IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
March 27, 2008
BABCOCK & WILCOX POWER GENERATION GROUP, INC. PLAINTIFF,
ATLANTIC RICHFIELD COMPANY, DEFENDANTS.
The opinion of the court was delivered by: Ambrose, District Judge.
MEMORANDUM AND ORDER OF COURT
Plaintiff, Babcock & Wilcox Power Generation Group, Inc., ("B&W"), filed a Complaint against Defendant, Atlantic Richfield Company ("ARCO"), in the Court of Common Pleas of Allegheny County on December 6, 2007 at docket number 07-024151. See, Docket No. 1-3. Therein, B&W seeks a declaratory judgment regarding indemnity under the Acquisition and Indemnity Agreement ("the Agreement") and also asserts a breach of contract claim. Id. On December 28, 2007, ARCO filed a Notice of Removal. (Docket No. 1). B&W has filed a Motion to Remand and Motion to Dismiss Counterclaims for Lack of Federal Question / Subject Matter Jurisdiction (Docket Nos. 10 and 12). ARCO has responded thereto. (Docket Nos. 20 and 21). The Hall Plaintiffs were also granted leave to file a Brief in Opposition to the Motion to Remand. See, Docket No. 16. B&W filed a Reply Brief. (Docket No. 25). After careful consideration of the issues and based on my opinion as set forth below, said Motions (Docket Nos. 10 and 12) are denied.
I. LEGAL ANALYSIS
A. Motion for Remand (Docket No. 10)
B&W has filed a Motion for Remand pursuant to 28 U.S.C. §1447(c).*fn1 (Docket No. 10). The general principles of law that govern a motion for remand are well settled. A defendant may remove a civil action filed in state court to the federal district court when the federal district court could have had original jurisdiction over the dispute. 28 U.S.C. §1441. The federal question must appear on "the face of the complaint, unaided by the answer or petition for removal." See, Gully v. First Nat'l Bank, 299 U.S. 109, 113 (1936). The federal district court may remand the case back to state court, however, if there has been a procedural defect in the removal or if the court lacks subject matter jurisdiction. 28 U.S.C. §1447. "[T]he removal statute should be strictly construed, and all doubts should be resolved in favor of remand." Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985). The removing defendant bears the burden of proving that removal was proper. Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085 (1991).
B&W's main argument is that removal was improper because the Complaint does not assert an action under the Price-Anderson Act, 42 U.S.C.A. §2210, et seq.*fn2 (Docket Nos. 11 and 25).
The Complaint alleges the nature of the action to arise out of ARCO's failure and refusal to indemnify B&W for any and all liability that B&W incurs as a result of Facility Claims.*fn3 (Docket No. 1-3, ¶1). Simply put, I am not persuaded by B&W's argument. Rather, I find that Plaintiff's Complaint is governed by the Price-Anderson Act.
There is not disagreement that the Price-Anderson Act vests federal courts with original jurisdiction "[w]ith respect to any public liability action*fn4 arising out of or resulting from a nuclear incident."*fn5 42 U.S.C. §2210(n)(2).*fn6 "Public liability" is defined to mean:
any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation (including all reasonable additional costs incurred by a State, or a political subdivision of a State, in the course of responding to a nuclear incident or a precautionary evacuation), except: (i) claims under State or Federal workmen's compensation acts of employees of persons indemnified who are employed at the site of and in connection with the activity where the nuclear incident occurs; (ii) claims arising out of an act of war; and (iii) whenever used in subsections (a), (c), and (k) of section 2210 of this title, claims for loss of, or damage to, or loss of use of property which is located at the site of and used in connection with the licensed activity where the nuclear incident occurs. "Public liability" also includes damage to property of persons indemnified: Provided, That such property is covered under the terms of the financial protection required, except property which is located at the site of and used in connection with the activity where the nuclear incident occurs. 42 U.S.C.A. §2014(w). "The central focus of the Price-Anderson Act is its comprehensive scheme for insuring and indemnifying nuclear power plant licensees and contractors, and for limiting and apportioning liability arising out of nuclear incidents." TMI Litigation Cases Consol. II v. B&W, et al., 940 F.2d 832, 872 (3d Cir. 1991) (concurring op.). To that end, "[p]ublic liability actions include virtually all claims based upon any legal liability arising out of a nuclear incident. Conceivably, some actions might not sound in tort at all, and others could implicate areas of activity not explicitly governed by federal standards." Id. at 869-70 (concurring op.). In other words, "[u]nder the terms of the Amendments Act, the 'public liability action' encompasses 'any legal liability' of any 'person who may be liable' on account of a nuclear incident." Id. at 854 (emphasis in original).
Based on the breadth of this definition, I find that this action seeks to determine the legal liability of the parties arising out of a nuclear incident and relates to a public liability arising out of or from a nuclear incident. Consequently, I find I have jurisdiction over the within matter and the case was properly removed. 42 U.S.C. §2210(n)(2). Therefore, Plaintiff's Motion for Remand (Docket No. 10) is denied.
B. Motion to Dismiss (Docket No. 12)
B&W's Motion to Dismiss the Counterclaims is based on lack of federal question and/or subject matter jurisdiction. (Docket Nos. 12 and 13). Basically, B&W argues, as it did in its Motion for Remand, that because the Price-Anderson Act does not apply, no federal law is implicated. Id. As I have found above, the Price-Anderson Act is implicated. Therefore, B&W's Motion to Dismiss (Docket No. 10) is denied.
ORDER OF COURT
AND NOW, this 27th day of March, 2008, upon consideration of B&W's Motion to Remand (Docket No. 10) and B&W's Motion to Dismiss (Docket No. 12), it is ordered that said Motions are denied.
A conference is set for April 8, 2008 at 10:30 a.m.
Donetta W. Ambrose, Chief U.S. District Judge