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Lola Bouchard, et al v. Cbs Corporation

April 17, 2012

LOLA BOUCHARD, ET AL.,
PLAINTIFFS,
v.
CBS CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

CONSOLIDATED UNDER

Transferred from the Western District of Washington (Case No. 11-00458)

MEMORANDUM

Before the Court are Plaintiffs' Motion to Expedite Remand and Motion for Remand, wherein Plaintiffs assert first that this Court lacks jurisdiction over this matter and second that Defendant Lockheed Shipbuilding Corporation's removal under the federal officer removal statute was untimely and improper. For the following reasons, the Court finds that it does have jurisdiction over this matter and that Defendant's removal was both timely and proper.

I.FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Lola and Michael Bouchard filed this lawsuit on September 13, 2010, in King County Superior Court in the State of Washington, alleging that the Defendants, including Lockheed Shipbuilding Company, are liable for Mrs. Bouchard's alleged asbestos-related injuries that she suffered as a result of her former husband's exposure to asbestos products at work. The case was removed to the Western District of Washington by Defendant General Electric Company, but then remanded after Plaintiffs settled with General Electric Company.

On March 16, 2011, Defendant Lockheed Shipbuilding Company filed its notice of removal in the Western District of Washington, based on deposition testimony of Plaintiffs' witnesses, which would support removal under federal officer jurisdiction. On March 24, 2011, Plaintiffs filed a motion to remand the case to King County Superior Court.

On May 20, 2011, the United States Judicial Panel on Multidistrict Litigation (the "Panel") signed a Transfer Order transferring this case to the Eastern District of Pennsylvania. Transfer Order 2, Pls.' Mot. for Remand & Mot. to Expedite Ex. C, ECF No. 4 [hereinafter Pls.' Mot for Remand I]. The Panel's Transfer Order was filed with the transferee court, the Eastern District of Pennsylvania, under its MDL 875 Docket on May 23, 2011. See MDL Transfer Order, No. 01-md-00875-ER (E.D. Pa. May 23, 2011), ECF No. 7889.

On May 23, 2011, the Honorable Richard A. Jones of the U.S. District Court for the Western District of Washington signed an order granting Plaintiffs' Motion to Remand, which remanded the matter to the King County Superior Court. Remand Order, Pls.' Mot. for Remand I Ex. D. However, Judge Jones' order was only filed on May 24, 2011. ECF Notification of Judge Jones' Order, Def.'s Opp'n to Pls.' Mot. to Remand 4 Ex. 4, ECF No. 5 [hereinafter Def.'s Opp'n I].

On May 26, 2011, Plaintiffs filed in this Court a motion to expedite remand and a motion for remand pursuant to Judge Jones' Order remanding the case to state court. Pls.' Mot. for Remand I. Plaintiffs contend that this Court lacks jurisdiction over this matter because the transfer order was not effective until May 24, 2011, when this Court entered an order implementing the Panel's transfer order. See Transfer Order No. 1004, ECF No. 1.

As the parties have fully briefed the issues relevant to Plaintiffs' expedited motion to remand the case to the King County Superior Court based on Judge Jones' May 23, 2011 order as well as the motion for remand on substantive grounds, the motions are now ripe for disposition.

II.MOTION TO EXPEDITE REMAND

Plaintiffs seek an expedited ruling of remand to the King County Superior Court based on Judge Jones' order remanding the case to state court. Pls.' Mot. for Remand I 1. Plaintiffs argue that the Panel's May 20, 2011, Transfer Order was not filed with the transferee district court until May 24, 2011.

Pls.' Reply 2, ECF No. 7 (citing to Transfer Order No. 1004, ECF No. 1). As Judge Jones' order granting Plaintiffs' motion to remand was granted May 23, 2011, Plaintiffs argue that Judge Jones' order governs this case and thus the case should be remanded immediately to state court in accordance with Judge Jones' order. Id.

Defendants counter that the Panel's Transfer Order was filed with the transferee district court, the Eastern District of Pennsylvania, under its MDL 875 Docket on May 23, 2011.

Def.'s Opp'n I 3 (citing to MDL Transfer Order, No. 01-md-00875-ER (E.D. Pa. May 23, 2011), ECF No. 7889). This Court then assigned the case an individual case number and implemented the Panel's previously filed transfer order on May 24, 2011. See Transfer Order No. 1004, ECF No. 1. Defendants further argue that while Judge Jones signed the remand order on May 23, 2011, the order was only filed and entered at 2:34 p.m. on May 24, 2011. ECF Notification of Judge Jones' Order, Def.'s Opp'n I Ex. 4.

The issue is whether the Panel's transfer order was effective before Judge Jones issued his order remanding the case to state court. As the Panel recognized,*fn1 Congress answered this question in the Panel's governing statute, which clearly states that orders of transfer shall be effective the moment it is filed with the office of the clerk of the transferee district court.

Under the Panel's governing statute, "[o]rders of transfer and such other orders as the panel may make thereafter shall be filed in the office of the clerk of the transferee district court and shall be effective when thus filed." 28 U.S.C. § 1407(c)(ii); see also Panel Rule 2.1(d) ("An order to transfer or remand pursuant to 28 U.S.C. § 1407 shall be effective only upon its filing with the clerk of the transferee district court."). Once an order of transfer is entered the transferor court is deprived of jurisdiction until the case is returned to the transferor court. See, e.g., In re Upjohn Co. Antibiotic Cleocin Prods. Liab. Litig., 664 F.2d 114, 118 (6th Cir. 1981). As the transferor court cannot take further authoritative action in the case, any orders entered after the transfer order is filed in the transferee district are rendered moot. See Baycol Prods. Liab. Litig., 269 F. Supp. 1376, 1377 (J.P.M.L. 2003) (finding that where the filing, in the transferee district, of a Panel order preceded, by a day, the filing in the transferor district of an order remanding the action to state court, the remand order was "moot when entered," even though it had been signed the previous day). However, prior to the effective date of a transfer order, the pendency of a transfer order "does not affect or suspend orders and pretrial proceedings in any pending federal district court action and does not limit the pretrial jurisdiction of that court." Panel Rule 2.1(d).

The Judicial Panel on Multidistrict Litigation agreed with Defendants that Judge Jones' order was moot*fn2 when entered because the Panel's transfer order was filed in the transferee district the day before the Western District of Washington court issued its remand order.*fn3 Panel's Decision 1. This Court reaches the same conclusion. The mandate of section 1407(c)(ii) defines the date the transfer order was entered as May 23, 2011, or the date in which the office of the clerk of the Eastern District of Pennsylvania filed the order on the MDL 875 docket.*fn4 As Judge Jones' order was filed on May 24, 2011, the transferor court no longer had jurisdiction over the case and thus the remand order was moot when entered. Accordingly, this Court will deny Plaintiffs' motion to expedite remand because this Court obtained jurisdiction over this matter on May 23, 2011.

III.MOTION TO REMAND

Given that the Court finds it has jurisdiction to adjudicate Plaintiffs' Motion to Remand, the Court turns next to the procedural and substantive arguments contained in Plaintiffs' Motion to Remand.

In Plaintiffs' Motion to Expedite Remand, Plaintiffs incorporated by reference the briefings from both parties on the motion for remand, which they filed in the Western District of Washington.*fn5 Pls.' Mot. to Remand I 7. Plaintiffs proffer two grounds for remanding this case to King County Superior Court. First, Plaintiffs contend that Defendant Lockheed Shipbuilding's removal was untimely. According to Plaintiffs, Defendant should have removed this case within 30 days after receiving Plaintiffs' interrogatory response stating that Plaintiff Lola Bouchard's former husband worked on "ships" while employed by Defendant. Second, Plaintiffs argue that federal officer removal jurisdiction does not exist because Defendant never averred facts demonstrating that it is entitled to a defense based on derivative sovereign immunity nor did it establish a causal nexus ...

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