In re Bridgestone/Firestone Tires Products Liab.

• Decision Date: 12 June 2002
• Docket Number: Nos. IP 00-9373-C-B/S, IP 01-5446-C-B/S, IP 01-5447-C-B/S.,s. IP 00-9373-C-B/S, IP 01-5446-C-B/S, IP 01-5447-C-B/S.
• Parties: In re BRIDGESTONE/FIRESTONE, INC. TIRES PRODUCTS LIABILITY LITIGATION. Wendella Nisbett, individually, and as Personal Representative of the Estate of David Keith Nisbett, II, Plaintiffs, v. Bridgestone Corp., a Japanese corporation; Bridgestone/Firestone, Inc., an Ohio corporation; Ford Motor Company, a Delaware corporation; and Jarrett-Bodiford Ford, Inc., a Florida corporation, Defendants. Robertina Rodriguez, as Personal Representative of the Estate of Jose M. Villagomez, Individually, and as Mother and Natural Guardian of Alejandro Villagomez and Jose J. Villagomez, Her Minor Children, Plaintiffs, v. Bridgestone Corp., a Japanese corporation; Bridgestone/Firestone, Inc., an Ohio corporation; Ford Motor Co., a Delaware corporation; Family Ford, Inc., a Florida corporation, and Morgan Tire & Auto, Inc., a Florida corporation, Defendants.
• Court: U.S. District Court — Southern District of Indiana

Page 1032

203 F.Supp.2d 1032

In re BRIDGESTONE/FIRESTONE, INC. TIRES PRODUCTS LIABILITY LITIGATION.

Wendella Nisbett, individually, and as Personal Representative of the Estate of David Keith Nisbett, II, Plaintiffs, v. Bridgestone Corp., a Japanese corporation; Bridgestone/Firestone, Inc., an Ohio corporation; Ford Motor Company, a Delaware corporation; and Jarrett-Bodiford Ford, Inc., a Florida corporation, Defendants.

Robertina Rodriguez, as Personal Representative of the Estate of Jose M. Villagomez, Individually, and as Mother and Natural Guardian of Alejandro Villagomez and Jose J. Villagomez, Her Minor Children, Plaintiffs, v. Bridgestone Corp., a Japanese corporation; Bridgestone/Firestone, Inc., an Ohio corporation; Ford Motor Co., a Delaware corporation; Family Ford, Inc., a Florida corporation, and Morgan Tire & Auto, Inc., a Florida corporation, Defendants.

Nos. IP 00-9373-C-B/S, IP 01-5446-C-B/S, IP 01-5447-C-B/S.

United States District Court, S.D. Indiana, Indianapolis Division.

June 12, 2002.

Don Barrett, Barrett Law Office Pa, Lexington, MS, Victor Manuel Diaz Jr, Podhurst Orseck Josefsberg & Eaton, Miami, FL, Mike Eidson, Colson Hicks Eidson, Coral Gables, FL, Irwin B. Levin, Cohen & Malad, Indianapolis, IN, William E. Winingham, Wilson Kehoe & Winingham, Indianapolis, IN, for Plaintiffs.

John H. Beisner, O'Melveny & Myers LLP, Washington, DC, Daniel P. Byron, Bingham McHale, LLP, Indianapolis, IN, Mark Herrmann, Jones Day Reavis & Pogue, Cleveland, OH, Thomas S. Kilbane, Squire Sanders & Dempsey LLP, Cleveland, OH, Mark Merkle, Krieg Devault LLP, Indianapolis, IN, Randall Riggs, Locke Reynolds LLP, Indianapolis, IN, Colin P. Smith, Holland & Knight LLP, Chicago, IL, Thomas G Stayton, Baker & Daniels, Indianapolis, IN, for Defendants.

ORDER GRANTING MOTIONS FOR REMAND AND AWARDING COSTS

BARKER, District Judge.

On June 29, 2001, two Plaintiffs filed personal injury and wrongful death suits against Defendants for injuries suffered as the result of unrelated rollover accidents involving Ford vehicles and Firestone tires. Defendants removed (or consented to removal of) the cases to federal court on August 1, 2001. Both Plaintiffs filed Motions to Remand. These cases were later transferred to our court for consolidated and coordinated proceedings pursuant to 28 U.S.C. § 1407 by order of the Judicial Panel on Multidistrict Litigation. For the reasons set forth below, Plaintiffs' motions are GRANTED, and the cases are REMANDED to the circuit courts in the state of Florida from which they were removed.

Factual and Procedural Background

Rodriguez Case

The Complaint alleges that, on May 14, 2000, in Monterrey, Mexico, Plaintiff Robertina Rodriguez and her husband, Jose M. Villagomez, were passengers in their Mercury Mountaineer. Mr. Villagomez's brother, Jesus Villagomez Baca, was driving the vehicle. Other passengers included Imelda Baca, the Plaintiff's mother-in-law, Jesus Jurado, her husband's cousin, and Jose J. and Alejandro Villagomez, Ms. Rodriguez's minor sons. An AT steel-belted radial tire on the vehicle experienced a belt separation causing the vehicle to roll-over. Mr. Villagomez was killed. Ms. Rodriguez and her two children suffered severe permanent injuries.

Ms. Rodriguez on behalf of herself, as guardian of her two sons, and as representative of her husband's estate, filed suit in the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida against Bridgestone Corp. ("Bridgestone"), Bridgestone/Firestone, Inc. ("Firestone"), Ford Motor Co. ("Ford"), and Family Ford, Inc. ("Family Ford"), the local dealer who sold the Mercury Mountaineer to her and her husband. She also sues Morgan Tire & Auto, Inc. ("Morgan Tire") alleging that the tire distributor had inspected the subject tire about three weeks prior to the accident and did not recommend its replacement. The Complaint contains a number of counts including negligence causes of action against Firestone, Bridgestone, Ford, and Morgan Tire and strict liability claims against Firestone, Ford and Family Ford.

Most important for our purposes, Ms. Rodriguez sues Ford and Firestone for violations of the Florida Civil Remedies for Criminal Practices Act, Fla. Stat. § 772.101, et seq. (hereinafter "state civil RICO"). In its argument that there is federal question jurisdiction, Defendant Ford claims that "Plaintiffs' state law Civil RICO count is expressly predicated upon a substantial, disputed question of federal law — that is, whether Defendants Ford and Firestone had or have a duty to provide notice of defects in their respective products or should have recalled their products under the provisions of the National Traffic and Motor Vehicle Safety Act ("Safety Act"), 49 U.S.C. § 30101, et seq." Notice of Removal ¶ 4.¹

Nisbett Case

The Complaint alleges that, on June 9, 2000, David Keith Nisbett, II, son of Plaintiff Wendella Nisbett, was a passenger in a Ford Explorer equipped with Firestone tires traveling in Sarasota County, Florida. Christopher John Tankson, son of the owners of the vehicle, John and Annie L. Tankson, was driving the vehicle. Orlando Archibald, Paul Tessier, and Shelton Minto were also passengers in the Explorer. One of the tires experienced a belt separation and the vehicle rolled over. David Keith Nisbett, II died as a result of the accident.² Shelton Minto, the plaintiff in a related case before us that has settled, Minto v. Bridgestone/Firestone, Inc., IP 01-C-5329-B/S, was injured severely in this accident. Minto Complaint ¶ 14.

Ms. Nisbett filed suit as representative of her son's estate in the Circuit Court of the Sixth Judicial District in and for Pinellas County, Florida against Bridgestone, Firestone, Ford, and Jarrett Bodiford Ford, Inc. ("Jarrett-Bodiford"), the local dealer who sold the vehicle to the Tansksons. The allegations in the Nisbett Complaint are nearly identical to those brought by Ms. Rodriguez; however, no negligence allegations are brought against a tire dealership in the Nisbett case.

Legal Analysis

No Removal on Basis of Federal Question Jurisdiction

In both cases, Ford's³ removal is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331. When the basis of removal is federal question jurisdiction, the plaintiff's cause of action must "aris[e] under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Our task is to discern the parameters of "arising under" jurisdiction and to apply those limits to the procedural facts at hand. The most common definition states that "[a] suit arises under the law that creates the cause of action." Franchise Tax Board of the State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 8-9, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (quoting American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 60 L.Ed. 987 (1916)(Holmes, J.)). Defendant Ford does not and cannot argue that Plaintiffs are suing for relief under a federal cause of action. However, this point does not end the inquiry.

A claim also "`arises under' federal law "if in order for the plaintiff to secure the relief sought he will be obliged to establish both the correctness and the applicability to his case of a proposition of federal law."" Franchise Tax Board, 463 U.S. at 9, 103 S.Ct. 2841. As noted earlier, Ford contends that if Plaintiffs are to succeed in their state civil RICO claims, they must establish that the Safety Act required Ford and Firestone to provide notice of the alleged defects in their products or to recall the products and that Defendants failed to take these actions. Notices of Removal ¶ 4. In support of this argument, Ford points to the various references to the Safety Act and federal entities included in the complaints. Looking at the "plaintiffs['] statement of [their] own claims in the bill or declaration," as we must under the "well-pleaded complaint" rule, Franchise Tax Board, 463 U.S. at 10, 103 S.Ct. 2841, we find that Plaintiffs do indeed refer to federal standards in their allegations covering the elements of Florida civil RICO claims. For instance, in their allegations of relatedness and continuity,⁴ Rodriguez and Nisbett allege that Firestone "has likewise failed to give notice of the defects in its product to the Secretary of Transportation or to recall the defective tires ..., notwithstanding a clear statutory duty to do so." Rodriguez Complaint ¶ 145; Nisbett Complaint ¶ 140 (emphasis added). Similarly, in their allegations that Ford and Firestone were culpably negligent by failing to protect the public from the products they knew were dangerous, Plaintiffs state that even after Defendants became aware of numerous deaths in the Middle East and South America associated with the vehicles and tires, "[b]oth Ford and Firestone made a conscious and concerted decision not to notify [NHTSA] or U.S. consumers of the tire and vehicle problems ... or of the tire replacement programs in those [regions]." Rodriguez Complaint ¶ 125; Nisbett Complaint ¶ 120. Finally, the complaints cite two provisions of the Safety Act in their recitations of the "relevant statutory provisions." Rodriguez Complaint ¶¶ 60-61; Nisbett Complaint ¶¶ 55-56.

A rule providing that mere mention of a federal statute in a complaint based on a state cause of action confers federal question jurisdiction would be a simple rule to apply, but it is not the law and cannot aid Ford's removal effort. Mullins v. Lobdell Emery, Inc., 2002 WL 459040, at *3 (S.D.Ind.2002) ("But the mere mention of a federal statute as the standard against which [defendant] took some action is not enough to invoke federal jurisdiction."). Instead, as Ford acknowledges, when the claim is one of state law, "federal jurisdiction is unavailable unless it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state law claims." Franchise...