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

IN THE 'riE CLERK

Supreme Court of the United Statics

OCTOBER TERM, 1994

EXXON CORPORATION. ef al..

Cross-Petitioners.

EYAK NATIVE VILLAGE. ef ai/..

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

CROSS-PETITION FOR A WRIT OF CERTIORARI

JOHN F. DAUM

Counsel of Record

PATRICK LYNCH

CARL R. SCHENKER, JR

O'MELVENY & MYERS

555 13th Street. N.W

Washington, D.C. 20004

(202) 383-5300

DOUGLAS J. SERDAHELY

BOGLE & GATES

1031 West 4th Avenue

Suite 600

Anchorage, Alaska 99501

(907) 276-4557

November 10, 1994 Attorneys for Cross-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 the first paragraph of 28 U.S.C. § 1446(b), as

held by the Court of Appeals below.

(2) Whether a defendant’s time to remove under the

second paragraph of 28 U.S.C. § 1446(b) is triggered by

papers lacking a substantial degree of specificity, as the

decision below held in conflict with other courts of appeals.

(3) 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.

li

PARTIES IN THE COURT BELOW

This conditional cross-petition is related to the petition

in Eyak Native Village, et al. v. Exxon Corp., et al., No. 94-

650. The parties in the Court of Appeals are as identified in

that petition. The numerous plaintiffs-appellants below who

are directly affected by this conditional cross-petition are

those listed in Appendix E to the petition in No. 94-650.

RULE 29.1 STATEMENT

Cross-petitioner Exxon Corporation has no corporate

parent, and is the corporate parent of cross-petitioner Exxon

Shipping Company. Cross-petitioner Exxon Corporation has

numerous subsidiaries that are not wholly owned, a list of

which is given in the attached Appendix C pursuant to

Supreme Court Rule 29.1.

ill

TABLE OF CONTENTS

Page

FUR ate PREOENIED ........ 2. ccc ee eee i

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

ee gs ii

py a ge 6 ey |. Vili

CONDITIONAL CROSS-PETITION

FOR A WRIT OF CERTIORARI ............... l

I l

gs og ck ke i ee ee ee 2

STATUTORY PROVISIONS INVOLVED ........ 3

maeuameeeers We oer CASE ................. 3

A. Exxon’s Removal Of The Eyak Class-Action

ee 4

B. Alyeska’s February 13, 1992 Removals (Order

LG WS. bwin ob ok wore 640 00 0 0 4

C. Removal Of The Three Newly-Filed Direct-

Action Cases (Orders Nos. 91, 92, and 108) .. 6

D. The Decision Of The Ninth Circuit ........ 7

E. Additional Developments Relevant To The

EE IE 9

iV

TABLE OF CONTENTS--Continued

REASONS FOR GRANTING THE WRIT ........

I.

II.

THE DECISION BELOW RAISES IMPORTANT

QUESTIONS CONCERNING THE APPLICATION

IN COMPLEX CASES OF 28 U.S.C. § 1446(b), A

PROVISION WHICH THIS COURT APPARENT-

LY HAS NEVER ADDRESSED AND ON WHICH

LOWER COURTS NEED GUIDANCE .......

A. The Ninth Circuit Impermissibly Proceeded In

Complete Disregard Of The First Paragraph Of

28 U.S.C. § 1446(b) In Finding Untimely Three

Notices Of Removal Filed Within 30 Days Of

The Original Complaints ..............

B. In Conflict With Three Other Circuits, The

Ninth Circuit Held That The Time To Remove

Under The Second Paragraph Of 28 U.S.C.

§ 1446(b) Is Triggered By Papers Lacking A

Substantial Degree Of Specificity ........

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 PRO-

CEDURE WHICH WAS NOT RAISED IN A

TIMELY MOTION TO REMAND ..........

11

11

13

TABLE OF CONTENTS--Continued

Page

III. PRAGMATIC CONSIDERATIONS DEMAND

THAT THE DIRECT-ACTION CLAIMS NOT BE

RETURNED TO THE DISTRICT COURT INDE-

PENDENT OF THE EYAK CLASS-ACTION

I Ss by ie ae eink nk oe Dae a 19

oo er eee ee eee er ree 22

APPENDIX A

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

Court for the District of Alaska, /n re the

EXXON VALDEZ, Case No. A89-095 Civil

(July 31, 1992) ....... ee irae la

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

Court for the District of Alaska, Jn re the

EXXON VALDEZ, Case No. A89-095 Civil

0 A Se eats ts 24a

(i111) Order No. 92 of the United States District

Court for the District of Alaska, Jn re the

EXXON VALDEZ, Case No. A89-095 Civil

Ey re ne ee ae 28a

(iv) Order No. 108 of the United States

District Court for the District of Alaska, Jn re

the EXXON VALDEZ, Case No. A89-095 Civil

RE PE ee ae eee 32a

vi

TABLE OF CONTENTS--Continued

Page

APPENDIX B

Text of Statutes Involved ..............: 36a

APPENDIX C

rr re ee gc we es 8 b's 00 wee 39a

Vii

TABLE OF AUTHORITIES

Cases Page

Air-Shields, Inc. v. Fullam,

891 F.2d 63 (3d Cir. 1989) ........... 17-19

American Fire & Casualty Co. v. Finn,

ee 9, 18

Chapman v. Powermatic, Inc.,

969 F.2d 160 (Sth Cir. 1992), cert. denied,

DOe Wy We RE UUEE ove cc cece ceases 14-16

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

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

Christianson v. Colt Indus. Operating Corp.,

er 14

DeBry v. Transamerica Corp.,

601 F.2d 480 (10th Cir. 1979) ........ 14, 16

F.D.LC. v. Loyd,

955 F.2d 316 (Sth Cir. 1992) ......... 17, 19

Foster v. Chesapeake Ins. Co.,

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

I 17

Foster v. Mutual Fire, Marine & Inland Ins. Co.,

986 F.2d 48, 51 (3d Cir. 1993)...... 10, 14-16

Fristoe v. Reynolds Metals Co.,

615 F.2d 1209 (9th Cir. 1980) ........... 18

Gully v. First Nat’l Bank,

a 14

Hamilton v. Aetna Life & Cas. Co.,

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

Bum, C2 BEG0 C1994)... 2... wee, 18, 19

In re Digicon Marine, Inc.,

966 F.2d 158 (Sth Cir. 1992) ............ 18

Vili

TABLE OF AUTHORITIES--Continued

Page

Mackay v. Uinta Dev. Co.,

pe Bi ER 18

Maniar v. F.D.LC.,

Ore Pome Fee Cree Ge. ESRE) on we ec cess 19

Skelly Oil Co. v. Phillips,

Be Se ee EE a oo oo he KS es es 14

Thermtron Prods., Inc. v. Hermansdorfer,

BS Se re 11, 12

Wilson v. General Motors Corp.,

888 F.2d 779 (11th Cir. 1989) ........ 17, 18

Statutes

ee os 6 eb se a te en 2

yp Bie Tom o) : ) Re Me re coy ee: te

ee EE ono w 5% ce 4k heer ee 3, 9, 18

y ge | rarer ee 3, 10

yg rar re passim

pe ee passim

Other Authorities

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

reprinted in 1988 U.S. Code Cong. &

Se ee gk hk aa ko ado 17, 18

Siegel, Commentary on the Revision of

Section 1447, 28 U.S.C.A. § 1447

CPI OE ors 6 bee ee Alenia os 18

CONDITIONAL CROSS-PETITION

FOR A WRIT OF CERTIORARI

Pursuant to Rules 12.3 and 13.5 of this Court, this is a

conditional cross-petition for a writ of certiorari. The related

petition is Eyak Native Village, et al. v. Exxon Corp., et al.,

No. 94-650, filed by certain plaintiffs alleging claims related

to the EXXON VALDEZ oil spill. Both the petition in No.

94-650 and this cross-petition by Exxon Corporation and

Exxon Shipping Company (collectively, "Exxon") raise

questions concerning the removal jurisdiction of the United

States District Court for the District of Alaska ("Federal

District Court").

In the decision below, the United States Court of

Appeals for the Ninth Circuit ("Ninth Circuit") affirmed one

removal order of the Federal District Court (Order No. 80)

and reversed four other orders (Orders Nos. 83, 91, 92, and

108). The petition in No. 94-650 seeks review of that

portion of the Ninth Circuit’s judgment affirming Order No.

80 and thereby upholding the removal of certain EXXON

VALDEZ claims from Alaska Superior Court; Exxon is filing

concurrently its opposition to that petition. By this cross-

petition, however, Exxon conditionally seeks review of the

other portion of the Ninth Circuit’s judgment, reversing the

trial court insofar as Orders Nos. 83, 91, 92, and 108 had

upheld the removal of other EXXON VALDEZ claims. For

both substantive and pragmatic reasons, this Court should not

review in isolation the portion of the Ninth Circuit’s judg-

ment challenged in No. 94-650.

OPINIONS BELOW

The opinion of the Ninth Circuit is reported at 25 F.3d

773 and reprinted in the appendix to the petition in No. 94-

650. The relevant orders of the Federal District Court are

el —_ a <li lt ct. I _ = hg eee —_

2

unreported. Order No. 80 is reproduced in the appendix to

the petition in No. 94-650; Order No. 83 is reprinted in the

Appendix to this cross-petition at App. la; Order No. 91 is

reprinted at App. 24a; Order No. 92 is reprinted at App. 28a;

and Order No. 108 is reprinted at App. 32a.'

JURISDICTION

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

§ 1254(1). The Ninth Circuit entered judgment on May 27,

1994; on July 13, the Ninth Circuit denied timely cross-

petitions for rehearing. Pet. App. 4la. The petition in No.

94-650 was filed and received by Exxon on October 11,

1994. If that petition is considered timely, this cross-petition

is timely under Rule 12.3 of this Court, being filed within

30 days thereafter.’ |

' Page citations to materials in the Appendix to this cross-petition

appear as "App. 00a." Page citations to materials in the appendix to the

petition in No. 94-650 appear as "Pet. App. 00a."

2 On August 29, 1994, Exxon filed a petition for certiorari styled

Exxon Corp., et al. v. Eyak Native Village, et al., No. 94-385, in which

Exxon sought review of the Ninth Circuit’s judgment insofar as it

reversed Orders Nos. 91, 92, and 108; this Court denied Exxon’s petition

in No. 94-385 on October 11, 1994. Under this Court’s Rule 12.4, the

Ninth Circuit plaintiffs-appellants now petitioning in No. 94-650 were all

respondents as to Exxon’s petition in No. 94-385. Instead of promptly

filing a cross-petition in No. 94-385 seeking review of the Ninth Circuit’s

judgment insofar as it affirmed Order No. 80, the Ninth Circuit plaintiffs-

appellants waited for 43 days (until October 11, 1994) to present their

cross-issues to the Court under the guise of an independent petition.

Unfortunately, that approach will oblige this Court to devote its attention

to the same decision of the Ninth Circuit on two separate occasions. If

this Court nonetheless considers the petition in No. 94-650 to be timely,

it must al: > follow that Exxon is entitled timely to file this conditional

(continued...)

3

STATUTORY PROVISIONS INVOLVED

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

1446, and 1447, are reproduced in Appendix B hereto.

STATEMENT OF THE CASE

Much of the background relevant to this cross-petition is

already set forth in the petition and opposition in No. 94-650.

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 as defendants (1)

cross-petitioner Exxon Shipping Company, the owner of the

tanker, (2) cross-petitioner Exxon Corporation, the owner of

the crude oil aboard the tanker, (3) 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, and (4) various individ-

uals, including the EXXON VALDEZ master, Captain Joseph

Hazelwood.

2 (...continued)

Cross-petition concerning Orders Nos. 83, 91, 92, and 108 even though

Exxon’s August 29, 1994 petition in No. 94-385 earlier sought review as

to three of those orders (Nos. 91, 92, and 108). A decision by this Court

to grant review in No. 94-650 might well cause the Court to exercise its

discretion differently than it did when those issues were raised in Exxon’s

petition in No. 94-385. Exxon also filed a petition ior rehearing in

No. 94-385 on November 7, 1994.

4

A. Exxon’s Removal Of The Eyak Class-Action

Claims (Order No. 80).

The petition and opposition in No. 94-650 detail the

circumstances of the November 1991 removal to Federal

District Court of the massive class action there styled Eyak

Native Village v. Exxon. That removal was effectuated by

Exxon, with Alyeska’s consent. The motion of the Eyak

class-action plaintiffs to remand that case was denied by the

Federal District Court in Order No. 80; Order No. 80 was in

turn affirmed by a portion of the Ninth Circuit’s judgment

below and is now the focus of plaintiffs’ petition for certio-

rari in No. 94-650. This cross-petition relates to the separate

removals of approximately 150 cases alleging direct-action

claims (as opposed to class claims); these direct-action cases

became the subject of Orders Nos. 83, 91, 92, and 108 in

Federal District Court, all now reversed by the Ninth Circuit.

B. Alyeska’s February 13, 1992 Removals (Order

No. 83).

On February 3, 1992, the consolidated state court

plaintiffs filed a joint Preliminary Designation of Issues for

Trial (the "Designation”) 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.

Originally, plaintiffs’ claims against Alyeska (as opposed

to Exxon) had focused on Alyeska’s allegedly derelict post-

spill clean-up activities. In the Designation (quoted in

pertinent part at App. 5a-6a), plaintiffs asserted for the first

time that Alyeska (as opposed to Exxon) was responsible for

ae

5

causing the oil spill and for that reason was liable to plain-

tiffs 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

Federal District Court, in the case of Chevron, U.S.A.. Inc. vy

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

tion against the enforcement and implementation of Alaska

Statutes and regulations that would have required double

hulls, tug escorts, and special navigation equipment.

Under the second paragraph of 28 U.S.C. § 1446(b)

(Supp. V 1993, App. 37a), in a case not initially removable,

a notice of removal may be filed within thirty days after

the receipt by the defendant... of a copy of an amend-

ed pleading, motion, order or other paper from which it

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

has become removable.

On February 13, 1992, well within 30 days after plaintiffs’

filing of the Designation, Alyeska removed approximately

150 direct-action cases to Federal District Court, on the

theory that plaintiffs’ claims amounted to a collateral attack

on the judgment in Chevron v. Hammond, and thus raised a

federal question under 28 U.S.C. § 1331. Exxon consented

to the notices of removal. Plaintiffs in those cases moved to

remand, in part on the ground that the notices of removal

were untimely under the second paragraph of section 1446(b).

6

On July 31, 1992, the Federal District Court entered

Order No. 83, denying the motion to remand and thereby

upholding federal jurisdiction over plaintiffs’ cases. See

Order No. 83, App. la. The Hon. H. Russell Holland, who

was uniquely well-positioned to review and determine the

significance of plaintiffs’ filings in Alaska Superior Court,

determined that the Designation raised a federal question that

would support removal. App. 15a-22a. He also considered

at length the question of timeliness under section 1446(b).

On that question, Judge Holland noted that, prior to the

Designation, plaintiffs had raised certain allegations about the

EXXON VALDEZ’s single-hull design and allegedly

"{injadequate preventative measures." App. 10a-12a.

However, all such allegations had been directed solely at

Exxon, the vessel owner, or were "too generalized ... to

have alerted Alyeska that Chevron v. Hammond was implicat-

ed." App. 12a. It was only when specific allegations about

double hulls, tug escorts, special navigation equipment, and

the prior litigation were first directed at Alyeska on Febru-

ary 3, 1992 that the then-pending cases became removable,

and Alyeska timely sought their removal within 30 days.

App. 1la-12a.

C. Removal Of The Three Newly-Filed Direct-Action

Cases (Orders Nos. 91, 92, and 108).

Following the February 13, 1992 removals by Alyeska,

three additional direct-action cases were filed in state court.

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

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

7

not take any action to disavow the Designation, and it

became binding on them. App. 25a-27a, 29a-30a, 33a-34a.

Within 30 days of the date each of the three newly-filed

cases was filed in state court, Exxon and Alyeska jointly filed

a notice of removal.’ The affected plaintiffs filed three

separate motions to remand. None of those motions asserted

that the removals were untimely; rather, each motion urged

that the Designation did not raise any federal question. In

three separate orders (Nos. 91, 92, and 108), the Federal

District Court denied the remand motions in the three newly-

filed cases. Judge Holland ruled that, in Order No. 83, he

had already determined that the Designation raised a federal

question that would support removal; since the Designation

was binding on plaintiffs in the newly-filed actions, federal

jurisdiction existed over the new plaintiffs’ claims as well.

App. 25a, 29a, 33a.

D. The Decision Of The Ninth Circuit.

The Ninth Circuit allowed an interlocutory appeal of all

five removal orders. Most of the May 27, 1994 decision

below is devoted to affirming Order No. 80, now the subject

of the petition in No. 94-650. In Part III of its opinion,

however, the Ninth Circuit turned to Orders Nos. 83, 91, 92,

and 108.

Order No. 83. Limiting its discussion to Alyeska’s

February 13, 1992 removals of pending cases (Order No. 83),

> Daniel R. Adams, et al. v. Exxon Corp., et al., was filed March 18,

1992 and removed April 16; David M. Adams, et al. v. Exxon Corp.,

et al., was filed June 3, 1992 and removed June 26; and Talmadee Adams,

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

September 8.

8

the Ninth Circuit found those removals untimely. The court

brushed aside the trial court’s careful determination that

plaintiffs had never raised a federal question as to Alyeska

prior to February 3, 1992. According to the Ninth Circuit,

plaintiffs had made a filing on November 8, 1991 which

"mentioned" hull design and allegedly "[in]adequate preventa-

tive measures," and that filing "did not indicate in any way

that paragraphs (f) and (i) did not apply to Alyeska." Pet.

App. 20a.* Hence, the Ninth Circuit implicitly held, Alyeska

should have sought removal not later than December 8, 1991,

requiring reversal of Order No. 83.

Orders Nos. 91, 92, And 108. After finding untimely

the February 1992 removals of the cases involved in Order

No. 83, the Ninth Circuit proceeded inexplicably and without

discussion to find untimely as well the removals of the three

newly-filed cases involved in Orders Nos. 91, 92, and 108.

This point was never argued by the plaintiffs in the three

newly-filed cases. More important, those three notices of

removal could not possibly have been untimely because they

(1) were all filed within the 30 days after the original

complaint allowed under the first paragraph of 28 U.S.C.

§ 1446(b) and (2) were not even on file to be removed at the

point the Ninth Circuit thought the other direct-action cases

should have been removed. The Ninth Circuit neither took

corrective action nor provided an explanation when Exxon’s

petition for rehearing called this indisputable error to the

court’s attention.

* The Ninth Circuit also referred, illogically, to two papers previ-

ously filed or joined by Alyeska (as opposed to plaintiffs). The court did

not explain how plaintiffs might be-thought to have raised a federal issue

in papers filed by Alyeska.

ay

a

9

E. Additional Developments Relevant To The Cross-

Petition.

Upon reversing Orders Nos. 83, 91, 92, and 108, the

Ninth Circuit ordered that the affected cases should be

"remanded to the district court for further proceedings

consistent with this opinion." Pet. App. 22a. The mandate

of the Ninth Circuit issued on November 3, 1994.

Exxon has now moved the Federal District Court to

retain jurisdiction over these cases due to two developments

subsequent to the trial court’s consideration of the 1992

motions to remand. First, Alyeska and several other defen-

dants have now been eliminated from the federal court

litigation by way of settlements and voluntary dismissals.

Accordingly, although not true earlier, there is now complete

diversity as between the plaintiffs and the defendants affected

by Orders Nos. 83, 91, 92, and 108. This development

provides a new basis to retroactively validate the jurisdiction

of the Federal District Court. See American Fire & Casualty

Co. v. Finn, 341 U.S. 6, 18 n.18 (1951). Second, plaintiffs

and Exxon have now gone to trial in Federal District Court.

(Post-verdict motions are now pending.) By voluntarily

participating in that trial, conducted within the Federal

District Court’s maritime jurisdiction under 28 U.S.C.

§ 1333, plaintiffs have waived any right to remand to state

court.”

* These developments are dis: assed more fully in the petition and

Opposition in No. 94-650.

10

REASONS FOR GRANTING THE WRIT

Petitioners in No. 94-650 advocate review of two

questions supposedly raised under 28 U.S.C. § 1441 by the

portion of the Ninth Circuit’s judgment affirming Order

No. 80. Their thesis is that the lower courts need this

Court’s guidance as to the application of removal principles

in complex litigation. If certiorari is granted in No. 94-650

on that thesis, substantive and pragmatic considerations make

it equally important for this Court also to grant this cross-

petition and to address all of the removal issues raised by the

Ninth Circuit’s decision below, particularly the application in

complex litigation of 28 U.S.C. § 1446(b).

It appears that this Court has never addressed section

1446(b), in which Congress expressly provided for removal

on the basis of either (1) "the initial pleading" or (2) a

subsequent "amended pleading, motion, order or other paper

from which it may first be ascertained that the case is...

removable." The Ninth Circuit’s reversal of Orders Nos. 83,

91, 92, and 108 vividly demonstrates that difficulties are

raised in applying section 1446(b) in the context of complex

litigation, with multiple cases, multiple plaintiffs, and

multiple defendants. More generally, "[t]here has been

widespread disagreement among federal district courts as to

what documents will trigger 1446(b)" and "appellate court

rulings have [necessarily] been infrequent” in this area due to

the unreviewability of orders to remand. Foster v. Mutual

Fire, Marine & Inland Ins. Co., 986 F.2d 48, 51 (3d Cir.

1993). Additionally, for pragmatic reasons, the EXXON

VALDEZ claims involved in this cross-petition should be

treated in tandem with the claims involved in the petition in

No. 94-650.

11

I. THE DECISION BELOW RAISES IMPORTANT

QUESTIONS CONCERNING THE APPLICATION

IN COMPLEX CASES OF 28 U.S.C. § 1446(b), A

PROVISION WHICH THIS COURT APPARENTLY

HAS NEVER ADDRESSED AND ON WHICH

LOWER COURTS NEED GUIDANCE.

A. The Ninth Circuit Impermissibly Proceeded In

Complete Disregard Of The First Paragraph Of

28 U.S.C. § 1446(b) In Finding Untimely Three

Notices Of Removal Filed Within 30 Days Of The

Original Complaints.

Federal courts have a duty to assume removal jurisdiction

when such jurisdiction is properly invoked. See, e.g,

Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 342-

45 (1976). Here, the Ninth Circuit acted in clear dereliction

of that principle by baselessly condemning as untimely the

notices of removal in the three newly-filed cases (Orders

Nos. 91, 92, and 108) and further declining to correct its

obvious error in response to Exxon’s petition for partial

rehearing. This Court should exercise its supervisory

jurisdiction to assure that, in future removal disputes concern-

ing multiple cases, the lower courts are properly cognizant of

their duty to retain properly removed cases.

In each of the three newly-filed cases, Exxon and

Alyeska jointly noticed removal within 30 days of the

original filing, as provided for in the first paragraph of

section 1446(b). At no time did plaintiffs contend that

defendants’ notices of removal in the three newly-filed cases

were untimely, and the Ninth Circuit articulated no basis for

holding removal of those three cases untimely. It cannot

possibly be correct that defendants were somehow obliged to

——_ OI A lt

oo —

12

remove the three newly-filed cases before plaintiffs filed

them. The Ninth Circuit’s disposition of the three newly-

filed cases in complete disregard of the facts and law

applicable to those cases under the first paragraph of

28 U.S.C. § 1446(b) can only have stemmed from an

impermissible departure "from the accepted and usual course

of judicial proceedings." Supreme Court Rule 10.1(a). The

matter needs this Court’s review for the same reasons as did

the similar unlawful order of remand in Thermtron Products.

° In their opposition to Exxon’s petition in No. 94-385 (see p. 2 n.2

supra), plaintiffs argued that Exxon conceded in Ninth Circuit briefing

that a reversal of Order No. 83 as untimely also would require reversal

of Orders Nos. 91, 92, and 108. This assertion is unfounded. In the

Ninth Circuit, plaintiffs stated:

Judge Holland upheld [Alyeska’s February 13, 1992] removals on

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." Order

No. 83 also rejected plaintiffs’ argument that Alyeska’s removal was

untimely. Orders No. 91, 92 and 108 [in which there were no issues

of untimeliness] adopt and rely upon the theory of Order No. 83.

Brief for Plaintiffs-Appellants, 9th Cir. No. 93-35274, at 14 (citation &

footnotes omitted) (emphasis added). Exxon simply agreed that, insofar

as the removability issue in all cases was governed by the Chevron v.

Hammond "theory of Order No. 83" (id.), "the outcome as to Order 83

w[ould] govern the outcome as to Orders 91, 92, and 108." Brief for

Defendants-Appellees, 9th Cir. No. 93-35274, at 2. Since no issue as to

the timeliness of the removals in Orders Nos. 91, 92, and 108 had ever

been raised and the timeliness ruling in Order No. 83 was not part of the

Chevron v. Hammond theory to which the plaintiffs-appellants referred,

Exxon’s statement below cannot reasonably be read as conceding an issue

that Exxon had no reason to believe was present. Even in their opposi-

tion to Exxon’s petition in No. 94-385, plaintiffs were unable to articulate

any theory under which removal of the three newly-filed cases was

untimely.

13

B. In Conflict With Three Other Circuits, The

Ninth Circuit Held That The Time To Remove

Under The Second Paragraph Of 28 U.S.C.

§ 1446(b) Is Triggered By Papers Lacking A

Substantial Degree Of Specificity.

In the second paragraph of section 1446(b), Congress

specifically provided for the subsequent removal of a case not

initially removable, provided that the defendant seeks

removal within 30 days "after the receipt by the defen-

dant . . . of [a] paper from which it may first be ascertained

that the case is one which is or has become removable." In

so providing for delayed removal of litigation already

advanced in state court, Congress necessarily concluded that

the benefits of making removal jurisdiction available out-

weigh the costs of relocating the litigation. If this congres-

sional policy choice is to be respected, defendants are entitled

to clear notice that the case has newly become removable

before the 30-day removal period starts to run. Requiring

clarity in the triggering paper simultaneously protects the

defendant against inadvertent loss of removal rights and

spares federal courts the burdens that will follow if defen-

dants must (or can) seek removal on mere inference. These

considerations need special attention when, as here, there are

multiple defendants in a complex case.

Three other courts of appeals have recognized that in

order for a plaintiff's document to trigger section 1446(b)’s

30-day removal period, the grounds for removal must be

clearly expressed on the document’s face. The Tenth Circuit

has held that, if the 30-day period specified in the second

paragraph of section 1446(b) "is going to run, the notice [that

the case is removable] ought to be unequivocal. It should not

is

be one which may have a double design." DeBry v. Trans-

america Corp., 601 F.2d 480, 489 (10th Cir. 1979) (emphasis

added). Similarly, addressing the first paragraph of section

1446(b), the Third Circuit established a rule that the docu-

ment triggering the 30-day removal period must "inform the

reader, to a substantial degree of specificity, whether all the

elements of federal jurisdiction are present." Foster, 986

F.2d at 53 (citation omitted). Fifth Circuit law is in accord

with the above decisions, holding that the 30-day period

specified in the first paragraph of section 1446(b) begins to

run only when a document "affirmatively reveals on its face"

the ground for removal. Chapman v. Powermatic, Inc., 969

F.2d 160, 163 (5th Cir. 1992), cert. denied, 113 S. Ct. 1402

(1993).’

The plain language of section 1446(b) provides that the

30-day removal period is measured from the date a plaintiff

files some document sufficient to permit a defendant to

"ascertain" that the case is removable. Accordingly, both the

Third and Fifth Circuits have concluded that it is inappro-

priate to go through the exercise of carefully parsing plain-

tiffs’ phrases in light of knowledge defendants may have

possessed from sources outside of plaintiffs’ filings. In short,

"the relevant test is not what the defendants purportedly

knew, but what these documents said." Foster, 986 F.2d at

54; see Chapman, 969 F.2d at 163. Such a rule "promotes

7 These decisions, unlike the decision of the Ninth Circuit, comport

with decisions in which this Court has held that in order to find that a

case presents a federal question, a “genuine and present controversy, not

merely a possible or conjectural one, must exist with reference thereto."

Gully v. First Nat'l Bank, 299 U.S. 109, 113 (1936); see, e.g., Christian-

son v. Colt Indus. Operating Corp., 486 U.S. 800, 809 (1988); Skelly Oil

Co. v. Phillips, 339 U.S. 667, 672 (1950).

15

certainty and judicial efficiency" and prevents courts from

"expend[ing] needlessly their resources trying to determine

what the defendant knew . . . .". Chapman, 969 F.2d at 163;

see Foster, 986 F.2d at 53.

The Ninth Circuit’s ruling below conflicts with the

decisions of the Third, Fifth, and Tenth Circuits, with the

attendant costs to defendants and courts addressing removal

issues. According to the Ninth Circuit, Alyeska’s right to

remove was triggered by plaintiffs’ November 8, 1991 filing

(quoted at Pet. App. 20a), a laundry list of items that

intermixed assertions involving Exxon and Alyeska without

anywhere alleging that Alyeska had caused the oil spill by

securing the injunction in Chevron v. Hammond. By any fair

estimation, the trial court held, plaintiffs’ November 8, 1991

filing lacked the kind of specificity which would alert

Alyeska to the federal issues. App. 10a-12a.°

According to the Ninth Circuit, however, it sufficed

merely that plaintiffs’ November 8, 1991 filing "mentioned"

the EXXON VALDEZ’s single-hull design and "preventative

Paragraph (i) of the November 8, 1991 filing identified as an issue

whether "defendants took adequate preventative measures” (Pet. App.

20a), an assertion having no express or necessary relationship to the

matters litigated in Chevron v. Hammond. The Federal District Court

expressly found paragraph (i) to be "too generalized . . . to have alerted

Alyeska that Chevron v. Hammond was implicated." App. 12a. In

marked contrast, the February 3, 1992 Designation (Pet. App. Sa-6a)

stated that the specific "preventive measures” of double hulls, tug escorts,

and special navigation equipment "were urged upon the Alyeska

defendants by Alaska native corporations during construction of the pipe-

line, and several were required by legislation enacted before the terminal

began operating. The Alyeska defendants ignored the native corporations

and succeeded in having a court overturn the legislation [in Chevron v.

Hammond]." App. 6a.

16

measures" and "did not indicate in any way that paragraphs

(f) and (i) did not apply to Alyeska [as well as to Exxon]."

Pet. App. 20a. The burden imposed by the Ninth Circuit on

defendants to read plaintiffs’ minds at peril of losing removal

rights is entirely at odds with the approach of the Third,

Fifth, and Tenth Circuits. Defendants in the Ninth Circuit

now must seek to remove on mere inference or risk loss of

their removal rights. Yet, as shown by the Federal District

Court’s evaluation of the pleadings here, it is entirely

predictable that the court would have rejected an attempt by

Alyeska to remove on the basis of the "generalized" Novem-

ber 8, 1991 filing. App. 12a. Defendants should not be

placed in such an untenable position in order to protect their

statutory rights of removal, nor should the courts be burdened

with the self-protective notices of removal that will result

from the Ninth Circuit’s approach. See DeBry, 601 F.2d at

488-89; Foster, 986 F.2d at 53.”

% The Ninth Circuit also stated that two filings by Alyeska -- i.e.,

a defendant -- before November 8, 1991 manifested an awareness that

these issues were in the case. Pet. App. 21a-22a. But this attempt to

buttress the decision simply raises additional questions, and conflicts

directly with the holdings in Foster and Chapman that what defendants

know outside of plaintiffs’ filings is simply irrelevant to section 1446(b).

In addition, there can be no doubt at all that any attempt by Alyeska to

remove based solely on inferences and statements in its own papers would

have been unsuccessful.

17

II. THE DECISION BELOW CONFLICTS WITH OTH-

ER CIRCUIT DECISIONS HOLDING THAT

28 U.S.C. § 1447(c) PRECLUDES REMAND ON

THE BASIS OF A DEFECT IN REMOVAL PRO-

CEDURE WHICH WAS NOT RAISED IN A TIME-

LY MOTION TO REMAND.

Even if some argument could be constructed to support

the proposition that the removals at issue in Orders Nos. 91,

92, and 108 were untimely, the question remains, did the

Ninth Circuit act outside its authority under 28 U.S.C.

§ 1447(c) in ordering remand in the absence of a timeliness

objection? The question is simple, and purely legal. The

Ninth Circuit’s answer was wrong, and conflicts with other

circuit decisions on similar facts.

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 jurisdiction-

al, defect. See F.D.L.C. 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. General Motors Corp., 888 F.2d

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

parties 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 back and forth between two courts. See

H.R. Rep. No. 889, 100th Cong., 2d Sess. 1, 72, reprinted in 1988 U.S.

Code Cong. & Admin. News 5982, 6033; FDIC. v. Loyd, 955 F.2d 316,

322-23 (Sth Cir. 1992); Foster v. Chesapeake Ins. Co., 933 F.2d 1207,

1212-13 (3d Cir.), cert. denied, 112 S. Ct. 302 (1991).

18

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 in reversing Orders Nos. 91, 92, and 108 -- the

so-called "untimeliness" of the removals -- was waived unless

raised in a timely motion to remand.’* See Hamilton v.

Aetna Life & Cas. Co., 5 F.3d 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, howev-

er, that plaintiffs below did not challenge, at any time in any

motion to remand, the timeliness of the removals at issue in

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

remand filed in Federal District Court, nor their briefs in the

Ninth Circuit, 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

'! 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, Commen-

tary 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").

'2 The settled rule, set forth by this Court, is that a mere "irregulari-

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

been brought in the district court. See American Fire & Casualty Co. v.

Finn, 341 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.

19

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 (Fifth Circuit: section 1447(c) "preclud[es] all

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 thirty day limit

imposed by the revised Section 1447(c) ha[s] expired").'?

The decision below should not stand.

Iil. PRAGMATIC CONSIDERATIONS DEMAND THAT

THE DIRECT-ACTION CLAIMS NOT BE RE-

TURNED TO THE DISTRICT COURT INDEPEN-

DENT OF THE EYAK CLASS-ACTION CLAIMS.

The Federal District Court upheld removal of both the

Eyak class-action claims (Order No. 80) and the direct-action

claims (Orders Nos. 83, 91, 92, and 108). After simulta-

neously certifying all five orders for interlocutory review,

Judge Holland proceeded to address and resolve all of these

'? 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.1.C., 979 F.2d 782, 786 (9th

Cir. 1992).

20

EXXON VALDEZ claims together, by way of numerous

summary judgment decisions and a three-phase trial of

several months duration. This Court likewise should treat in

tandem the class-action claims involved in No. 94-650 and

the direct-action claims involved in this cross-petition.

Only mischief and confusion can result if this Court

grants review as to the Eyak class-action claims in No. 94-

650 but denies this cross-petition, thereby fragmenting the

massive EXXON VALDEZ litigation along the arbitrary

dividing line of whether similar claims relating to a single oil

spill were brought on a direct-action basis or a class-action

basis. As noted, the EXXON VALDEZ claims were handled

on a consolidated basis by the Federal District Court (and

before that by the Alaska Superior Court). Whether the

ultimate home of the present direct-action claims and class-

action claims (No. 94-650) is in the federal courts or the state

courts, neither court system should be obliged to further

address matters of substance without knowing whether it will

be required to address only the direct-action claims or the

class-action claims as well. Lacking such knowledge, the

responsible court system would be unable to structure the

most efficient proceedings to address the common issues

arising in the direct-action claims and the class-action claims.

Further, unless this Court grants this cross-petition and

reverses the Ninth Circuit’s disapproval of the direct-action

removals (Orders Nos. 83, 91, 92, and 108), Exxon will urge

the Federal District Court to retain jurisdiction over the

direct-action cases on the new basis of the recent develop-

ments summarized in the Statement of the Case. Similarly,

should this Court grant the petition in No. 94-650 and reverse

the Ninth Circuit’s approval of the Eyak class-action removal

21

(Order No. 80), Exxon also will urge retention of that case

in federal court due to the same recent developments. These

additional, common removal issues should be resolved

together and with any guidance this Court chooses to provide.

Thus, should review be granted in No. 94-650, this Court

should likewise grant this cross-petition or, at a minimum,

order this cross-petition held for disposition in light of the

decision in No. 94-650.

22

CONCLUSION

For the foregoing reasons, Exxon’s cross-petition for a

writ of certiorari should be granted if the Court grants review

in No. 94-650.

Respectfully submitted,

JOHN F. DAUM

Counsel of Record

PATRICK LYNCH

CARL R. SCHENKER, JR.

O’MELVENY & MYERS

555 13th Street, N.W.

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 Cross-Petitioners

Dated: November 10, 1994

APPENDIX

ee ee eee eee

i

TABLE OF CONTENTS

APPENDIX

APPENDIX A

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

Court for the District of Alaska, Jn re the

EXXON VALDEZ, Case No. A89-095 Civil

Ge Ble WE a i a de eka deo es la

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

Court for the District of Alaska, Jn re the

EXXON VALDEZ, Case No. A89-095 Civil

A he. IE eee a 24a

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

Court for the District of Alaska, Jn re the

EXXON VALDEZ, Case No. A89-095 Civil

ce a: Bee ee 28a

(iv) Order No. 108 of the United States

District Court for the District of Alaska, Jn re

the EXXON VALDEZ, Case No. A89-095 Civil

ag Ge ac bed a oe We es 32a

APPENDIX B

Text of Statutes Involved ............... 36a

APPENDIX C

Ce Fe ee 39a

—_—e

APPENDIX A

APPENDIX A(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

A92-226 (except Case Nos. A92-174, A92-175, and A92-21-

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

2Alyeska 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); Unocai Pipeline Company

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

2a

5),> 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. Ham-

*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).

3a

mond 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) esta-

blishing 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

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

regulations. Exhibit 1 to Alyeska’s opposition (Clerk’s Docket No. -

2505).

4a

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

Washington tanker law required double hulls, dual radar, and

a collision avoidance system, it was unconstitutional because

it was preempted by Title Il 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

*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).

Sa

implement or enforce the provisions of the Alaska Tanker

Law which assessed risk charges.

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 Reck-

less Indifference to the Interests, Rights and

Safety of Others and Was Sufficiently Out-

rageous to be Deemed Equivalent to Actual

Malice.

2. The Alyeska Defendants Acted With Reck-

less Indifference to the Interests of Others

*Gxhibit 4 to State Court Plaintiffs’ motion (Clerk’s Docket No. -

2363).

ee ee ee -

6a

When They Failed to Take Steps to Prevent

Oil Spills in Prince William Sound 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 commu-

nications system that could monitor the

position of all TAPS tankers between Hin-

chinbrook entrance and the Valdez terminal;

c. Most of these preventive measure were

urged upon the Alyeska defendants by

Alaska native corporations during construc-

tion of the pipeline, and several were re-

quired by legislation enacted before the

terminal began operating. The Alyeska

defendants ignored the native corporations

and succeeded in having a court overturn

the legislation.

7a

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 Life-

style.

Preliminary Designation at 33.''

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

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

No. 2363).

"Exhibit 4 to State Court Plaintiffs’ n.otion at 42 (Clerk’s Docket

No. 2363).

SS ee

8a

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 Supple-

ment to Plaintiffs’ Preliminary Designation of Issues for

April 1993 Trial ("Supplement")'? on February 3, 1992, the

same date the plaintiffs filed their Preliminary Designation.

The Supplement stated:

Rather than produce a lengthy, but substan-

tially similar, separate document, the State

of Alaska prefers to join in the Preliminary

Designation, and reserves the right to subse-

quently specify contentions not adopted if

that ever becomes relevant or appropriate.

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

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

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

9a

proposed that the State be ordered to specify which conten-

tions 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 narrow-

ing 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 Prelimi-

nary Designation which it did not ado;t. Furthermore, the

State did not repudiate its claim for punitive damages 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.

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

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

2371).

10a

The State’s second argument was that Alyeska’s counter-

‘claim against the State must be remanded due to Eleventh

Amendment considerations. Alyeska agrees that the counter-

claim 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.

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

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

ee ee ee

lla

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 y. 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

Designation, it would be substantial enough to support

removal.

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

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

Exhibit 11 at 6.

'*Exhibit C to State’s motion at 26, J 76, 977 & $92 (Clerk’s

Docket No. 2371).

12a

Plaintiffs did not direct the court to any earlier referenc-

es 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 com-

plaint 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. 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

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

Docket No. 2363).

13a

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

wrote in their concurring decision:

[O]Jur 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 juris-

diction 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 persua-

sive.

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 combina-

tion with the doctrine of res judicata to allow removal under

limited circumstances.

l4a

In both Salveson [v. Western States Bank-

card 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 Fed-

erated 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 a basis

for federal jurisdiction and dismiss the

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

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.

15a

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.

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

{ 60.38[1].

[A]n action to enjoin or otherwise obtain

relief from a federal judgment involves the

°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.

16a

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 examina-

tion 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 »5e no promotions to lieutenant so long as

plaintiff was held to be ineligible "had a sufficient federal

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

17a

corporation’s voting shares (referred to as the "7renk Or-

ders"). 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 ques-

tion 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.

In Palmer v. Liggett 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

ey

18a

Advertising Act.” The court reasoned that the state com-

mon 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 warn-

ing to conform to different state law re-

quirements as "promulgated" by a jury’s

findings.

...Effecting such a change in the manu-

facturer’s warning requirements is the 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.

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.

a eee

19a

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 communica-

tion 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 picket-

ing by unions was arguably encompassed by the National

Labor Relations Act,” a state court had no jurisdiction to

” 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 the States are ousted of all jurisdiction. Or, the

Board may decide that an activity is neither protected

nor prohibited, and thereby raise the question wheth-

er 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 damag-

€s, and since such activity is arguably within the

compass of § 7 or § 8 of the Act, the State’s juris-

diction is displaced.

award the employer damages for injuries caused by picketing

on the grounds that picketing constituted a tort under state

law.

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).””

20a

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 preven-

tive relief. The obligation to pay compensa-

tion 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 exert-

ed to regulate activities that are potentially

subject to the exclusive federal regulatory

scheme.

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

(1959).

In his dissent,

reliance on Garmon.

Justice Blackmun took issue with the majority’s

2la

In Sears, Roebuck & Co. vy. 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

unfair competition, give protection of a kind

that clashes with the objectives of the feder-

al 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

[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 preven-

tive relief," ... sufficient authority to warrant extin-

guishing 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

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

22a

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 Corpora-

tion, 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 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.

23a

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. 79,75 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.

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

1992.

/s/ H. Russel Holland

United States District Judge

*Clerk’s Docket No. 2401.

**Clerk’s Docket No. 2483.

24a

APPENDIX A

APPENDIX A(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

25a

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

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

Civil.

*Clerk’s Docket No. 2545.

26a

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.

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 determina-

tion 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 Febru-

ary 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

27a

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

Adams plaintiffs and as such, removal was proper.

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, Alaska this 15 day of September,

1992.

/s/ H. Russel Holland

United States District Judge

28a

APPENDIX A

APPENDIX A(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) (collective-

ly referred to as "Adams plaintiffs") moved for remand

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

29a

assumes, but does not decide, that the Adams plaintiffs’

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.

30a

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 determina-

tion 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 Febru-

ary 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. Asa 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,

removal was proper.

The Adams plaintiffs’ motion for remand (Clerk’s

Docket No. 2751 is DENIED.

3la

Dated at Anchorage, Alaska this 17 day of September,

1992.

/s/ H. Russel Holland

United States District Judge

32a

APPENDIX A

APPENDIX A(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-92-787 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 Septem-

ber 8, 1992, where the action became Case No. A92-584

33a

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 ("Desig-

nation") 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

pretrial order entered by the Court, unless a

party has made a specific objection to any

'Clerk’s Docket No. 2914.

*Clerk’s Docket No. 2964.

*Clerk’s Docket No. 2710.

34a

pretrial order or to the objectionable por-

tion 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 determina-

tion 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 Febru-

ary 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.

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

DENIED.

'

‘

35a

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

1992.

/s/ H. Russel Holland

United States District Judge

36a

APPENDIX B

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

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

37a

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.

(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

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 defen-

dant, 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

et eee

38a

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

** *

(c) A motion to remand the 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). 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, in-

curred 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.

* * *

39a

APPENDIX C

Rule 29.1 Statement

165550 Canada Limited

172965 Canada Limited

2849518 Canada Limited

571270 Alberta Limited

590320 Alberta Ltd.

AGA Progas a.s

Abu Dhabi Petroleum Company Limited

Ace Polymer Co., Ltd.

Acquifund Resources Limited

Aditivos Orinoco, C. A.

Adria-Wien Pipeline Gesellschaft mit beschrankter Haftung

Advanced Elastomer Systems Do Brasil Ltda.

Advanced Elastomer Systems Japan Limited

Advanced Elastomer Systems Limited

Advanced Elastomer Systems Marketing Pte. Ltd.

Advanced Elastomer Systems NV/SA

Advanced Elastomer Systems Singapore Pte. Ltd.

Advanced Elastomer Systems, Canada, Inc.

Advanced Elastomer Systems, Inc.

Advanced Elastomer Systems, L.P.

Air Tankdienst Koeln GbR

Aircraft Fuel Supply B. V.

Al-Jubail Petrochemical Company

Alberta Products Pipe Line Ltd.

Alyeska Pipeline Service Company

AquaAir Environmental, Inc.

Aramco Services Company

Asakawa Sekiyu K.K.

Awaji Gas Nenryo Kabushiki Kaisha

Azuma Sekiyu K.K.

B.W.O.C., Inc.

40a

BEB Erdgas und Erdoel GmbH, Hannover

BRIGITTA Erdgas und Erdoel GmbH, Hannover

Bangkok Aviation Fuel Services Limited

Banshu Ekika Gas K.K.

Bayerische Erdoelleitung G.m.b.H.

Beaverhill Resources Limited

Brickwood Holdings Pty. Ltd.

Bryan Austin Chalk Operating Committee, Inc.

Bryan Woodbine Gathering, Inc.

Canadian Reserve Oil & Gas Ltd.

Cascade Fertilizers (1990) Limited

Castle Peak Power Company Limited

CeraMem Separations, Inc.

Changi Airport Fuel Hydrant Installation Pte. Ltd.

Changi Into-Plane Services (Pte) Ltd.

Chuo Sekiyu Hanbai K.K.

Comcor Chemicals Limited

Compagnie Industrielle des Polyethylenes de Normandie, GIE

Compania Minera Disputada de Las Condes S.A.

Comptoir Auxiliaire du Petrole

Comptoir Oyonnaxien des Combustibles (C.O.C.)

Computer Centrum Groningen B.V.

Copim St. Lawrence Ltd.

Cynthia Gas Gathering Company Limited

DFTG Deutsche Fluessigerdgas Terminal GmbH

Daihatsu Sekiyu K.K.

Daito Gas K.K.

Depot Petrolier du Gresivaudan

Depots Petroliers de la Corse

Depots de Petrole Cotiers

Deudan-Holding GmbH

Deutsche Advanced Elastomer Systems GmbH

Deutsche Erdgas Transport G.m.b.H.

Deutsche Transalpine Oelleitung G.m.b.H.

Devon Estates Limited

Disma S.r.1.

Dixie Pipeline Company

Dunbar Oil Ltd.

E S F Limited

ETD Tankdienst Gesellschaft Duesseldorf GbR

Eagle Kenso K.K.

Eagle Reinsurance Co. Ltd.

East Texas Salt Water Disposal Company

Eiko Sekiyu K.K.

Elwerath Erdgas und Erdoel GmbH, Hannover

Elwerath Erdoel und Erdgas AG

Emirates National Chemicals Company Ltd.

Emori Sekiyu K.K.

Emsland-Erdoelleitung G.m.b.H.

Emulsions de Feyzin

Emulsions du Dauphine

Energie Marketing Service GmbH

Enterprise Housing Partners 1992 Limited Partnership

Entrepot Petrolier de Mulhouse (E.P.M.)

Entrepot Petrolier de 1’Aveyron (E.P.A.)

Erdgas-Verkaufs-Gesellschaft m.b.H.

Erdoel-Raffinerie Deurag-Nerag GmbH

Esso (Overseas) Pension Trust Limited

Esso Energie G.I.E.

Esso Exploration and Production Angola Inc.

Esso Exploration and Production Ireland Limited

Esso Lub’ Services

Esso Malaysia Berhad

Esso Raffinage S.A.F.

Esso S.A.F.

Esso Standard Thailand Ltd.

Esso Standard Tunisie S. A.

Esso Technologies et Services (E.T.S.)

Esso Yukong Specialities Ltd.

Etablissements Cloarec

42a

Exxon Asset Funding Company

Exxon Asset Management Company

Exxon Chemical Asset Management Partnership

Exxon Chemical France

Exxon Chemical Paraffins Limited

Exxon Chemical Polymeres SNC

Exxon Mobile Bay Partnership

Exxon de Colombia S.A.

F.T. Giken Kabushiki Kaisha

Federated Pipe Lines Ltd.

Ferngas Nordbayern G.m.b.H.

Ferngas Saizgitter GmbH

Fernkaelte Geschaeftsstadt Nord G.b.R.

Flughafen Schwechat Hydranten-Gesellschaft

Fuji Kogyo K.K.

Full Cycle Plastics Pty. Ltd.

Gl6a (Groep) B.V.

Gasunie Engineering B.V.

Gasunie Warmte/Kracht Emmen B.V.

General Bussan K.K.

General Highway K.K.

General Petrochemical Industries Limited

General Sekiyu K.K.

General Sekiyu Okinawa Hanbai K.K.

General Sekiyu Overseas, Ltd.

General Shipping Co. Ltd.

General Unyu Kabushiki Kaisha

Geobutane - Lavera

Ges. fur Mineraloelveredlung und Distribution Rhaesa mbH

Gewerkschaft Brassert Erdoel und Erdgas GmbH

Gewerkschaft Gute Hoffnung Erdgas und Erdoel GmbH

Gewerkschaft Kuechenberg Erdgas und Erdoel GmbH

Glen Park Gas Pipe Line Company Limited

Grande Ecaille Land Company, Inc.

Groupement Immobilier Petrolier

43a

Groupement Petrolier Aviation

Groupement Petrolier de Nantes (G.P.N.)

Groupement Petrolier de Saint-Pierre des Corps (G.P.S.P.C.)

Groupement Petrolier de la Cote d’ Azur

Groupement Petrolier du Finistere G.I.E.

Groupement Petrolier du Val-de-Marne (G.P.V.M.)

Groupement d’Exploitation du Depot de Reception de

Chennevie

Hambrecht & Quist Environmental Technology

Hamburger Gaswerke GmbH

Hannoversche Erdoelleitungs-G.m.b.H.

Hanshin Kyowa Sekiyu K.K.

Heinrich Schneider Spedition GmbH

Hiroshima General Gas Juten Kabushiki Kaisha

Hoei Sekiyu K.K.

Hokkai Sanshi Co., Ltd. (Chemical)

Hokushin Bussan K.K.

Hokuyu Sekiyu K. K.

Hong Kong Pumped Storage Development Company, Limited

Houston Regional Monitoring Corporation

Hydrant Refuelling System, S.A.

Hydranten-Betriebs-Gesellschaft, G.b.R.

Hydrierwerke Poelitz Aktiengesellschaft

Imperial Oil (an Ontario General Partnership)

Imperial Oil Limited

Imperial Oil Resources Limited

Imperial Oil Resources N.W.T. Limited

Imperial Oil Resources Ventures Limited

Imperial Oil Resources an Alberta Limited Partnership

Industria Acqua Siracusana S.p.A.

Industry Promotion Enterprises Limited

Iranian Oil Participants Limited (Iranian Consortium)

Iranian Oil Services (Holdings) Limited

Iranian Oil Services Limited

Iraq Petroleum Company, Limited

44a

Iraq Petroleum Pensions, Limited

Japan Butyl Company Limited

Jaymo SNC

Jersey Nuclear-Avco Isotopes, Inc.

K. K. Momose Shiojiri Stand

K. K. Toresen

K.K. Aizu General

K.K. Auto

K.K. Daimaru

K.K. Eastern Gas Terminal

K.K. General Sekiyu Hanbaisho

K.K. Genet

K.K. Genetech

K.K. Genex

K.K. Heian Sekiyu

K.K. Kyoei Shosha

K.K. Marugo Izumasa Shoten

K.K. Marutaka Sekiyu

K.K. Momose Sekiyu

K.K. Standard Sekiyu Osaka Hatsubaisho

K.K. Toko

K.K. Uwano Sekiyu Shokai

K/S Statfjord Transport A/S & Co.

KX Industries, L.P.

Kabushiki Kaisha Sankyo Plastics

Kabushiki Kaisha Serubisu

Kai Tak Refuellers Company Limited

Kansai Chuo Sekiyu K.K.

Kanto Kygnus K.K.

Karlsruhe-Stuttgart Rohrleitung Gesellschaft mbH

Kawasaki Kygnus Sekiyu Hambai Kabushiki Kaisha

Keiyo Sekiyu Hanbai K.K.

Kemcor Australia Pty. Ltd.

Kemcor Elastomers Ltd.

Kemcor Olefins Ltd.

45a

Kemcor Plastics Pty. Ltd.

Kenya Petroleum Refineries Limited

Kibo Sekiyu. Hanbai K.K.

Kimura Sekiyu Kabushiki Kaisha

Kinwa Sekiyu K.K.

Kobe Standard Sekiyu K. K.

Korea Perchem Company Limited

Kosxon Chemical Company Limited

Kowa Sekiyu K.K.

Kowloon Electricity Supply Company Limited

Kumho E.P. Rubber Co., Ltd.

Kygnus Ekika Gas Kabushiki Kaisha

Kygnus Kosan Kabushiki Kaisha

Kygnus Sekiyu K. K.

Kygnus Sekiyu Seisei Kabushiki Kaisha

Kygnus Trading Kabushiki Kaisha

Kyushu Eagle K.K.

L-Net East K.K.

L-Net West K.K.

L12A (Groep) B.V.

L12B/L15B (Groep) B.V.

L14 (Groep) B.V.

L15A (Groep) B.V.

L2 (Groep) B.V.

L5a (Groep) B.V.

LEAG Aktiengesellschaft fuer luzernisches Erdoel

Les Docks des Petroles d’ Ambes

Liants Routiers de la Vallee de la Loire (LRVL)

Liants Routiers du Gard (L.R.G.)

Lilac Sekiyu Kabushiki Kaisha

Lily Sekiyu K.K.

Lithcon Petroleum International (Bahamas) Inc.

Lithcon Petroleum Taiwan Inc.

Long Beach Oil Development Company

MEGAL FINCO

46a

MEGAL GmbH

Maasvlakte Olie Terminal C.V.

Maasvlakte Olie Terminal N.V.

Magota Sekiyu K.K.

Mainline Pipelines Limited

Malaysian Energy Chemical & Services Sdn Bhd

Manchester Airport Storage and Hydrant Company Limited

McCann Plastics Inc. (Chemical)

McColl-Frontenac Inc.

McColl-Frontenac Petroleum Inc./Petroliere McColl-

Frontenac

Meiji Sekiyu K.K.

Mikawa Bussan K.K.

Mitake Unso K.K. .-

Mittelrheinische Erdgas Transport Gesellschaft mit beschrank

Mode Wheel Property Limited

Montreal Pipe Line Limited/Les Pipe-Limes Montreal Limitee

Mount Thorley Coal Loading Limited

Multi Tank Card B.V.

Mytex Polymers (General Partnership)

N. V. Nederlandse Gasunie

NAM - K 14 B.V.

NAM - K 15 B.V.

NAM - K 7 B.V.

NAM-K17 B.V.

NAM/CLOMS - K 8/K 11 B.V.

NAM/CLOMS - L 13 B.V.

NAM/MOBIL M9a B.V.

NPC Services, Inc.

Nakabayashi Sekiyu K.K.

Nansei Oil Terminal K.K.

Nansei Sekiyu Kabushiki Kaisha

Nanseki Kaihatsu K.K.

Native Venture Capital Co. Ltd.

Near East Development Corporation

47a

Nederlandse Aardolie Maatschappij B. V.

Neptune Bulk Terminals (Canada) Ltd.

New Cure, Inc.

Newcastle Coal Shippers Pty. Limited

Nichiei Kogyo Kabushiki Kaisha

Nichimo Oil (Bermuda) Co., Ltd.

Nikko Sangyo K.K.

Nippon Unicar K.K.

Nissei Sekiyu Kabushiki Kaisha

Nogat B.V.

Norddeutsche Erdgas-Aufbereitungs G.m.b.H.

Norddeutsche Mineraloelwerke Stettin G.m.b.H.

Nordrheinische Erdgas Transport Gesellschaft mit beschrankte

Noroxo

Northward Developments Ltd.

OSLO Alberta Limited

Office Prive d’ Assurances et de Courtages

Oil Field Chemicals Company (Saudi Arabia) Ltd.

Oil Service Company of Iran (Private Company)

Oil Spill Response Limited

Oldenburgische Erdoel Gesellschaft G.m.b.H.

Oleoducto de Colombia S.A.

Oleoductos Canarios, S.A.

Osaka General Gas K.K.

Osaka Kygnus K.K.

P. T. Stanvac Indonesia

P.A.C. S.A.R.L. (Pinson-Allegret-Causse)

PIMEC Inc.

Pacesetter Enterprises Limited

Pars Investment Corporation

Peninsula Electric Power Company Limited

Petroleum Services (Middle East) Limited

Petrosvibri S.A.

Pier Atlantic Limited

Pipe Line Services, Inc.

48a

Plantation Pipe Line Company

Port-Jerome Gaz (P.J. Gaz)

Portland Pipe Line Corporation

Primaeroel GmbH

Prince William Sound Oil Spill Response Corporation

Progas Limited

Projectbureau W/K B.V.

Quadrant Gas Limited

Raffinerie du Midi S.A.R.L.

Rainbow Pipe Line Company, Ltd.

Redwater Water Disposal Company Limited

Refineria Petrolera Acajutla, S. A.

Regulus Holding (Singapore) Pte. Ltd.

Rheingas Erdgasleitungs-Gesellschaft G.m.b.H.

Rotterdam Antwerpen Pijpleiding (Belgie) N.V.

Rotterdam Antwerpen Pijpleiding C.V.

Rotterdam-Antwerpen Pijpleiding (Nederland) N. V.

Rubiatec Sendirian Berhad

Ruhrgas Aktiengesellschaft

S.A. du Pipeline a Produits Petroliers sur Territoire Geneve

SEAG Aktiengesellschaft fuer schweizerisches Erdoel

_SERAM S.p.A.

SOVEXOIL Oil Field

Saitama Sekiyu Hanbai K.K.

Sanyo Sekiyu K.K.

Saraco S. A.

Saudi Arabian Lube Additives Company Limited

Schubert KG

Senboku Oil Kikoh K.K.

Shehtah Drilling Limited

Shimoyama Sekiyu K.K.

Shin-Nihon Yukagaku Kogyo K. K.

Shinohara Oil K.K.

Smiley Gas Conservation Limited

Sociedad Nacional de“Gieoductos Ltda.

49a

Sociedad de Inversiones Limited

Societa Italiana per l’Oleodotto Transalpino S.p.A.

Societa per Azioni Raffineria Padana Olii Minerali-SARPOM

Societe Geomines-Caen

Societe Anonyme Produits Lubrifiants de Madagascar -

PROLU

Societe Anonyme de Gestion de Stocks de Securite (SAGE-

SS)

Societe Anonyme de la Raffinerie des Antilles

Societe Anonyme des Hydrocarbures

Societe Civile de Mustapha Algerie

Societe Civile de Participation pour la Destruction des Dech

Societe Esso de Recherches et d’Exploitation Petrolieres

Societe Francaise EXXON CHEMICAL

Societe Havraise de Manutention de Produits Petroliers

Societe Malgache de Raffinage

Societe Paris-Manche

Societe Paris-Niel

Societe Reunionnaise d’Entreposage

Societe d’Etude et d’Exploitation de la Raffinerie du Tchad

Societe d’Exploitation & de Developpement d’ Operations

Comme

Societe d’Exploitation des Garages Les Stations Tour Eiffel

Societe de Manutention de Carburants Aviation (S.M.C. A.)

Societe de Promotion et de Financement Touristique (CART-

HAGO)

Societe de la Raffinerie d’ Alger

Societe des Pipe-Lines de Strasbourg

Societe des Transports Petroliers par Pipe Line

Societe du Caoutchouc Butyl (SOCABU)

Societe du Pipe Line de la Raffinerie de Lorraine

Societe du Pipe-Line Mediterranee-Rhone

Societe du Pipeline Sud-Europeen

Socony-Standard-Vacuum Oil Company (Petroleum Maat-

schappij)

50a

Southern Natural Gas Development Pty. Ltd.

Standard Kaihatsu K.K.

Standard Kosan Kabushiki Kaisha

Standard Service K.K.

Stansted Fuelling Company Limited

Statfjord Transport A/S

Stockage Geologique de Gaz de Lavera

Sueddeutsche Erdgas Transport Gesellschaft mit beschrankter

Sun East (Dublin) Company, Ltd.

Superior Disk Corporation

Syncrude Canada Ltd.

Synergistics Industries (NJ) Inc.

Synergistics Industries (TX) Inc.

Synergistics Industries Limited

TAR-Tankanlage Ruemlang AG

TBN Tanklager-Betriebsgesellschaft Nuernberg mbH

TCA Plastics Inc.

TEAM Terminal B.V.

TFS Turbo Fuel Services GmbH, Hamburg

TGF Tankdienst Gesellschaft Frankfurt G.b.R.

TGM Tankdienst-Gesellschaft Muenchen GbR

TIBA Speditions GmbH

TLS Tanklager Stuttgart GmbH

Taihei Bussan K.K.

Taisei Kogyo Sekiyu Hanbai K.K.

Taketsuru Yugyo K.K.

Tankanlage A. G., Mellingen

Tanklager Altishausen A. G.

Tanklager Taegerschen AG

Tanklager-Gesellschaft Tegel G.b.R.

Tanklagergesellschaft, Koeln-Bonn G.b.R.

Tecnica Quimica Petrolera, S.A. de C.V.

Terminal Petrolier de Bordeaux (T.P.B.)

Thai Aliphatics Company Limited

Thai C-Center Company Limited

Sla

Thai Petroleum Pipeline Co., Ltd.

Thyssengas G.m.b.H.

Tohpren Co., Ltd. (Chemical)

7Tojo Gas K.K.

Toko Sekiyu K.K.

Tonen Chemical Nasu Co., Ltd.

Tonen Energy International Corp.

Tonen Energy and Marine (Singapore) Pte. Ltd.

Tonen Filare Co. Ltd.

Tonen Film Company Limited

Tonen Kabushiki Kaisha

Tonen Kagaku K.K.

Tonen Properties Inc.

Tonen Sogo Service Co., Ltd.

Tonen System Plaza Kabushiki Kaisha

Tonen System Service Kabushiki Kaisha

Tonen Tanker Kabushiki Kaisha

Tonen Tapyrus Company Limited

Tonen Technology K. K.

Tonex Company Limited

Towa Compounding Co., Ltd.

Towa Sekiyu K.K.

Toyoshina Film Company, Ltd.

Trans-Northern Pipelines Inc.

Transalpine Oelleitung in Oesterreich Gesellschaft m.b.H.

Transgaz Lavera

Tsurumaru Unyu K.K.

UBAG - Unterflurbetankungsanlage Flughafen Zurich

Ulan Coal Mines Limited

United Industry Development Co., Ltd.

Van Salt Water Disposal Company

Verbundnetz Gas AG

Wako Jushi Kabushiki Kaisha

Warmtepomp Nederland B.V.

Westdeutsche Erdoelleitungs-G.m.b.H.

Westgas G.m.b.H.

Woodbine Marketing Co., Inc.

Worex S.N.C.

Yasaka Sekiyu K.K.

Yellowstone Pipe Line Company

Yoshimi Gas Kabushiki Kaisha

Yuai Sekiyu K.K.

Zenon Environmental Systems Inc. (ZESI)