, under the Rooker-Feldman doctrine, this court lacks jurisdiction to engage in appellate review of a state court decision.

The plaintiff maintains that he is not seeking appellate review of a state court decision. Rather, the plaintiff contends that the parties to this case agree that an error was made in the dismissal order entered by the Circuit Court on December 31, 2003. The plaintiff concludes that there is no decision of the state court for this court to review and that the issue before the court is simply one of whether subject matter jurisdiction over this case exists.

At the outset, the court observes that even if subject matter jurisdiction is lacking, outright dismissal of this case is not the proper recourse. The statute governing removal procedure explicitly provides that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). As such, even assuming the court lacks subject matter jurisdiction, the necessary resolution is to return this matter to the state court. See id.

The court finds, however, that remand for lack of subject matter jurisdiction is not required in this case. Notwithstanding the defendant's arguments that no case or controversy existed at the time of removal and that this court lacks jurisdiction to review a final state court judgment, the court finds that there did exist an active case to remove and that this court may

Page 667

exercise its jurisdiction and authority to correct the error made in the Circuit Court dismissal order of December 31, 2003. Furthermore, even if the order of dismissal was not subject to modification by the Circuit Court at the time of removal, the court is not convinced that removal of a closed case, only...

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27 practice notes
  • Miami Herald Media Co. v. Fla. Dep't of Transp., 4:18cv392–WS/CAS
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • October 5, 2018
    ...the ordinary rules regarding post-judgment remedies (internal quotation marks and alteration omitted) ); Holmes v. AC & S, Inc. , 388 F.Supp.2d 663, 673 (E.D. Va. 2004) (concluding that § 1442"may be used to remove a case after judgment has been entered in the state court ... and does not p......
  • Jontra Holdings Pty Ltd. v. Gas Sensing Tech. Corp., S-20-0072
    • United States
    • United States State Supreme Court of Wyoming
    • January 29, 2021
    ...further process must issue from the Federal court." Allman v. Hanley, 302 F.2d 559, 562 (5th Cir. 1962); see Holmes v. AC & S, Inc., 388 F.Supp.2d 663, 667 (E.D.Va. 2004); Laguna Village, 197 Cal.Rptr. 99, 672 P.2d at 885.Hess, 982 A.2d at 393; see also Banks, 757 N.E.2d at 778 ("There have......
  • Jontra Holdings Pty LTD v. Gas Sensing Tech. Corp., S-20-0072, S-20-0073
    • United States
    • United States State Supreme Court of Wyoming
    • January 29, 2021
    ...further process must issue from the Federal court." Allman v. Hanley , 302 F.2d 559, 562 (5th Cir. 1962) ; see Holmes v. AC & S, Inc. , 388 F.Supp.2d 663, 667 (E.D.Va. 2004) ; Laguna Village , 197 Cal.Rptr. 99, 672 P.2d at 885.Hess , 982 A.2d at 393 ; see also Banks , 757 N.E.2d at 778 ("Th......
  • Geyer v. U.S. Van Lines, Civil Action No. 2:12-04678
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • January 4, 2013
    ...must address any pending state-court motions filed during the intervening period of joint jurisdiction, see Holmes v. AC & S, Inc., 388 F. Supp. 2d 663, 667 (E.D. Va. 2004) (citing Burroughs v. Palumbo, 871 F. Supp. 870, 872 (E.D. Va. 1994)) ("Once the notice of removal has been effectively......
  • Request a trial to view additional results
27 cases
  • Miami Herald Media Co. v. Fla. Dep't of Transp., 4:18cv392–WS/CAS
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • October 5, 2018
    ...the ordinary rules regarding post-judgment remedies (internal quotation marks and alteration omitted) ); Holmes v. AC & S, Inc. , 388 F.Supp.2d 663, 673 (E.D. Va. 2004) (concluding that § 1442"may be used to remove a case after judgment has been entered in the state court ... and does not p......
  • Jontra Holdings Pty Ltd. v. Gas Sensing Tech. Corp., S-20-0072
    • United States
    • United States State Supreme Court of Wyoming
    • January 29, 2021
    ...further process must issue from the Federal court." Allman v. Hanley, 302 F.2d 559, 562 (5th Cir. 1962); see Holmes v. AC & S, Inc., 388 F.Supp.2d 663, 667 (E.D.Va. 2004); Laguna Village, 197 Cal.Rptr. 99, 672 P.2d at 885.Hess, 982 A.2d at 393; see also Banks, 757 N.E.2d at 778 ("There have......
  • Jontra Holdings Pty LTD v. Gas Sensing Tech. Corp., S-20-0072, S-20-0073
    • United States
    • United States State Supreme Court of Wyoming
    • January 29, 2021
    ...further process must issue from the Federal court." Allman v. Hanley , 302 F.2d 559, 562 (5th Cir. 1962) ; see Holmes v. AC & S, Inc. , 388 F.Supp.2d 663, 667 (E.D.Va. 2004) ; Laguna Village , 197 Cal.Rptr. 99, 672 P.2d at 885.Hess , 982 A.2d at 393 ; see also Banks , 757 N.E.2d at 778 ("Th......
  • Geyer v. U.S. Van Lines, Civil Action No. 2:12-04678
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • January 4, 2013
    ...must address any pending state-court motions filed during the intervening period of joint jurisdiction, see Holmes v. AC & S, Inc., 388 F. Supp. 2d 663, 667 (E.D. Va. 2004) (citing Burroughs v. Palumbo, 871 F. Supp. 870, 872 (E.D. Va. 1994)) ("Once the notice of removal has been effectively......
  • Request a trial to view additional results

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