Petition for Writ of Certiorari — Johnny Tippins, Petitioner v. NWI-1, Inc., et al.

Case: 16-2630 Document: 39-1 Filed: 02/27/2018 Page: 1

Case No. 16-2630

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ORDER

JOHNNY TIPPINS

Plaintiff Appellant

-

V.

NWI-1, INC., LEPETOMANE II, INC., as Trustee of the Fruit of the Loom Successor

Liquidation Trust; LEPETOMANE III, INC., as Trustee of the Fruit of the Loom Custodial

Trust; VELSICOL CHEMICAL, LLC, fka Velsicol Chemical Corporation

Defendants Appellees

-

FRUIT OF THE LOOM

Interested Party Appellee

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BEFORE: SUHRHEINRICH, Circuit Judge; MOORE, Circuit Judge; CLAY, Circuit Judge;

Upon consideration of the appellant's motion seeking leave to recall the mandate, reopen the

case and appoint a Special Master.

It is ORDERED that the motion be and it is hereby DENIED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

Issued: February 27, 2018

(1 of 3)

Case: 16-2630 Document: 34-2 Filed: 11/17/2017 Page: 1

No. 16-2630

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHNNY TIPPINS,

Plaintiff-Appellant,

ORDER

V.

NWI-1, INC., et al.,

FILED

Defendants-Appellees.

FRUIT OF THE LOOM,

Nov 17, 2017

DEBORAH S. HUNT, Clerk

Interested Party-Appellee.

Before: SUHRHEINRICH, MOORE, and CLAY, Circuit Judges.

Johnny Tippins, a Michigan prisoner proceeding pro se, petitions for rehearing of this

court's October 11, 2017 order affirming the district court's dismissal of his complaint.

Upon review, we conclude that the court did not misapprehend or overlook any point of

law or fact when it issued the October 11, 2017 order. See Fed. R. App. P. 40(a). Accordingly,

we DENY the petition for rehearing and DENY the motion to extend time as moot.

ENTERED BY ORDER OF THE COURT

1d5;-4UW

Deborah S. Hunt, Clerk

(2 of 2)

Case 1:16-cv-10140-TLL-PTM ECF No. 31 filed 08/12/16 PagelD.533 Page 1 of 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

JOHNNY TIPPINS,

Plaintiff,

Case No. 16-cv-10140

V

Honorable Thomas L. Ludington

Magistrate Judge Patricia T. Morris

NWI-1 Inc. et al.,

Defendants.

/

JUDGMENT

In accordance with the order adopting the report and recommendation entered on this

date,

It is ORDERED AND ADJUDGED that judgment is granted in favor of Defendants and

against Plaintiff.

It is further ORDERED AND ADJUDGED Plaintiff's claims are DISMISSED with

prejudice.

s/Thomas L. Ludington

THOMAS L. LUDINGTON

United States District Judge

Dated: August 12, 2016

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served.

upon each attorney or party of record herein by electronic means or first

class U.S. mail on August 12,2016.

s/jphnettaCurry

Johnetta Curry, Acting in the Absence of

Michael A. Sian, Case Manager

Case 1:16-cv-10140-TLL-PTM ECF No. 30 filed 08/12/16 PagelD.519 Page 1 of 14

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

JOHNNY TIPPINS,

Plaintiff,

Case No. 16-cv-10140

V

Honorable Thomas L. Ludington

Magistrate Judge Patricia T. Morris

NWI-1 Inc. et al.,

Defendants.

I

ORDER DENYING MOTION FOR COPY OF REPORT AND RECOMMENDATION,

OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION,

DENYING PLAINTIFF'S MOTION TO REMAND, GRANTING DEFENDANTS'

MOTIONS TO DISMISS, DENYING FRUIT OF THE LOOM'S MOTION TO DISMISS

AS MOOT, DENYING MOTION FOR DISCOVERY AS MOOT,

AND DISMISSING COMPLAINT

Plaintiff Johnny Tippins, a prisoner proceeding pro Se, initiated this action by filing suit

against Defendants NWI-1, Inc., LePetomane II, Inc., LePetomane III, Inc., and Velsicol

Chemical, LLC in Gratiot County Circuit Court on October 23, 2015. Plaintiff alleges that

Defendants are responsible for injuries he suffered as a result of drinking contaminated water

while incarcerated in a state prison in St. Louis, Michigan from 2004 to 2007. Defendants

removed the action to this Court on January 15, 2016. ECF No. 1. The matter was referred to

Magistrate Judge Patricia T. Morris for general case management in accordance with 28 U.S.C. §

636(b) on January 22, 2016. See ECF No. 6. On June 17, 2016 the magistrate judge issued her

report, recommending that Plaintiffs motion to remand be denied, Defendants' motions to

dismiss be granted, and Plaintiffs motion for discovery be denied as moot. See Rep. and Rec.,

ECF No. 24. For the reasons stated below, the magistrate judge's report will be adopted, and

Tippins's complaint will be dismissed with prejudice.

Case 1:16-cv-10140-TLL-PTM ECF No. 30 filed 08/12/16 PagelD.520 Page 2 of 14

I.

Plaintiffs' claims relate to his alleged exposure to contaminated water while incarcerated

in a state prison in St. Louis, Michigan ("SLF") from 2004 to 2007. His claims arise out of

Velsicol's ownership and operation of a fifty-two acre DDT (dichlorodiphenyltrichloroethane)

manufacturing site from 1965 to 1978 on the Pine River in St. Louis, Michigan, on which

Velsicol manufactured, stored, and handled DDT and various DDT related by-products and

wastes, including p-CBSA (para-Chlorobenzene Sulfonic Acid). Northwest Industries ("NWI")

allegedly purchased Velsicol in 1965, became the successor owner of the plant site in 1986, and

eventually became a subsidiary of Fruit of the Loom. Through a bankruptcy proceeding that

began in December 1999, FTL and NWI were reorganized into Defendant NWI-1, Inc. See In re

Fruit of the Loom, Inc., et al., Case No. 99-04497 (PJW). Defendant Lepetomane III is the

Trustee of the Custodial Trust, which was created through the bankruptcy proceeding to manage

and address the environmental liabilities related to seven properties of which it became the

owner, at least one of which is a Contaminated Site. Defendant Lepetomane II is the Trustee of

the Successor Trust, which was created through the bankruptcy proceeding to hold financial

assets on behalf of the Custodial Trust to be used for remediation of the seven properties owned

by the Custodial Trust. ¶ 10. 1

In his complaint, Plaintiff alleges that he complained to SLF Health Care of stomach

pain, headache, nausea, and fatigue numerous times during his confinement, but was informed

that his symptoms were not the result of contaminated water. See Compl. ¶ 7. Plaintiff alleges

that after he was transferred to the Saginaw Correctional Facility in April of 2007 he was

diagnosed with Graves' disease, and was again informed that his condition was not a result of the

For a full history of the relevant contamination site, the EPA's attempts to oversee cleanup of the site, and NWT's

chapter 11 bankruptcy proceedings (of which NWI-1 is a successor entity), see City of St. Louis v. Velsicol Chem.

Corp., 708 F. Supp. 2d 632, 642 (E.D. Mich. 2010).

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contaminated water at SLF. Id. at ¶ 8. In his objections, Plaintiff reaffirms that he inquired

whether the allegedly contaminated water contributed to his injury at the time of his injury in

2007. See ECF No. 28 p. 4.

A.

On July 9, 2007, the City of St. Louis filed a complaint in Gratiot County Circuit Court

arising out of the p-CBSA contamination and threatened contamination of its drinking water

system against Velsicol, NWI-1, Lepetomane II, Lepetomane III, Edgewood Farms, Inc., and

John Does 1-300. The matter was removed to this Court on August 31, 2007 as related to core

bankruptcy proceeding under 28 U.S.C. §§ 1452(a) and 1332(b) and pursuant to the federal

officer removal statute, 28 U.S.C. § 1442(a). See City of St. Louis v. Velsicol Chemical Corp.,

Case No. 07-cv-13683 (E.D. Mich., August 31, 2007). After the Court issued an order denying

the City's motion to remand on March 10, 2015, the parties reached a settlement agreement in

March of 2011, which was approved by the Court. Id. at ECF Nos. 85, 125-26.

An additional lawsuit was commenced by Tippins' fellow inmates while he was confined

at SLF. In 2006, nineteen of Tippins's fellow prisoners filed a class action contesting eighteen

different aspects of their confinement. Rouse v. Caruso, Case No. 06-10961 (E.D. Mich 2006).

One of the grounds for relief was that the water at the Facility was contaminated. Id., Complaint

¶11 162-166, ECF No. 1. The Court denied the prisoners' motion to certify a class because they

were not represented by an attorney. Id. at ECF No. 86. In February of 2011, the magistrate

judge issued a report and recommendation advising the Court to dismiss the Eighth Amendment

claims based on the contaminated water. Id., Report 44-46, ECF No. 237. The magistrate

reasoned that the EPA had provided information to the city about toxicology studies indicating

that the chemicals were not harmful when consumed at levels below 25,000 parts per billion, and

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that the EPA's tests of the city's wells had revealed chemical levels of only 21 to 180 parts per

billion. Id. at 45. The magistrate concluded that prison officials did not violate the prisoners'

Eighth Amendment rights because they reasonably relied on the EPA's reports. The plaintiffs did

not object to the magistrate's report, which was then adopted by the district court. Id. at ECF No.

239.

On April 29, 2010 the Michigan Department of Corrections, among others, distributed a

memorandum identifying p-CBSA as the specific contaminant at issue, but explaining that the

concentration of p-CBSA was far below the level believed to cause adverse effects on humans.

Tippins alleges that he did not receive a copy of the memorandum until February 19, 2014, after

he was able to conduct online research at the Chippewa Correctional facility and file a grievance.

See Compi. ¶ 8. After receiving a copy of the copy of the memorandum Plaintiff attempted to

intervene in the prisoner's lawsuit on March 19, 2014. See Rouse, Case No. 06-10961 at ECF

No. 285. Tippins's motion was denied by the magistrate on April 17, 2014. Id. at ECF No. 288.

The magistrate reasoned that intervention was not appropriate because the plaintiffs'

contaminated water claim had been dismissed on the merits, and because the statute of

limitations on Tippins's claims had accrued "no later than 2007." Id.

B.

Tippins initiated his own action on March 4, 2014, alleging violations of his Eight

Amendments rights under 42 U.S.C. § 1983. See Tippins v. Caruso, No. 14-CV-10956, 2015 WL

5954800, at *2 (E.D. Mich. Oct. 14, 2015). On September 1, 2015, Magistrate Judge Anthony

Patti issued a report and recommendation to dismiss the action in its entirety, finding that

Tippins's claims fell outside the relevant three year statute of limitations. Id. at ECF No. 44. The

district court adopted the report on October 14, 2015, agreeing that Tippins's claims were barred

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by the three year statute of limitations. Id. at ECF No. 44. Tippins then filed a motion for

reconsideration, arguing that the court had erred in failing to apply the discovery rule set forth in

the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA")

Id. at ECF No. 54. The magistrate denied Tippins's motion on May 5, 2016, finding CERCLA's

discovery rule inapplicable. Id. at ECF No. 59. After reopening the matter so that Tippins could

file objections, the district judge overruled Tippins's objections, in which he had again argued

that CERCLA's discovery rule applied. Id. at ECF No. 62. The Court then re-adopted the

September report and recommendation and dismissed the case. Id. at ECF No. 63.

C.

Plaintiff Tippins initiated the present action by filing suit against Defendants in Gratiot

County Circuit Court on October 23, 2015. Plaintiffs complaint essentially copies the

allegations and claims raised in the City of St. Louis's prior action against the Defendants. See

City of St. Louis, Case No. 07-cv-13683. On January 15, 2016 Defendants removed the action to

this Court and added Fruit of the Loom, Inc. as an interested party. Defendants assert that

jurisdiction in this Court is proper under 28 U.S.C. § 1452(a) because Tippins's claims relate to a

core bankruptcy proceeding arising under 28 U.S.C. § 1334(b). See ECF No. 1. Specifically,

Defendant alleges the proceeding relates to In re Fruit of the Loom, Inc., et al., Case No. 9904497 (PJW). Defendant also alleges that removal is proper under 28 U.S.C. § 1442(a) because

Tippins has brought claims against a person acting under color or a federal officer or agency.

Also on January 22, 2016 Defendants LePetomame II, Lepetomame III, and NWI-1

moved to dismiss Plaintiffs complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See

ECF No. 4. Defendant Velsicol then filed a motion to dismiss on January 29, 2016, and Fruit of

the Loom filed a motion to dismiss on February 5, 2016. See ECF Nos. 12, 15. In response,

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Plaintiff Tippins moved to remand the action to Michigan state court. See ECF No. 17. He also

filed a motion seeking discovery of his medical records. See ECF No. 18.

The magistrate judge issued her report on June 17, 2016 recommending that Plaintiff's

motion to remand be denied, Defendants' motions to dismiss be granted, and Plaintiff's motion

for discovery be denied as moot. See Rep. and Rec., ECF No. 24. The magistrate judge reasoned

that jurisdiction was proper in this Court under § 1442(a). She then determined that dismissal

was appropriate because Plaintiff's claims fell outside of the applicable three year statute of

limitations. Id.

On July 7, 2016 Plaintiff Tippins filed a motion to reopen the objection period, stating

that he had not received the Report. See ECF No. 25. Service of the Report was reflected on the

docket on July 7, 2016, and Tippins was mailed a hard copy. Tippins's motion was then granted

and the objection period was extended to July 27, 2016. On July 20, 2016 Tippins filed a motion

requesting a copy of the report and Report. See ECF No. 27. He then filed objections to the

report on August 3, 2016, which will be considered timely.

As an initial matter, Tippins's motion for a copy of the Report will be denied. See ECF

No. 27. Tippins was sent a copy of the Report on July 8, 2016. Accordingly, this Court has

satisfied its duty of service.

Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of

a magistrate judge's report and recommendation. See Fed. R. Civ. P. 72(b)(2). Objections must

be stated with specificity. Thomas v. Am, 474 U.S. 140, 151 (1985) (citation omitted). If

objections are made, "[t]he district judge must determine de novo any part of the magistrate

Case 1:16-cv-10140-TLL-PTM ECF No. 30 filed 08/12/16 PagelD.525 Page 7 of 14

judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). De novo review

requires at least a review of the evidence before the magistrate judge; the Court may not act

solely on the basis of a magistrate judge's report and recommendation. See Hill v. Duriron Co.,

656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept,

reject, or modify the findings or recommendations of the magistrate judge. See Lardie v. Birkett,

221 F. Supp. 2d 806, 807 (E.D. Mich. 2002).

Only those objections that are specific are entitled to a de novo review under the statute.

Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). "The parties have the duty to pinpoint those

portions of the magistrate's report that the district court must specially consider." Id. (internal

quotation marks and citation omitted). A general objection, or one that merely restates the

arguments previously presented, does not sufficiently identify alleged errors on the part of the

magistrate judge. See VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D. Mich. 2004). An

"objection" that does nothing more than disagree with a magistrate judge's determination,

"without explaining the source of the error," is not considered a valid objection. Howard v. Sec 'y

of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Without specific objections,

"[t]he functions of the district court are effectively duplicated as both the magistrate and the

district court perform identical tasks. This duplication of time and effort wastes judicial resources

rather than saving them, and runs contrary to the purposes of the Magistrate's Act." Id. Tippins

raises three objections to the magistrate judge's Report. See ECF No. 28. Each objection will be

addressed in turn.

A.

Because Plaintiff Tippins's third objection challenges this Court's jurisdiction over his

claims, it will be addressed first. Plaintiff Tippins argues that the magistrate judge incorrectly

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found removal of this action pursuant to § 1442(a). He also reasserts his claim that this Court

does not have jurisdiction under §§ 1452(a) and 1332(b). Because the Court has an independent

duty to ensure that it has jurisdiction at all times, Plaintiff's objection will be addressed.

A resolution of the jurisdictional issues requires an inquiry into In re Fruit of the Loom,

Inc., et al., Case No. 99-04497(PJW) and related docket numbers 4341 and 4740 (United States

Bankruptcy Court for the District of Delaware, Chief Judge Peter Walsh Presiding). On

December 29, 1999, FTL and NWI Land Management Corporation ("NWI"), along with thirty

affiliates, (collectively, "the Debtors") filed for Chapter 11 bankruptcy protection in the U.S.

Bankruptcy Court for the District of Delaware. On March 22, 2002, the bankruptcy court

confirmed the Debtors' Third Amended Joint Plan of Reorganization ("the Plan"). Consistent

with the plan, the EPA, Illinois, Michigan, New Jersey, Tennessee, FTL, NWI, Velsicol, and

True Specialty Corporation (Velsicol's parent corporation) entered into a settlement agreement

that was incorporated into the plan and approved by the bankruptcy court on August 9, 2002.

The bankruptcy court retained jurisdiction "to hear and determine all matters including, without

limitation, disputes arising under the Environmental Settlement Agreement.

.

.

or this Order." ¶

18. On March 19, 2007, the bankruptcy court closed the case but again retained jurisdiction "to

hear and determine all matters arising under the Environmental Settlement Agreement and this

Court's August 9, 2002 Order." Similarly, the Settlement Agreement provides for the bankruptcy

court to:

retain jurisdiction over the subject matter of this Agreement, the Parties

hereto, the NWI/FTL Successor, the Custodial Trustee, and the Velsicol Fund

Trustee for the duration of the performance of the terms and provisions of this

Agreement for the purpose of enabling any of the Parties, the NWI/FTL

Successor, the Custodial Trustee, the Velsicol Fund Trustee, and the third party

beneficiaries to apply to the Court for such further order, direction, and relief as

may be necessary or appropriate for the construction or interpretation of this

Agreement or to effectual [sic] or enforce compliance with its terms.

Case 1:16-cv-10140-TLL-PTM ECF No. 30 filed 08/12/16 PagelD.527 Page 9 of 14

S. Agmt. ¶ 26.

1.

Pursuant to 28 U.S.C. § 1452(a):

a civil

a party may remove any claim or cause of action in a civil action other than

action by a governmental unit to enforce such governmental unit's police or regulatory

power, to the district court for the district where such civil action is pending, if such

district court has jurisdiction of such claim or cause of action under section 1334 of this

title.

...

Id.Section 1334(b) provides that "the district courts shall have original but not exclusive

jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under

title 11." The Sixth Circuit has recognized that "Congress intended to grant to the district courts

broad jurisdiction in bankruptcy cases." In re Dow Corning Corp., 86 F.3d 482, 489 (6th Cir.

1996) (citations omitted). When claims brought in a civil proceeding do not "arise under" Title

11, but may be "related to" a bankruptcy proceeding, the pertinent test is "whether the outcome

of that [civil] proceeding could conceivably have any effect on the estate being administered in

bankruptcy." Id. In other words, "there must be some nexus between the 'related' proceeding and

the title 11 case." Id.

More specifically, "[a]n action is related to bankruptcy if the outcome could alter the

debtor's rights, liabilities, options, or freedom of action (either positively or negatively) and

which in any way impacts upon the handling and administration of the bankrupt estate." Id.

(citations and quotations omitted). See, e.g., Robinson v. Mich. Consol. Gas Co., 918 F.2d 579,

583-84 (6th Cir. 1990) (concluding that the action was "related to" a bankruptcy proceeding

when the plaintiffs sued the bankruptcy trustee in his official capacity and sought recovery from

the estate because "the litigation could conceivably affect the size of the

.

.

.

estate"). However,

an "extremely tenuous connection" does not suffice for "related to" jurisdiction. Sanders

S

Case 1:16-cv-10140-TLL-PTM ECF No. 30 filed 08/12/16 PagelD.528 Page 10 of 14

Confectionery Prods. v. Heller -26- Fin., Inc., 973 F.2d 474, 482 (6th Cir. 1992) (quotations and

citations omitted).

In his objections, Plaintiff acknowledges that any recovery he obtained would come from

the LePetomane Defendants. Plaintiff argues, however, that because neither the Bankruptcy Plan

nor Settlement Agreement contemplated recovery from claims of bodily injury, that his claims

are not sufficiently related to the bankruptcy proceeding. This argument is without merit.

Plaintiff's claims are "related to" the FTL bankruptcy proceedings because the proceedings here

could alter "rights, liabilities, options, or freedom of action" and could "impact[] upon the

handling and administration of the bankrupt estate." Robinson, 918 F.2d at 583-84. Regardless of

the notion that the estate ceased to exist upon confirmation of the Plan, Plaintiff has sued the

Trustees (Lepetomane II and III) of the Successor and Custodial Trusts, which were created

pursuant to the Plan, solely for the purpose of holding estate property and distributing estate

assets. Lepetomane II and III are not entities that have emerged from bankruptcy to resume

business operations, but creations of the bankruptcy proceedings to resolve particular creditor

claims. The resources of the Custodial and Successor Trusts, of which Lepetomane II and III are

the Trustees, are subject exclusively to the terms and administration of the bankruptcy court

orders and the incorporated Settlement Agreement. Thus, any recovery from the funds of the

Trusts would necessarily impact the administration of the bankrupt estate, and "related to"

bankruptcy jurisdiction exists under § 1334(b).

11.

Under § 1334(c), when subsection (b) provides the only ground for federal subject matter

jurisdiction, and a timely motion is filed by "a party in a proceeding based upon a State law

claim

.

.

.

related to a case under title 11

.

.

.

-

the district court shall abstain from hearing such

10

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proceeding if an action is commenced, and can be timely adjudicated, in a State forum of

appropriate jurisdiction." Id. § 1334(c)(2). Similarly, a district court may abstain "from hearing a

particular proceeding arising under title 11 or arising in or related to a case under title 11" if

doing so is "in the interest of justice, or in the interest of comity with State courts or respect for

State law." Id. § 1334(c)(1). "For mandatory abstention to apply, a proceeding must: (1) be based

on a state law claim or cause of action; (2) lack a federal jurisdictional basis absent the

bankruptcy; (3) be commenced in a state forum of appropriate jurisdiction; (4) be capable of

timely adjudication; and (5) be a non-core proceeding." In re Dow Corning Corp., 86 F.3d at

497. "Mandatory abstention under section 1334(c)(2) is not jurisdictional and must be raised in a

timely motion." Robinson, 918 F.2d at 584.

Plaintiff argues that because his state law claims for bodily injuries are not "core

proceedings" this Court must exercise mandatory abstention. Core proceedings include, inter

alia, "matters concerning the administration of the estate," 28 U.S.C. § 157(b)(2)(A), "orders to

turn over property of the estate," id. § 1 57(b)(2)(E), and "other proceedings affecting the

liquidation of the assets of the estate," id. § 157(b)(2)(0). Subsection 157(b)(3) provides that "[a]

determination that a proceeding is not a core proceeding shall not be made solely on the basis

that its resolution may be affected by State law." Id. § 157(b)(3). The Sixth Circuit has explained

that "[a] core proceeding either invokes a substantive right created by federal bankruptcy law or

one which could not exist outside of the bankruptcy." In re Lowenbraun, 453 F.3d 314, 320 (6th

Cir. 2006) (quoting Sanders Confectionary Prods., 973 F.2d at 482).

Because Plaintiff has brought claims against Lepetomane II and II, which are Trusts

created by the bankruptcy to administer the bankruptcy estate and would not exist but for the

underlying bankruptcy proceeding, Plaintiff's claims are inextricably intertwined with the

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bankruptcy proceeding, and constitute a "core proceeding." Thus, mandatory abstention does not

apply to this case, and the Court will not exercise discretion to abstain. Because jurisdiction is

proper under §§ 1452(a) and 1334(b) there is no need to reach the merits of Plaintiff's claim that

it is improper under § 1442(a).

B.

In his first and second objections, Tippins agrees that the statute of limitations for

personal injury claims is three years under Michigan Compiled Law § 600.5805(10), but argues

that the magistrate judge should have applied the Comprehensive Environmental Response,

Compensation, and Liability Act ("CERCLA") discovery rules preempting state law accrual

rules. See 42 U.S.C. § 9658. In relevant part, CERCLA provides as follows:

In the case of any action brought under State law for personal injury, or property

damages, which are caused or contributed to by exposure to any hazardous

substance, or pollutant or contaminant, released into the environment from a

facility, if the applicable limitations period for such action (as specified in the

State statute of limitations or under common law) provides a commencement date

which is earlier than the federally required commencement date, such period shall

commence at the federally required commencement date in lieu of the date

specified in such State statute.

§ 9658(a)(1). The Act defines "federally required commencement date" as the date "the plaintiff

knew (or reasonably should have known) that the personal injury or property damages... were

caused or contributed to by the hazardous substance or pollutant or contaminant concerned." §

9658(b)(4)(A).

CERCLA's statute of limitations is inapplicable to this case, as Plaintiff's lawsuit does

not assert any underlying CERCLA action providing for cleanup and remedial activities. See

Knox v. AC & 5, Inc., 690 F. Supp. 752, 757 (S.D. Ind. 1988) ("The discovery statute of

limitations

.

.

.

is limited to personal injury or property damage causes of action under state law

in situations where there is an underlying CERCLA action providing for cleanup and remedial

-

12

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activities." (emphasis added)). Instead, Plaintiff sets forth only state law claims for his own

personal injuries.

Even if CERCLA did apply to the present action, Tippins's claims would still be barred.

Based upon his own allegations, Plaintiff knew of the alleged cause of his injuries no later than

2007 when he was diagnosed with Graves' disease. See also Rouse, et al. v. Caruso, et al., Case

No. 2:06-cv-10961, ECF No. 288 (E.D. Mich. March 3, 2006) (denying Tippins's motion to

intervene in part because the statute of limitations on his claims had accrued "no later than

2007"); Tippins v. Caruso, No. 14-CV-10956, 2015 WL 5954800, at *2 (E.D. Mich. Oct. 14,

2015) ("Tippins knew that he suffered an injury no later than 2007."). The fact that Tippins

allegedly did not know of the specific contaminant at issue until 2014 does not change this fact,

especially considering that the City of St. Louis filed a public lawsuit related to the p-CBSA

contaminates in 2007, as acknowledged by Tippins in his complaint. See Compl. ¶ 6. Because

Plaintiff knew of the alleged cause of his injury by 2007, Plaintiff's claims are untimely.

III.

Accordingly, it is ORDERED that Tippins' motion for a copy of the Report and

Recommendation, ECF No. 27, is DENIED.

It is further ORDERED that Tippins's objections, ECF No. 28, are OVERRULED.

It is further ORDERED that the Report and Recommendation, ECF No. 24, is

ADOPTED.

It is further ORDERED that Tippins's motion to remand, ECF No. 17, is DENIED.

It is further ORDERED that Defendants' motions to dismiss, ECF Nos. 4 and 12 are

GRANTED.

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13

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It is further ORDERED that Fruit of the Loom's motion to dismiss, ECF No. 15, is

DENIED as moot.

It is further ORDERED that Tippins's motion for discovery, ECF No. 18, is DENIED as

moot.

It is further ORDERED that Tippins's complaint, ECF No. 1, is DISMISSED with

prejudice.

s/Thomas L. Ludington

THOMAS L. LUDINGTON

United States District Judge

Dated: August 12, 2016

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on August 12, 2016.

s/Johnetta Curry

Johnetta Curry, Acting in the Absence of

Michael A. Sian, Case Manager

-14-

Case 1:16-cv-10140-TLL-PTM ECF No. 24 filed 06/17/16 PagelD.474 Page 1 of 10

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

JOHNNY TIPPINS,

Plaintiff,

CASE NO. 1: 16-CV- 10 140-TLL-PTM

V.

NWI-1, INC, LEPETOMANE, II, DISTRICT JUDGE THOMAS L. LUDINGTON

MAGISTRATE JUDGE PATRICIA T. MORRIS

INC., LEPETOMANE III, INC,

VELSICOL CHEMICAL,

INC., and FRUIT OF THE LOOM,

INC.,

Defendants.

I

REPORT AND RECOMMENDATION

ON DEFENDANT LEPETOMANE IL LEPETOMANE III, AND NWI-1, INC.'S

MOTION TO DISMISS, DEFENDANT VELSICOL CHEMICAL, LLC'S

MOTION TO DISMISS, DEFENDANT FRUIT OF THE LOOM'S MOTION TO

DISMISS, PLAINTIFF'S MOTION FOR REMAND, AND PLAINTIFF'S

MOTION FOR DISCOVERY OF MEDICAL RECORDS

(Docs. 4, 12, 15, 17, and 18)

I. Background

The pro se Complaint in this matter was removed from the Gratiot County,

Michigan Circuit Court to this United States District Court on January 15, 2016. (Doc. 1.)

Plaintiff alleges that he has suffered injuries as a result of drinking contaminated water

while incarcerated in a state prison in St. Louis, Michigan from 2004 to 2007.

1

Case 1:16-cv-10140-TLL-PTM ECF No. 24 filed 06/17/16 PagelD.475 Page 2 of 10

For the reasons below, I recommend GRANTING all of the Defendant's motions

to dismiss (Docs. 4, 12, 15) and DENYING Plaintiff's motions for remand and for

discovery of medical records. (Docs. 17, 18.)

The Complaint in this matter was filed in state court on October 23, 2015. (Doc. 1

at ID 2.) The Complaint alleges causes of action based on the Michigan Natural

Resources Environmental Protection Act ("NREPA"), common law nuisance, common

law trespass, negligence, and declaratory relief, all caused by contamination of the local

drinking water arising from Velsicol Chemical Inc. operations in St. Louis, Michigan.

(Id.) Plaintiff contends that the contaminated drinking water caused him stomach pain,

headaches, throat pain, nausea, and fatigue. (Doc. 1 at ID 23.)

The basis for removal was 28 U.S.C. §§ 1334(b), 1452(a) because the Complaint

alleges claims that relate to and therefore constitute a core bankruptcy proceeding, i.e., In

re Fruit of the Loom, Inc., No. 99-04497(PJW) (Bankr. D. Del. 2010). (Doc. 1 at ID 2-3.)

Alternatively, Defendants removed under 28 U.S.C. § 1442(a) because the Complaint

alleges claims against a person acting under color of a federal officer or agency. (Id.)

Yet another case was filed by the City of St. Louis, Michigan against the same

defendants as the instant case, City of St. Louis v. Velsicol Chemical Corp., No. 0713683-13C, Not. of Removal ECF No. 1 (E.D. Mich. Aug. 31, 2007). The instant

complaint reiterates substantially similar claims alleged by the City of St. Louis in its

action. (Doc. 1 at ID 4.)

In addition, Plaintiff filed a previous lawsuit in this court alleging Eighth

Amendment violations based on the same facts, i.e., contaminated drinking water while

2

Case 1:16-cv-10140-TLL-PTM ECF No. 24 filed 06/17/16 PagelD.476 Page 3 of 10

incarcerated in St. Louis, Michigan between 2004 and 2007, and alleging the same

injuries under 42 U.S.C. § 1983. Tippins v. Caruso, No. 2:14-cv-10956, 2015 WL

5954800 (E.D. Mich. Oct. 14, 2015) (adopting report and recommendation

recommending dismissal because plaintiff's claims were barred by the statute of

limitations).

Plaintiff argues that removal is improper under the bankruptcy removal statute, 28

U.S.C. § 1452(a) because his claims of bodily injury are unrelated to the bankruptcy

proceedings. (Doc. 17 at ID 410-11.) Plaintiff does not address whether removal is

appropriate under the federal officer removal statute § 1442(a). Thus since I suggest that

the court has subject matter jurisdiction under § 1442(a) I need not address the arguments

regarding § 1452(a).

Two of the Defendants argue one common ground for dismissal: that Plaintiff's

claims are barred by the relevant limitation period of three years. (Doc. 4 at ID 212-14,

Doc. 12 at ID 362-66.) Although Fruit of the Loom Inc. argues that it is not a party and

that service of process was not properly made on it, the limitation argument applies

equally to it. (Doc. 15.) Since I suggest this ground is case dispositive, I will address it

first and need not address the other possibilities that might also support the same result.

H. Motion to Remand Standards

The party seeking to remove an action to federal court has the burden of

establishing that the district court has original jurisdiction. Long v. Bando Mfg. of

America, Inc., 201 F.3d 754, 757 (6th Cir. 2000); Conrad v. Robinson, 871 F.2d 612, 614

(6th Cir. 1989). Removal statutes should be narrowly construed because federal courts

ci

Case 1:16-cv-10140-TLL-PTM ECF No. 24 filed 06/17/16 PagelD.477 Page 4 of 10

have limited jurisdiction and because removal of a case raises significant federalism

concerns. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941); Palkow v. CSX

Transp., Inc., 431 F.3d 543, 555 (6th Cir. 2005). The Sixth Circuit follows a policy that

"all doubts as to the propriety of removal are resolved in favor of remand." Jacada

(Europe), Ltd. v. Int'l Mktg. Strategies, Inc., 401 F.3d 701, 704 (6th Cir. 2005) (quoting

Coyne v. American Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999)).

Law & Analysis of Motion to Remand

The federal officer removal statute, 28 U.S.C. § 1442(a)(1) permits a private party

to remove a state court action if (1) the party acted under the direction of a federal officer

or agency; (2) the party has a colorable federal defense; and (3) there is a causal

connection between the federal direction and the conduct in question. See Jefferson

County v. Acker, 527 U.S. 423, 431 (1999); Winters v. Diamond Shamrock Chem. Co.,

149 F.3d 387, 398 (5th Cir. 1998).

Other than a brief statement that Defendant "failed to present a colorful federal

defense... [because] [t]here was no explanation given," (Doc. 17 at ID 413) Plaintiff

does not contest the propriety of removal under § 1442(a). Thus I suggest that Plaintiff

has waived any argument that removal is improper under 28 U.S.C. § 1442(a)(1), and the

court has subject matter jurisdiction over this matter. See McPherson v. Kelsey, 125 F.3d

989, 995 (6th Cir. 1997) ("Issues adverted to in a perfunctory manner, unaccompanied by

some effort at developed argumentation are deemed waived.")

Motion to Dismiss Standards

10

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Defendants have moved for dismissal under Federal Rule of Civil Procedure

12(b)(6). Such a motion tests the sufficiency of the complaint and will be granted if the

plaintiff has failed "to state a claim upon which relief can be granted." "The court must

construe the complaint in the light most favorable to the plaintiff, accept all the factual

allegations as true, and determine whether the plaintiff can prove a set of facts in support

of its claims that would entitle it to relief." Bôvee v. Coopers & Lybrand C.P.A., 272 F.3d

356, 360 (6th Cir. 2001). But the plaintiff must plead "enough facts to state a claim to

relief that is plausible on its face," otherwise the complaint will be dismissed. Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard requires

the plaintiff to "raise a right to relief above the speculative level on the assumption that

all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555.

(citations omitted). The complaint must include more than "labels and conclusions" and

"formulaic recitation[s] of the elements of a cause of action

.

.

.

."

Id. When a plaintiff

proceeds without counsel, the court must liberally construe the complaint and hold it to a

less stringent standard than a similar pleading drafted by an attorney. Names v. Kerner,

404 U.S. 519, 520 (1972). However, even pro se complaints must satisfy basic pleading

requirements. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

Because the dismissal standard scrutinizes the pleadings, the Federal Rules limit

courts' consideration of extraneous materials at this stage. Rule 12(d) provides the

operative language: "If, on a motion under Rule 12(b)(6)

.

.

.

matters outside the

pleadings are presented to and not excluded by the court, the motion must be treated as

one for summary judgment under Rule 56." However, the court can consider certain

Case 1:16-cv-10140-TLL-PTM ECF No. 24 filed 06/17/16 PagelD.479 Page 6 of 10

materials without converting the case. These include, among others, documents

defendants attach to the motion to dismiss "if they are referred to in the plaintiff's

complaint and are central to her claim." Weiner v. Klais & Co., Inc., 108 F.3d 86, 89

(6th Cir. 1997) (quoting Venture Assoc. 's Corp. v. Zenith Data Sys. Corp., 987 F.2d 429,

431 (7th Cir. 1993)). Also, "A court that is ruling on a Rule 12(b)(6) motion may

consider materials in addition to the complaint if such materials are public records or are

otherwise appropriate for the taking of judicial notice." New England Health Care Emps.

Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir. 2003). This includes

judicial opinions and court filings in other cases. See, e.g., S. Cross Overseas Agencies,

Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410,426-27 & n.7 (3d Cir. 1999).

V. Law & Analysis of Motion to Dismiss

Federal courts apply state statutes of limitations to state law claims brought in

federal court. Under Michigan law, claims brought to recover damages for injuries to

persons or property must be commenced within three years after the time of injury. Mich.

Comp. Laws § 600.5805(10). Since all of Plaintiff's causes of action sound in personal

injury, his claims are subject to the three year limitation period. In addition, assuming,

arguendo, that Plaintiff has standing to bring a claim under the Michigan's NREPA, the

limitation period for actions for civil fines under the Act must also be filed within three

years after the discovery of the violation. Mich. Comp. Laws § 324.20 140(1)(c).

In the instant case, Plaintiff's last exposure to the alleged contaminated water

occurred in 2007. His complaint filed in this case in 2015 is far outside that time limit.

Case 1:16-cv-10140-TLL-PTM ECF No. 24 filed 06/17/16 PagelD.480 Page 7 of 10

Plaintiff contends that a renewed motion for class certification filed on March 11,

2013, and denied on October 25, 2013 in another case, Rouse v. Caruso, No. 2:06-cv10961, 2013 WL 569638, (E.D. Mich. Feb. 13, 2013), tolls or restarts the limitation

period clock to save Plaintiff's claims.' This argument is unavailing.

When the court in Rouse rejected Plaintiff's motion to intervene it did so because

all claims in that case related to contaminated drinking water in St. Louis had been

dismissed on March 14, 2011 (No. 2:06-cv-10961, Ord. adopting R&R to Grant. in part

Den. in part Mot. For J. on the Pleadings, ECF No. 239) and because "intervention

would permit Tippin[s] to avoid the three year statute of limitations, which has long since

passed on his claim which accrued no later than 2007." Tippins v. Caruso, No. 14-cv10956, 2015 WL 5954800, at *3 (E.D. Mich. Oct. 14, 2015) (citing Rouse, No. 2:06-cv10961, Ord. Den. Mot. To Intervene, ECF No. 288, at 4.) The same is true here.

This conclusion comports with the standards applicable to class actions upon

which Plaintiff relies. "[T]he commencement of a class action suspends the applicable

statute of limitations as to all asserted members of the class who would have been parties

had the suit been permitted to continue as a class action." Am. Pipe "& Constr. Co. v.

Utah, 414 U.S. 538, 554 (1974). "Once the statute of limitations has been tolled, it

remains tolled for all members of the putative class until certification is denied." Crown,

Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 354 (1983). Putative class members may

then file their own suits or move to intervene in the pending suit. Id. In the Sixth Circuit,

'Plaintiff attempted to intervene in the Rouse case on March 19, 2014. No. 2:06-cv-10961, Mot. To

Intervene, ECF. No. 285.

7

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"a plaintiff who chooses to file an independent action without waiting for a determination

on the class certification issue may not rely on the American Pipe tolling doctrine."

Wyser-Pratte Mgmt. Co. v. Telxon Corp., 413 F.3d 553, 568 (6th Cir. 2005), cited with

approval in Stein v. Regions Morgan Keegan Select High Income Fund, Inc.,

F.3d

2016 WL 2909333, at *6 (6th Cir. May 19, 2016) (recognizing the Sixth Circuit rule

is a minority rule).

Plaintiff's complaints all center around the alleged contaminated drinking water in

St. Louis, Michigan. However, those claims were dismissed by the Court in Rouse on

March 14, 2011. The motion to certify a class in Rouse was not filed until March 11,

2013, nearly two years after the Court in Rouse dismissed the contaminated drinking

water claims for which Plaintiff could have been a putative plaintiff. Since Plaintiff was

not a putative plaintiff when the motion to certify class was filed on March 11, 2013, its

filing was of no consequence to Plaintiff Tippins.

Here, even assuming, arguendo, that the limitation period was tolled during the

period of time between the filing of the Rouse action on March 3, 2006, through March

14, 2011, when the contaminated water claims were dismissed in Rouse, supra, Plaintiff's

complaint is still untimely. Plaintiff's complaint was filed in state court on October 23,

2015, more than three years after Plaintiff lost his putative plaintiff status.

Accordingly, I recommend granting Defendants' motions to dismiss based on the

fact that Plaintiff's claims were filed outside the applicable statute of limitations and are

time-barred. (Docs. 4, 12, 15.) I further recommend denying Plaintiff's motion for

discovery of medical records as moot. (Doc. 18.)

Case 1:16-cv-10140-TLL-PTM ECF No. 24 filed 06/17/16 PagelD.482 Page 9 of 10

Conclusion

For the reasons above, I recommend GRANTING all of the Defendant's motions

to dismiss (Does. 4, 12, 15) and DENYING Plaintiff's motion for remand and for

discovery of medical records. (Does. 17, 18.)

Review

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, "[w]ithin 14

days after being served with a copy of the recommended disposition, a party may serve

and file specific written objections to the proposed findings and recommendations. A

party may respond to another party's objections within 14 days after being served with a

copy." Fed. R. Civ. P. 72(b)(2). See also 28 U.S.C. § 636(b)(1). Failure to file specific

objections constitutes a waiver of any further right of appeal. Thomas v. Am, 474 U.S.

140,106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Howard v. Sec 'y of Health & Human Servs.,

932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The

parties are advised that making some objections, but failing to raise others, will not

preserve all the objections a party may have to this Report and Recommendation. Willis

v. Sec'y of Health & Human Sen's., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit

Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D.

Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge.

Any objections must be labeled as "Objection No. 1," "Objection No. 2," etc.

Any objection must recite precisely the provision of this Report and Recommendation to

which it pertains. Not later than 14 days after service of an objection, the opposing party

may file a concise response proportionate to the objections in length and complexity. Fed.

Case 1:16-cv-10140-TLL-PTM ECF No. 24 filed 06/17/16 PagelD.483 Page 10 of 10

R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each

issue raised in the objections, in the same order, and labeled as "Response to Objection

No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections

are without merit, it may rule without awaiting the response.

S/ PATRICIA t MORRIS

Patricia T. Morris

United States Magistrate Judge

Date: June 17, 2016

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date

through the Court's CMIECF system which delivers a copy to all counsel of record.

By s/Kristen Krawczyk

Case Manager

Date: June 17, 2016

10

Additiohal material

fals

from this ing i s

,

a vailable un the

Clerk's Office.