# Banks v. Cotter Corporation

> District Court, E.D. Missouri · December 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10234202

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** December 22, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TAMIA BANKS, et al., )
)
Plaintiffs, )
)
v. ) Case No. 4:20-CV-01227-JAR
)
COTTER CORPORATION (N.S.L.), et al., )
)
Defendants. )
)

)
COTTER CORPORATION (N.S.L.), )
)
Third-Party Plaintiff, )
)
V. )
)
MALLINCKRODT LLC, et al., )
)
Third-Party Defendants. )
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Sever and Remand All Non-Third-
Party Claims. (Doc. 47). Defendant and Third-Party Plaintiff Cotter Corporation (N.S.L.)
(“Cotter”) responded in opposition (Doc. 58),! and Plaintiffs have replied. (Doc. 66). Other
Defendants and Third-Party Defendants have joined Cotter’s opposition either in whole or in part.
(Docs. 56, 60, 61, 64-65). For the reasons discussed below, this Court will grant the instant motion

1 Cotter’s response states “ORAL ARGUMENT REQUESTED?” in the caption. (Doc. 58 at 1). Pursuant to E.D. Mo.
L.R. 4.02(B), a party requesting oral argument “shall file such request with its motion or memorandum briefly setting
forth the reasons which warrant the hearing of oral argument.” Cotter has not provided any explanation why oral
argument is necessary. Given the issues here have been extensively litigated, including before this Court, oral
argument is not warranted.

and sever and remand all claims except for Cotter’s claim for contribution against Defendant
Mallinckroft LLC (“Mallinckrodt”). .

I. FACTUAL AND PROCEDURAL HISTORY
It’s like déja vu all over again. On April 2, 2018, Plaintiff Tamia Banks filed an amended
class action petition in the Circuit Court of St. Louis County, Missouri. See Banks v. Cotter Corp.,
No. 4:18-CV-624 JAR, 2019 WL 1426259, at *1 (E.D. Mo. Mar. 29, 2019). The relevant
underlying facts, as previously described by this Court, are as follows:
From 1942 to 1957, uranium ore was processed in association with the Manhattan
Project to develop nuclear weapons in a facility in downtown St. Louis City known
as the St. Louis Downtown Site (“SLDS”). (First Amended Class Action Petition
(“FAP”)). In the late 1940's, the Manhattan Project acquired a tract of land near
Lambert Airport known as the St. Louis Airport Site (“SLAPS”) to store radioactive
waste from the uranium processing operations at SLDS. In 1957, “approximately
sixty truckloads of contaminated scrap metal, several contaminated vehicles, in
addition to miscellaneous radioactive wastes were buried on the western portion of
SLAPS adjacent to Coldwater Creek,” a tributary of the Missouri River which runs
throughout North St. Louis County. In the 1960's, some of the radioactive waste
that had been stored at SLAPS was moved to a storage site on Latty Avenue in
Hazelwood, Missouri (the “Latty Avenue Site”), a part of which later became the
Hazelwood Interim Storage Site (“HISS”’). In the late 1960's, Cotter purchased the
radioactive waste stored at both SLAPS and the Latty Avenue Site. Between 1969
and 1973, Cotter stored, processed and transported radioactive waste at the SLAPS
and Latty Avenue sites. In 1973, SLAPS was sold to the Airport Authority. The
Latty Avenue Site was sold to Futura Coatings, n/k/a DJR. Jd. (internal citations
omitted).
Banks asserted numerous state law claims, generally alleging that “as a result of Defendants’
collective conduct over several decades, radioactive wastes were released into the environment in
and around Coldwater Creek, resulting in contamination of her home and property, as well as the
property of other classes members.” Jd.
Defendants promptly removed the case to this Court claiming that the action arose out of
the Price-Anderson Act (“PAA”), thereby establishing federal jurisdiction. Jd. at *2. The PAA was

enacted as an amendment to the Atomic Energy Act of 1954 and sought to “encourage private
sector development of atomic seery” by, among other things, “channel[ing] public liability
resulting from nuclear incidents to the federal government.” Jd. (citing E] Paso Nat. Gas Co. v.
Neztsosie, 526 U.S. 473 (1999)). On March 29, 2019, this Court remanded on the grounds that “a
license or indemnity agreement is a prerequisite for federal subject matter jurisdiction pursuant to
the PAA.” Id. at *6; see also Kitchin v. Bridgeton Landfill, LLC, 389 F. Supp. 3d 600 (E.D. Mo.
2019), appeal filed (No. 19-2072); Strong v. Republic Servs., Inc., 283 F. Supp. 3d 759 (E.D. Mo.
2017).
Following remand, the case proceeded in state court and Plaintiffs filed a Second Amended
Class Action Petition (“SAP”). (Doc: 1-6). On June 30, 2020, Cotter filed a Third-Party Petition
seeking contribution from the Third-Party Defendants, including Mallinckrodt. (Doc. 1-7). Cotter
argues that any potential damages assessed against it “were caused, in whole or in part, by the
conduct, fault, acts, carelessness, omissions, and negligence of Mallinckrodt, thereby barring any
such recovery against Cotter.” (/d. at § 73). Mallinckrodt then filed a Notice of Removal claiming
this Court has jurisdiction pursuant to the PAA and because Mallinckrodt acted “under color of”
or at the direction of a federal officer per 28 U.S.C. § 1442. (Doc. 1). On October 12, 2020,
Mallinckrodt filed for bankruptcy, triggering an automatic stay in this case per 11 U.S.C. § 362.
(Doc. 46). Plaintiffs filed the instant motion the next day. (Doc. 47).
The automatic stay further complicates this already convoluted posture. According to 11
U.S.C. § 362(a)(1), Mallinckrodt’s voluntary bankruptcy petition stays “the commencement or
continuation . . . of a judicial, administrative, or other action or proceeding against the debtor that
was ... commenced before the commencement of the [bankruptcy petition].” The automatic stay
is “fundamental to the reorganization process, and its scope is intended to be broad.” Small Bus.

3

Admin. v. Rinehart, 887 F.2d 165, 167 (8th Cir. 1989). In accordance with the automatic stay,
Plaintiffs’ motion “does not seek any relief as to Mallinckrodt” but instead requests that this Court
sever and decline to exercise supplemental jurisdiction over Plaintiffs’ state law claims against
Defendants. (Doc. 46 at {§ 10-13).? For purposes of this motion, Plaintiffs effectively presume that
Mallinckrodt has properly invoked this Court’s jurisdiction via its Notice of Removal without
waiving their right to argue otherwise. (Doc. 48 at 2 n.1). Accordingly, a detailed inquiry into the
presence of federal jurisdiction over Mallinckrodt is unnecessary at this moment.? The key
question on this motion is whether, assuming such jurisdiction exists, this Court should decline to
exercise supplemental jurisdiction over Plaintiffs’ state law claims.

II. DISCUSSION
A. Existence of Supplemental Jurisdiction
“[I|n any civil action of which the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other claims that are so related to claims in the
action within such original jurisdiction that they form part of the same case or controversy under

2 The Court notes that there is substantial precedent supporting the position that remand is permissible even when an
automatic stay under 11 U.S.C. § 362 is in place. See Price v. Chrysler LLC, No. 4:09-CV-232 ERW, 2009 WL
2208298, at *1 (E.D. Mo. July 23, 2009) (“The Court’s decision to remand this action to state court is essentially a
lateral move to address a procedural issue, and it does not continue the case in any significant manner. Such a motion
in no way affects the rights and duties of either the Defendant as a debtor, or the Plaintiff as a potential creditor.”); see
also Dieterly v. Boy Scouts of Am., No. 20-902, 2020 WL 3447766, at *2 (E.D. Pa. June 24, 2020) (collecting cases).
But see Liljeberg Enters. Int’l v. Vista Hosp. of Baton Rouge, Inc., No. 04-2780, at *1-2 (E.D. La. Nov. 24, 2004)
(“[R]emand of a case is not a mere ‘ministerial’ act that would not violate the automatic stay.”).
Plaintiffs, however, seek no relief as to Mallinckrodt in the instant motion and instead request severance and remand.
Mallinckrodt has acknowledged that Plaintiffs’ motion does not seek any relief as to Mallinckrodt and “notes that it
is subject to the Automatic Stay.” (Doc. 57 at 2). Accordingly, it is not appropriate at this time to assess whether
remand of the Third-Party Petition against Mallinckrodt is merited, regardless whether such a remand would be
permissible under 11 U.S.C. § 362.
3 It is proper in these unique circumstances; for this Court to proceed without a detailed inquiry into the presence of
jurisdiction under 28 U.S.C. § 1442. This Memorandum and Order presumes such jurisdiction and assesses whether
the exercise of supplemental jurisdiction over the state law claims is appropriate. If this Court finds it lacks jurisdiction
after the automatic stay is lifted, the entire case would be remanded regardless.

Article III of the United States Constitution.” 28 U.S.C. § 1367(a). In other words, the claims must
“derive from a common nucleus of operative fact.” OnePoint Solutions, LLC v. Borchert, 486 F.3d
342, 350 (8th Cir. 2007) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)).
This Court can exercise supplemental jurisdiction over Plaintiffs’ state law claims because
the contribution claim against Mallinckrodt clearly stems from the same underlying facts.
Plaintiffs’ entire claim, as well as Cotter’s claim of contribution, stems from the processing and
transporting of hazardous materials in association with the Manhattan Project. See, e.g., Harbison
y. Rich Gullet and Sons, Inc., No. 4:13-CV-1138 SPM, 2014 WL 5483569, at *6 (E.D. Mo. Oct.
29, 2014) (claim for contribution / indemnity part of same case or controversy). The parties do not
dispute whether this Court can exercise supplemental jurisdiction over the state law claims, only
whether it should exercise such jurisdiction.

B. Exercise of Supplemental Jurisdiction
This Court may decline to exercise its supplemental jurisdiction over a claim if, among
other reasons not relevant here, “the claim substantially predominates over the claim or claims
over which the district court has original jurisdiction, or . . . in exceptional circumstances, there
are other compelling reasons for declining jurisdiction.” 28 U.S.C. § 1367(c)(2)-(4). If one of these
statutory factors is present, the Court must weigh the interests of judicial economy, convenience,
fairness, and comity to determine whether to exercise supplemental jurisdiction. Wilson v. Miller,
821 F.3d 963, 970 (8th Cir. 2016) (ating Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
(1988)). These are frequently referred to as the Gibbs factors. See Gibbs, 383 U.S. 715 (1966). The
Court must also consider whether either party has attempted to “manipulate the forum.” Cohill,
484 U.S. at 357. Ultimately, supplemental jurisdiction “is a doctrine of discretion.” City of Chicago
v. Int’l Coll. of Surgeons, 522 U.S.'156, 172 (1997) (quoting Gibbs, 383 U.S. at 726). District

courts have “broad discretion” when determining whether to exercise supplemental jurisdiction.
Green v. Ameritrade, Inc., 279 F.3d 590, 599 (8th Cir. 2002).
It is evident that Plaintiffs’ state law claims substantially predominate over Mallinckrodt’s
PAA and federal contractor defenses, and Cotter does not argue otherwise. As Plaintiffs note, the
SAP asserts 11 claims against Defendants, all of which are premised on Missouri law. (Doc. 48 at
3; Doc. 1-6). This Court has already held that Plaintiffs’ claims alone do not establish federal
jurisdiction. Banks v. Cotter Corp., No. 4:18-CV-624 JAR, 2019 WL 1426259 (E.D. Mo. Mar. 29,
2019). It is only Cotter’s claim for contribution against Mallinckrodt, a Third-Party Defendant,
that potentially provides federal jurisdiction via Mallinckrodt’s alleged federal defense. Therefore,
pursuant to 28 U.S.C. § 1367(c)(2), a careful analysis of the Gibbs factors is warranted.

Judicial Economy and Convenience of the Parties
This Court does not believe that there are substantial issues of judicial economy at stake,
though such considerations somewhat favor remand. “It is the law in this circuit that ‘the
substantial investment of judicial time and resources in the case . . justifies the exercise of
jurisdiction over the state claim.” Pioneer Hi-Bred Int’l v. Holden Foundation Seeds, Inc., 35 F.3d
1226, 1242 (8th Cir. 1994) (quoting North Dakota v. Merchant Nat’l Bank & Trust Co., 634 F.2d
368, 371 (8th Cir. 1980) (en banc)). This Court has not devoted substantial resources to the case;
the Notice of Removal was only filed recently, and this Court has yet to rule on any substantive
motion. Meanwhile, substantial discovery has occurred in state court, and Judge Walsh has ruled
on Cotter’s motion to dismiss arguing PAA preemption. (Doc. 48 at 6).
Cotter presents the understandable concern that granting severance and remand will result
in this litigation proceeding in both state and federal court. (Doc. 58 at 10). The Court does not
agree, however, that this will require “re-litigating every step of this putative class action” on the

third-party claim against Mallinckrodt. (Id.). As the Missouri Supreme Court has explained, a
claim for contribution “is really an anticipatory claim; that is, the claim by a defendant who is held
liable to a plaintiff really is not ripe until the defendant has suffered a judgment.” Hemme v. Bharti,
183 S.W.3d 593, 598 (Mo. banc 2006). If Cotter is held liable to Plaintiffs, it can proceed on its
claim for contribution against Mallinckrodt; if Plaintiffs lose, Cotter’s claim against Mallinckrodt
will become moot.
Cotter cites Joyner v. A.C. & R. Insulation Co. for the proposition that a party should not
be required to conduct parallel fiero in state and federal court. No. CCB-12-2294, 2013 WL
877125, at *10 (D. Md. Mar. 7, 2013). But Cotter misinterprets Joyner. As later explained by the
same judge, the concern in Joyner was the “potential of bifurcating claims against one party
between state and federal courts.” Oliver v. Campbell McCormick, Inc., No. CCB-16-1057, 2016
WL 3878492, at *3 (D. Md. July 18, 2016) (emphasis added). Requiring a defendant to face similar
claims for the same conduct in both federal and state courts is a legitimate concern; but that is not
the situation here, where Cotter is a Third-Party Plaintiff in this Court seeking contribution against
Mallinckrodt. Oliver is particularly comparable here, as the court granted severance and remand
after finding that “the state law claims predominate over the federal contractor defense, the only
claim over which the court has original jurisdiction.” Jd.

Fairness and Comity
Plaintiffs argue that pimess and comity favor severance and remand because Cotter
delayed the naming of Mallinckrodt:as a Third-Party Defendant, Mallinckrodt’s bankruptcy will
substantially delay this litigation,* and Mallinckrodt’s federal defenses are essentially irrelevant to

4 The parties dispute whether Mallinckrodt’s bankruptcy constitutes an “exceptional circumstance” under 28 U.S.C. §
1367(c)(4). Because the Court has determined that an analysis of the Gibbs factors is necessary per 28 U.S.C. §

Plaintiffs’ claims. The Court agrees thet Mallinckrodt’s bankruptcy is a significant factor in favor
of severance and remand given Mallinckrodt’s role in this case. As discussed above,
Mallinckrodt’s relevance to this dispute is entirely contingent on a finding that Cotter is liable to
Plaintiffs. Severance and remand appropriately permits Plaintiffs’ state law claims to proceed
rather than be delayed by the bankruptcy of a potentially irrelevant Third-Party Defendant.
In Crocker v. Borden, Inc., the third-party defendant properly removed a state court action
pursuant to the federal contractor arlene located at 28 U.S.C. § 1442. 852 F. Supp. 1322 (E.D.
La. 1994). The court severed the claim against the third-party defendant and remanded the
remaining claims, specifically noting that “[nJone of the approximately 3,000 plaintiffs in the
‘captioned matter has sued [the third-party defendant] as a primary defendant.” Jd. at 1331. The
court further recognized that the third-party petitioner “will not be prejudiced by the severance .

. . aS it would retain the right to pursue its third-party claim, if any such claim still existed” after
disposition of the plaintiffs’ primary case. Jd. (emphasis in original).° In Crocker and this case,
“federal jurisdiction is [potentially] present for reasons wholly unrelated to the merits of any claim,
and vast majority of the claims are based on state law and between non-federal actors.” Brown v.
Kentucky Utils. Co., No. 3:15-CV-352 GNS, 2015 WL 6476096, at *2 (W.D. Ky. Oct. 26, 2015)
(citation omitted). Considerations of:comity strongly favor severance and remand.
Cotter’s primary argument is that severance and remand are “administratively impossible”
because Cotter’s potential liability under state law does not translate into liability for Mallinckrodt
under the PAA. (Doc. 58 at 12). But this Court has already determined that the PAA does not apply

1367(c)(2), it need not decide whether § 1367(c)(4) is also triggered. The effect of the bankruptcy stay can certainly
be considered among the Gibbs factors, however.
5 These quotes were technically provided’ by the third-party defendant, but the court specifically endorsed the
arguments as “ably described.” Crocker, 852 F. Supp. at 1331.

to Plaintiffs’ claims against Cotter. amt v. Cotter Corp., No. 4:18-CV-624 JAR, 2019 WL
1426259, at *5 (E.D. Mo. Mar. 29, 2019). This differentiates the case at hand from the ongoing
case of McGurk v. Mallinckrodt, Inc., No. 4:12-CV-00361 AGF (E.D. Mo.).° Throughout its
briefing, Cotter attempts to re-argue this Court’s prior decision and claim that circumstances have
changed due to Mallinckrodt’s presence in the case. (Doc. 58 at 16-18). Cotter cannot avoid
severance and remand on the grounds that this is truly a PAA action given this Court’s clear
holding that the PAA does not preempt Plaintiffs’ state law claims.

Manipulation of the Forum
Each party alleges that the other has manipulated the forum. Plaintiffs claim that
Defendants have manipulated the forum by naming Mallinckrodt as a Third-Party Defendant late
in the game in order to establish federal jurisdiction. (Doc. 48 at 12). Cotter alleges that Plaintiffs
have manipulated the forum by changing their position in a manner that should trigger jurisdiction
under the PAA. (Doc. 58 at 18). This court is not persuaded that either party has attempted to
manipulate the forum in any dispositive sense. Cotter is within its rights to seek contribution from
Mallinckrodt, and it is Mallinckrodt who removed this case to federal court. As discussed further
below, Cotter has failed to allege any changes in the record since the initial remand which suggest
manipulation by Plaintiffs.
This Court does consider the timing of Cotters’ Third-Party Petition relevant, however.
Cotter repeatedly alleges that Mallinckrodt is an indispensable party whose centrality to this
dispute is obvious, yet Mallinckrodt was not brought into the case for over two years. The Court

6 Cotter briefly states, without further explanation, that “this case should be consolidated with McClurg.” (Doc. 58 at
13). Cotter does not appear to have filed any motion pursuant to Fed. R. Civ. P. 42(a). The Court reminds Cotter that,
pursuant to E.D. Mo. L.R. 4.03, motions to consolidate should generally be filed in the first-filed case.

!
is influenced by the decision in City a St. Louis v. Cernicek, No. 4:00-CV-1895 (CEJ), 2001 WL
34134733 (E.D. Mo. Sept. 25, 2001). In Cernicek, the City of St. Louis sued various gun
manufacturers seeking damages for firearm-related violence. The district court remanded after an
initial removal premised on federal question jurisdiction. Certain defendants subsequently filed a
third-party complaint seeking contribution from foreign-owned entities. As here, the third-party
defendants removed to federal court.’ The district court struck the third-party complaint pursuant
to Fed. R. Civ. P. 14(a), noting that defendants had joined the foreign entities “nearly one year
after the case was initiated, and did so only after this Court remanded the case,” and plaintiff had
“been prejudiced by the timing of the third-party complaint.” Jd. at *4. Similarly, Plaintiffs are
prejudiced by Cotter’s delay in seeking contribution from Mallinckrodt.
Having carefully considered the Gibbs factors, this Court finds in its discretion that
severance and remand is warranted. Plaintiffs bring state-law claims against Defendants; the only
potential jurisdictional hook for this Court is a Third-Party Defendant’s federal defense, a defense
which is irrelevant if Plaintiffs cannot obtain judgment against Defendants. Given the proceedings
which have already occurred in state court, Mallinckrodt’s bankruptcy, and the nature of Cotter’s
claim against Mallinckrodt, considerations of judicial economy, fairness, convenience of the
parties, and comity favor severance and remand. This case presents a quintessential example of
when it is appropriate for a federal court to decline supplemental jurisdiction and permit a state
court to interpret its own laws as applied to its own citizens.

C. Severance and Joinder
The parties have not separately briefed the issue of severance, but it is worth some distinct
consideration. Fed. R. Civ. P. 21 generally authorizes severance of parties or claims “on such terms
as are just.” See also Fed. R. Civ. P. 14(a)(4) (“Any party may move to strike the third-party claim,

10

to sever it, or to try it separately.”). “Questions of severance are addressed to the broad discretion
of the court.” Chapman v. Hiland Partners GP Holdings, No. 1:13-CV-052, 2014 WL 12836626,
at *1 (D. N.D. Jan. 17, 2014) (citing 7 Wright, Miller & Kane, Federal Practice and Procedure §
1689 (3d ed. 2001)).
There is meaningful precedent for severing third-party claims seeking contribution. See
Oliver v. Campbell McCormick, Inc., No. CCB-16-1057, 2016 WL 3878492, at *3 (D. Md. July
18, 2016); Turner Const. Co. v. Brian Trematore Plumbing & Heating, Inc., No. 07-666 (WHW),
2009 WL 3233533 (D. N.J. Oct. 5, 2009) (citing Gaffney v. Riverboat Servs. of Indiana, Inc., 451
F.3d 424, 444 (7th Cir. 2006)) (“Claims for contribution and indemnification are severable from
the underlying primary liability claims.”). The Court is cognizant that it “may split claims arising
from the same nucleus of operative facts,” but “the Court should not split apart claims that are too
closely interconnected when remanding part of a case to state court.” Lawler v. Miratek Corp., No.
EP-09-CV-252-KC, 2010 WL 743925, at *7 (W.D. Tex. Mar. 2, 2010). As discussed above,
Mallinckrodt only becomes a relevant party if Plaintiffs are able to succeed in their claims against
Defendants. See Hemme v. Bharti, 183 S.W.3d 593, 598 (Mo. banc 2006) (“[Contribution] is really
an anticipatory claim; that is, the claim by a defendant who is held liable to a plaintiff really is not
ripe until the defendant has suffered a judgment.”). This Court finds that the third-party claim for
contribution against Mallinckrodt falls within a narrow band of claims that should be severed
despite arising from a common nucleus of operative facts as Plaintiffs’ state law claims.
Cotter argues, however, that this Court cannot sever the claims because Mallinckrodt is a
necessary party to the litigation under Fed. R. Civ. P. 19. (Doc. 58 at 7-10). Cotter claims that
Mallinckrodt has “an outsized role in the events” relevant to Plaintiffs’ claims. (/d. at 9). Plaintiffs
respond that Cotter has confused joinder with impleader, and Mallinckrodt was impleaded via Mo.

11

Sup. Ct. R. 52.11, not joined via Mo, Sup. Ct. R. 52.04. (Doc. 66 at 10). Plaintiffs argue in the
alternative that “[i]n no event is Mallinckrodt an essential party as contemplated by Fed. R. Civ.
P. 19.” (Id. at 11). At least one court in this circuit has held that the discretion to sever parties
pursuant to Rule 21 is “circumscribed . . . by Rule 19(b) because the court cannot proceed without
indispensable parties.” Moubry v. Kreb, 58 F. Supp. 2d 1041, 1048 (D. Minn. 1999). Whether a
party is indispensable, however, is a “matter left to the district court’s discretion.” Jd. (quoting
Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455, 1471 (10th Cir. 1987)).
Cotter cites multiple cases DUrpertine to hold that joint tortfeasors are necessary parties.
See, e.g., Two Shields v. Wilkinson, 790 F.3d 791 (8th Cir. 2015). But the court in Two Shields
recognized the general principle that “it is not necessary for all joint tortfeasors to be named as
defendants in a single lawsuit.” Jd. at 797 (quoting Temple v. Synthes Corp., 498 U.S. 5, 7 (1990)).
The Advisory Committee Notes to the 1966 Amendments to Rule 19 specifically acknowledge
“settled authorities holding that a tortfeasor with the usual ‘joint-and-several’ liability is merely a
permissive party to an action against another with like liability.”
For the same reasons severance is appropriate, this Court finds in its discretion that
Mallinckrodt is not an indispensable party. The Court notes that over two years passed before
Mallinckrodt was impleaded in state court and no Defendant appears to have filed a motion to
dismiss in state court alleging failure to include a necessary party. Such inaction is inconsistent
with Cotter’s argument here that the case simply cannot proceed without Mallinckrodt’s presence.

D. PAA
Cotter finally argues that, despite this Court’s previous remand, the PAA now provides for
federal jurisdiction over the entire action. (Doc. 58 at 15-20). First, Cotter claims that
Mallinckrodt’s presence as a Third-Party Defendant means there is an applicable license and

12

indemnity agreement. Cotter also cites Halbrook v. Mallinckrodt, LLC for the proposition that
Eighth Circuit precedent now confirms the application of the PAA to Plaintiffs’ claims. 888 F.3d
971 (8th Cir. 2018). This Court has already explained, however, that the posture of the McClurg
cases is fundamentally different because plaintiffs in McClurg brought their claims under the PAA
and there was no challenge to jurisdiction. Banks v. Cotter Corp., No. 4:18-CV-624 JAR, 2019
WL 1426259, at *5 n.1 (E.D. Mo. Mar. 29, 2019). A court in this district facing nearly identical
circumstances to this case has found, moreover, that a third-party defendant cannot remove a case
to federal court based on the PAA as an affirmative defense. Strong v. Republic Servs., Inc., No.
4:18-CV-2043 JCH, 2019 WL 1436995, at *3 (E.D. Mo. Apr. 1, 2019) (citing Hurt v. Dow
Chemical Co., 963 F.2d 1142 (8th Cir. 1992)) (“An affirmative defense is not a claim or cause of
action. It is well established that a defense of pre-emption, even if anticipated by the parties does
not cause the claim to arise under federal law.”’). The necessary implication of this holding is that
Mallinckrodt’s PAA defense does not establish federal jurisdiction over Plaintiffs’ state law
claims.’
Second, Cotter argues that Plaintiffs have “changed their relevant position on radioactive
materials” by referencing materials beyond mill tailings in their SAP and making broad discovery
requests. (Doc. 58 at 18). It is clear, however, that Plaintiffs’ current petition is not materially
different from the petition this Court previously remanded. (Doc. 66 at 8-9). Cotter cites no
precedent, moreover, for the proposition that discovery requests alone constitute a sufficient
change in the record justifying another attempt at removal. Neither the Third-Party Petition against

7 Cotter argues that Strong “makes no difference” because Mallinckrodt has removed under 28 U.S.C. § 1442 as well.
Cotter is correct to note the distinction, but Plaintiffs do not rely on Strong in order to challenge Mallinckrodt’s
removal. Instead, the relevance of Strong is that it demonstrates that Mallinckrodt’s PAA defense does not provide
this Court with original jurisdiction over the entire case.
13

Mallinckrodt nor the alleged changes to Plaintiffs’ position merit reconsideration of this Court’s
prior remand.

Ill. CONCLUSION
The Plaintiffs in this case are Missouri citizens and property owners who seek damages
and injunctive relief under Missouri law based on events which took place entirely in Missouri.
(Doc. 1-6). After an earlier remand, Cotter’s Third-Party Petition seeking contribution against
Mallinckrodt, who has a potential federal defense under the PAA and 28 U.S.C. § 1442, provides
the only potential avenue for federal jurisdiction in this case. Mallinckrodt’s federal defense is
only relevant, however, in the event that Plaintiffs succeed in their claims against Cotter. While
the claim against Mallinckrodt stems from a common nucleus of operative fact as Plaintiffs’ state
law claims, the state law claims substantially predominate, and the Gibbs factors favor severance
and remand. Mallinckrodt is not an indispensable party to the litigation, and its presence as Third-
Party Defendant does not change this Court’s prior determination that there is no federal
jurisdiction under the PAA.

Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Sever and Remand All Non-Third-
Party Claims (Doc. 47) is GRANTED. Cotter’s claim for contribution against Mallinckrodt in its
Third-Party Petition (Doc. 1-7 at 68-75) is hereby SEVERED, and all other claims in this case
are REMANDED back to the Circuit Court of St. Louis County for further proceedings. [As
requested by Cotter, the Court will wait 30 days before ordering the Clerk of Court to transmit the
order to state court so that any party may exercise its right to appeal].

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IT IS FURTHER ORDERED that the Landfill Defendants’ Motion to Dismiss Cotter’s
Third-Party Petition (Doc. 21) is DENIED as moot.

Dated this 22" day of December, 2020.

J wtiys ROSS
ED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10234202. Public record. Not legal advice.