In re Methyl Tertiary Butyl Ether Prod. Liab. Lit., Master File No. 1:00-1898.

Citation510 F.Supp.2d 299
Decision Date17 September 2007
Docket NumberNo. M21-88.,Master File No. 1:00-1898.,MDL No. 1358 (SAS).,M21-88.
PartiesIn re METHYL TERTIARY BUTYL ETHER ("MTBE") PRODUCTS LIABILITY LITIGATION. This document relates to: v. County of Suffolk and Suffolk County Water Authority v. Amerada Hess Corp., et al., 04 Civ. 5424.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

Robin Greenwald, Robert Gordon, Esq., Weitz & Luxenberg, P.C., New York, NY, for Plaintiffs and Counsel for Suffolk County Plaintiffs.

Scott Summy, Carla Burke, Baron & Budd, P.C., Dallas, TX, Samuel Issacharoff, New York, NY, for Suffolk County Plaintiffs.

Peter John Sacripanti, James A. Pardo, Stephen J. Riccardulli, McDermott Will & Emery LLP, Sheila L. Birnbaum, Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, for Defendants and Counsel for Defendant ExxonMobil.

Nathan P. Eimer, Pamela R. Hanebutt, Lisa S. Meyer, Eimer Stahl Klevorn & Solberg LLP, Chicago, IL, Samuel J. Abate, Jr., Pepper Hamilton, LLP, New York, NY, for CITGO Petroleum Corporation, CITGO Refining and Chemicals Company, LP, and PDV Midwest Refining, LLC.


SCHEINDLIN, District Judge.

[B]ecause "law is an instrument of governance rather than a hymn to intellectual beauty, some consideration must be given to practicalities."1

Following the May 2007 decision of the United States Court of Appeals for the Second Circuit in People of the State of California v. Atlantic Richfield Company, et al. and The State of New Hampshire v. Amerada Hess Corporation, et al.,2 defendants in the above-captioned distinct but related action ("the Suffolk County action"), having removed this case to federal court in 2004, now move to remand the action to state court based on lack of federal jurisdiction. Plaintiffs oppose the motion. This Court has received extensive submissions on the issue and has heard argument by learned counsel. For the reasons fully discussed below, the motion to remand is DENIED.

A. Procedural Posture

"Tortured" is an understated description of the procedural history of this case. On May 6, 2002, the case was originally filed in the United States District Court for, the Eastern District of New York based on diversity and bankruptcy jurisdiction.3 Apparently, thinking better of their decision to proceed in federal court, the plaintiffs filed another action in the New York State Supreme Court for Suffolk County on October 9, 2002. On March 22, 2004, after defendants' time for removal had expired,4 one of the many defendants in the action, Lyondell Chemical Company, served a third-party complaint on Marathon Ashland Petroleum, LLC. Eight days later, on March 30, 2004, Marathon removed the case to the United States District Court for the Eastern District of New York.5 The removal was based solely on federal officer jurisdiction under 28 U.S.C. § 1442(a).

Promptly after this removal, plaintiffs moved to remand the action to state court. Defendants vigorously opposed that remand motion arguing that this Court had federal jurisdiction and that no abstention with respect to the state law claims was warranted. This Court agreed, and denied plaintiffs' 2004 motion to remand.6 The Suffolk County action was designated long ago as one of four focus actions.7 As a result, this Court has presided over this action and given it top priority within the MDL for more than three years. During that time, it has issued thirty-six substantive opinions and orders, comprising more than one thousand pages of text; has issued thirty Case Management Orders; and has held over thirty-five status conferences.8 Perhaps most importantly, a firm trial date, has been set for March 3, 2008.9

In October 2006, after receiving leave to amend, plaintiffs filed a Sixth Amended Complaint,10 adding a federal claim against some, but not all, of the defendants in this action, pursuant to the Toxic Substances Control Act ("TSCA").11 This Act provides that all claims under the Act must be brought in federal court.12 There is no question that this Court has jurisdiction to hear the TSCA claim.13

B. The Parties and the Complaint

The Suffolk County action includes two plaintiffs: the County of Suffolk ("the County") and the Suffolk County Water Authority ("SCWA").14 Plaintiffs' Sixth Amended Complaint, filed in October 2006, names fifty-three defendants and asserts these nine claims:

(a) violation of Section 8(e) of the Toxic Substances Control Act ("TSCA"), 15 U.S.C. § 2607(e); (b) public nuisance; (c) strict liability for design defect; (d) strict liability for failure to warn; (e) negligence; (f) private nuisance; (g) violation of New York's General Business Law; (h) violation of New York's Navigation Law; and (i) trespass.15 With the exception of the TSCA claim, each claim is asserted against each of the fifty-three named defendants.16

C. Multi-District Litigation Number 1358

In order to fully understand the complexity of this motion, the Suffolk County action must be viewed in the context of this multi-district litigation ("MDL") proceeding. The current iteration of this MDL began in 2004, with defendants' removal of a number of actions that had been filed in state courts. There are now well over one hundred actions assigned to this Court, each having been transferred here for consolidated pretrial proceedings from district courts in nineteen states. Every action in the MDL asserts claims arising from one or more defendants' production, distribution, handling, or sale of MTBE-containing gasoline that is alleged to have " contaminated plaintiffs' groundwater. Most of these actions were removed from state courts by defendants under some combination of: federal officer jurisdiction federal question jurisdiction based on federal preemption, the bankruptcy removal statute, and, most recently, the Energy Policy Act of 2005 ("EPA").17 In addition, approximately thirty-five cases in the MDL have been filed in federal courts, asserting federal jurisdiction based on diversity of citizenship, TSCA or the EPA.

On October 19, 2004, the Suffolk County action, along with four other actions was designated a focus action within the MDL. In late 2006, Suffolk County was selected to be the first of the focus cases to be scheduled for trial.18 As a result, it is now, and has been for some time, the most active case in the MDL and has demanded — and consumed — extensive judicial and party resources. For at least two years, the Court has held monthly status conferences, each lasting several hours, for which the parties prepare joint and separate agendas of issues arising in the MDL. Although the Suffolk County action is only one in over one hundred actions in the MDL, it is no exaggeration to say that the Suffolk County action consumes the majority of time at all of these conferences.

A. Statutory .Bases for Original Jurisdiction in Federal Court

A federal court may exercise jurisdiction only if Congress has passed a statute granting it such jurisdiction.19 Generally, Congress has granted original jurisdiction to district courts in two situations. First, 28 U.S.C. § 1331 ("section 1331") grants district courts original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States"20 so that plaintiffs might have a federal forum when they seek to vindicate a federal right.21 Section 1331 states: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."

Second, Congress has granted district courts original jurisdiction in "diversity" actions under 28 U.S.C. § 1332 ("section 1332"). Such actions involve state law claims but are also "civil actions between citizens of different States, between U.S. citizens and foreign citizens, or by foreign states against U.S. citizens.22 The purpose of this statute is to provide a neutral forum in "important disputes where state courts might favor, or be perceived as favoring, home-state litigants."23 Section 1332 states:

The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between — (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.

B. Statutory Bases for Removal and Remand

When a plaintiff files a complaint in state court that could have been filed originally in federal court, Congress allows the defendant or defendants to remove the action from state to federal court under 28 U.S.C. § 1441 ("section 1441") and 28 U.S.C. § 1446 ("section 1446"). Section 1441 sets forth the jurisdictional basis for removal, while section 1446 establishes the procedural requirements for removing the action to federal court. One such requirement is that all defendants must consent to a removal for it to be valid.24

The requirements for considering a motion to remand to state court are set forth in 28 U.S.C. § 1447 ("section 1447"). "A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)."25 However, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal."26

The reason for section 1447(c)'s short and strict deadline is obvious: the court and parties have a substantial interest in resolving which court will decide the action...

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