Opposition Brief — Daimlerchrysler Corp. v. Official Committee of Asbestos, 123 S. Ct. 884 (2003) (No. 02-661)

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No.02-661 ~ | %THEED

Iu the Supreme Court of the Hnite States *

DAIMLERCHRYSLER CORP., ef di. CLERK |

Petitioners, pane

¥.

OFFICIAL COMMITTEE OF ASBESTOS CLAIMANTS

OF FEDERAL-MOGUL GLOBAL, INC., et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

ALAN B. RICH ELIHU INSELBUCH*

BARON & BUDD CAPLIN & DRYSDALE, CHTD.

3102 Oak Lawn Avenue 399 Park Avenue, 27" Floor

Suite 1100 New York, NY 10022-4614

Dallas, TX 75219 (212) 319-7125

vei duiataiicaaaal *Counsel of Record

Counsel to Respondents ty

Consolidated Asbestos

Claimants PETER VAN N. LOCKWOOD

TREVOR W. SWETT

CHARLES S. SIEGEL ALBERT G. LAUBER

WATERS & KRAUS MAX C. HEERMAN

3219 McKinney Avenue CAPLIN & DRYSDALE, CHTD.

Suite 3000 One Thomas Circle, N.W.

Dallas, TX 75204 Washington, DC 20005

- (214) 357-6244 (202) 862-5000

Counsel to Respondents Counsel to Respondents

Unofficial Committee of Official Committee of

Select Asbestos Claimants Asbestos Claimants of

and Waters & Kraus Plaintiffs Federal-Mogul Global, Inc.

saceuniapedmit aeadidinamenenta niniaeeaamancoaana eae

PRESS OF BYRON S. ADAMS @ WASHINGTON, D.C. 1-800-347-8208

i

QUESTION PRESENTED

Whether the court of appeals correctly determined that 28

U.S.C. § 1447(d) deprived it of appellate jurisdiction of the

district court’s order remanding personal injury claims to the

state courts from which they were removed.

il

TABLE OF CONTENTS

Page

Question Presented ........-.. 2c eeececeecees i

Table of Authorities ... 0... ccc ccc ee wee enees ili

Opinions Below ...... 2.2... eee eee eee er eeee l

a rer ee ee 1

arr rc 1

iS. eee 10

Conthaslom . oo iiss 6609 ee ee eee eee 25

ili

TABLE OF AUTHORITIES

Page(s)

CASES:

A.H.Robins Co., Inc. v. Piccinnin, 788 F.2d 994 (4th

ARP AE aig ig Weg AoW 888 23

Aliota v. Graham, 984 F.2d 1350 (3d Cir. 1993) ..... 20

Application of Rosenthal-Block China Corp., 278 F.2d

CT hg nn on eds s ees ew esses 11

Ariail Drug Co. v. Recomm International Display, Inc.,

cae oe Poe (hae Ct. 1997) 0... we eee 20

Arnold v. Garlock, 278 F.3d 426 (Sth Cir. 2001) ..... 6

Celotex Corp. v. Edwards, 514 U.S. 300 (1995) ..... 4

City of Waco, Tex. v. United States Fidelity & Guaranty

Cis Me Ws SEITE) oc eee nee 20

Clorox Co. v. United States District Court, 779 F.2d 517

gg dy a by 4 4a wan 6 08 20

Cohen v. Beneficial Industrial Loan Corp. , 337 U.S. 541

eA Ae a ky wk Ac ww SW 18

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

I Sie 2d gb “gp bps doe R48 7

In re Dow Corning Corp., 187 B.R. 934 (E.D. Mich.

1995), rev'd, 86 F.3d 482 (6th Cir. 1996) .... 18, 21

In re Ford Motor Co./Citibank (South Dakota), NA, 264

og Le Ae |) ee 13

Hernandez v. Brakegate, Ltd., 942 F.2d 1223 (7th Cir.

a oS ae ea eo kw lew 11

iv

Table of Authorities continued

Page(s)

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137

ee eee Tere re es ee ee ee 24

Nutter v. Monongahela Power Co., 4 F.3d 319 (4th Cir.

BE + 6S oe 9 ee ae eee 20

Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir.

tn ee Wes GRO 6b eae we eee 4,5, 6

Phoenix Container, L.P. v. Sokoloff, 235 F.3d 352 (7th

EE 2 66 5 od CRETE Oe 13

Pierpoint v. Barnes, 94 F.3d 813 (2d Cir. 1996) ..... 13

Republic of Venezuela v. Philip Morris, Inc., 287 F.3d

ee is SU EE 3 ko Ce eee ce eee eee 14

Spring City Corp. v. American Buildings Co., 193 F.3d

ee re ree re ee ee 13

State ex rel. Mobil Corp. v. Gaughan, 563 S.E.2d 419

(W. Va. 2002), cert. denied, 123 S.Ct. 346 (No. 02-

Rs nt I 6D k A aR ae OR RO ee ON 24

State of Rio de Janeiro v. Philip Morris Inc., 239 F.3d

Fae EE 6 8 NS4SA AR RA wh kN 13

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S.

EE Lo 37h bls Ha ee OE he eRe en 13

Things Remembered, Inc. v. Petrarca, 516 U.S. 124

CE a paced 2 Dawe 9, 10, 11, 13, 17, 20, 21, 22

In re U.S. Refining & Marketing Co. (Hudson-Ram L.P.

v. Archer), 210 F.2d 387 (table), 2000 WL. 14398

a Ss Fa 5 AA eee ce ee ke we 16

Vv

Table of Authorities continued

Page(s)

In re United States, 273 F.3d 380 (3d Cir. 2001) ..... 9

United States v. Rice, 327 U.S. 742 (1946) ......... 11

Wilt v. Buracker, 443 S.E.2d 196 (W.Va. 1993) ..... 24

STATUTES:

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Oe i ee vn ko sehen 18, 21

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Iu the Supreme Court of the United States

No. 02-661

DAIMLERCHRYSLER CorpP., et ai.,

Petitioners,

Vv.

OFFICIAL COMMITTEE OF ASBESTOS CLAIMANTS

OF FEDERAL-MOGUL GLOBAL, INC., ef al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-42a) is

reported at 300 F.3d 368. The opinion of the district court

(Pet. App. 58a-85a) is reported at 282 B.R. 301.

JURISDICTION

The judgment of the court of appeals was entered on July

31, 2002. Pet App. la, 45a. The petition for a writ of

certiorari was filed on October 29, 2002. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1).

STATEMENT

1. A Chapter 11 bankruptcy case involving Federal-

Mogul Global and its affiliates (“the Debtors”) was filed in

the District of Delaware on October 1, 2001. Pet. App. 10a.

At the time of filing, the Debtors were co-defendants with

2

numerous other defendants, including petitioners, in state-

court asbestos actions pending throughout the country. When

the Debtors filed for bankruptcy, litigation against them was

automatically stayed under 11 U.S.C. § 362(a). Many

asbestos plaintiffs thereupon severed or dismissed their claims

against the Debtors in order to permit their state-court cases

against other defendants to go forward. Pet. App. 10a. “This

aim was thwarted, however, by a massive campaign by

{defen ants] of removing claims against them to the local

United States District Courts on the theory that these claims

were related to” the Debtors’ bankruptcy within the meaning

of 28 U.S.C. § 1334(b). Pet. App. 60a-6la. The assertion

of “related to” subject-matter jurisdiction in the federal courts

was premised on allegations that some defendants may have

used or installed the Debtors’ asbestos-containing brake

products, and that, if adjudged liable to plaintiffs, they might

have claims for contribution or indemnification against the

Debtors at some future time.

On November 20, 2001, petitioners DaimlerChrysler

Corporation, Ford Motor Company, and General Motors

Corporation (collectively, “the automakers”) filed a motion

seeking to transfer to the District of Delaware tens of

thousands of state-court asbestos claims pending against them

nationwide. Pet. App. 61a. Some of these claims had been

removed to the local federal district courts, whereas other

claims were still pending in state courts. See Pet. App. 10a,

53a-55a. The automakers requested that the Delaware

District Court immediately issue a provisional transfer order

transferring the claims to itself for purposes of determining

whether federal subject-matter jurisdiction existed. Pet. App.

lla, 62a. In the wake of the automakers’ motion,

approximately 30 of the Debtors’ other co-defendants filed or

joined in motions asking that asbestos suits against them also

be transferred to the District of Delaware. See Pet. App. 11a.

3

The Debtors did not join in, or support, these transfer

motions.

On November 27, 2001, Chief Judge Becker assigned

Judge Alfred Wolin to hold court in the District of Delaware

“to complete unfinished business” in the Federal-Mogul

bankruptcy and four other major bankruptcies that likewise

involve asbestos claims. Pet. App. 47a-48a. On December

10, 2001, Judge Wolin issued an order partially withdrawing

the bankruptcy reference in the Federal-Mogul case, i.e. , with

respect to “Friction Products Claims” as to which “the

movants contend that they have a right of indemnification

against the [D]ebtors.” Pet. App. 49a. He also granted the

automakers’ ex parte motion for a provisional transfer,

ordering that claims previously removed to federal district

courts “are hereby provisionally transferred to this Court

subject to further order of the Court.” Pet. App. 50a.

2. On February 8, 2002, Judge Wolin held a hearing on

the motions to transfer. After the close of arguments, he

issued his oral rulings, which were incorporated in a written

order later the same day. See Pet. App. 63a, 56a-57a. He

first held that the federal district courts lack subject-matter

jurisdiction of the provisionally-transferred claims, concluding

that state-court tort litigation against the automakers was not

“related to” the Debtors’ bankruptcy within the meaning of 28

U.S.C. § 1334(b). He accordingly ordered that “the Friction

Products Claims are remanded to the state courts from which

they were removed pursuant to 28 U.S.C. § 1447.” Pet.

App. 57a. Section 1447(c), governing procedure after a case

is removed from state court, provides: “If at any time before

final judgment it appears that the district court lacks subject

matter jurisdiction, the case shall be remanded.”

As an alternative ground, the district court ruled that it

would equitably abstain, pursuant to 28 U.S.C. § 1334(c)(1),

4

from exercising jurisdiction over the Friction Product Claims.

Judge Wolin’s order does not explicitly recite his oral ruling

concerning equitable abstention. However, that holding is

presupposed in his order “that, in the alternative, the Friction

Products Claims are remanded to the state courts from which

they were removed pursuant to 28 U.S.C. § 1452.” Pet.

App. 57a. Section 1452(b) authorizes the district court to

remand a removed claim “on any equitable ground.” Having

concluded that the federal district courts lack subject-matter

jurisdiction, or alternatively that abstention was appropriate,

Judge Wolin denied, on a final basis, the motions to transfer

that he had previously granted on a provisional basis. Pet.

App. 56a. The automakers and other movants immediately

noticed appeals from the district court’s February 8 order.

C.A. App. 1-10.

3. On February 15, 2002, the district court issued its

written opinion. Pet. App. 58a-85a. On the issue of subject-

matter jurisdiction, the opinion relies principally on the Third

Circuit’s decision in Pacor, Inc., v. Higgins, 743 F.2d 984

(3d Cir. 1984), and on this Court’s decision in Celotex Corp.

v. Edwards, 514 U.S. 300 (1995). See Pet. App. 63a-65a.

As Judge Wolin observed, this Court in Celotex cautioned that

“related to” jurisdiction, while broad, “cannot be limitless,”

and it explicitly approved the jurisdictional analysis set forth

in Pacor. See Pet. App. 67a (quoting Celotex, 514 U.S. at

308 & n.6). In Pacor, the Third Circuit held that “a mere

common-law indemnity claim by a non-debtor co-defendant of

a debtor” was not enough to give a bankruptcy court “related

to” jurisdiction over litigation between solvent third parties

unaffiliated with the debtor. Pet. App. 65a. Such extrinsic

litigation, Judge Wolin explained, would be at best “‘a mere

precursor to the potential third party claim for indemnification

by [the indemnitee] against [the debtor],’ in which the debtor

would be free to relitigate any issue necessary to the prior

ps

judgment.” Pet. App. 65a (quoting Pacor, 743 F.2d at 995).

Thus, not only would an indemnitee’s claim against the debtor

be “contingent,” but any impact on the debtor would be

“indirect,” since “any material effect on the estate would

require yet another lawsuit.” Pet. App. 65a.

Judge Wolin noted the Third Circuit’s suggestion in

Pacor that the result there might have been different if the

debtor had executed an express contractual agreement to

indemnify the third party. Pet. App. 72a (citing Pacor, 743

F.2d at 995). Reviewing the judicial precedents since Pacor,

however, the district court concluded that “cases in which

related-to jurisdiction is founded solely on an indemnification

agreement between otherwise unrelated parties are not the rule

but the exception.” Pet. App. 74a-75a. In most of the

precedents, the indemnified parties were Closely affiliated -

with the debtor, e.g., its key employees, officers, directors,

corporate affiliates, or family members. See Pet. App. 70a-

72a. Where litigation against corporate insiders is concerned,

the court noted that “related to” jurisdiction may be justified

not only because the debtor’s by-laws grant these individuals

indemnification rights, but also because insiders “will

typically have incurred the underlying liability in the course

of acting on the debtor’s behalf.” Pet. App. 7la.

Turning to the case at hand, Judge Wolin found: “As to

the vast majority of the claims that are the subject of the

Court’s provisional transfer orders, [petitioners] have

produced no evidence whatsoever of even a bare agreement to

indemnify running between the [D]ebtors and the solvent co-

defendants.” Pet. App. 73a. Petitioners Ford and General

Motors “rel[ied] only on affidavits of employees that recall

one or more of the [D]ebtors as a supplier of brake parts to

them,” but these affidavits “stop[ped] well short of even

suggesting that there was any promise to indemnify.” Ibid.

6

In the absence of any agreement to indemnify, the district

court could see “no justification to take the situation of these

[petitioners] outside of the rule of Pacor.” Ibid.

Judge Wolin believed that “[t]he claims against

[appellant] Chrysler present a closer question,” because it,

unlike the other automakers, had produced documents that

allegedly constituted an agreement by the Debtors to

indemnify it. Pet. App. 74a. These documents consisted of

Chrysler purchase orders, which appeared to incorporate by

reference Chrysler office manuals, which in turn set forth

“standard terms and conditions to which those purchase

orders were subject,” including a “boilerplate indemnification

clause.” Pet. App. 74a, 76a. However, Chrysler produced no

evidence that Federal-Mogul had acceded to, or even been

shown, this indemnification clause, or that Chrysler had

previously sought to enforce it. See Pet. App. 74a, 76a.

Under these circumstances, the district court rejected the

notion “that a manufacturer may write its own invitation to

the table of any of its suppliers’ bankruptcies by including a

boilerplate indemnification clause in its purchase orders.”

Pet. App. 76a. Judge Wolin noted that this holding was

supported by a recent decision of the Fifth Circuit, which

denied a stay on substantially identical facts after “finding no

likelihood of success in the proposition that Friction Product

Claims against [another co-defendant of the Debtors] were

related to the Federal-Mogul bankruptcy.” Pet. App. 62a-63a,

76a (citing Arnold v. Garlock, 278 F.3d 426 (Sth Cir. 2001)).

Judge Wolin recognized that his holding as to lack of

subject-matter jurisdiction would, by itself, “stand as an

adequate ground to deny the transfer motion and remand [the

claims] to the state courts from which they were removed.”

Pet. App. 76a-77a. However, “for the sake of a complete

record,” the district court also held, “as an alternative,

7

independent ground” for its judgment, “that it would exercise

its discretion to abstain from hearing the [claims] pursuant to

28 U.S.C. § 1334(c)(1).” Pet. App. 77a. The court concluded

that “the facts of this case leave no reasonable conclusion

other than that [it] should exercise its discretion to abstain,”

finding that “[fJairness, comity, and preserving the integrity

of the Court’s management of the bankruptcy compel this

result.” Pet. App. 78a. Judge Wolin discerned “no

principled end to [petitioners’] argument that would prevent

centralizing virtually all Friction Product asbestos litigation,

nationwide, in this bankruptcy.” Pet. App. 79a. He

accordingly was “convinced that transfer of [petitioners’]

claims would be a disaster for the orderly management of this

chapter 11 proceeding.” Pet. App. 79a. The court also found

that “the possibility that [petitioners] are forum shopping is

too obvious to be belabored.” Pet. App. 82a.

In exercising his discretion to abstain, Judge Wolin

considered petitioners’ proposal of a “global” hearing to

resolve “common issues of causation and science” under the

evidentiary standards of Daubert v. Merrell Dow

Pharmaceuticals, Inc. , 509 U.S. 579 (1993). See Pet. App.

80a-82a. Whether such a procedure “would succeed in

streamlining the adjudication of claims” was, in the district

court’s view, “hotly and legitimately debated.” Pet. App.

80a. Nor was it clear that such a procedure could “adequately

protect the constitutional and procedural rights of the personal

injury claimants.” Jbid. After considering the viability of

appellants’ proposed “global Daubert proceeding” and the

harm that delay would inflict on personal injury plaintiffs,

Judge Wolin concluded: “Where, as here, the resulting benefit

is so equivocal, the balance must tilt sharply toward

abstention and remand.” Pet. App. 81a.

8

4. On appeal from the district court’s order, appellees

(respondents here) were four groups of Friction Products

plaintiffs, including the Official Committee of Asbestos

Claimants, which was appointed by the U.S. Trustee to

represent the interests of asbestos claimants in the Federal-

Mogul bankruptcy. See Pet. App. 18a.' Respondents

contended that the appeals should be dismissed for lack of

appellate jurisdiction under 28 U.S.C. § 1447(d), which

provides that “[aJn order remanding a case to the State court

from which it was removed is not reviewable on appeal or

otherwise.” The automakers contended that no valid remand

order existed; that they sought review instead of the-district

court’s denial of their transfer motions; that orders denying a

change in venue are reviewable either on direct appeal or by

way of mandamus; and that the district court’s holdings as to

subject-matter jurisdiction and abstention should be reversed

on the merits. The court of appeals held that it “d[id] not

have jurisdiction to review the decisions of the District Court”

and that, “insofar as we can consider [petitioners’] appeal

construing it as a petition for a writ of mandamus, that

petition is denied.” Pet. App. 42a.

The court of appeals did not decide whether the district

court’s order should be regarded as an order remanding the

claims to the state courts or an order denying transfer from

the federal district courts. Instead, the court stated that it

would “follow the prudent course and consider [its]

jurisdiction under each construction.” Pet. App. 19a.

' Two other groups of respondents - the Unofficial Committee of

Select Asbestos Claimants and the Waters & Kraus Claimants - appeared

in the district court and the court of appeals to advance additional

arguments concerning abstention and jurisdiction. Neither court found it

necessary to reach these alternative arguments. Both groups join in this

brief and respectfully preserve their additional arguments should those

arguments later become relevant.

9

Addressing the “transfer” construction first, the court

cited the “well-established rule” that orders granting or

denying a change in venue are not immediately appealable,

and that “[m]andamus is * * * the appropriate mechanism for

reviewing an allegedly improper transfer order.” Pet. App.

19a-20a (citing In re United States, 273 F.3d 380, 385 (3d

Cir. 2001)). The basis for Judge Wolin’s denial of transfer,

the court noted, was his holding that “related to” jurisdiction

under 28 U.S.C. § 1334(b) did not exist. The Third Circuit

concluded that this holding represented a straightforward

application of its precedent in Pacor, which “clearly remains

good law in this circuit.” Pet. App. 24a. Noting that

mandamus may issue only if “the district court committed a

Clear error of law at least approaching the magnitude of an

unauthorized exercise of judicial power,” the court of appeals

had no difficulty concluding that the automakers “ha[d] not

met this rigorous standard for the issuance of the

extraordinary writ of mandamus.” Pet. App. 30a (original

quotation marks omitted).

Viewing Judge Wolin’s order as one remanding the

claims to state courts, the Third Circuit held that appellate

review of any kind was barred by 28 U.S.C. § 1447(d). In

support of this holding, the court relied chiefly on this Court’s

opinion in Things Remembered, Inc. v. Petrarca, 516 U.S.

124 (1995), which “clarified the scope of the prohibition of

review of remand orders imposed by § 1447(d).” Pet. App.

34a. This Court there held that, “[aJs long as a district

court’s remand is based on a timely raised defect in removal

procedure or on lack of subject-matter jurisdiction - the

grounds for remand recognized by § 1447(c) - a court of

appeals lacks jurisdiction to entertain an appeal of the remand

order under § 1447(d).” 516 U.S. at 127-128 (quoted in Pet.

App. 34a). The Third Circuit accordingly concluded that

Things Remembered dictated the outcome here: “As the basis

10

for the District Court’s remand in this case was lack of subject

matter jurisdiction (the absence of ‘related to’ jurisdiction),

appeal is similarly barred.” Pet. App. 34a. Finally,

emphasizing that the statutory language bars review of remand

orders “on appeal or otherwise,” the Third Circuit held itself

without jurisdiction to grant mandamus, holding that

§ 1447(d) applies regardless “whether review is sought by

appeal or by extraordinary writ.” Pet. App. 37a (citations

omitted).

5. On August 1, 2002, the Third Circuit unanimously

denied petitioners’ motion for recall of the mandate and for a

Stay pending the filing of a petition for writ of certiorari. Pet.

App. 46a. On August 2, 2002, petitioners applied to Justice

Souter for a stay, who denied the application on August 5.

That same day, petitioners renewed their application for a

stay, asking that it be presented to Justice Kennedy. On

August 7, the Court unanimously denied petitioners’ stay

application, which Justice Kennedy had referred to the Court.

ARGUMENT

The decision below is correct. Contrary to petitioners’

assertion, there is no conflict among the circuits on the

question presented, and there is no conflict with any decision

of this Court. Indeed, the Third Circuit’s decision is fully in

accord with this Court’s opinion in 7hings Remembered, -

which squarely forecloses appellate review of the district

court’s remand orders.

1.a. Petitioners removed the claims at issue from the

state courts pursuant to 28 U.S.C. § 1452(a), the bankruptcy

removal statute. That section permits removal if the federal

district court “has jurisdiction of such claim or cause of action

under section 1334.” Section 1447 governs “procedure after

removal generally.” Section 1447(c) provides: “If at any time

11

before final judgment it appears that the district court lacks

subject matter jurisdiction, the case shall be remanded.”

Subsection (d) in turn provides: “An order remanding a case

to the State court from which it was removed is not

reviewable on appeal or otherwise,” with an exception for

certain civil rights cases removed under § 1443.

The bar against appellate review set forth in § 1447(d)

“expresses a long respected policy of Congress, which had its

origins in the Judiciary Act of 1887.” Application of

Rosenthal-Block China Corp., 278 F.2d 713, 714 (2d Cir.

1960). This policy is designed to prevent “interrup[tion] of

the litigation of the merits of a removed cause by prolonged -

litigation of questions of jurisdiction of the district court to

which the cause is removed.” United States v. Rice, 327 U.S.

742, 751 (1946). Recognizing that removal and appeal of

remand orders “may be designed to achieve little more than

a self-help continuance,” Congress has determined that

remands are to be effective immediately so that state trial

courts can return to work. Hernandez v. Brakegate, Ltd. , 942

F.2d 1223, 1226 (7th Cir. 1991).

This Court held in Things Remembered that the bar

against appellate review set forth in § 1447(d) means exactly

what it says. There, the respondent had sued the petitioner on

commercial claims in Ohio state court. Petitioner later filed

for bankruptcy in the Southern District of New York.

Respondent then filed a notice of removal seeking to remove

the state-court action to Ohio federal district court, coupled

with a motion to transfer venue to the New York bankruptcy

court. 516 U.S. at 125-26. The district court held the

removal untimely and effectively remanded the case to the

Ohio state court. See id. at 127 n.2 & 128. Petitioner

appealed to the Sixth Circuit, which held that § 1447(d)

12

barred appellate review and dismissed the appeal for lack of

jurisdiction.

This Court affirmed. It noted that Ҥ 1447(d) must be

read in pari materia with § 1447(c), so that only remands

based on grounds specified in § 1447(c) are immune from

review under § 1447(d).” 516 U.S. at 127. Section 1447(c)

specifies two such grounds: a defect in removal procedure or

a lack of subject-matter jurisdiction. The Court accordingly

ruled (516 U.S. at 127-28):

As long as the district court’s remand is based on a

timely raised defect in removal procedure or on a

lack of subject-matter jurisdiction — the grounds for

remand recognized by § 1447(c) — a court of

appeals lacks jurisdiction to entertain an appeal of

the remand order under § 1447(d).

The Court in its opinion also clarified the relationship

between § 1447(d) and § 1452(b), the remand provision of the

bankruptcy removal statute, which limits the scope of remand,

and appellate review of remand orders, in somewhat different

terms. Prior to 1995, some courts had held that, where a

claim was removed pursuant to the bankruptcy removal

statute, judicial review of any remand order was governed

exclusively by § 1452(b), so that the absolute bar against

appellate review contained in § 1447(d) did not apply. This

Court explicitly rejected the rationale of these cases, holding:

If an order remands a bankruptcy case to state court

because of a timely raised defect in removal

procedure or lack of subject-matter jurisdiction, then

a court of appeals lacks jurisdiction to review that

order under § 1447(d), regardless of whether the

case was removed under § 1441(a) or § 1452(a).

516 U.S. at 129.

13

Here, Judge Wolin held that the federal district courts

“lack subject matter jurisdiction over the Friction Products

Claims,” and he accordingly “remanded [those claims] to the

state courts from which they were removed pursuant to 28

U.S.C. § 1447.” Pet. App. 57a. Lack of subject-matter

jurisdiction is one of the two grounds for remand specifically

enumerated in § 1447(c). Thus, under the plain language of

§ 1447(d), the district court’s order “is not reviewable on

appeal or otherwise.” That appellants removed the claims

under § 1452(a), as opposed to § 1441(a), does not affect this

conclusion, as this Court in Things Remembered expressly

held.” :

b. Petitioners acknowledge “the general rule that

remand orders are unappealable.” Pet. 17. However, they

challenge the decision below by citing an exception to this

rule recognized in Thermtron Prods., Inc. v. Hermansdorfer,

423 U.S. 336 (1976), under which the bar against appellate

review does not apply to remand orders in excess of the

district court’s statutory authority. Petitioners contend that

the district court here exceeded its authority by remanding the

claims directly to state courts, not only in Delaware, but also

in other States. The court of appeals rejected petitioners’

assertion that § 1447(c) does not authorize such “cross-

jurisdictional remands,” citing Third Circuit precedent and a

2 Consistently with this Court’s opinion in Things Remembered, the

courts of appeals have uniformly held that an order remanding a case to the

state court from which it was removed is immune from judicial review

under § 1447(d), regardless whether the case was originally removed under

§ 1441(a) or § 1452(a). See, e.g., Spring City Corp. v. American Bidgs.

Co., 193 F.3d 165, 169-70 (3d Cir. 1999); State of Rio de Janeiro v.

Philip Morris Inc., 239 F.3d 714, 715 (Sth Cir. 2001); Jn re Ford Motor

Co./Citibank (South Dakota), NA, 264 F.3d 952, 964 (9th Cir. 2001);

Phoenix Container, L.P. v. Sokoloff, 235 F.3d 352, 354 (7th Cir. 2000);

Pierpoint v. Barnes, 94 F.3d 813, 819 n.3, 820 (2d Cir. 1996).

14

recent decision of the D.C. Circuit. See Pet. App. 34a-36a

(citing Republic of Venezuela v. Philip Morris, Inc. ,287 F.3d

192 (D.C. Cir. 2002)). Petitioners contend that this holding

was erroneous. See Pet. 21-24. They also allege a circuit

conflict on this question, citing an unpublished opinion of the

Ninth Circuit. See Pet. 21-22.

Both contentions are wrong. There is nothing in the

language of § 1447 to support petitioners’ assertion that a

valid remand can be ordered only by the district court to

which the claim was initially removed (or, phrased

differently, that a transferee court cannot remand a claim

directly to a state court in another State). Section 1447(c)

provides simply that, “[i]f at any time before final judgment

it appears that the district court lacks subject matter

jurisdiction, the case shall be remanded.” The statute does not

specify or limit which court may issue a remand order; rather,

it contemplates that the remand will be ordered by whatever

district court makes the determination that federal subject-

matter jurisdiction is lacking. Here, as a result of the

provisional transfers that petitioners themselves sought, that

jurisdictional determination was made by the Delaware

District Court. Section 1447(c) thus authorized - indeed, by

use of the verb “shall,” it required - the Delaware District

Court to remand the claims.’

Tellingly, petitioners’ discussion of this issue (Pet. 21-24)

completely sidesteps § 1447 and focuses instead on § 1452,

3 Section 1447(d) does impose one restriction on the district court’s

authority: for the bar on appellate review to apply, the order must be one

“remanding a case to the State court from which it was removed.” That

requirement was plainly satisfied here: Judge Wolin’s order explicitly

remanded the claims “to the state courts from which they were removed

pursuant to 28 U.S.C. § 1447.” Pet. App. 57a; see id. 94a-96a (remand

order dated August 6, 2002).

15

the bankruptcy removal statute. The remand provisions of

§ 1452 differ from those of § 1447 in four respects:

© § 1452(b) authorizes remand on “any equitable

ground,” whereas § 1447(c) authorizes remand on

two specified legal grounds (lack of subject-matter

jurisdiction or defect in removal procedure);

® § 1452(b) authorizes remand by “[tJhe court to

which such claim or cause of action is removed,”

whereas § 1447(c) refers simply to “the district

court”;

¢ § 1452(b) makes remand permissive (“may

remand”), whereas § 1447(c) makes it mandatory

(“the case shall be remanded”); and

© § 1452(b) makes remand orders non-reviewable

“by the court of appeals under section 158(d),

1291, or 1292 of this title,” whereas § 1447(d)

states categorically that a § 1447(c) remand order

“is not reviewable on appeal or otherwise,” with

no limitation apart from specified civil rights

cases.

In contending that the district court’s “cross-jurisdictional

remand” exceeded its statutory authority, petitioners argue

that the District of Delaware, as the transferee court, was not

“[t]he court to which such claim or cause of action [was]

removed” for purposes of § 1452(b). See Pet. 21-23. But

§ 1452(b) has no bearing here: having determined that

subject-matter jurisdiction was lacking, Judge Wolin based his

remand on § 1447(c), which explicitly states that if “the

district lacks subject matter jurisdiction, the case shall be

remanded.” See Pet. App. 57a (citing 28 U.S.C. § 1447).

Indeed, because lack of subject-matter jurisdiction is a legal,

not an equitable, ground, Judge Wolin necessarily based his

16

remand on § 1447(c). He cited § 1452(b) as an “alternative”

basis for remand, which would follow as a consequence of his

alternative holding concerning equitable abstention. See Pet.

App. 57a, 77a. The court of appeals had no occasion to reach

that alternative holding. See Pet. App. 19a. Thus, no

question as to the proper construction of § 1452(b) is raised

here, and petitioners’ reliance on that provision is wholly

misplaced.

For similar reasons, there is no basis for petitioners’

assertion of a conflict between the opinion below and the

Ninth Circuit’s unpublished opinion in Jn re U.S. Refining &

Mktg. Co. (Hudson-Ram L.P. v. Archer), 210 F.2d 387

(table), 2000 WL 14398 (9th Cir. Jan. 7, 2000)

(unpublished). The remand order in that case was entered

under § 1452(b), and the Ninth Circuit reversed on the ground

that the district court which ordered the remand was not “[t}he

court to which [the] claim or cause of action [had been]

removed” within the meaning of § 1452(b). Because the

Ninth Circuit had no occasion to address, and did not address,

§ 1447(d), its decision does not conflict with the decision

below. Conversely, as petitioners admit (Pet. 22-23), both

the Third Circuit and the D.C. Circuit have held that

§ 1447(d) bars appellate review of a remand order regardless

whether it is “cross-jurisdictional” in nature, and no court has

held to the contrary.

Equally important, the Ninth Circuit opinion on which

petitioners rely was unpublished. Under that court’s rules,

unpublished decisions may not be cited as precedent (except

when relevant under the doctrines of law of the case, res

judicata, or collateral estoppel). See CTA9 Rule 36-3. Thus,

the Ninth Circuit’s unpublished decision could not create a

“conflict” requiring resolution by this Court, even if its

0 OR EPR A LAI ED OIOOIA YO A

17

decision were inconsistent with the Third Circuit’s decision,

which it is not.

Finally, there is no conflict between the Third Circuit’s

decision and any decision of this Court. Quite the contrary:

it is petitioners who, by urging reversal, seek to contravene

this Court’s decisions. Because the text of § 1447(d) is

hopelessly against them, petitioners in effect urge that

§ 1452(b) should be the exclusive provision controlling

remand orders in bankruptcy cases. See Pet. 22-23. As noted

above, this Court in Things Remembered explicitly rejected

that proposition. See 516 U.S. at 129 (finding “no express

indication in § 1452 that Congress intended that statute to be

the exclusive provision governing removals and remands in

bankruptcy” nor “any reason to infer from § 1447(d) that

Congress intended to exclude bankruptcy cases from its

coverage”).*

2. Petitioners also ask this Court to review the Third

Circuit’s ruling that it would lack jurisdiction to review the

district court’s order if that order were considered, in the

alternative, as a denial of motions to transfer. See Pet. 14-17.

* Petitioners also ask this Court to review the Third Circuit’s

supposed conclusion that a remand order premised on lack of subject-

matter jurisdiction would be non-reviewable even if the order exceeded the

district court’s statutory authority. See Pet. 17-21. Since the court of

appeals expressly held that Judge Wolin’s remand order was within his

statutory authority (Pet. App. 34a-36a), the question petitioners posit is

entirely hypothetical here, and their allegation of a circuit conflict on this

point (Pet. 20-21) is thus completely meritless. In any event, contrary to

petitioners’ assertion (Pet. 19), the Third Circuit did not embrace an

“untenably overbroad” interpretation of Things Remembered. In the

passage to which petitioners refer (Pet. App. 34a), the court of appeals

recites this Court’s holding in that case, quotes a key sentence from the

Court’s opinion, and applies it in a straightforward manner to this case.

Nothing in the court of appeals’ discussion suggests the “negative

pregnant” that petitioners would inject into it.

18

Petitioners do not contest the unavailability of mandamus,

since the district court’s decision that it lacked subject-matter

jurisdiction was firmly grounded on Third Circuit precedent.

However, petitioners contend that the court of appeals erred

in holding them to a mandamus standard, asserting that the

denial of a motion for change of venue is immediately

appealable - at least in bankruptcy cases - either as a “final

decision” under 28 U.S.C. § 1291 or under the “collateral

order doctrine” of Cohen v. Beneficial Industrial Loan Corp. ,

337 U.S. 541 (1949). Petitioners contend that the Third

Circuit’s decision conflicts, in this respect, with the Sixth

Circuit’s decision in Jn re Dow Corning Corp., 86 F.3d 482

(6th Cir. 1996).

a. The question whether the denial of a motion for

change of venue is subject to direct appeal is not properly

presented here. Petitioners below were plainly not aggrieved

by Judge Wolin’s handling of the “transfer” issue. He granted

a provisional transfer, as they requested, and he decided the ~

issue of subject-matter jurisdiction on a uniform, global basis,

as they asked. In a procedural sense, therefore, petitioners

got exactly what they wanted in the district court. At the

appellate level, the issue of “transfer” was completely

irrelevant: no one before the court of appeals disputed the

propriety of the provisional transfer, and that issue was

effectively moot. Ii no longer presented a justiciable case or

controversy.

Under these circumstances, petitioners’ assertion that they

are merely seeking review of the ultimate denial of their

transfer motions is a subterfuge designed to evade Congress’s

clearly-stated bar against appellate review of remand orders.

Judge Wolin squarely held that the federal district courts

lacked subject-matter jurisdiction of the claims against

petitioners and, as § 1447(c) requires, he accordingly

19

“ordered that [those] claims are remanded to the state courts

from which they were removed.” Pet. App. 57a. In

consequence of that holding, there remained no legal issue for

the federal courts to decide, and disposition of the pending

motions to transfer, which the district court had provisionally

granted, became a mere matter of housekeeping. It was

immaterial whether Judge Wolin denied the transfer motions;

vacated his order allowing the provisional transfer; or simply

left the transfer motions in abeyance as moot. Any of these

actions would have been entirely pro forma.

The district court’s ultimate denial of transfer, in short,

was simply the logical consequence of its determination that

it lacked subject-matter jurisdiction; it was not a substantive

holding with independent significance apart from the remand

order. Petitioners’ appellate briefs advanced no argument

concerning the propriety of “transfer” per se. And petitioners

plainly did not desire the relief that would flow from mere

reversal of the denial of their motions to transfer. That would

simply restore the status quo ante: the claims would be in

Judge Wolin’s court, as they were following the provisional

transfer. But Judge Wolin had already made clear what he

would do with the claims - he would remand them to the state

courts for lack of subject-matter jurisdiction. The relief

petitioners sought from the court of appeals, obviously, was

reversal of Judge Wolin’s jurisdictional determination and

remand order. But those are precisely the issues that

20

Congress, in enacting § 1447(d), has made non-reviewable

“on appeal or otherwise.”°

For these reasons, the district court’s pro forma denial of

petitioners’ motions to transfer does not furnish an

independent ground for appellate jurisdiction that would

enable petitioners to evade the § 1447(d) bar on appellate

review of remand orders. Indeed, in Things Remembered,

this Court held that § 1447(d) barred appellate review even

though the district court had concurrently denied a motion to

transfer. The respondent there had filed a notice of removal

in Ohio bankruptcy court and a motion to transfer to New

York bankruptcy court. The Ohio bankruptcy court concluded

that removal was proper and granted the motion to transfer;

the district court reversed. See 516 U.S. at 126-27. The

° When a district court has remanded claims to state court for lack

of subject-matter jurisdiction, and has also decided a separate and

independent issue — e.g., dismissal of a cross-claim or the propriety of

substituting parties — an appellate court may have jurisdiction to review

the latter issue. See City of Waco, Tex. v. United States Fid. & Guar.

Co. , 293 U.S. 140, 143 (1934); Aliota v. Graham, 984 F.2d 1350, 1353

(3d Cir. 1993). Appellate review is permitted, however, only where the

other issue is “‘in logic and in fact’ severable from the court’s

determinations regarding remand.” Nutter v. Monongahela Power Co., 4

F.3d 319, 321, 323 (4th Cir. 1993); see Aliota, 984 F.2d at 1353

(§ 1447(d) bars review of any issue “inextricably linked to the question of

remand”); Ariail Drug Co. v. Recomm Int’! Display, Inc. , 122 F.3d 930,

934 (11th Cir. 1997) (review unavailable unless issue is “separate and

independent” from determination of subject-matter jurisdiction); Clorox

Co. v. United States District Court, 779 F.2d 517, 520 (9th Cir. 1985)

(review unavailable unless district court has decided “some matter of

substantive law ‘apart from any jurisdictional decision’”). Here, the

district court’s denial of petitioners’ transfer motions did not involve any

discrete issue of substantive law, much less an issue that was “independent

of” or “severable from” his jurisdictional holding and remand order.

Quite the contrary: Judge Wolin’s denial of the transfer motions was the

direct consequence of his holding that he lacked subject-matter jurisdiction

and was thus “inextricably linked” to his remand order. Aliota, 984 F.2d

at 1353.

21

Sixth Circuit and this Court both held that appellate

jurisdiction was barred by § 1447(d), notwithstanding that a

motion to transfer had been filed, granted, and reversed. This

Court’s holding in Zhings Remembered thus makes clear that

the additional question petitioners seek to present - whether

the denial of a motion for change in venue is subject to direct

appeal - is not properly presented here, because on the facts

of this case it is inseparable from, and a mere proxy for, the

question whether the district court’s remand order is subject

to appellate review.

b. Even if the question whether the denial of a motion for

change of venue is reviewable on direct appeal were properly

presented here, there is no conflict among the circuits

requiring this Court’s review. Petitioners—assert a-conflict

with Dow Corning, where the Sixth Circuit entertained an

appeal from the denial of a transfer motion. While

recognizing that motions for change of venue generally do not

constitute “final decisions of the district courts” within the

meaning of 28 U.S.C. § 1291, the Sixth Circuit cited what it

called “a more relaxed rule of appealability in bankruptcy

cases” to justify “appellate review of orders that in other

contexts might be considered interlocutory.” 86 F.3d at 488.

Putting aside questions as to the correctness of the Sixth

Circuit’s ruling, Dow Corning differs from the instant case in

a critical respect: in Dow Corning, the district court had not

entered an order under § 1447(c) remanding the claims at

issue to the state courts. The district court in Dow Corning

did not mention § 1447(c) in its opinion, and it specifically

declined to issue a remand order. Rather, it stated that any

“orders to dismiss or sever the Debtor and/or remanding the

claims to the state court should be addressed by the district

court where those causes of action are currently pending.”

187 B.R. 934, 938 (E.D. Mich. 1995). The Sixth Circuit in

its opinion specifically noted the limited nature of the district

22

court’s action. See 86 F.3d at 487 (“In denying the transfer

motions, the district court also directed that individual federal

courts nationwide dismiss or sever Dow Corning and/or

remand the [claims at issue] to state court.”).

By its terms, § 1447(d) bars appellate review only where

a district court has issued “[a]n order remanding a case to the

State court from which it was removed.” No such order

existed in Dow Corning, and the Sixth Circuit’s opinion does

not suggest that appellees advanced a § 1447(d) argument in

their briefs. However, shortly after the principal appellate

briefs were filed, this Court issued its opinion in Things

Remembered. The Sixth Circuit then issued, sua sponte, an

order directing counsel to address at oral argument “what

application, if any, the Supreme Court’s decision in Things

Remembered * * * has to these appeals.” Order dated Feb.

23, 1996 (unpublished). After hearing argument, the Sixth

Circuit was satisfied that the district court had not issued a

remand order that would call into play the § 1447(d) bar on

appellate review. Accordingly, the Sixth Circuit’s opinion

deals only with the “final decision” requirement of § 1291; it

does not mention § 1447(d) anywhere in its opinion.

The Sixth Circuit’s decision in Dow Corning would

conflict with the decision below only if it could be said with

certainty that the Sixth Circuit would allow an immediate

appeal of the denial of a transfer motion, notwithstanding that

the district court had issued an order under § 1447(c)

remanding the claims to the state courts. Since no remand

order existed in Dow Corning, and since the Sixth Circuit

consequently did not address § 1447(d) in its opinion, there is

no plausible basis for such a prediction. Quite the contrary:

by directing counsel to discuss the possible application of

Things Remembered to the Dow Corning appeals, the Sixth

Circuit made it plain that the existence of a § 1447(c) remand

order, such as Judge Wolin issued here, would have altered

23

its jurisdictional analysis considerably. For these reasons,

there is no conflict between Dow Corning and the Third

Circuit’s decision in this case.°

3. Finally, this case is not invested with such importance

as to warrant the grant of certiorari in the absence of a circuit

conflict. Contrary to petitioners’ assertion, the question

raised here is not “whether the American judicial system can

address the exploding national asbestos litigation crisis with

even a modicum of fairness and rationality.” Pet. 1. This

case presents a straightforward question of appellate

jurisdiction, which could arise in any bankruptcy case. And

the question is not novel. This Court recently addressed the

very same question of appellate jurisdiction in Things

Remembered, and its resolution of that question controls the

outcome here.

According to petitioners, this case is important because it

presents an opportunity for determining “whether the expert

opinions underlying the friction-product claims pass scientific

muster under Daubert v. Merrell Dow Pharmaceuticals.”

Pet. 1. One may accept arguendo petitioners’ assertion that

the possibility of resolving common issues of causation and

science through a Daubert summary-judgment proceeding is

“an immensely important legal issue” in the context of

asbestos bankruptcies. Pet. 3. The short answer, however, is

that such proceedings can be conducted, if the courts deem

them useful, without petitioners’ being present. At least a

dozen major asbestos bankruptcies are currently pending in

6 For the same reasons, petitioners err (Pet. 16) in alleging a

conflict between the decision below and the Fourth Circuit’s decision in

A.H.Robins Co., Inc.. v. Piccinnin, 788 F.2d 994 (1986). That court

entertained an immediate appeal from an order granting a motion to

transfer. By definition, therefore, a § 1447(c) remand order did not exist,

and could not possibly have existed in that case, and the § 1447(d) bar

against appellate review was similarly inapplicable.

oo

various district courts, and some form of “global Daubert

proceeding” is being urged by several of those debtors as a

mechanism for resolving asbestos claims. Indeed, there is

nothing to prevent Judge Wolin from conducting a “global

Daubert proceeding” in this very case — the Debtors currently

have more than 300,000 friction-product asbestos claims

pending against them - if such a proceeding were sought by

the Debtors and if Judge Wolin were persuaded to put aside

the reservations he has thus far expressed.’

’ Although petitioners believe that a global Daubert hearing holds

the promise of resolving “thousands of asbestos friction-product claims in

one fell swoop” (Pet. 24), Judge Wolin noted that this proposition “is hotly

and legitimately debated.” Pet. App. 80a. This Court’s opinion in

Daubert, and its subsequent opinion in Kumho Tire Co., Lid. v.

Carmichael, 526 U.S. 137 (1999), make it clear that the admissibility of

scientific evidence is determined on a case-by-case, rather than a global,

basis. See 509 U.S. at 592-93; 526 U.S. at 153-57. As Judge Wolin

-observed, “[dJepending on what the scientific evidence shows, it may well

appear that causation issues are not sufficiently common between litigants

to permit Rule 42 trials.” Pet. App. 80a. Judge Wolin’s observation

comports with this Court’s discussion of Rule 23 commonality in Ortiz v.

Fibreboard Corp., 527 U.S. 815 (1999), and Amchem Prods., Inc. v.

Windsor, 521 U.S. 591 (1997). Moreover, every state has either adopted

Daubert or has otherwise established a standard for excluding unreliable

scientific evidence, yet petitioners offer no explanation why asbestos

defendants, over the past decade, have been unabie to convince federal and

State courts to exclude plaintiffs’ scientific evidence across the board and

dismiss their claims as a matter of law. In fact, petitioners’ trust in a “one

fell swoop” resolution under Daubert flies in the face of State ex rel. Mobil

Corp. v. Gaughan, 563 S.E.2d 419 (W. Va. 2002), cert. denied, 123 S.Ct.

346 (No. 02-132, Oct. 7, 2002). There, consolidation of a large number

of asbestos personal injury claims in a jurisdiction that applies Daubert

standards (see Wilt v. Buracker, 443 S.E.2d 196 (W.Va. 1993)) made

possible the sort of proceedings that petitioners favor. But that case did not

give rise to any form of Daubert summary-judgment proceeding - whether

“global” or keyed to specific products or defenses — but rather to a petition

for certiorari by defendants arguing that consolidation of so many claims

prejudiced their defense. In this respect, the imstant case is

indistinguishable from the West Virginia case, and it is difficult to

25

If a Daubert summary-judgment procedure actually

represents the panacea for bankruptcy practice and asbestos

litigation that petitioners imagine, the viability of that

procedure can be tested by numerous district courts in

numerous bankruptcies, on the basis of asbestos claims over

which they indisputably have jurisdiction. There is simply no

justification for warping well-established principles of subject-

matter jurisdiction, not to mention appellate jurisdiction, so as

to enable the automakers to hijack somebody else’s

bankruptcy.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

PETER VAN N. LOCKWOOD _ ELIHU INSELBUCH*

TREVOR W. SWETT CAPLIN & DRYSDALE, CHTD.

ALBERT G. LAUBER 399 Park Avenue, 27” Floor

MAX C. HEERMAN New York, NY 10022-4614

CAPLIN & DRYSDALE, CHTD. (212) 319-7125

One Thomas Circle, N.W. ,

Washington, DC 20005 Counsel of Record

(202) 862-5000

Counsel to Respondents Official Committee of

Asbestos Claimants of Federal-Mogul Global, Inc.

understand what legitimate bases petitioners might have to believe that they

would be more successful in getting tens of thousands of asbestos claims

dismissed “in one fell swoop” in the Delaware District Court.

26

ALAN B. RICH CHARLES S. SIEGEL

BARON & BUDD WATERS & KRAUS

3102 Oak Lawn Avenue 3219 McKinney Avenue

Suite 1100 Suite 3000

Dallas, TX 75219 Dallas, TX 75204

(214) 521-3605 (214) 357-6244

Counsel to Respondents Counsel to Respondents

Consolidated Asbestos Claimants Unofficial Committee of

Select Asbestos Claimants

and Waters & Kraus

Plaintiffs

EELS PI LEE PONSA NE AE ETL CII HANI TIE IEEE ENE LI LOT I IN ICN EL GELS BS HIPS

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Date: December 2, 2002

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