Petition for Writ of Certiorari — Exxon Corp. v. Eyak Native Village

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~ No. 94 $85 AUG 35 1 19%

In The OFFICE OF THE CLERK

Supreme Court of the United States

October Term, 1993

EXXON CORPORATION, ET AL.,

Petitioners,

¥;

EYAK NATIVE VILLAGE, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN F. DAUM

Counsel of Record

PATRICK LYNCH

KEVIN M. HARR

O’MELVENY & MYERS

555 13th Street, N.W.

Suite 500 West

Washington, D.C. 20004

(202) 383-5300

DOUGLAS J. SERDAHELY

BOGLE & GATES

1031 West 4th Avenue

Suite 600

Anchorage, Alaska 99501

(907) 276-4557

Attorneys for Petitioners

QUESTIONS PRESENTED

(1) Whether a notice of removal filed within 30 days of

the initial filing of an action in state court can conceivably be

untimely under 28 U.S.C. 1446(b), as the Court of Appeals

held?

(2) Whether, as other circuits have held in conflict with

the decision below, 28 U.S.C. § 1447(c) precludes remand on

the basis of a perceived defect in removal procedure not

raised in a timely motion?

OE ee eee ee

PARTIES IN THE COURT BELOW

Approximately 4000 persons and entities, plaintiffs in the

district court, were parties to the proceedings in the Court of

Appeals, although only a much smaller number are directly |

affected by the matters raised in this Petition. Because of its ,

volume, a list of all such parties is given in the attached

Appendix E, which also identifies the subset of parties who

are directly affected by this Petition. A number of parties in

the Court of Appeals also sued on behalf of classes

comprising all commercial fishermen, Alaska Natives,

landowners, cannery workers, and area businesses alleging

injury or damage from the grounding of the tanker EXXON

VALDEZ in Prince William Sound, Alaska, on March 23,

1989, and the resulting oil spill.

In addition, Alyeska Pipeline Service Company and its

owners, Amerada Hess Pipeline Corporation, Arco

Transportation Alaska, Inc., Exxon Pipeline Company, Mobil

Alaska Pipeline Company, BP Pipelines (Alaska), Inc.,

Phillips Alaska Pipeline Corporation, Unocal Pipeline

Company, and George M. Nelson (all of whom were

defendants in the district court) were also parties in the Court

of Appeals.

eee

RULE 29.1 STATEMENT

Petitioner Exxon Corporation has no corporate parent,

and is the corporate parent of petitioner Exxon Shipping

Company. Petitioners have numerous subsidiaries that are

not wholly owned, a list of which is given in the attached

Appendix F pursuant to Supreme Court Rule 29.1.

TABLE OF CONTENTS

QUESTIONS PRESENTED ...............

PARTIES IN THE COURT BELOW ........

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE .. vo. 05.05 se.

REASONS FOR GRANTING THE WRIT .....

I. The Decision Below Disregards The

Plain Meaning of 28 U.S.C. § 1446(b),

Which Removal Within 30 Days After

Receipt of An Initial Pleading .......

II. The Decision Below Conflicts With

Other Circuit Decisions Holding That

28 U.S.C. § 1447(c) Precludes Remand

On The Basis Of A Defect In Removal

Procedure Which Was Not Raised In A

Timely Motion to Remand .........

Cee ie or os So ee

TABLE OF AUTHORITIES

CASES Page(s)

Air-Shields, Inc. v. Fullam,

ee a Ee” CA. | Nala eee 9, 10

Am. Fire & Casualty Co. v. Finn,

aE Me ERE ok ks kk sk OSA 9, 10

Chevron, U.S.A., Inc. v. Hammond,

1978 A.M.C. 1697 (D. Alaska 1978) ...... 3, 8

F.D.LC. v. Loyd,

pon Se Th 8, rr ree 9, 10

Foster v. Chesapeake Ins. Co., Ltd.,

933 F.2d 1207 (3d Cir.), cert. denied,

BRE Me ee ORE oc ok cv ce cae ewc 9

Fristoe v. Reynolds Metals Co.,

615 F.2d 1209 (9th Cir. 1980)........... 9

Grubbs v. Gen. Elec. Credit Corp.,

WE Si ETE ick ok sk 0A S RES. 7

Hamilton v. Aetna Life & Cas. Co.,

5 F.3d 642 (2d Cir. 1993), cert. denied,

BPA Te Mak, AOU CRD ob nt ess 6 Ge wwe, 9, 10

In re Digicon Marine, Inc.,

966 F.2d 558 (Sth Cir. 1992)... 2... 0... 10

Mackay v. Uinta Dev. Co.,

Mee SRR RI COORD 6 sv 8 8h Re ea 10

Maniar v. F.D.LC.,

Si9 F.20 Vou Come Ct. 199Z) 6 ww ce eas li

Wilson v. Gen. Motors Corp., |

888 F.2d 779 (11th Cir. 1989)........... 9, 10 l

STATUTES

SEE Se hn vee ene heee ees ]

ME CE es oe eS ke es “

PE Cs 0 rie cee so eee hei ,

PREC AOE os hc tation ad hbeeaewal 2, 10

Se IA PE 8 66 SES er ee 2

ee eee a oe ble 6 kek eee ae passim

fo ee 2 a re aecre it RQhieenerut! Sp passim

Di Ge I 6 oS Ob ay ewe ae a ee 7

MISCELLANEOUS

H.R. Rep. No. 889, 100th Cong., 2d Sess. 1,

reprinted in 1988 U.S. Code Cong. &

Aa TOO Sree 3 Sk Fee Se eS 9

Siegel, Commentary on the Revision of

Section 1447, 28 U.S.C.A. § 1447 (West 1994) . 9

PETITION FOR WRIT OF CERTIORARI

Exxon Corporation and Exxon Shipping Company

(collectively, "Exxon") respectfully petition for a writ of

certiorari to review that portion of the judgment of the

United States Court of Appeals for the Ninth Circuit which

reversed the district court’s Orders Nos. 91, 92 and 108,

which orders denie’? remand to state court of Daniel R.

Adams, et al. v. Exx i Corp., et al., Case No. A92-353 Civ.

(D. Alaska); David M. Adams, et al. v. Exxon Corp., et al.,

Case No. A92-461 Civ. (D. Alaska); and Talmadee Adams,

et al. v. Exxon Corp., et al., Case No. A92-584 Civ. (D.

Alaska).

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

25 F.3d 773 and reprinted in the attached Appendix at

App. la.' The relevant orders of the United States District

Court for the District of Alaska are unreported and are also

reproduced in the Appendix, as follows: Order No. 91 is

reprinted at App. 50a; Order No. 92 is reprinted at App. 54a;

and Order No. 108 is reprinted at App. 58a.

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1). The Court of Appeals entered judgment on

May 27, 1994; Exxon’s timely petition for partial rehearing

was denied July 13, 1994. App. 62a. This petition is timely,

being filed within 90 days thereafter.

' Page citations to materials in the Appendix appear as “App. 00a.”

STATUTORY PROVISIONS INVOLVED

The relevant statutes, 28 U.S.C. §§ 1331, 1333, 1441,

1446 and 1447, are reproduced in Appendix D.

STATEMENT OF THE CASE

On March 23, 1989, the tanker EXXON VALDEZ ran

aground in Prince William Sound, Alaska, resulting in a large

oil spill, which was followed almost immediately by the

filing of several scores of lawsuits in both state and federal

court. These lawsuits generally named petitioner Exxon

Shipping Company, the owner of the tanker; petitioner Exxon

Corporation, the owner of the crude oil aboard the tanker;

and Alyeska Pipeline Service Company and its owner

companies (collectively, "Alyeska") who own and operate the

Trans-Alaska Pipeline System and the Valdez Marine

Terminal where tankers are loaded with crude oil from

Alaska’s North Slope.

In state court the cases were consolidated for pretrial

purposes before Alaska Superior Court Judge Brian Shortell

of the Third Judicial District at Anchorage, while the cases

in federal court were consolidated before the Hon. H. Russell

Holland, Chief Judge, in the District Court for the District of

Alaska. On February 3, 1992, the consolidated state court

plaintiffs filed 2 joint Preliminary Designation of Issues for

Trial (the "Desiguation") pursuant to an order of the state

court requiring all parties to file a statement of the issues that

they intended to litigate at trial. Under the state court’s

consolidation and case management orders, the Designation

was binding on all state court plaintiffs.

In the Designation, plaintiffs asserted that Alyeska was

responsible for causing the oil spill and was therefore liable

to plaintiffs for compensatory and punitive damages. This

claim was based on allegations that Alyeska, as operator of

the Valdez Marine Terminal, had negligently failed to require

that tankers calling there have double hulls; that Alyeska had

similarly failed to require tug escorts and special navigation

equipment for tankers transiting Prince William Sound; and

finally, that Alyeska had successfully procured from the

district court, in the case of Chevron, U.S.A., Inc. v.

Hammond, 1978 A.M.C. 1697 (D. Alaska 1978), an

injunction against the enforcement and implementation of

Alaska statutes and regulations that would have required

double hulls, tug escorts, and special navigation equipment.

On February 13, 1992, well within 30 days after the

filing of the Designation, Alyeska removed the cases to the

district court, on the theory that plaintiffs’ claims amounted

to a collateral attack on the district court’s judgment in

Chevron v. Hammond, and thus raised a federal question

under 28 U.S.C. § 1331. Plaintiffs moved to remand, and on

July 31, 1992, the district court entered its Order No. 83,

denying the motion to remand, and upholding federal

jurisdiction over plaintiffs’ cases.

Following the initial removals, three new cases were filed

in state court. Daniel R. Adams, et al. v. Exxon Corp., et al.,

was filed March 18, 1992; David M. Adams, et al. v. Exxon

Corp., et al., was filed June 3, 1992; and Talmadee Adams,

et al. v. Exxon Corp., et al., was filed August 11, 1992.

Those three cases are the ones involved in this Petition.

Under the state court’s consolidation and case management

orders, the Designation (like all other orders in the state court

proceedings) became binding on plaintiffs in newly-filed

actions, absent an appropriate motion to be excluded from the

eC eT

effect thereof. Plaintiffs in the three newly-filed actions did

not take any action to disavow the Designation, and it

became binding on them. App. 51la-52a, 55a-56a & 59a-60a.

Within thirty days of the date each case was filed in state

court, defendants filed a notice of removal.” Plaintiffs

moved to remand. None of plaintiffs’ motions asserted that

the removals were untimely, but urged rather that the

Designation did not raise any federal question. On

September 15 and 17, 1992, the district court entered its

Orders Nos. 91 and 92, respectively, denying the remand

motions in Daniel R. Adams and David M. Adams on the

ground that it had already ruled, in Order No. 83, that the

Designation raised a federal question that would support

removal, and that since the Designation was binding on

plaintiffs in the newly-filed actions, federal jurisdiction

existed over the new plaintiffs’ claims as well. App. 50a

& 54a. On November 16, 1992, the district court entered a

similar order denying the motion to remand in 7almadee

Adams. App. 58a.

? Daniel R. Adams was filed March 18, 1992; notice of removal was

filed April 16, 1992. App. 50a-Sla. David M. Adams was filed June 3,

1992; notice of removal was filed June 26, 1992. Talmadee Adams was

filed August 11, 1992; notice of removal was filed September 8, 1992.

On February 1, 1993, the district court certified Orders

Nos. 83, 91, 92, and 108 for interlocutory appeal to the Ninth

Circuit pursuant to 28 U.S.C. § 1292(b). The Court of

Appeals granted leave to appeal, and the matter was argued

on July 13, 1993, and decided on May 27, 1994.? App. la.

Most of the Court of Appeals’ opinion is devoted to

affirming the district court’s Order No. 80, which is not

involved in any way in this Petition. In Section III of its

opinion, the Court of Appeals discussed and reversed Order

No. 83 on the ground that the removals at issue in that order

were untimely, since the federal issues had been present more

than thirty days prior to removal. 28 U.S.C. § 1446(b). The

Court of Appeals did not reach the merits of the jurisdictional

issue, and expressed no view on the question of whether

plaintiffs’ claims set forth in the Designation raised federal

questions under 28 U.S.C. § 1331. This Petition does not

address the correctness of the Court of Appeals’ ruling that

the removals involved in Order No. 83 were untimely.

> In the meantime, plaintiffs and petitioners had gone to trial in

district court in Alaska, in a phased trial before a single jury. The first

phase of the trial considered whether the conduct of petitioners in

connection with the grounding of the EXXON VALDEZ was reckless; on

June 13, 1994, the jury rendered a verdict that it was. The second phase

of the trial considered the compensatory damage claims of commercial

fishermen plaintiffs; on August 11, 1994, the jury rendered a verdict in

the amount of $287 million, as compared to the $853 million plaintiffs

had sought. (This verdict will be subject to substantial offsets, including

offsets for the $164 million in claims payments to fishermen that

petitioners made voluntarily in 1989.) The third phase of the trial

considers the question of the amount, if any, of punitive damages that

should be awarded against petitioners. As of August 29, 1994, that issue

had gone to the jury but no verdict had yet been rendered.

The Court of Appeals also reversed Orders Nos. 91, 92

and 108 on the ground of untimeliness. The court’s opinion

gives no explanation of the basis of this ruling except the

statement that "Alyeska’s removal notices were untimely."

App. 25a. This statement is indisputably untrue as to Orders

Nos. 91, 92 and 108; the removal notices involved in those

orders were all filed within 30 days of the filing of the cases,

within the period prescribed by 28 U.S.C. § 1446(b). See

note 2, supra. Moreover, as discussed below, plaintiffs never

filed in the district court a motion for remand asserting that

the removals involved in Orders Nos. 91, 92 and 108 were

untimely, and never asserted such a position in their briefs in

the Court of ‘ppeals. The effect of the judgment of the

Court of Appeals, accordingly, was to deprive the district

court of jurisdiction over these cases without explanation, on

a ground that is indisputably contrary to the facts shown by

the record, and which was never previously urged by any

party in any court.

Petitioners timely sought rehearing in the Court of

Appeals on June 10, 1994. The petition for rehearing was

denied on July 13, 1994. App. 62a.

* Plaintiffs also sought rehearing of the Court of Appeals’ ruling with

respect to Order 80, and suggested the appropriateness of a rehearing

en banc. That petition was also denied.

REASONS FOR GRANTING THE WRIT

In Grubbs v. Gen. Elec. Credit Corp., 405 U.S. 699

(1972), this Court set forth the rule that the federal removal

statutes are intended to have “uniform nationwide

application.” /d. at 705. The decision of the court below, in

direct conflict with the piain language of the removal statutes,

and with several decisions of other circuits, stands in utter

disregard of the Court’s admonition in Grubbs, and raises

special and important issues fully deserving the attention of

this Court. See S. Ct. Rule 10.1. In this case there is both

a conflict among the circuits (on the important question of

whether remand may occur on the basis of a perceived defect

in removal procedure in the absence of a timely motion

raising the issue) and a Court of Appeals that has departed so

far from the accepted and usual course of judicial

proceedings (by depriving the district court of jurisdiction

without explanation, on a ground not raised in any court, and

on a theory contrary to the facts) as to warrant the exercise

of this Court’s supervisory authority.

I. The Decision Below Disregards The Plain Meaning Of

28 U.S.C. § 1446(b), Which Allows Removal Within

30 Days After Receipt Of An Initial Pleading.

Section 1446(b) provides unambiguously that a notice of

removal "shall be filed within thirty days after the receipt by

the defendant . . . of a copy of the initial pleading setting

forth the claim for relief upon which such action or

proceeding is based. . . ." 28 U.S.C. § 1446(b). In each case

at issue in the district court’s Orders Nos. 91, 92 and 108, a

notice of removal was filed within 30 days after receipt of

the initial complaint. See note 2, supra. At no time have

plaintiffs disputed that this was the case -- nor could they.

Under no interpretation of section 1446(b) can it fairly be

er ES ne en ae

said that the removals were untimely, and the Court of

Appeals offered none. The decision ignored the statute, and

the facts. It deprived the district court of its jurisdiction

properly obtained, and did so on the basis of a nonexistent

defect in removal procedure.’

II. The Decision Below Conflicts With Other Circuit

Decisions Holding That 28 U.S.C. § 1447(c) Precludes

Remand On The Basis Of A Defect In Removal

Procedure Which Was Not Raised In A Timely

Motion to Remand.

Even if some argument could be constructed to support

the proposition that the removals at issue were untimely, the

question remains, did the Ninth Circuit act outside its

authority under 28 U.S.C. § 1447(c) in ordering remand?

The question is simple, and purely legal. The Ninth Circuit’s

answer was wrong, and conflicts with other circuit decisions

on similar facts.

* Plaintiffs have suggested, in their opposition to petitioners’ motion

for rehearing in the Court of Appeals, that petitioners agreed in earlier

briefing that a reversal of the district court’s Order No. 83 as untimely

would require reversal of the district court’s Orders Nos. 91, 92 and 108.

Plaintiffs are mistaken. Petitioners agreed only with the statement in

plaintiffs’ opening brief in the Court of Appeals that as to "the theory that

plaintiffs’ state law claims ‘are an indirect attempt to enforce the

requirements of the Alaska Tanker Law’ and therefore ‘are a collateral

attack on Chevron v. Hammond,’" Orders Nos. 91, 92 and 108 "adopt[ed]

and rel[ied] on the theory of Order No. 83,” Pl. Op. Br. at 14, and:that,

therefore, petitioners “agree[d] with plaintiffs that the outcome as to

Order 83 w{[ould] govern the outcome as to Orders 91, 92, and 108."

App. Br. at 2. Since no issue as to the timeliness of the removals in

Orders Nos. 91, 92 or 108 had ever been raised or was properly before

the Court of Appeals, this language cannot reasonably be read as

conceding an issue that petitioners had no reason to believe was present.

Section 1447(c) provides that "[a] motion to remand a

case on the basis of any defect in removal procedure must be

made within 30 days after the filing of the notice of removal

under section 1446(a).". 28 U.S.C. § 1447(c) (emphasis

added).° It has been uniformly held that the failure to file

a timely notice of removal is a procedural, not a

jurisdictional, defect. See F.D.LC. v. Loyd, 955 F.2d

316, 320-21 (Sth Cir. 1992); Air-Shields, Inc. v. Fullam, 891

F.2d 63, 64-66 (3d Cir. 1989); Wilson v. Gen. Motors Corp.,

888 F.2d 779, 781 n. 1 (11th Cir. 1989); Fristoe v. Reynolds

Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980).’

It follows that the defect in removal on which the court

below relied -- the so-called "untimeliness" of Alyeska’s

removals -- was waived unless raised in a timely motion to

remand.’ See Hamilton v. Aetna Life & Cas. Co., 5 F.3d

* The purpose of section 1447(c) is to prevent forum shopping by

defendants who might otherwise hold a procedural defect in reserve, but

more importantly, to avoid the many burdens placed on state and federal

courts, and parties, of shuffling cases between two courts which each have

subject matter jurisdiction. See H.R. Rep. No. 889, 100th Cong., 2d

Sess. 1, 72, reprinted in 1988 U.S. Code Cong. & Admin. News 5982,

6033; F.D.LC. v. Loyd, 955 F.2d 316, 322-23 (Sth Cir. 1992); Foster v.

Chesapeake Ins. Co., Lid., 933 F.2d 1207, 1212-13 (3d Cir.), cert. denied,

112 S. Ct. 302 (1991).

” See also H.R. Rep. No. 889, reprinted in 1988 U.S. Code Cong. &

Admin. News at 6033 (defect in removal procedure includes "any ground

other than lack of subject matter jurisdiction”); Siegel, Commentary on

the Revision of Section 1447, 28 U.S.C.A. § 1447 (West 1994) (an

example of a procedural defect in removal "would be where the case was

removed too late under subdivision (b) of § 1446”).

* The settled rule, set forth by this Court, is that a mere “irregularity”

in a removal may be waived where the case might originally have been

brought in the district court. See Am. Fire & Casualty Co. v. Finn, 341

642, 643 (2d Cir. 1993), cert. denied, 114 S. Ct. 1100

(1994); In re Digicon Marine, Inc., 966 F.2d 158, 160 (Sth

Cir. 1992); Air-Shields, 891 F.2d at 65; Wilson, 888 F.2d

at 781 n. 1. It is undisputed, however, that plaintiffs below

did not challenge, at any time in any motion to remand, the

timeliness of the removals at issue in the district court’s

Orders Nos. 91, 92 and 108. Neither their motions to

remand filed in district court, nor their briefs in the Court of

Appeals, raised this issue.

The question is thus whether a Court of Appeals may

reverse the district court and order remand of a case on the

basis of a defect in removal procedure waived by plaintiffs

by their failure to assert that defect in a timely motion to

remand in the district court. The decision below necessarily

depends on the existence of such a power, although the court

below did not explain the basis for its action. Whatever the

court may have had in mind, its decision squarely conflicts

with the decisions of several other circuits. See Loyd, 955

F.2d at 322 (emphasis added) (Fifth Circuit: section 1447(c)

"preclud[es] a// remands for procedural defects after the

expiration of the thirty-day remand period specified by [that

section]"); Hamilton, 5 F.3d at 644 (Second Circuit: "Given -

the passage of more than 30 days without a challenge, the

court lacked authority under § 1447(c) to remand the action

on th[e] ground" that the removal "was procedurally

improper"); Air-Shields, 891 F.2d at 66 (Third Circuit:

a federal court exceeds its "statutorily defined power" by

remanding a case for procedural defects in removal "after the

U.S. 6, 19 (1951); Mackay v. Uinta Dev. Co., 229 U.S. 173, 176-77

(1913). Whether brought in state or federal court, these cases are

maritime and governed by maritime law; thus, subject matter jurisdiction

exists under 28 U.S.C. § 1333.

thirty day limit imposed by the revised Section 1447(c) ha[s]

expired").’ The decision below should not stand.

CONCLUSION

For the foregoing reasons, a petition for a writ of

certiorari should be granted.

Respectfully submitted,

JOHN F. DAUM

Counsel of Record

PATRICK LYNCH

KEVIN M. HARR

O’MELVENY & MYERS

555 13th Street, N.W.

Suite 500 West

Washington, D.C. 20004

(202) 383-5300

DOUGLAS J. SERDAHELY

BOGLE & GATES

1031 West 4th Avenue

Suite 600

Anchorage, Alaska 99501

(907) 276-4557

Attorneys for Petitioners

Dated: August 29, 1994

° Even the Ninth Circuit has refused to extend to its own district

courts the authority to remand cases after the 30 day limit set forth in

28 U.S.C. § 1447(c). See Maniar v. F.D.LC., 979 F.2d 782, 786 (9th

Cir. 1992).

APPENDIX

TABLE OF CONTENTS

APPENDIX

(BOUND WITH PETITION)

APPENDIX A

Decision and order of the United States Court of

Appeals for the Ninth Circuit in Eyak Native

Village, et al. v. Exxon Corporation, et al., 25 F.3d

713 Ot Cu. May 27, 1994) ..0 oc. cee.

APPENDIX B

(i) Order No. 83 of the United States District Court

for the District of Alaska regarding motions to

remand, In re the EXXON VALDEZ, Case No.

A89-095 Civil (Consolidated) (July 31, 1992)

(ii) Order No. 91 of the United States District

Court for the District of Alaska regarding motion

for remand in Case No. A92-353 Civil (P-5464 to

P-5576), In re the EXXON VALDEZ, Case No.

A89-095 Civil (Consolidated) (September 15,

ROMER FARR Dee ORE ees es bowed

(iii) Order No. 92 of the United States District

Court for the District of Alaska regarding D.M.

Adams’ (P-5584 through P-5618) motion to remand

in Case No. A92-461, In re the EXXON VALDEZ

Case No. A89-095 Civil (Consolidated)

ee Ey BD oo ve owe oo eS SS

26a

50a

54a

(iv) Order No. 108 of the United States District

Court for the District of Alaska regarding motion

for remand in Case No. A92-584 Civil (P-2989,

P-2997, P-3004, P-4169 and P-5619 through P-5643

Motion for Remand), Jn re the EXXON VALDEZ,

Case No. A89-095 Civil (Consolidated)

CRUPEIEIION EG, THees sks See wie ec esens 58a

APPENDIX C

Order of the United States Court of Appeals for the

Ninth Circuit, denying petition for rehearing and

rejecting suggestion for rehearing en banc, Eyak

Native Village, et ai. v. Exxon Corporation, et all,

No. 93-35274 (July 13, 1994) .......... 62a

APPENDIX D

Text of Statutes Involved ............. 64a

(SEPARATELY BOUND)

APPENDIX E

Parties in the Court of Appeals ......... 68a

APPENDIX F

ee en i ee a 10la

Bll WADA IO

APPENDIX A

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT.

No. 93-35274.

EYAK NATIVE VILLAGE, et al.,

Plaintiffs-Appellants,

EXXON CORPORATION, et al.,

Defendants-Appeliees.

Decided May 27, 1994.

Before: CHOY, HUG AND LEAVY, Circuit Judges.

HUG: Circuit Judge:

This case requires us to determine whether the district

court’s denial of motions to remand cases removed from an

Alaska state court was error. This interlocutory appeal

concerns the removal of over 160 separate cases brought in

the Superior Court of the State of Alaska. Plaintiffs sued

Exxon and Alyeska under Alaska law for the injuries caused

by the Exxon Valdez oil spill.' The cases proceeded in state

court for several years before defendants Exxon and Alyeska

removed the cases to district court on the basis that federal

questions had arisen justifying removal. The issue on appeal

is whether removal to federal court was appropriate.

The appeal is from five district court orders (Nos. 80,

83, 91, 92, 108) denying motions to remand to the Superior

Court of the State of Alaska a number of different removed

cases. We granted permission to appeal pursuant to

28 U.S.C. § 1292(b), and we now affirm in part and reverse

in part.

GENERAL BACKGROUND OF LITIGATION

Hundreds of cases were filed in both the Alaska Superior

Court and the federal district court seeking relief from Exxon

and Alyeska for various injuries caused by the March 1989

Exxon Valdez oil spill. Exxon was sued as the owner and

operator of the tanker that went off course and ran aground

(Exxon Shipping Co.) and as the owner of the more than

11 million gallons of oil that spilled (Exxon Corp.) for failure

to perform its statutory and common law responsibilities in

connection with the spillage and the clean up. The Alyeska

defendants are pipeline companies that own and operate the

Trans-Alaska Pipeline System and the terminal at which the

Exxon Valdez had been loaded.

"Exxon" refers to Exxon Corporation, Exxon Shipping Company,

Exxon Transportation Company, and individual defendants who are

current or former Exxon employees. “Alyeska" refers to Alyeska Pipeline

Service Company, the six oil companies which, in addition to Exxon, are

its co-owners, and individual defendants employed by Alyeska.

The plaintiffs sue on their own behalf and in some cases

as representatives of plaintiff classes, including commercial

fishermen whose fishing grounds were damaged by the oil,

Alaska Natives who subsist on various fish and other

resources, processors of fish harvested from the affected area,

employees of processors, area businesses and land owners,

and other injured persons. The federal court complaints seek

relief under maritime law and the remedial provisions of the

Trans-Alaska Pipeline Authorization Act, 43 U.S.C.

§ 1653(c) ("TAPAA"). The complaints filed in state court

seek relief under the Alaska Environmental Conservation Act,

46 Alaska Stat. §§ 46.03.822, et seg., which establishes strict

liability for oil spills, and also under Alaska’s tort law.

The federal court cases were consolidated for pretrial

purposes before District Judge H. Russel Holland and the

state court cases were consolidated before Judge Brian

Shortell of the Third Judicial District of the Alaska Superior

Court. The state and federal courts cooperated in some

stages of the proceedings. They selected the same lead and

liaison counsel and a common executive committee for the

plaintiffs, appointed a single discovery master, and jointly

heard motions.

The State of Alaska and the United States Government

also brought actions against the defendants on behalf of the

public for injury to natural resources pursuant to the

provisions of the Clean Water Act, 33 U.S.C. § 1321(f), and

other federal environmental legislation. On October 8, 1991,

the state and federal governments’ claims against Exxon

Corp. and Exxon Shipping Co. were resolved by entry of an

Agreement and Consent Decree in the district court. The

Agreement and Consent Decree provided for Exxon

Corporation and Exxon Shipping to pay the governments at

least nine hundred million dollars ($900,000,000) to restore

and rehabilitate the damaged natural resources in exchange

for a release of all claims, including natural resources claims

on behalf of the public. There is also a provision for an

additional one hundred million dollars ($100,000,000) for

unexpected damages under certain conditions.

Four environmental organizations sought to recover

damages from Exxon to contribute to a conservation trust

fund for the benefit of the general public to restore the

environment and natural resources damaged by the oil spill.

We have designated these plaintiffs as the "trust plaintiffs."

On November 21, 1991, the Exxon defendants removed to

federal court all cases related to the environmental

organizations’ cases. The Exxon removals are based on the

ground that the claims of the Trust plaintiffs raised a federal

question because the trust plaintiffs continued to pursue their

claims for natural resources damages after the federal consent

decree was entered to cover the same natural resources

damages. Exxon also removed other non-removable claims

that had been joined with the claims of the trust plaintiffs.

The district court’s Order No. 80 denied the plaintiffs’

motions to remand their cases to state court. Those plaintiffs

timely appeal.

On February 13, 1992, Alyeska removed approximately

150 cases to federal court. Those plaintiffs had contended

that Alyeska had violated state safety standards. Alyeska

argued that this raised a federal question because it attacked

a 1979 federal district court decree enjoining the state from

~— enforcing certain provisions of the Alaska Tanker Law. : The

plaintiffs’ motions to remand were denied int eh district

court’s Orders No.s 83, 91, 92, and 108. The plaintiffs

timely appeal.

II.

ORDER NO. 80: THE EXXON REMOVALS

A. Background

The trust plaintiffs are composed of four environmental

organizations—National Wildlife Federation ("NWF"),

Wildlife Federation of Alaska ("WFA"), Natural Resources

Defense Council ("“NRDC"), involved in one action, and

Alaska Sportfishing Association ("ASA")—and also four

individuals, originally involved in a separate action.

NWF, WFA, and NRDC filed a complaint on August 17,

1989, in National Wildlife Federation v. Exxon, Superior

Court No. 3AN-89-6957, stating 10 causes of action based on

strict liability, negligence, and nuisance. The other plaintiffs

stated similar liability claims int eh Amended and

Consolidated Class Action Complaint filed in Alaska

Sportfishing Association v. Alyeska Pipeline Service Co.,

Superior Court No. 3AN-89-5188, on July 17, 1989.

On September 3, 1991, the trust plaintiffs moved to

certify a conservation trust fund class to include "{a]ll persons

whose use, enjoyment, aesthetic and environmental interests

in the protection and enhancement of the ecosystem, wildlife

and other natural resources of Prince William Sound and the

Oil Impact Area” were injured by the oil spill. The class

excluded the commercial and subsistence use and enjoyment

interests of the classes already certified.

The relief sought by the trust plaintiffs in the

certification of the trust fund class was creation of a

conservation trust to restore the ecology of the oil impact

area, to protect the area from further environmental harm, to

restore wildlife populations on land and in the sea, to fund

scientific studies and monitoring of the area, and to acquire

resources equivalent to those lost in the spill. The trust

plaintiffs claimed that the trust class was necessary because

the State of Alaska could not adequately represent them due

to its conflict of interest, and noted that Alaska law provides

for individual actions where there is a potential conflict of

interest between the Government and a class of private

persons.

Speen 2

A little over a month after the trust plaintiffs filed for

class certification, the Agreement and Consent Decree

between the Untied States, Alaska, and the Exxon and

Alyeska defendants was filed in federal court on October 8,

1991. The consent decree stated that the natural resources

damages included relief recoverable by the governments "in

their capacity as trustees of Natural Resources on behalf of

the public” for injury to a// natural resources resulting from

the oil spill, "under any federal or state statute or maritime or

common law relating to the environment."

The trust plaintiffs, however, proceeded with their

action, and filed their reply brief in support of certification of

a conservation trust class in state court on October 22, 1991.

Anticipating the defense of res judicata, the trust plaintiffs

argued that the consent judgment was not binding because the

State was not fully representative of all interests. They

asserted that they were entitled to sue as trustees for public

users of the natural resources as a supplement to the damages

secured by the State and the United States in the consent

decree for two reasons.

First, the trust plaintiffs asserted that the State had a

conflict of interest in negotiating the decree because of its

own potential liability exposure. Second, they claimed that

a TT ee am |

the settlement did not provide sufficient funds for

environmental injuries, a fact that they claimed was indicated

’ by the State’s negotiating in secret and its failing to reveal

the reports of economic studies on which it had purportedly

relied. The trust plaintiffs’ reply brief also stated, however,

they were not challenging the government settlement, but

were seeking only supplementary and non-conflicting

recovery through the proposed trust fund.

In notices of removal filed November 21, 1991, Exxon

removed the trust plaintiffs’ cases, National Wildlife

Federation v. Exxon and Eyak Native Village v. Exxon, to

federal court. Exxon contended that the trust plaintiffs’

October 22, 1991, reply brief, which continued support of

certification of a conservation trust fund class to pursue

claims for environmental damages on behalf of the general

public, was in derogation of the federal judgment and raised

a federal question justifying removal of the National Wildlife

case. Exxon removed the class plaintiffs in the Eyak case

pursuant to 28 U.S.C. § 1441(c) on the ground that this

consolidated class action involved independent claims jointed

with the National Wildlife case.

Exxon also removed Wisner v. Exxon, Superior Court

No. 3KO-89-265, on the ground that it, too, was joined with

the trust plaintiffs’ actions.

B. Trust Plaintiffs’ Motion to Remand

In Order No. 80, the district court denied remand of the

trust plaintiffs’ cases removed by Exxon. The trust plaintiffs

had asserted that they were entitled to seek damages on

behalf of the public for injury to natural resources in addition

to those that the governments had obtained by the consent

judgment. The district court held that removal was

appropriate under the authorities that permit removal when a

state litigant makes a collateral attack on a federal judgment.

Judge Holland construed the trust plaintiffs’ reply brief as

seeking relief from the decree on the basis that it was

fraudulently obtained.

The district court concluded that the October 22, 1991,

reply brief raised a federal claim in the form of an

independent action in equity, or a Federal Rule of Civil

Procedure 60(b)(3) motion for relief from the consent decree.

Relying on Villarreal v. Brown Express, Inc., 529 F.2d 1219,

1221 (Sth Cir. 1976), the court concluded that the reply brief

raised a federal claim sufficient for removal under 28 U.S.C.

§ 1441(a).

We review de novo the district court’s denial of a

motion to remand an action removed from state to federal

court. Sullivan v. First Affiliated Securities, Inc., 813 F.2d

1368, 1371 (9th Cir.), cert. denied, 484 U.S. 850 (1987).

Any action based on a claim or right that arises under

federal law may be removed to federal court pursuant to 28

U.S.C. § 1441, if a notice of removal is filed within 30 days

after the defendant receives "a copy of an amended pleading,

motion, order or other paper from which it may first be

ascertained that the case is one which is or has become

removable." 28 U.S.C. § 1446(b) (1988).

Exxon stated as ground for removal that the reply brief,

which continued the trust plaintiffs’ litigation despite the

consent decree, raised a federal question of the construction

of the consent decree and whether the consent decree was res

judicata as to the trust plaintiffs’ claims. In denying the

motion to remand, the district court did not rely on this

ground but, instead, construed the reply brief as transforming

9a -

the trust plaintiffs’ action into an attack on the consent decree

in the nature of a motion or independent action provided for

under Rule 60(b).

The reply brief could not be construed as transforming

the complaint into a Rule 60(b) motion because it was not

made in the federal action. However, Rule 60(b) has a

saving clause that preserves a court’s power to entertain an

independent action in equity to obtain relief from judgment:

a motion may be treated as an independent action in equity,

or vice versa. 11 Charles A. Wright & Arthur R. Miller,

Federal Practice & Procedure § 2868, at 244 (1973).

Appellants contend that this was inappropriate because they

would have lacked standing to seek Rule 60(b)-type relief

because they were not parties to the consent decree.

However, a nonparty may seek relief from a judgment

procured by fraud if the nonparty’s interests are directly

affected. See Kem Manufacturing Corp. v. Wilder, 817 F.2d

1517, 1521 (11th Cir. 1987); see also Southerland v. Irons,

628 F.2d 978, 980 (6th Cir. 1980). Moreover, a court has

"inherent power . . . to investigate whether a judgment was

obtained by fraud," and may bring before it "all those who

may be affected... ." See Universal Oil Products Co. v.

Root Refining Co., 328 U.S. 575, 580 (1946).

Further, Rule 60(b) or an independent action allows

relief from judgment to be given to "a party or his legal

representative." This allows one who is in privity with a

party to move for relief. 11 Charles A. Wright & Arthur R.

Miller, Federal Practice & Procedure § 2865, at 225-26 &

n.58 (1973). The citizens whom the trust plaintiffs sought to

represent were more than in privity with the State; they were

identical. Where the State is a party to relevant proceedings,

. then citizens are represented in those proceedings and are

bound by the judgment. Washington v. Washington State

10a

Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658,

692-93 n.32, modified on other grounds, 444 U.S. 816

(1979); Tacoma v. Taxpayers of Tacoma, 357 U.S. 320,

340-41 (1958); United States v. Baker, 641 F.2d 1311, 1314

n.5 (9th Cir. 1981).

Other jurisdictions have held that an action to obtain

relief from a federal judgment presents a general federal

question, which may support removal to federal court. See

Villarreal, 529 F.2d at 1221; Deauville Assocs., Inc. v. Lojoy

Corp., 181 F.2d 5 (Sth Cir.), cert. denied, 340 U.S. 905

(1950); See also 7 James W. Moore, et al., Moore’s Federal

Practice J 60.37[2](3) (federal court should be independent

of state law in determining what grounds will support an

independent action for relief from a federal judgment);

60.38[1] (such an action involves the validity of the

judgment, and the substantive principles of the action are

federal) (2d ed. 1993).

[1] The district court’s treatment of the trust plaintiffs’

claims as an independent action for relief from judgment

recharacterized their claims as federal claims, because the

alleged conflict of interest of the State and the insufficiency

of the recovery implied that the decree was fraudulently

obtained. The State of Alaska acted in its capacity as trustee

of natural resources on behalf of the public. The general

public that the trust plaintiffs sought to represent is the same

general public the State represented. The consent decree

covered essentially the same claims as were raised by the

trust plaintiffs: damage to natural resources. The consent

decree specified that it contained full compensation for the ‘

public’s claim for natural resources damages.

The district court noted that the reply brief asserted that

the State had a conflict of interest in representing the public’s

interest in natural resources and quoted the following portions

of the reply brief:

As a predominant common issue in this

controversy, Trust Class Plaintiffs contend

that because of divergent and potentially

conflicting interests with the environmental

interests of private persons, the settlement

by the State was insufficient.

In contrast to the relief trust Class

Plaintiffs seek here relating only to the

environment and its use, the State when

negotiating its settlement, no only had a

legitimate variety of divergent public

interests such as coast and economic

concerns, past and future dealings with the

oil industry and these settling defendants,

and employment, budgetary and political

objectives, but it also, most critically, had

its own potential liability exposure in these

cases, and thereby obtained important

individual monetary and nonmonetary

benefits for itself, not its citizens, as part of

the Exxon settlement and Plea Agreement.

The district court also noted that the reply brief asserted that

the State had breached its fiduciary duties and quoted the

following portion of the reply brief:

In addition, Trust Class Plaintiffs contend

that the settlement reached between the

State and Exxon provided insufficient

12a

dollars for presently known environmental

_ injuries because the State negotiated in

secret with Exxon, and has not revealed the |

actual reports of economic studies, on which |

it purportedly relied in negotiating the

settlement.

The district court stated:

The court views these statements as

implying that the consent decree was

fraudulently obtained because the State

acted in a capacity other than the trustee

capacity it represented to the court it was

acting under, and because the withholding

of the studies kept the court and the public

from ascertaining the extent of the

insufficiency of the settlement.

[2] The district court noted that sections 3 and 6 of the

consent decree provided as follows:

3. "State" means the State of Alaska, in

all its capacities, including all departments,

divisions, independent boards,

administrations, natural resource trustees,

and agencies of the state government. |

6(d). "Natural Resource Damages" means

compensatory and_ remedial relief

recoverable by the Governments in their

capacity as trustees of Natural Resources on

behalf of the public for injury to, destruction

13a

of, or loss of any and all Natural Resources

resulting from the Oil Spill, whether under

the Clean Water Act, . . . , the Trans-Alaska

Pipeline Avthorization Act, ..., or any

federal or state statute or maritime or

common law relating to. the

environment... .

(Emphasis added by district court.) Thus, the district court

correctly concluded that the trust plaintiffs were seeking to

set aside the provision of the consent decree that provided it

was in full payment for the damages to the public’s natural

resources. The ground for this relief was that the State had

purported to represent the public’s interest in restoring the

natural resources while it had an adverse governmental

interest. Thus, the contention is that the State operated in

derogation of its fiduciary duties imposing a fraud on the

court.

[3] Although the original complaint did not set forth a

removable claim, the reply brief did. Section 1446(b)

provides in relevant part:

If the case stated by the initial pleading is

not removable, a notice of removal may be

filed within thirty days after receipt by the

defendant, through service or otherwise, of

a copy of an amended pleading, motion,

order or other paper from which it may first

be ascertained that the case is one which is

or has become removable... .

28 U.S.C. § 1446(b) (emphasis added). The reply brief

constitutes the "other paper" justifying the removal.

l4a

Appellants contend that removal was untimely because

the reply brief did not change the basic theory and nature of

the claims, or the relief sought in the form of a conservation

trust. They maintain that the appellees were on notice of any

purported federal question on which removal could be based,

at latest when the trust plaintiffs filed their class certification

motion on September 3, 1991. That motion sought

certification of a class of all persons "whose use, enjoyment,

aesthetic and environmental interests in the protection and

enhancement of the ecosystem, wildlife and other natural

resources" were injured by the spill. The motion referred to

the governmental decree negotiations and the State’s alleged

conflict of interest. The appellants contend that any removal

notice should have been filed within 30 days of that motion.

[4] However, as Judge Holland concluded, the case

became removable only when the trust plaintiffs made clear

after the consent decree was entered on October 8, 1991, that

they intended to pursue additional relief for natural resource

damage. The trust plaintiffs would have to be relieved of the

consent decree in order to obtain damages beyond those

awarded in the consent decree, because it was stated to be

full compensation for the public’s claim for natural resources

damages.

[5] The reply brief was served on October 22, 1991.

Because notices of removal were filed on November 21,

1991, removal was within the 30-day period required by

section 1446(b) and was timely. The consent decree itself

could not have triggered removability because 28 U:S.C.

§ 1446(b) requires the receipt by the defendants of a paper in

the action from which removability may be ascertained. The

consent decree was not filed in state court in these cases.

The reply brief triggered removal, and the Order No. 80

removal notices were timely.

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15a

C. Class Action Plaintiffs’ Motion to Remand

Appellants ask that 14 of the class actions and the

Wisner case be remanded to state court because the removals

were based on a misapplication of 28 U.S.C. § 1441{c). That

statute provides:

Whenever a separate and independent claim

or cause of action within the jurisdiction

conferred by section 1331 of this title is

joined with one or more otherwise non-

removable claims or causes of action, the

entire case may be removed and the district

court may determine all issues therein, or, in

its discretion, may remand all matters in

which State law predominates.

28 U.S.C. § 1441(c) (Supp. IV 1992).

The plaintiffs in 15 class actions filed in state court filed

an Amended Consolidated Class Action Complaint

("Consolidated Complaint").? One of the class actions

among the 15 was that filed by Alaska Sportfishing

Association and several individuals. It is clear that this class

action was properly removed because Alaska Sportfishing and

the individuals joined the trust plaintiffs’ action. The issue

is whether the claims of the remaining class action plaintiffs

were properly removed. This depends upon the resolution of

The 15 class actions were as follows: The Eyak native Viliage,

Cordova District Fishermen United, Prince William Sound Settnetters

Association, Philip G. McCrudden, Samish Maritime, Inc., Randall P.

Babich, Albert Carroll, Ina Thorne, Edward Gregorieff, Kent Herschleb,

Marc Van Driessche, Keith H. Gordaoff, Tom Copeland, Sea Hawk

Seafoods, and Alaska Sportfishing Association.

16a

whether the Consolidated Complaint joined all 15 class

actions and, thus, made them removable as a group.

The Consolidated Complaint, filed on July 17, 1989,

sought to create from the 15 separate class actions a

consolidation into 5 new proposed classes. The complaint

designated which of the plaintiffs in the 15 class actions

would be representatives in the 5 superseding classes. The

proposed classes were:

Alaska Native Class

Commercial Fishing Class

Processor/Distributor Class

Area Business Class

Use and Enjoyment Class.’

22 Pe

The appellants argue that the Amended Consolidated

‘Complaint left intact the 15 prior class actions. However,

this is not a situation in which the class representatives joined

in a joint motion or discovery action. This is a situation in

which a whole new complaint was voluntarily filed,

designating five entirely different classes. The

representatives of some of the new classes came from several

of the prior classes; for example, the proposed representatives

for the Commercial Fishing Class came from 12 of the

previously separate class actions.

The plaintiffs in the Amended Consolidated Complaint

were free voluntarily to file an amended complaint, joining

*In Pretrial Order No. 22, February 14, 1991, the Superior Court

certified the Alaska Native Class, the Commercial Fishing Class, the Area

Business Class, and the Property Owner Class. The motion for

certification of a Use and Enjoyment Class was denied in Pretrial Order

No. 24, February 14, 1991.

17a

their claims and designating new classes, because the

defendants had not answered. No court order was required.

The plaintiffs did not seek in the Consolidated Complaint to

preserve the individual identity of their former class action

complaints. As the district court observed, "Fifteen separate

class actions could not be transformed into 5 proposed classes

without the claims being joined." The same principle applies

to the plaintiffs in the Wisner case, who later joined in the

consolidated action.

The class action plaintiffs argue that the Consolidated

Complaint did not join the individual class actions because an

earlier state pretrial consolidation order, entered by Judge

Shortell, provided that papers filed in the Exxon Valdez

litigation could be made applicable to multiple actions by

including the title and docket number of each action in the

caption of the document filed. The appellants contend that

by listing each short title and docket number, the separate

identities of the cases were preserved. They rely on Katz v.

Realty Equities Corp., 521 F.2d 1354, 1358 (2d Cir. 1975),

In re Wirebound Boxes Antitrust Litigation, 128 F.R.D. 262,

264 (D. Minn. 1989), and In re Equity Funding Corp. of

America Securities Litigation, 416 F. Supp. 161, 176-77

(C.D. Cal. 1976), for the proposition that "consolidation

cannot effect a physical merger of the actions or the defenses

of the separate parties." Katz, 521 F.2d at 1358.

However, none of those cases involved the certification

of classes that drew plaintiffs from a variety of other class

actions. As we have noted in this litigation, several of the

originally individual actions have plaintiffs in more than one

new Class, and several new classes certified by Judge Shortell

contain plaintiffs from more than one of the original cases.

18a

Furthermore, the removal context of the question before

us also distinguishes Katz, Wirebound Boxes, and Equity

Funding. In all three cited cases, the consolidated complaints

were ordered by the district courts. Judge Shortell did not

order the plaintiffs to file a consolidated complaint. In

Wirebound Boxes and Equity Funding, the courts stated that

at the conclusion of pretrial proceedings, they would consider

whether it was appropriate to preserve for trial and judgment

the separate identities of the actions consolidated for pretrial

purposes. Wirebound Boxes, 128 F.R.D. at 264; Equity

Funding, 416 F. Supp. at 177 n.12. Judge Shortell made no

similar statement. The appellants point to his use of the

plural form of "cases" in certain of his orders, but there is no

clear indication that the separate identities of the cases were

to be preserved. In fact, as Judge Holland reasoned, the

plaintiffs’ proposal to form 5 classes out of 15 cases indicates

just the opposite. Thus, we have more than consolidation

alone. See Kaiz, 521 F.2d at 1358.

[6] A class action is "a multiple joinder device,

permitting the litigation, in one single action, of multiple

claims involving similar or identical questions of law and

fact, usually arising from the same set of operative facts.”

Lesch v. Chicago & Eastern Illinois R.R. Co., 279 F. Supp.

908, 911 (N.D. Ill. 1968). Although the appellants originally

filed their class actions separately, they subsequently filed an

amended complaint requesting five superseding classes to be

constituted of their various individual plaintiffs. We hold

that the class actions were joined.

Similarly, the Wisner v. Exxon Corporation plaintiffs

became part of the action. They joined the class action

plaintiffs’ motion for class certification, even though the

plaintiffs in Wisner had filed their own class action motion

and complaint, and were not parties to the Consolidated

19a

Complaint. After the state court certified the classes, the

Wisner plaintiffs became representatives of the Commercial

fishing Class, the Area Business Class, and the Property

Owner Class. Thus, Wisner was joined with the other class

actions.

[7] Because the plaintiffs are all in the same case as

plaintiffs Alaska Sportfishing Association, who were part of

the proposed Conservation Trust Class, asserting a removable

claim, Judge Holland properly determined that the claims of

the class action plaintiffs were removable pursuant to 28

U.S.C. § 1441(c).

[8] The class action plaintiffs contend that even if there

were a joinder with the action of the trust plaintiffs, the

removal was not proper because it failed to meet the

"separate and independent claim" requirement of

section 1441(c). The trust plaintiffs’ claims are clearly

separate and independent from the claims of the class action

plaintiffs and Wisner plaintiffs. The plaintiffs are

"proceeding to enforce rights that are individual to them," not

rights that are jointly held by them. 1A James W. Moore, et

al., Moore’s Federal Practice 4 0.163, at 336 (2d ed. 1993).

That is, each of the plaintiffs had a separate and independent

claim against the defendants, which could have been sued

upon alone without joinder of the other plaintiffs. See, e.g.,

Northside Iron and Metal Co. v. Dobson and Johnson, Inc.,

480 F.2d 798, 801 (Sth Cir. 1973). The trust plaintiffs were

seeking relief for the general public for damages to the

natural resources, whereas the class action plaintiffs were

seeking compensatory relief for damages suffered by each

member of their classes. The claims were separate and

independent. The trust plaintiffs’ claims were removable.

Thus, the entire case is properly removable under

20a

section 1441(c). See also Stokes v. Merrill Lynch, Pierce,

Fenner & Smith, Inc., 523 F.2d 433 (6th Cir. 1975).

American Fire & Casualty Co. v. Finn, 341 U.S. 6

(1951), does not counsel otherwise. Finn involved multiple

claims by one plaintiff against three defendants, arising out

of a fire loss on property owned by the plaintiff. Jd. at 7-8.

The causes of action against two of the defendants, out-of-

state insurance companies, would have been removable if

sued upon alone. /d. at 8.

The Court analyzed Finn’s pleading and determined that

a single wrong, the failure to compensate Finn for the

property loss, had occurred, id. at 14, and that substantially

the same facts were contained in the allegations against all

three defendants. Consequently, the Court concluded that the

claims for relief were not separate and independent, and that

removal was not justified. Jd. at 16.

It is not clear that the rationale of Finn applies to the

claims of multiple plaintiffs. In any event, the multiple

plaintiffs before us have suffered distinctly different harms as

a result of the oil spill, and, if they prevail on their claims,

are entitled to separate recoveries. Under the Finn definition

of "cause of action," different "primary rights” are being

asserted by different plaintiffs. The claims are separate and

independent, and properly were removed.

2la

III.

ORDERS NOS. 83, 91, 92, 108: ALYESKA REMOVALS

On February 13, 1992, Alyeska filed a notice of

removal, based on the Plaintiffs’ Preliminary Designation of

Issues for Trial, filed February 3, 1992. The plaintiffs

indicated in that paper that they would support their

negligence claims at trial with evidence concerning Alyeska’s

_ disregard for tanker and equipment safety standards. Alyeska

contended that this raised a federal question because any such

claim would be barred by, or would amount to a collateral

attack on, injunctions which several oil companies had

obtained 15 years earlier against the state’s enforcement of

certain provisions of the 1976 Alaska Tanker law. See

Chevron, U.S.A., Inc. v. Hammond, 1978 Am. Mar. Cas.

1697 (D. Alaska 1978) (some provisions of Alaska Tanker

Law ar preempted by federal Ports and Waterways Safety Act

of 1972, 46 U.S.C. §§ 3701-3718 ("PWSA")).

In Orders Nos. 83, 91, 92, and 108, Judge Holland

denied a motion to remand the approximately 150 cases

removed by the Alyeska defendants on February 13, 1992.

He reasoned that the state law claims were an indirect

attempt to enforce the requirements of the Alaska Tanker

Law and, therefore, were a collateral attack on Chevron.

Judge Holland also rejected the plaintiffs’ argument that

Alyeska’s removal was untimely.

The Alyeska removals were triggered by the plaintiffs’

suggestion that they would support their negligence claims

with evidence concerning Alyeska’s disregard of tanker and

equipment safety issues. Alyeska’s theory of the removal is

that any state tort remedy is preempted by the Ports and

Waterways Safety Act, 46 U.S.C. §§ 3701-3718, and barred

22a

by past injunctions enforcing federal preemption against state

regulatory action: Evidence concerning tanker design and

other safety measures cannot be used to establish the proper

standard of care because the court, in Chevron v. Hammond,

id., has already held that the PWSA preempts state regulation

of tanker design and other safety measures. Alyeska reasons

that the plaintiffs’ action amounts to a collateral attack on the

district court’s past injunctions, and presents a general federal

question. The district court held that the plaintiffs were

mounting a collateral attack against Chevron v. Hammond

because the plaintiffs indicated that they would ask the jury

to characterize as "reckless" conduct that complies with

federal law.

[9] We need not consider the merits of these removals

because the notices or removal at issue on Orders Nos. 83,

91, 92, and 108 were untimely. A notice of removal must be

filed within 30 days after the defendant receives "a copy of

an amended pleading, motion, order or other paper from

which it may first be ascertained that the case is one which

is or has become removable... ." 28 U.S.C. § 1446(b).

Alyeska’s notices were filed 10 days after the February 3,

1992, filing of Plaintiffs’ Preliminary Designation of Issues

for April 1993 Trial in state court. However, no new claims

were raised in that document.

[10] The Preliminary Designation essentially asserted

that Alyeska caused the oil spill by failing to require use of

vessels with double hulls, failing to provide tug escorts and

special monitoring systems, and by having the federal district

court invalidate Alaska laws that required such measures in

Chevron v. Hammond, No. A77-195 Civil. The plaintiffs

also claimed natural resources damages. The removal was

based on the theory that the plaintiffs were collaterally

attacking the prior federal judgment in Chevron.

23a

[11] These claims were not new. The claims that

Alyeska had negligently caused the spill were mentioned in

the Plaintiffs’ Supplemental Submission in Support of the

Case Management Plan, filed Nov. 8, 1991. That memo

stated that the factual issues included:

f. Whether the use of single hull, high

tensile steel construction was sufficient to

allow the EXXON VALDEZ to safely

engaged in the trade for which it was

intended.

i. Whether defendants took adequate

preventative measures to minimize the

possibility of a spill, in view of the known

risk of a spill.

The memo did not indicate in any way that paragraphs (f)

and (i) did not apply to Alyeska.

Appellees contend that the claims related to double-

hulled tankers were asserted only against Exxon Shipping

Company and Exxon Corporation, not against the Alyeska

defendants. They argue that the claims that Exxon Shipping

Company or Exxon Corporation negligently caused the spill,

in part because a single-hulled vessel was used, were not

substantial enough to support removal as long as they were

asserted only as part of a larger claim of negligence against

Exxon Shipping Company and Exxon Corporation. See

Hunter v. United Van Lines, 746 F.2d 635, 646 (9th Cir.

1984), cert. denied, 474 U.S. 863 (1985). A substantial

proposition of federal law must form a "’direct and essential

element of the plaintiff's cause of action’ for federal

24a

jurisdiction to be appropriate. See id at 644 (citation

omitted). The issue is whether, and when, this was so with

regard to Alyeska, thereby enabling Alyeska to argue that the

claims involved a collateral attack on Chevron.

Appellees contend that the plaintiffs asserted a new

claim in the Preliminary Designation by arguing that Alyeska

caused the spill by not requiring the measures at issue in

Chevron. Thus, the federal issues became substantial enough

to support removal when the Preliminary Designation was

filed.

[12] However, it is clear that Alyeska was aware of the

nature of the plaintiffs’ claims and their possible connection

to Chevron v. Hammond \ong before the removal notices

were filed. Eight months earlier, on May 31, 1991, Alyeska

stated that the plaintiffs had alleged and put in question

tanker design and operation, including the issue of double

hulls, and that the actions could not be tried without

discovery into the federal government’s role in establishing

tanker design. The Defendants’ Response explained how "the

private defendants" would respond to those allegations, and

did not distinguish between Alyeska and Exxon. The

defendants clearly identified which defendants were

concerned with certain of the plaintiffs’ allegations.‘

Further evidence that Alyeska was aware of the nature

of the plaintiffs’ claims is Alyeska’s assertion of a federal

preemption defense in its answer filed October 29, 1990, in

which Alyeska stated, "certain claims of plaintiff are barred

‘For example, in the very next section of the response, the defendants

explain how Exxon Shipping and Exxon Corporation would respond to

other allegations concerning details of the accident. Alyeska is not

mentioned in that section.

25a

or limited by the comprehensive system of federal statutes

and regulations and by maritime and admiralty law."

Appellees contend that the defense did not refer to the PWSA

and was not asserted to rebut a claim that the Alyeska

defendants negligently caused the spill by failing to

implement the measures at issue in Chevron. Rather, the

answer was intended to preserve the defense that some of

plaintiffs’ claims related to the alleged negligence in the

clean up were preempted by the TAPAA. However, the

plain language of paragraph 13 of the answer is quite broad,

and separate affirmative defenses asserted in the answer refer

to TAPAA. Although the defense of preemption does not

support removal, the answer indicates that Alyeska was aware

at that time of the nature of the plaintiffs’ claims and their

possible connection to Chevron v. Hammond.

Alyeska’s removal notices were untimely.

CONCLUSION

[13] Order No. 80 is affirmed. The other orders are

reversed, and the case is remanded to the district court for

further proceedings consistent with this opinion.

AFFIRMED IN PART AND REVERSED IN PART

AND REMANDED.

26a

APPENDIX B

APPENDIX B(i)

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

Case No. A89-095 Civil

(Consolidated)

In re

the EXXON VALDEZ

ORDER NO. 83

MOTIONS TO REMAND

Approximately 150 cases’ arising from the grounding of

the Exxon Valdez were removed from state court by the

Alyeska defendants’ ("Alyeska"). The State Court Plaintiffs

filed a motion to remand Case Nos. A92-077 through

'Case Nos. A92-077 through A92-226, and A92-278.

*Alyeska Pipeline Service Company (D-3); Amerada Hess Pipeline

Corporation (D-11); ARCO Transportation Alaska, Inc. (D-12); Mobil

Alaska Pipeline Company (D-14); BP Pipelines (Alaska), Inc. (D-19);

Phillips Alaska Pipeline Corporation (D-20); Unocal Pipeline Company

(D-21); and George M. Nelson (D-9).

27a

A92-226 (except Case Nos. A92-174, A92-175, and

A92-215),? and Case No. A92-278. The State of Alaska

filed a separate motion to remand Case No. A92-175.

Alyeska filed a joint opposition to both motions. The State

Court Plaintiffs and the State separately replied. The court

heard oral argument on both motions.

The removals were based on two statements made in

Plaintiffs’ Preliminary Designation of Issues for April 1993

Trial, filed on February 3, 1992, in state court. The first

statement, as perceived by Alyeska, was that Alyeska caused

the grounding of the Exxon Valdez and the resulting oil spill

by failing to require vessels to have double bottoms, by

failing to provide tug escorts, by failing to provide a special

vessel monitoring and communication system, and by having

this court, in Chevron v. Hammond, Case No. A77-195 Civil,

invalidate Alaska statutes and regulations which required

these same measures. The second statement was plaintiffs’

claim for natural resource damages.

Chevron v. Hammond

Chevron v. Hammond, Case No. A77-195 Civil, was

filed in this court in 1977 and assigned to Judge Fitzgerald.*

Plaintiffs were a number of oil companies, including Exxon

Corporation. None of the Alyeska defendants were plaintiffs

in Chevron v. Hammond. Defendants in Chevron v.

>Case No. A92-174 was filed by Thomas Lakosh and has a pending

motion to remand. Case No. A92-215 is a class action complaint

prepared by attorney Melvin Belli; no motion to remand is pending.

‘Complaint, Exhibit 7 to State Court Plaintiffs’ motion (Clerk’s

Docket No. 2363).

28a

Hammond were various Alaska state officials including the

attorney general.

Chevron v. Hammond was an action brought to have

declared unconstitutional and to enjoin enforcement of certain

Alaska laws and regulations*(hereinafter referred to as the

"Alaska Tanker Law") (1) regulating the design, equipment,

navigation, operation, certification, inspection, financial

responsibility, oil spill liability, and clean-up capability and

responsibility of oil tankers entering Alaska waters,

(b) establishing a Coastal Protection Fund financed by "risk

charges" imposed on tankers, and (c) imposing criminal and

civil penalties for noncompliance.

The Alaska Tanker Law required all tank vessels

engaged in the marine transportation of crude oil to have a

LORAN-C navigational and communication system, and

electronically controlled collision avoidance system, and a

dual radar system. It also required that all tank vessels be

escorted by tugs meeting specified power requirements in

prescribed coastal areas. In addition, it imposed a certificate

and assessment system which required terminals and vessels

to obtain certificates of risk avoidance upon payment of "risk

charges". The "risk charge" was to be set by the Alaska

Department of Environmental Conservation ("ADEC") based

on such factors as whether the vessel had a double hull.

While Chevron v. Hammond was pending, the United

States Supreme Court issued Ray v. Atlantic Richfield Co.,

435 U.S. 151 (1978), a decision which involved the State of

Washington’s tanker law. The Court held that insofar as the

*Chapter 266 of the 1976 Laws of Alaska and the implementing

regulations. Exhibit 1 to Alyeska’s opposition (Clerk’s Docket

No. 2505).

29a

Washington tanker law required double hulls, dual radar, and

a collision avoidance system, it was unconstitutional because

it was preempted by Title II of the Ports and Waterways

Safety Act ("PWSA").° As a consequence, the Chevron v.

Hammond parties agreed to a Partial Final Judgment and

Permanent Injunction’ which enjoined defendants from

taking any action to implement or enforce the Alaska Tanker

Law and implementing regulations that required tank vessels

to have dual radar systems, collision avoidance radar, and

LORAN-C navigational equipment; and ADEC regulations

requiring tug escorts for vessels in Prince William Sound.

The parties in Chevron v. Hammond could not agree as

to the effect of Ray on that portion of the Alaska Tanker Law

concerning "risk charges". (Risk charges were determined on

whether a tanker had a double bottom or a double hull,

among other things.) Judge Fitzgerald tried the issue and

ruled that the risk charge system was also preempted by

Title II of the PWSA. Chevron U.S.A., Inc. v. Hammond,

1978 A.M.C. 1697 (D. Alaska 1978).

Judge Fitzgerald entered a Partial Final Judgment and

Order® enjoining defendants from taking any action to

implement or enforce the provisions of the Alaska Tanker

Law which assessed risk charges.

*Previously codified at 46 U.S.C. § 39la. The PWSA has been

comprehensively amended since the decision in Ray. Section 39la was

repealed and replaced by various new sections. The current sections that

concern oil tankers are located in 46 U.S.C. §§ 3701-3718. The

amendments do not undermine the judgment in Chevron v. Hammond.

Exhibit 3 to Alyeska’s opposition (Clerk’s Docket No. 2505).

*Exhibit 5 to Alyeska’s opposition (Clerk’s Docket No. 2505).

AR Ps eee GRD hs tap ke SPr aE On

See

PAE RS Selanne, CS

30a

Preliminary Designation of Issues

In the removed cases which plaintiffs commenced as a

consequence of the grounding of the Exxon Valdez, the state

court set a date of April 19, 1993, for trial of the liability and

punitive damages issues. The state court required all parties

asserting claims to file a statement of issues for that trial,

including a summary of factual and legal contentions. On

February 3, 1992, plaintiffs filed a Preliminary Designation

of Issues for April 1993 Trial ("Preliminary Designation")

which addressed issues of liability, including liability for

punitive damages.?

The claims asserted in the Preliminary Designation

which involved Chevron v. Hammond and which, in part,

prompted Alyeska to remove the remaining state cases are:

B. The Conduct of the Alyeska Defendants

Concerning Tanker Operations in Prince

William Sound Was Undertaken With

Reckless Indifference to the Interests, Rights

and Safety of Others and Was Sufficiently

Outrageous to be Deemed Equivalent to

Actual Malice.

2. The Alyeska Defendants Acted With

Reckless Indifference to the Interests of

Others When They Failed to Take Steps to

Prevent Oil Spills in Prince William Sound

*Exhibit 4 to State Court Plaintiffs’ motion (Clerk’s Docket

No. 2363).

age eee

3la

From Tankers Loaded at the Alyeska

Terminal.

a. The Alyeska defendants were unwilling to

incur the cost of taking the following kinds

of preventive measures:

(1) requiring all TAPS oil to be carried in

double-bottomed tankers;

(2) providing tug escorts for all loaded tankers

until they reach open water;

(3) providing a vessel monitoring and

communications system that could monitor

the position of all TAPS tankers between

Hinchinbrook entrance and the Valdez

terminal;

(4) ....

c. Most of these preventive measure were

urged upon the Alyeska defendants by

Alaska native corporations during —

construction of the pipeline, and several

were required by legislation enacted before

the terminal began operating. The Alyeska

defendants ignored the native corporations

32a

and succeeded in having a court overturn

the legislation.

Preliminary Designation at 19-22."°

Alyeska relied on these statements in the Preliminary

Designation as supporting removal because, Alyeska argued,

: the claims (1) are exclusively governed by federal law,

(2) are barred by federal res judicata, and (3) constitute an

improper collateral attack on the judgment in Chevron v.

Hammond.

The Preliminary Designation also made numerous

references to natural resources damages under Section C,

which reads:

C. As a Natural and Foreseeable Consequence

of the Defendants’ Actions and Omissions,

the EXXON VALDEZ Oil Spill Caused

| Grave and Long-Standing Damage to the

Environment of Prince William Sound and

. Beyond and Thereby Caused Substantial

: Damage to Plaintiffs and Members of the

| Plaintiff Classes, Who Depend Upon that

: Environment for their Livelihood and

Lifestyle.

Preliminary Designation at 33."'

"Exhibit 4 to State Court Plaintiffs’ motion at 28-31 (Clerk’s Docket

No. 2363).

"Exhibit 4 to State Court Plaintiffs’ motion at 42 (Clerk’s Docket

No. 2363).

33a

Alyeska relied on those statements to support removal

because, Alyeska argued, claims for natural resources

damages are barred by the express terms of the Agreement

and Consent Decree entered in United States v. Exxon Corp.,

Case No. A91-082 Civil, and State of Alaska v. Exxon Corp.,

Case No. A91-083 Civil.

State ’s Motion to Remand

The State’s motion to remand Case No. A92-175 is

based on essentially the same legal arguments that the State

Court Plaintiffs made in their motion. However, the State

did raise two arguments which apply only to the State. We

address these first and separately.

The State first argued that it never adopted those factual

contentions which are at issue here. The state court record,

however, reflects the following. The State filed a

Supplement to Plaintiffs’ Preliminary Designation of Issues

for April 1993 Trial ("Supplement")’* on February 3, 1992,

the same date the plaintiffs filed their desenagaaae

Designation. The Supplement stated:

Rather than produce a lengthy, but

substantially similar, separate document, the

State of Alaska prefers to join in the

Preliminary Designation, and reserves the

right to subsequently specify contentions not

adopted if that ever becomes relevant or

appropriate.

"Exhibit H to State’s motion (Clerk’s Docket No. 2371).

34a

Supplement at 2. On February 7. 1992, the defendants,

including Alyeska, filed in state court a Motion Suggesting

Topics for February 14, 1992 Status Conference’? which

proposed that the State be ordered to specify which

contentions listed in the Preliminary Designation it did not

adopt. ;

On February 28, 1992, after Alyeska had removed these

cases on February 13, 1992, the State filed its Clarification

of State of Alaska’s Supplement to Plaintiff's Designation of

Issues.'* In the Clarification, the State specified that it did

not adopt the contentions at issue here.

The State argued that since it clarified its position on the

Preliminary Designation during the thirty-day period Alyeska

had after the February 3, 1992, filing of the Preliminary

Designation to remove the cases, the State should not be

penalized. For purposes of removal, the question of whether

jurisdiction exists is determined at the time the notice of

removal is filed. Pullman v. Jenkins, 305 U.S. 534, 537

(1939); Brown v. Southwestern Bell Telephone Co., 901 F.2d

1250, 1254 (Sth Cir. 1990). If there is a subsequent

narrowing of issues to eliminate federal claims, federal

jurisdiction is not extinguished. Brown, 901 F.2d at 1254.

On February 13, 1992, when the cases were removed,

the State had not yet specified any contentions in the

Preliminary Designation which it did not adopt. Furthermore,

the State did not repudiate its claim for punitive damages

"Exhibit B to State’s reply (Clerk’s Docket No. 2472).

‘Exhibit J to State’s motion (Clerk’s Docket No. 2371).

35a

against Alyeska’* and the contentions at issue form the basis

for the request for punitive damages. The State’s subsequent

clarification is not effective for purposes of defeating removal

jurisdiction.

The State’s second argument was that Alyeska’s

counterclaim against the State must be remanded due to

Eleventh Amendment considerations. Alyeska agrees that the

counterclaim must be remanded."

Timeliness

Plaintiffs raised the argument that removal was untimely

pursuant to 28 U.S.C. § 1446(b). The pertinent portion of

Section 1446(b) reads as follows:

If the case stated by the initial pleading is

not removable, a notice of removal may be

filed within thirty days after receipt by the

defendant, through service or otherwise, of

a copy of an amended pleading, -motion,

order or other papers from which it may first

be ascertained that the case is one which is

or has become removable....

28 U.S.C. § 1446(b) (emphasis added). Alyeska contended

that plaintiffs’ February 3, 1992, Preliminary Designation was

the "or other paper" from which it was first ascertained that

a federal issue was raised: Since the cases were removed ten

days later, Alyeska argued, the removal was timely. .

'SSupplement, Exhibit H to State’s motion at 4 (Clerk’s Docket No.

2371).

'®Alyeska’s opposition at 51, n.22 (Clerk’s Docket No. 2505).

36a

Plaintiffs responded that Alyeska had notice long before

the Preliminary Designation that these matters were involved.

Plaintiffs submitted a list of the complaints which contained

allegations regarding double hulls.'? The State’s complaint

also raised the matter of double hulls.’*

The complaints plaintiffs directed the court’s attention to

do contain allegations that Exxon was negligent by operating

a single hull tanker. No claim that Alyeska was negligent in

regard to single hull tankers was made until the February 3,

1992, Preliminary Designation was filed.

The allegations regarding double hulls did not give rise

to a right to remove when they were asserted against Exxon

because those allegations were not sufficiently substantial to

support removal. Plaintiffs had alleged numerous alternative

theories in support of the allegations of negligence asserted

against Exxon. Where a claim for relief can be established

through several different theories, and only one of those

several theories raises an issue of federal law, the federal law

issue is generally not considered substantial enough to

support removal. Christianson v. Colt Industries, 486 U.S.

800, 811 (1988); Hunter v. United Van Lines, 746 F.2d 635,

646 (9th Cir. 1984), cert. denied, 474 U.S. 863 (1985). In

contrast, the claim against Alyeska for causing the spill,

which was raised in the Preliminary Designation, does not

have alternative theories. If federal law is involved in the

claim against Alyeska, which was raised in the Preliminary

"Exhibit 16 to State Court Plaintiffs’ motion at § 3 (Clerk’s Docket

No. 2363); see also Exhibit 18 at 9 25(c), Exhibit 13 at 33-34, and

Exhibit 11 at 6.

Exhibit C to State’s motion at 26, | 76, 477 & 492 (Clerk’s

Docket No. 2371).

37a

Designation, it would be substantial enough to support

removal.

Plaintiffs did not direct the court to any earlier

references to Alyeska’s failure to require double hulls, tug

escorts, or radar and navigational systems, which were the

subject of Chevron v. Hammond. At most, plaintiffs made

earlier reference to Alyeska’s failure to take "adequate

preventative measures,"'? which is too generalized of a

statement to have alerted Alyeska that Chevron v. Hammond

was implicated.

The court has concluded that the contentions against

Alyeska regarding double hulls, tug escorts, radar and

navigational systems were first raised in the February 3,

1992, Preliminary Designation. Removal, therefore, was

timely.

Complete Preemption

Alyeska contended that the Supreme Court’s decision in

Ray and Judge Fitzgerald’s opinion in Chevron v. Hammond

clearly establish oil taker design as one of those areas so

exclusively governed by federal law that the doctrine of

"complete preemption" applies to supply a basis for removal.

The test for complete preemption is whether Congress

"clearly manifested an intent" to convert a state law

complaint into one stating a federal claim. Price v. PSA,

Inc., 829 F.2d 871, 876 (9th Cir. 1987), cert. denied sub

nom., Psgroup v. United States Dist. Court for Southern Dist.

‘Exhibit 13 to State court Plaintiffs’ motion at 34, J i (Clerk’s

Docket No. 2363).

38a

of California, 486 U.S. 1006 (1988) (citing Metropolitan Life

Insurance Co. v. Taylor, 481 U.s. 58, 66 (1987)). The

requisite congressional intent for complete preemption has not

been shown here to be "clearly manifested". In Metropolitan

life, 481 U.S. 58 (1987), Justice Brennan and Justice Marshall

wrote in their concurring decision:

[OJur decision should not be interpreted as

adopting a broad rule that any defense

premised on congressional intent to preempt

state law is sufficient to establish removal

: jurisdiction. The Court holds only that

removal jurisdiction exists when, as here,

"Congress has clearly manifested an intent

to make causes of action ... removable to

federal court." In future cases involving

other statutes, the prudent course for a

federal court that does not find a clear

congressional intent to create removal

jurisdiction will be to remand the case to

state court.

Metropolitan Life, 481 U.S. at 67-68 (emphasis in original;

citation omitted).

Alyeska’s complete preemption argument is not

persuasive.

39a

Federal Res Judicata

Alyeska’s federal res judicata argument is closely related

to its complete preemption argument. Essentially the federal

res judicata argument is that plaintiffs’ state law claim is an

"artfully pleaded" federal claim which has already been

determined in this court in Chevron v. Hammond.

The artful pleading doctrine has been used in

combination with the doctrine of res judicata to allow

removal under limited circumstances.

In both Salveson [v. Western States

Bankcard Ass'n, 731 F.2d 1423 (9th Cir.

1984)] and Sullivan [v. First Affiliated

Secur., Inc., 813 F.2d 1368 (9th Cir.), cert.

denied, 484 U.S. 850 (1987)], this court

looked to Federated Dep't Stores, Inc. v.

Moitie, 452 U.S. 394, 101 S. Ct. 2424, 69

L.Ed.2d 103 (1981), and concluded that

where a plaintiff files state claims after a

federal judgment has been entered against

him on essentially the same claims, the

district court may invoke the artful pleading

doctrine as » basis for federal jurisdiction

and dismiss .¢ claims under the principles

of res judicata.

Ultramar America, Ltd. v. Dwelle, 900 F.2d 1412, 1415 (9th

Cir. 1990 (emphasis added).

The claim involved in Chevron v. Hammond was a

challenge to the validity of the Alaska Tanker Law. The

punitive damages claims involved here are an attempt to

punish the oil industry for having been successful in Chevron

40a

v. Hammond. While Chevron v. Hammond provoked the

claims involved here, the claims involved in the two cases are

not "essentially the same" for purposes of the artful pleading

doctrine. The validity of a state statute is not the same issue

as liability for punitive damages to private parties.

Federal res judicata does not provide support for

Alyeska’s removal of these cases.

Collateral Attack

Alyeska argued that as a result of the judgment in

Chevron v. Hammond, the oil companies were legally entitled

to follow federal law rather than the requirements of the

Alaska Tanker Law. Alyeska interpreted the Preliminary

Designation as indicating that plaintiffs plan to ask an Alaska

jury to characterize conduct which complies with federal law

as reckless. Alyeska contended that plaintiffs’ efforts to

impose a standard on Alyeska which is inconsistent with the

judgment in Chevron v. Hammond is a collateral attack on

that judgment.”

- Plaintiffs responded that they are not challenging the

judgment in Chevron v. Hammond as being invalid or not

effective. Rather, plaintiffs contended that they are not

subject to the judgment and that they are merely presenting

evidence relating to the factual contentions as part of their

proof on the issues of liability and punitive damages. The

language of the Preliminary Designation, particularly the

heading for Section B, is at odds with plaintiffs’ statement

that these are merely factual contentions.

**A collateral attack was defined by Alyeska at oral argument as any

attempt to relitigate issues or claims which were decided by a prior

judgment.

4la

Where a collateral attack is involved, a state court action

may be removed to the appropriate federal court on the basis

of a general federal question. 7 Moore's Federal Practice

q 60.38[1].

[A]n action to enjoin or otherwise obtain

relief from a federal judgment involves the

validity of the judgment as a continuing

obligation; the substantive principles of the

action are federal; and, we believe, presents

a general federal question.

Id. (footnotes omitted).

In support of its collateral attack argument, Alyeska cited

a number of analogous cases, including Striff v. Mason, 849

F.2d 240 (6th Cir. 1988), and Nowling v. Aero Services

International, Inc., 734 F. Supp. 733 (E.D. La. 1990). The

court finds these cases to be very persuasive. In Striff—an

employment discrimination case which raised claims settled

by a consent decree that controlled promotions within the

police department and that was entered in previous litigation

to which plaintiff was not a party—the court stated:

Where an action appears to involve issues

unrelated to a consent decree, but

examination of the substance of the claim

reveals that a consent decree is implicated

and its implementation would be adversely

affected, the action is properly considered a:

collateral attack on the decree.

Striff, 849 F.2d at 245. The court held that plaintiff's claim

that there should be no promotions to lieutenant so long as

plaintiff was held to be ineligible "had a sufficient federal

42a

character to support removal" under 28 U.S.C. § 1441(b).

Striff, 849 F.2d at 245.

In Nowling, shareholders brought an action in state court

which sought a declaration that a state statute applied to the

defendant corporation’s voting shares. Two previous federal

cases had held that the statute did not apply to this defendant

corporation’s voting shares (referred to as the "T7renk

Orders"). The state case was removed and a motion to

remand was denied. The court stated:

Thus, what the Nowlings [plaintiffs] really

want is not the isolated ruling of a state

court, but a repudiation of this Court’s

earlier Trenk Orders by a state court. ...In

fact, a purported state law claim that has

sufficient federal character may be removed.

And a state law claim is said to have federal

character when, as here, it calls into

question a federal court order.

Nowling, 734 F. Supp. at 737 (citations omitted).

Alyeska argued that plaintiffs’ claims are in reality

claims to enforce the requirements enjoined by the judgments

in Chevron v. Hammond. Plaintiffs responded that the

injunctions are limited to enforcement of the Alaska Tanker

Law and its implementing regulations and that plaintiffs are

not attempting to enforce that invalidated statute and its

regulations. Alyeska argued that the measures, such as

double hulls, plaintiffs want the jury to impose as the

necessary standard of care are the same measures required by

the Alaska Tanker Law. The following additional precedents

demonstrate that Alyeska has the better of the argument.

ROE Pr *

43a

In Palmer v. Kiggett Group, Inc., 825 F.2d 620 (1st Cir.

1987), the court held that in a suit for damages against

cigarette manufacturers and distributors, which was based on

a common law theory of inadequate warnings about harmful

health effects of cigarette smoking, the common law cause of

action was preempted by the Federal Cigarette Labeling and

Advertising Act.”’ The court reasoned that the state

common law theory would excessively disrupt the balance of

purpose between health protection and trade regulation

established by Congress under the Act.

If a manufacturer’s warning that complies

with the Act is found inadequate under a

state tort theory, the damages awarded and

verdict rendered against it can be viewed as

state regulation: the decision effectively

compels the manufacturer to alter its

warning to conform to different state law

requirements as "promulgated" by a jury’s

findings. ©

..Effecting such a change in the

manufacturer’s warning requirements is the

71On June 24, 1992, the United States Supreme Court decided

Cipollone v. Liggett Group, Inc., 60 U.S.L.W. 4703, which held that

section 5 of the Federal Cigarette Labeling and Advertising Act of 1965

did not preempt state law damages actions, but superseded only ‘positive

enactments by state and federal rulemaking bodies mandating particular

warnings on cigarette labels or in cigarette advertisements. The Court

also held that the broad language of amended section 5(b) of the Public

Health Cigarette Smoking Act of 1969 extends the section’s preemptive

reach beyond positive enactments to include some common law damages

actions.

44a

very action preempted by § 1334 of the Act.

Indeed, it arrogates to a single jury the

regulatory power explicitly denied to all

fifty states’ legislative bodies.

Palmer, 825 F.2d at 627-28. In Chevron v. Hammond, Judge

Fitzgerald held that the Alaska Tanker Law was preempted

by the PWSA. To allow the jury to impose damages, indeed

- punitive damages, against Alyeska for not having double

hulls, tug escorts and specific navigational and

communication equipment, which are not required by the

PWSA, would undermine the objectives established by

Congress under the PWSA. If successful, plaintiffs’ state

court claims would effectively compel the use of double

hulled vessels, despite this court’s holding that such a

requirement is preempted.

In San Diego Building Trades Council v. Garmon, 359

U.S. 236 (1959), the Supreme Court held that where

picketing by unions was arguably encompassed by the

National Labor Relations Act,” a state court had no

» When an activity is arguably subject to § 7

or § 8 of the [National Labor Relations]

Act, the-States as well as the federal courts

must defer to the exclusive competence of

the National Labor Relations Board if the

danger of state interference with national

policy is to be averted...

If the Board decides, subject to

appropriate federal judicial review, that

conduct is protected by § 7 or prohibited by

§ 8, then the matter is at an end, and ihe

States are ousted of all jurisdiction. Or, the

Board may decide that an activity is neither

45a

jurisdiction to award the employer damages for injuries

caused by picketing on the grounds that picketing constituted

a tort under state law.

Nor is it significant that California asserted

its power to give damages rather than to

enjoin what the [National Labor Relations]

Board may restrain though it could not

compensate. Our concern is with delimiting

areas of conduct which must be free from

state regulation if national policy is to be

left unhampered. Such regulation can be as

— effectively exerted through an award of

damages as through some form of

preventive relief. The obligation to pay

compensation can be, indeed is designed to

be, a potent method of governing conduct

and controlling policy. Even the States’

salutary effort to redress private wrongs or

grant compensation for past harm cannot be

exerted to regulate activities that are

protected nor prohibited, and thereby raise

the question whether such activity may be

regulated by the States ....

..Since the National Labor Relations

Board has not adjudicated the status of the

conduct for which the State of California

seeks to give a remedy in damages, and

since such activity is arguably within the

compass of §7 or § 8 of the Act, the

State’s jurisdiction is displaced.

San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245-6

(1959).

46a

potentially subject to the exclusive federal

regulatory scheme.

Garmon, 359 U.S. at 247, quoted in Cipollone v. Liggett

Group, Inc., 60 U.S.L.W. 4703, 4708 (U.S. June 24,

1992).”

In Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225

(1964), a suit alleging unfair competition regarding a pole

lamp, the Court held that because of federal patent laws, a

state may not award damages for copying articles which are

unpatented and uncopyrighted.

Just as a State cannot encroach upon the

federal patent laws directly, it cannot, under

some other law, such as that forbidding

In his dissent, Justice Blackmun took issue with the majority’s

reliance on Garmon.

[T]he Court apparently finds Garmon's statement that

“regulation can be as effectively exerted through an

award of damages as through some form of

preventive relief,” ... sufficient authority to warrant

extinguishing the common-law actions at issue in this

case. ...1 am not persuaded. Not only has the Court

previously distinguished Garmon, but it has declined

on several recent occasions to find the regulatory

effects of state tort law direct or substantial enough

to warrant pre-emption.

Cipollone, 60 U.S.L.W. at 4712 (footnote omitted). Garmon was

previously distinguished as being a case which involved a special

"presumption of federal pre-emption” relating to the primary jurisdiction

of the National Labor Relations Board. Cipollone, 60 U.S.L.W. at 4712,

n.3. See Brown v. Hotel & Restaurant Employees & Bartenders Int'l

Union Local 54, 468 U.S. 491, 502 (1984).

47a

unfair competition, give protection of a kind

that clashes with the objectives of the

federal patent law.

Stiffel, 376 U.S. at 231.

While plaintiffs’ claims do not specifically seek to

enforce the Alaska Tanker Law and its regulations, the end

result is the same. Plaintiffs are attempting to impose

damages on Alyeska as punishment for not having met the

same standards that the Alaska Tanker Law required. In

addition, the plaintiffs apparently seek to punish Alyeska for

challenging the Alaska Tanker Law in court even though

Alyeska was not a party to Chevron v. Hammond. Plaintiffs’

state court claims must be considered to come within the

scope of the Chevron v. Hammond injunctions because they

are an indirect attempt to enforce the requirements of the

Alaska Tanker Law.

The court concludes that the claims of all the moving

plaintiffs and the State were properly removed by Alyeska.

The claims are a collateral attack on Chevron v. Hammond.

Consent Decree

Plaintiffs’ final argument in support of their motion to

remand is that their claim for natural resource damages, as

presented in the Preliminary Designation, is only for private

damages and, therefore, is not barred by the Agreement and

Consent Decree entered in United States v. Exxon

Corporation, Case No. A91-082 Civil, and State of Alaska v.

Exxon Corporation, Case No. A91-083 Civil. Plaintiffs

argued that the consent decree is not res judicata because the

state court plaintiffs were not parties to the consent decree.

Plaintiffs further argued that even if the consent decree were

ee ee eT ee “ he il ae ad

. asta - Dery

48a

res judicata as to the claims of the state court plaintiffs, it

would not render the state court cases removable.

Assuming, without deciding, that the consent decree is

res judicata as to the plaintiffs’ claims for natural resource

damages, that merely raises a defense. A defense, even a

federal defense, does not support removal.

Conclusion

The State Court Plaintiffs’ motion to remand Case

Nos. A92-077 through A92-226 (except Case Nos. A92-174,

A92-175, and A92-215), and Case No. A92-278 is denied.

The Preliminary Designation constitutes a collateral attack on

Chevron v. Hammond. For the same reason, the State’s

motion to remand Case No. A92-175 is denied. Alyeska’s

counterclaim against the State, which is included with Case

No. A92-175, is severed and remanded.

Plaintiffs have fifteen (15) days from the date of this

order to oppose defendants’ Motion to Vacate Pretrial Order

No. 34 and Trial-Setting Order.” Plaintiffs were previously

prevented from opposing the motion by this court’s stay on

motion practice. In Order No. 79,” this court deferred

ruling on the motion until after the motions to remand were

decided. Any further filings related to the Preliminary

Designation of Issues for April 1993 Trial are stayed.

**Clerk’s Docket No. 2401.

*°Clerk’s Docket No. 2483.

49a

DATED at Anchorage, Alaska, this 31 day of July,

1992.

/s/ H. Russel Holland

United States District Judge

50a

APPENDIX B

APPENDIX B(ii)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

Case No. A89-095 Civil

(Consolidated)

In re

the EXXON VALDEZ

ORDER NO. 91

MOTION FOR REMAND IN CASE NO. A92-353 CIVIL

(P-5464 TO P-5576)

On December 24, 1991, Adams v. Exxon Corp., Case

No. 3CO-91-96 was filed in Superior Court. Defendants

removed (Clerk’s Docket No. 2081) the action to federal

court on January 14, 1992, Case No. A92-029 Civil. One

day after removal, the plaintiffs voluntarily dismissed the

action (Clerk’s Docket No. 2084). Then, on March 18, 1992,

Adams v. Exxon Corp. was refiled in Superior Court with

S5la

some additional plaintiffs' (Collectively "Adams" plaintiffs)

(P-5464 through P-5576). Defendants removed this action on

April 16, 1992, Case No. A92-353 Civil. The Adams

plaintiffs move for remand.? Oral argument has been

requested, but is deemed unnecessary.

This court held in Order No. 83 (Clerk’s Docket

No. 2710), filed July 31, 1992, that the February Preliminary

Designation of Issues ("Designation") filed by the state court

plaintiffs on February 3, 1992, constituted a collateral attack

on a federal judgment, specifically the judgment in Chevron

v. Hammond, Case No. A77-195 Civil, and thus found the

extensive removals to be proper because of the existence of

a federal issue.

The Adams plaintiffs recognize this court’s Order

No. 83. Notwithstanding their disagreement with the order,

it is the law of the case. Therefore, if the Designation is

deemed to apply to the Adams plaintiffs, removal was proper

because of the existence of a federal question in the collateral

attack on a federal judgment.

The dispute centers around two pretrial orders entered in

Superior Court. Pretrial Order No. 1, dated June 8, 1989,

filed in state court states:

Any other related actions hereafter filed in

this Court shall be consolidated with these

cases for pretrial purposes. Each party

whose case is consolidated will be governed

'The refiled Superior Court case was assigned Case No. 3AN-92-2359

Civil.

*Clerk’s Docket No. 2545.

52a

by the terms of this and any subsequent

pretrial order entered by the Court, unless a

party has made a specific objection to any

pretrial order or to the objectionable portion

of any pretrial order, and the Court, after

hearing, has sustained such objection.

Pretrial Order No. 1, at 2.

Pretrial Order No. 37, dated January 27, 1992, states:

"All parties asserting any claim or counterclaim shall . . . file

a statement of issues they intend to try at the trial." Pretrial

Order No. 37, at 1. On February 3, 1992, the Designation

was filed, which formed the basis of the notices of removal,

and subsequently formed the basis of this court’s

determination that the removals were proper.

The issue is whether Pretrial Order No. 1, and Pretrial

Order No. 37, which ordered the filing of the Designation,

render the Designation binding upon litigants not parties to

the oil spill case when the Designation was filed on

February 3, 1992, notwithstanding the extensive removals

that occurred on February 13, 1992.

The Adams plaintiffs were governed by Pretrial Order

No. 1. As a result, the action was consolidated and subject

to all pretrial orders of the Superior Court including Pretrial

Order No. 37, which required the statement of issues. When

defendants removed Adams on April 16, 1992, Adams had

been on file for almost one month. The Adams plaintiffs had

sufficient time to object to the Designation, which was

required by Pretrial Order No. 37, or be bound by it as stated

in Pretrial Order No. 1. The Designation applied to the

Adams plaintiffs and as such, removal was proper.

53a

Lastly, defendants removed this action in a timely

manner because defendants removed this action within thirty

days of first ascertaining that the Adams plaintiffs’ action was

removable, 28 U.S.C. § 1446(b), which was the date the

Designation was binding upon these plaintiffs, the date this

action was refiled in state court, March 18, 1992.

CONCLUSION

The Adams plaintiffs’ motion for remand is DENIED.

Dated at anchorage, Aiaska this 15 day of September,

1992.

/s/ H. Russel Holland

United States District Judge

54a

APPENDIX B

APPENDIX B(iii)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

Case No. A89-095 Civil

(Consolidated)

In re

the EXXON VALDEZ

ORDER NO. 92

Case No. A92-461

D.M. ADAMS’ (P5584 THROUGH P-5618)

MOTION FOR REMAND

On June 3, 1992, Adams v. Exxon Corp., Superior Court

No. 3KN-92-526, was filed in state court. Exxon Corp.

(D-1), Exxon Shipping, Inc. (D-2), and Alyeska Pipeline

Service Co. (D-3) removed the action to this court on

June 26, 1992, Case No. A92-461 Civil. The plaintiffs in

Case No. A92-461 Civil (P-5584 through P-5618)

(collectively referred to as "Adams plaintiffs") moved for

remand (Clerk’s Docket No. 2751) on August 18, 1992. The

55a

court assumes, but does not decide, that the Adams piaintiffs’

motion for remand was timely.

This court held in Order No. 83 (Clerk’s Docket

No. 2710), filed July 31, 1992, that the February Preliminary

Designation of Issues ("Designation") filed by the state court

plaintiffs on February 3, 1992, constituted a collateral attack

on a federal judgment, specifically the judgment in Chevron

v. Hammond, Case No. A77-195 Civil, and thus found the

extensive removals to be proper because of the existence of

a federal issue.

The Adams plaintiffs recognize this court’s Order

No. 83. Notwithstanding their disagreement with the order,

it is the law of the case. Therefore, if the Designation is

deemed to apply to the Adams plaintiffs, removal was proper

because of the existence of a federal question in the collateral

attack on a federal judgment.

The dispute centers around two pretrial orders entered in

Superior Court. Pretrial Order No. 1, dated June 8, 1989,

filed in state court states:

Any other related actions hereafter filed in

this Court shall be consolidated with these

cases for pretrial purposes. Each party

whose case is consolidated will be governed

by the terms of this and any subsequent

pretrial order entered by the Court, unless a

party has made a specific objection to any

pretrial order or to the objectionable portion

of any pretrial order, and the Court, after

hearing, has sustained such objection.

Pretrial Order No. 1, at 2.

56a

Pretrial Order No. 37, dated January 27, 1992, states:

"All parties asserting any claim or counterclaim shall . . . file

a statement of issues they intend to try at the trial." Pretrial

Order No. 37, at 1. On February 3, 1992, the Designation

was filed, which formed the basis of the notices of removal,

and subsequently formed the basis of this court’s

determination that the removals were proper.

The issue is whether Pretrial Order No. 1, and Pretrial

Order No. 37, which ordered the filing of the Designation,

render the Designation binding upon litigants not parties to

the oil spill case when the Designation was filed on

February 3, 1992, notwithstanding the extensive removals

that occurred on February 13, 1992.

The court concludes that the Adams plaintiffs were

governed by Pretrial Order No. 1. As a result, the action was

consolidated and subject to all pretrial orders of the Superior

court including Pretrial Order No. 37, which required the

Statement of issues. When defendants removed Adams on

June 26, 1992, Adams had been on file for over three weeks.

The Adams plaintiffs had sufficient time to object to the

Designation, which was required by Pretrial Order No. 37, or

be bound by it as stated in Pretrial Order No.1. The

Designation applied to the Adams plaintiffs and as such,

temoval was proper.

The Adams plaintiffs’ motion for remand (Clerk’s

Docket No. 2751 is DENIED.

rd 57a

Dated at Anchorage, Alaska this 17 day of September,

1992.

__/s/ H. Russel Holland _

United States District Judge

58a

APPENDIX B

APPENDIX B(iv)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

Case No. A89-095 Civil

(Consolidated)

In re

the EXXON VALDEZ

ORDER NO. 108

MOTION FOR REMAND IN CASE NO. A92-584 CIVIL

P-2989, P-2997, P-3004, P-4169

AND P-5619 THROUGH P-5643

MOTION FOR REMAND

Talmadee Adams v. Exxon Corp., Superior Court

No. 3KN-91-787 Civil, was filed in state court on August 11,

1992. Exxon Corporation (D-1), Exxon Shipping (D-2), and

Alyeska Pipeline Service Company (D-3), collectively

"defendants", removed the action to this court on

September 8, 1992, where the action became Case

59a

No. A92-584 Civil. Plaintiffs move for remand.’

Defendants oppose the motion.” No reply was filed and the

time for reply has run.

This court held in Order No. 83,’ filed July 31, 1992,

that the February Preliminary Designation of Issues

("Designation") filed by the state court plaintiffs on ~

February 3, 1992, constituted a collateral attack on a federal

judgment, specifically the judgment in Chevron v. Hammond,

Case No. A77-195 Civil, and thus found the extensive

removals to be proper because of the existence of a federal

issue.

The plaintiffs in Case No. A92-584 recognize this

court’s Order No. 83. Notwithstanding their disagreement

with the order, it is the law of the case. Therefore, if the

Designation is deemed to apply to the plaintiffs, removal was

proper because of the existence of a federal question in the

collateral attack on a federal judgment.

The dispute centers around two pre-trial orders entered

in Superior Court. Pretrial Order No. 1, dated June 8, 1989,

filed in state court states:

Any other related actions hereafter filed in

this Court shall be consolidated with these

cases for pretrial purposes. Each party

whose case is consolidated will be governed

by the terms of this and any subsequent

'Clerk’s Docket No. 2914.

*Clerk’s Docket No. 2964.

*Clerk’s Docket No. 2710.

60a

pretrial order entered by the Court, unless a

party has made a specific objection to any

pretrial order or to the objectionable

portion of any pretrial order, and the Court,

after hearing, has sustained such objection.

Pretrial Order No. 1, at 2 (emphasis added).

Pretrial Order No. 37, dated January 27, 1992, states:

"All parties asserting any claim or counterclaim shall . . . file

a statement of issues they intend to try at the trial." Pretrial

Order No. 37, at 1. On February 3, 1992, the Designation

was filed, which formed the basis of the notices of removal,

and subsequently formed the basis of this court’s

determination that the removals were proper.

The issue is whether Pretrial Order No. 1, and Pretrial

Order No. 37, which ordered the filing of the Designation,

render the Designation binding upon litigants not parties to

the oil spill case when the Designation was filed on

February 3, 1992, notwithstanding the extensive removals

that occurred on February 13, 1992.

The plaintiffs were governed by Pretrial Order No. 1.

As a result, the action was consolidated and subject to all

pre-trial orders of the Superior Court including Pretrial Order

No. 37, which required the statement of issues. When

defendants removed this action on September 8, 1992, this

case has been on file for almost one month. The plaintiffs

had sufficient time to object to the Designation, which was

required by Pretrial Order No. 37, or be bound by it as stated

in Pretrial Order No. 1. The Designation applied to the

plaintiffs and as such, removal was proper.

6la

The motion for remand (Clerk’s Docket No. 2914) is

DENIED.

Dated at anchorage, Alaska, this 16th day of November,

1992.

/s/ H. Russel Holland

United States District Judge

62a

APPENDIX C

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 93-35274

EYAK NATIVE VILLAGE, et al.,

Plaintiffs-Appellants,

EXXON CORPORATION, et al.,

" Defendants-Appellees.

Filed July 13, 1994

ORDER

Before: CHOY, HUG, AND LEAVY, Circuit Judges.

The panel, as constituted in the above case, has voted to

deny appellants’ petition for rehearing and appellees’ petition

for partial rehearing, filed June 10, 1994. Judges Hug and

Leavy have voted to reject the suggestion for rehearing en

banc, and Judge Choy has recommended rejection of the

suggestion for rehearing en banc.

ta tt i a

63a

The full court has been advised of the en banc

suggestion and no active judge of the court has requested a

vote on whether to rehear the matter en banc. Fed. R. App.

P. 35(b).

The petition for rehearing and the petition for partial

rehearing are DENIED and the suggestion for rehearing en

banc is REJECTED.

64a

APPENDIX D

TEXT OF STATUTES INVOLVED

28 U.S.C. § 1331

§ 1331. Federal question

The district courts shall have original jurisdiction of

all civil actions arising under the Constitution, laws, or

treaties of the United States.

28 U.S.C. § 1333

§ 1333. Admiralty, maritime and prize cases

The district courts shall have original jurisdiction,

exclusive of the courts of the States, of:

(1) Any civil case of admiralty or maritime

jurisdiction, saving to suitors in all cases all other

remedies to which they are otherwise entitled.

** *

28 U.S.C. § 1441.

§ 1441. Actions removable generally

(a) Except as otherwise expressly provided by Act

of Congress, any civil action brought in a State court of

which the district courts of the United States have

original jurisdiction, may be removed by the defendant

65a

or the defendants, to the district court of the United

States for the district and division embracing the place

where such action is pending. For purposes of removal

under this chapter, the citizenship of defendants sued

under fictitious names shall be disregarded.

(b) Any civil action of which the district courts

have original jurisdiction founded on a claim or right

arising under the Constitution, treaties or laws of the

United States shall be removable without regard to the

citizenship or residence of the parties. Any other such

action shall be removable only if none of the parties in

interest properly joined and served as defendants is a

citizen of the State in which such action is brought.

** *

28 U.S.C. § 1446

§ 1446. Procedure for removal

(a) A defendant or defendants desiring to remove

any civil action or criminal prosecution from a State

court shall file in the district court of the United States

for the district and division within which such action is

pending a notice of removal signed pursuant to Rule 11

of the Federal Rules of Civil Procedure and containing

a short and plain statement of the grounds for removal,

together with a copy of all process, pleadings, and orders

served upon such defendant or defendants in such action.

—" ee ee por

(b) The notice of removal of a civil action or

proceeding shall be filed within thirty days after the

receipt by the defendant, through service or otherwise,

of a copy of the initial pleading setting forth the claim

66a

for relief upon which such action or proceeding is based,

or within thirty days after the service of summons upon

the defendant if such initial pleading has then been filed

in court and is not required to be served on the

defendant, whichever period is shorter.

If the case stated by the initial pleading is not

removable, a notice of removal may be filed within

thirty days after receipt by the defendant, through

service or otherwise, of a copy of an amended pleading,

motion, order or other paper from which it may first be

ascertained that the case is one which is or has become

removable, except that a case may not be removed on

the basis of jurisdiction conferred by section 1332 of this

title more than 1 year after commencement of the action.

* * *

28 U.S.C. § 1447

§ 1447. Procedure after removal generally

defect in removal procedure must be made within 30

days after the filing of the notice of removal under

section 1446(a). If at any time before final judgment it

appears that the district court lacks subject matter

jurisdiction, the case shall be remanded. An order

remanding the case may require payment of just costs

and any actual expenses, including attorney fees,

67a

incurred as a result of the removal. A certified copy of

the order of remand shall be mailed by the clerk to the

clerk of the State court. The State court may thereupon

proceed with such case.

* * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.