Petition for Writ of Certiorari — Akin v. Ashland Chemical Co.

Supreme Court, U.S.

f » H ® E D

‘981420 NOV 30 198

wh GFE © THE ciy

Supreme Court of the United Statel

October Term, 1998

JAMES E. AKIN, ET AL.

Petitioners,

VS.

ASHLAND CHEMICAL COMPANY, ET AL.

Respondents.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

JAMES A. IKARD E. HART GREEN

211 N. Robinson, MITCHELL A. TOUPS

Suite 600 WELLER. GREEN,

Oklahoma City, MCGOWN & TOUPS

Oklahoma 73102 2615 Calder. Suite 400

(405) 239-7046 Beaumont, TX 77702

Counsel of Record (409) 838-0101

SHARI A. WRIGHT

ROBERT J. BINSTOCK

REICH & BINSTOCK

4625 San Felipe, Suite 1000

Houston, TX 77027

(713) 622-7271

Attorneys for Petitioners

in ae

QUESTIONS PRESENTED

Assuming the initial pleading alone does not give a party

“unequivocal notice” of the removability of the case, does the thirty-

day time limit for removing a case to federal court under 28 U.S.C.

§ 1446(b) nevertheless begin to run if the removing party has specific

knowledge of its own activities that makes the case removable?

Mi

TABLE OF CONTENTS

Page

PRES ARIE PPE DEED (oo. ccvcececcseovesscenseececoses,

PARTIES TO THE PROCEEDING ......................... il

BALE OF AUTHORITIES oo... cccccccccecceocsecee....... ¥

I i l

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

tt

RP Ree E OP THE CASE ooo ccccccsccccccscsess.4

PROCEDURAL BACKGROUND AND

J i | 8 Saba RS Uae ene

FACTUAL BACKGROUND ON

PIG I lite ct a

I The Oniginal Petition ...................... 8

i]

IININIEIOR 65 ccesicsacecscesécacseseosss 20

a

» 2

4 Hearing on Motion to

Remand .............. sad banner seas sisins 08

Employee Affidavit .................... 1]

iv

STANDARDS APPLICABLE TO

PAIR FOG i Aoesnousicasthcnaipiitadaiitisclusigusedudsiatabddsinbinices ie

REASONS FOR GRANTING THE WRIT

I The Petition Should Be

Granted Because The Issue

Presented by This Case Is

An Important Question of

Federal Law That Has Not

Been, But Should Be Settled

Se sada Case ered evan tshcontinesai wins 15

A. Cases Requiring Inquiry

or Use of Knowledge Starting

I cence Si salsa Cases cecodscbacass 16

B. Cases Limiting Starting of

Removal Clock To Pleadings ................... 18

C. The Importance Of The

CPGERONE FCUOIIIIEE ooo losis cisccceectce i ccdcoctaivass 19

COIN io i oe te ee ee eee cee

TABLE OF CITED AUTHORITIES

CASES CITED Page

Akin v. Big Three industries,

Inc., 851 F.Supp. 819 (E.D.

Ey CRM OP ciuanlavugeciutelon usr 1,5

Akin v. Ashland Chemical. 156 F.3d

Lie SOM GN, BONO l

Barbara v. New York Stock Exchange,

TF Fen ae Ce ROS 1]

Barber v. Albertson's, Inc.. 935

F.Supp. 1188 (N.D. Okl. 1995)... 5

Blow v. Liberty Travel, Inc.,

550 F.Supp. 375 (D.C. Pa. 1982) ................ 14

Carroll v. United Airlines. Inc..

7 F.Supp.2d 516 (D. N.J. 1988) ................ ld

Cervantes v. Bexar County Civil

Service Com"n, 99 F.3rd 730 (Sth

es ROE cok eee ee ee 1]

City of Chicago v. Intern . College

of Surgeons, - U.S. , 118 S.Ct.

= 2 i o's} SRN eats iminbon bach bl al nll Spe TAN DS GE 11, 12

vi

Delgado v. Shell Oil Co., 890 F.

Sem. 1324 GS.D. TER. BFF) o.cccvesseevsvesesesess 12

De Young v. Lorentz, 887 F.Supp.

Se GE, Te I Disk chattnrnnevncsivebclpaisioatasnnns 1]

Eyal Lior v. Sit, 913 F.Supp. 868

CERIN he SAT Catessivsnchccucatbnsepeans Oem Rie 1]

First National Bank & Trust

Company in Great Bend v.

Nicholas, 768 F.Supp. 788

EAD Rade BU OD sxsdyiicahinsd dncndctanccphacenssnneswadic 12

Frank v. Bear Stearns & Co..,

128 F.3d 919 (Sth Cir. 1998) 00000000. 1]

Gafford v. General Electric Co..,

997 F268 150: (Gils Cir. F998) civviskn wi csctosocaces 15

Golden Apple Management Co.., Inc.

v. GEAC Computers, Inc., 990 F.Supp.

OGG CBEDD, FAaR: TOD vices scicics ucbogetpacctncinenat 16

Golke v. Lee Lumber & Bldg.

Materials Corp., 671 F. Supp.

UD Eck: Be. PRED crehissigbtacticsdcchenasbaphsnesehs 16

Heckelmann v. Piping Companies,

Inc., 904 F.Supp. 1257 (N.D. OKI.

Kaneshiro v. North American Co-

for Life and Health Ins., 496

F.Supp. 452 (D.C. Hawaii 1980) ................. 14

ae aoe nl

vil

Kanter & Eisenberg v. Madison

Associates, 602 F.Supp. 798

a Res POND nao edicocicdessdncisicnicedsanssthitecbas 14

Keller v. Carr, 534 F.Supp.

WO OOF BA PRRs SED ci dicnseenssicdbetinse hivedssised

Kenro, Inc. v. Fax Daily, Inc.,

904 F.Supp. 912 (S.D. Ind. 1995)................11, 12

Kluksdahl v. Muro Pharmaceutical.

Inc., 886 F.Supp. 535 (E.D. Va.

PETS ciodecia seth hac sic ovsaehs. thesis cal tk 12

Knudsen v. Samuels, 715 F.Supp.

RAF SAP UES BOD ca cessichovciebekccs coven. cvcchicaxe 15

J.R. Laughead v. Air Dayco Corp.

942 F.Supp. 339 (S.D. Tex. 1996) ..00000000.... 1]

Laughlin v. Kmart Corp., 50 F.3d 871

(10th Cir. 1995), cert. den.

FOO tk FR BME cisserniccdasccdeasbcccaussice 11, 15

McCain v. Cahoj, 794 F.Supp. 1061

Cam wees Doe klk ackks: Fo NEN ot i PS 1] :

Mulcahey v. Columbia Organic

Chemicals, Co., Inc., 29 F.3d

SU OO I a 12

Murphy Bros. v. Michetti Pipe

Stringing, No. 97-1909, cert.

granted, 67 U.S.L.W. 3291

a deta cer pete, cg ct, TTS AMS HOI T CS 1, 13,

vill

Naef v. Masonite Corp., 923 F.Supp.

SSG LEED, FO TIED hs isiiiacciricrenceeseees 1]

Pachecho de Perez v. AT&T Co..

139 F.3d 1368 (lith Cir. 1998) 000000000... 11

Rivet v. Regions Bank of LA.,

_ US. _, 118 S.Ct 921

Rodgers v. Northwestern Mut. Life

Ins. Co., 939 F.Supp. 1254 (D. W.Va. :

I a 11

Roe v. O'Donohue, 38 F.3d 298 (7th

Cae RI a eee etnladsnasannacias 1] :

Rothwell v. Durbin, 872 F.Supp. 880

EE: FR: a ccacinccraasrccsialareaicnatnc 12

Schlumberger Industries, Inc. v.

National Sur. Corp., 36 F.3d 1274

CA ih chicscncschicrsnceemsaactnis 1]

Scott v. Greiner, 858 F.Supp. 607

8 fg |) RES N ara era Om 15 j

Things Remebered v. Petrarca, 516

CF. FRE Ee oh ivyscciosnieesepencwavndien 18

Toumajian v. Frailey, 135 F.3d 648

ee. ne thas eaiam oe M1 |

Weimer v. City of Johnstown, 93 |

F.Supp. 985 (N.D. N.Y. 1996) ......cccccseee 12

ix

Westinghouse Electric Corp. v.

Newman & Holtzinger, 992 F.2d 932

LS OMe. «ARERR STIR AGH eae ip 11

STATUTES CITED

Se Wns SAE ei I

LR 8 Sie, RUM Mee eae MPS ale l

ro TS WER 1, & | SORES Pepe rar’ Ge

es PR ice -

Pe ERR SME osidecscccccisassatecacicenan 2,4

PRs SE ick sser ee te

OP I SOIC haiiecviilekintieSen. 18

OTHER MATERIALS

Annot., When Period for Filing

Petition for Removal of Civil

Action from State Court to Federal

District Court Begins to Run under

28 U.S.C. § 1446(b), 16 A.L.R.Fed.

eT I A i 14

Annot., When Does Period for Filing

Petition for Removal of Civil Action

From State Court To Federal District

Court Begin To Run Under 28 USCS

1446(b), 139 ALR Fed 331 (1998) ........... 14

Wright, Miller, and Cooper,

Federal Practice and Procedure:

Jurisdiction 2d, Section 3732

ERO IID hiv scticnsdcnpnnices issue, Geidohenimbeons 12

4

4

Petitioners respectfully pray that based upon significant

questions as to the construction and application of a federal removal

statute, 28 U.S.C. § 1446(b), stated in the Questions Presented herein,

this Court grant a writ of certiorari to review the decision of the

United States Court of Appeals for the Tenth Circuit.'

OPINIONS BELOW

The Order of the United Stated Court of Appeals for the

Tenth Circuit affirming the United States District Courts for the

Western District of Oklahoma and the Eastern District of Texas was

reported as Akin v. Ashland Chemical at 156 F.3d 1030 (10th Cir.

1998) (App. A-1-A-23).

The opinion of the United States District Court for the

Eastern District of Texas on removal was reported as Akin y. Big

Three Industries, Inc. at 851 F.Supp. 819 (E.D. Tx 1994) (App. A-

29-A-48).

STATEMENT OF JURISDICTION

The Order of the United Stated Court of Appeals for the

Tenth Circuit affirming the United States District Courts for the

Western District of Oklahoma and the Eastern District of Texas was

issued on August 31, 1998. The court of appeals had jurisdiction

' The court recently granted certiorari in Murphy Bros. v. Michetti

Pipe Stringing, No. 97-1909, to determine whether the 30 day limit

for removal under 28 U.S.C. § 1446(b) started to run when the

defendant received a faxed, stamped copy of the Complaint or when

the complaint was formally served. 67 U.S.L.W. 3291, November 3,

1998).

,

|

|

|

|

|

|

j

4

i

eee

pursuant to 28 U.S.C. § 1291.

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

1254(1).

STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 1441 provides:

(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.

28 U.S.C. § 1446 provides:

(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 been filed in court and is not

required to be served on the defendant, whichever

period is shorter.

If the case stated by the initial pleading 1s

not removable, a notice of removal may be filed

within thirty days after receipt by the defendant,

through service or otherwise, a copy of an amended

pleading, motion, order, or other paper from which

it may be first ascertained that the case is one which

is or has become removable, except the case may

not be removed on the basis of jurisdiction

conferred by section 1332 of this title more than |

year after the commencement of this action.

28 U.S.C. § 1331 provides:

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. § 1442 provides:

(a) A civil action or criminal prosecuticn

commenced in a State court against any of the

following may be removed by them to the district

court of the United States and division embracing

the place where it is pending.

(1) The United States or any agency thereof

or any officer (or any person acting under that

officer) of the United States or any agency thereof,

sued in an official capacity for any act under color

of such account or on account of any right, title or

authority claimed under any Act of Congress for the

apprehension of criminals or the collection of the

revenue.

STATEMENT OF THE CASE

The fundamental question presented by this case is whether

the thirty day time limit within which to remove a case from state

court to federal court begins to run when the defendant has specific

knowledge of the removability of the case even if the initial pleading

does not give the removing party “unequivocal notice” of its

removability?

PROCEDURAL BACKGROUND AND THE PLEADINGS

This case was originally filed in the District Court of

Jefferson County, Texas, on November 13, 1992, on behalf of 126

plaintiffs against twelve engine manufacturers and chemical

suppliers, including General Electric Company ("GE"). On

December 28, 1992, GE actually received the Petition. On June 16.

1993, the co-defendant Chemical Specialist & Development, Inc.,

("Chemical Specialist") filed a Motion for Summary Judgment

asserting a government contractor defense to plaintiffs’ claims. On

* All of the plaintiffs were civilians employed by the United

States Air Force ("AF") at Tinker Air Force Base (“TAFB") and

alleged in product liability claims that both the jet engines and parts

manufactured by GE and the chemicals manufactured by the

defendants and sold to the AF to be used to clean the engines prior to

reworking were defectively "designed, formulated, manufactured and

marketed”, that the products breached warranties of fitness. and that

the defendants failed to warn of the dangerous nature of their

products.

c

~

August 19, 1993, GE filed a Notice of Removal in the United States

District Court for the Eastern District of Texas, on the basis that the

federal court had federal enclave jurisdiction under 28 U.S.C. § 1331

and that under 28 U.S.C. § 1442(a)(1) GE was a person acting under

the authority of the Secretary of the Air Force.

Plaintiffs timely filed a Motion to Remand the case back to

state court asserting that no federal enclave jurisdiction was present,

that federal officer jurisdiction was absent and that removal was

untimely. The defendants objected to the remand and sought transfer

of venue to the Western District of Oklahoma. Plaintiffs replied to the

objection, asserting that GE also lacked the necessary unanimous

consent of its co-defendants. The court conducted a hearing on

remand on December 6, 1993.

On February 23, 1994, GE filed a Motion for Leave to file

a Third Party Complaint alleging that United States civilian and

military personnel were negligent in "failing to exercise reasonable

care, skill and faithfulness in following and complying with the

maintenance and repair instructions and safety information GE and

others provided", negligently failing to "exercise reasonable care,

skill and faithfulness in assuring that GE products were handled in a

safe and nonhazardous manner" and "negligently failing to implement

an appropriate health and safety program."

On March 21, 1994, the Honorable Howell Cobb denied

plaintiffs’ Motion to Remand and granted the defendants’ Motion to

Transfer Venue to the Western District of Oklahoma. (reported at 851

F.Supp. 819, App. A-1-A-23) and accordingly issued an order. (App.

A-24-A-26). Plaintiffs filed a Motion to Reconsider which was

denied and the case was transferred to the Western District of

Oklahoma. (App. A-27-A-28).

6

In the Oklahoma court plaintiffs timely filed a Motion for

Remand and Brief on June 29, 1997, again asserting that remand was

untimely, that the removing defendants failed to get unanimous

consent because of the Motion for Summary Judgment filed by their

co-defendant, and that the court lacked jurisdiction under either

federal enclave or federal officer grounds. The court denied the

Motion to Remand. (App. A-29-A-31).*

After transfer, plaintiffs alleged that the defendants failed to

warn the AF of the dangers of neurological injury arising from

chronic, long-term, low-level exposure to the solvents manufactured

and sold by those defendants and that these defendants had reason to

know that the AF did not recognize and would not discover this

specific hazard.

After all but four of the defendants were either dismissed or

settled out, the solvent defendants moved for summary judgment. On

December 13, 1996, the court in the Western District of Oklahoma

sustained the Motion for Summary Judgment of the remaining

defendants, now Respondents, on the grounds that TAFB was a

knowledgeable, sophisticated purchaser and that defendants had no

duty to warn the AF of hazards that it knew. both general and

* Once in the Oklahoma court, plaintiffs restated their objection

to removal and jurisdiction in both the Fourth and Fifth Amended

Original Complaints:

The court has determined that there is jurisdiction

for this cause of action. However, Plaintiffs disagree

and contest jurisdiction of this Court and again

request that the case be remanded to the 60th

Judicial District Court, Beaumont, Jefferson C ounty,

Texas.

specific.

On appeal, the Tenth Circuit Court of Appeals affirmed

summary judgment and also affirmed removal, but failed to

specifically address the issue of G.E.'s knowledge in its analysis of

the removal issues. Instead, the court rejected any duty of the

defendants to "investigate" whether the case is removable. (App. A-

38 n.2).*

FACTUAL BACKGROUND ON REMOVAL ISSUE

Since the courts below found the Petition to be ambiguous*

and the answers to Interrogatories to be dispositive as to timeliness,

the key facts bearing on GE's knowledge of the removability of the

Texas state Petition include, obviously, the contents of the Original

Petition and the Interrogatories GE propounded, and matters outside

the state pleadings which include an employee affidavit submitted by

* It is beyond dispute that GE knew at the time the Petition was

filed that its engines which were manufactured for the Air Force were

reworked and repaired by the plaintiff civilian workers at (e.g. within

the confines of) TAFB-GE was not required to "inquire" of or

research the status, activities or conduct of any opposition or third

party.

* The Circuit Court agreed with the Texas court that found the

Petition's language “at Tinker Air Force Base" in the phrase "while

working for the United States" could be either a "geographical

modifier, referring to the location of the exposures” or a "durational

modifier, describing the time period during which the exposures

occurred" and therefore was ambiguous. (App. A-16). The Circuit

Court found the Petition to be ambiguous "in that it did not provide

unequivocal notice of the right to remove". (App. A7-A-38).

ome Re ne ws

Se EA PT S Raw

8

GE, admissions made by GE's counsel at a hearing conducted by the

court, and a Third-Party Complaint filed by GE against the United

States.

All of this material, taken together, established that GE's

knowledge of its own activities at TAFB resolved any purported

ambiguity in the Petition as to either the federal enclave or federal

agent jurisdiction.°

1. The Original Petition: The original Petition was

filed on behalf of numerous plaintiffs against 12 defendants-divided

into two groups, engine manufacturers and chemical manufacturers.

As to GE (and Pratt & Whitney) the Petition alleged that:

IV,

.. . Plaintiffs would show that all Plaintiffs were

exposed to hazardous chemicals, including, but not

limited to cobalt, chromium, cadmium . . . while

working for the United States Air Force at Tinker

Air Force Base in Oklahoma City, Oklahoma. . . .

General Electric Company and Pratt and

Whitney Company, Inc. provided jet engines to

Tinker Air Force Base which were worked on by

the above-referenced Plaintiffs. Each Plaintiff

listed above was exposed to the dust and fumes of

the jet engine parts. These plaintiffs worked on

* A somewhat cynical view of GE's belated removal would be that

it sat on the sidelines while Chemical Specialists tried to win

summary judgment on the government contractor defense-the very

same defense raised by GE in federal court. (see App. A-9-A-11 for

the district court's discussion of GE's colorable government contractor

defense as an element of federal officer jurisdiction).

9

the jet engines by grinding, reworking, and being

generally exposed to the chemicals produced by

the jet engines and jet engine parts. The jet

engines emitted a significant amount of cobalt,

chromium, and cadmium during the grinding,

reworking and otherwise modification of the

engines, which were some of the chemicals

responsible for these Plaintiffs’ damages.

Plaintiffs were also exposed to numerous other

hazardous chemicals while working at the air force

base. (emphasis added).

The state court Petition also alleged that

"Plaintiffs have been employed at Tinker Air Force base and were

exposed to significant amounts of chemicals." (emphasis added). It

also alleged that defendants were:

_. . negligent in the manner in which they failed to

properly test said chemicals before placing them in

the hands of Tinker Air Force Base, that they

were further negligent in failing to warn and instruct

the individuals working at Tinker Air Force

Base, Plaintiffs herein, of the proper way to cope

with said chemicals and/or proper way to protect

one's body against said chemicals and/or the toxicity

of said chemicals and/or means of preventing health

effect caused by those chemicals and working

around the chemicals. (emphasis added)

The Petition also alleged that:

.. . Defendants were aware of the latent defects in

their chemicals and jet engines. Therefore, this

conscious decision to permit the chemicals and jet

engines to be used by workers at Tinker Air

Force Base without adequate warnings or

precautions constitutes a wanton, willful disregard

of the rights of the Plaintiffs . . . (emphasis added).

2. Interrogatories: Months before removal the

defendants served a detailed set of interrogatories on the plaintiffs

which were answered on July 16, 1993. (e.g. James Eugene Aiken,

attached as Ex. A to GE's Response to Plaintiffs’ Motion to Remand)

Virtually every interrogatory relating to damage claims was prefaced

with "materials you worked with and around at Tinker Air Force

Base". For example, in answer to Interrogatory 12(1)(b) (Describe

how you came into contact with such materials?), Aiken responded

"By working with them at Tinker.”; in answer to Interrogatory 32

concerning job duties, Aiken responded that “all duties were

performed on base".

There was no variation in any answer to interrogatory and

corresponding allegations in the Petition; to the contrary, the answers

echoed the allegations of the Original Petition.

3. Employee Affidavit: In an affidavit by Dempsey

L. Hodges, a GE employee stationed at Midwest City, Oklahoma,

(where TAFB is located) with duties associated with TAFB. attached

to GE's Response to Plaintiffs’ Motion to Remand. he stated:

2. I have been employed by General Electric

Company from 3/16/56 to PRESENT. My current

title is Manager, CEAE Midwest City Office.

3... . the jet engines manufactured by General

Elec*ric Company which are repaired or

maintained at Tinker, are for military use and

were manufactured by General Electric

Company pursuant to the specifications from the

Department of the Air Force under a contract with

the Secretary of the Air Force or his delegee.

(emphasis added).

4. Hearing on Motion to Remand: At the hearing the

court conducted on the pending Motions on December 6, 1993, the

court had a revealing colloquy with GE's counsel concerning the

Petition’s allegations, and made a specific request for the contract GE

had with the AF to make the engines.’ GE counsel's statements

established that GE's own long-standing contract activities tnggered

federal officer jurisdiction.

5. Third-party Complaint: After the hearing but

before the court's decision, GE asserted a claim against the United

States alleging that the military and civilian personnel at TAFB were

negligent in using the defendants’ solvents.

From the interrogatories propounded by GE, the employee

affidavit, counsel's statements at the hearing and the Third-Party

Complaint, it is clear that GE knew at the time the orginal petition

was served on it in December, 1992, that the case was removable

under either the federal enclave or federal agent jurisdiction.

’ Counsel admitted that nothing in the Petition indicated that any

of the alleged exposures occurred at any place other than within the

confines of TAFB and asserted that, as the Hodges affidavit reflects,

that all of GE's engines was manufactures and the reworking was

done under a contract with the Air Force. Despite a renewed request

by the Texas court, from the record this contract was never provided

to the Court. Minimally, to meet its burden of establishing the

propriety of removal in light of GE's professed position, GE should

have so provided the contract to the Court before the Texas court

ruled. Arguably, this failure acknowledges that the work on its

engines performed by plaintiffs was contractually required to be

performed at (within the confines) of TAFB.

7

~ &

STANDARDS APPLICABLE TO REMOVAL

Under 28 U.S.C. § 1441(a), an action brought in state court

may be removed by a defendant to a Federal district court if that

Federal court would have had original jurisdiction over the action.

whether the case could have been originally filed in federal court.

City of Chicago v. Intern. College of Surgeons, >. > 118 S.Ct.

523, 529 (1997), Rivet v. Regions Bank of LA., eg WES ake.

921, 925 (1998), De Young v. Lorentz, 887 F.Supp. 254, 257 (D.

Ken. 1995), Kenro, Inc. v. Fax Daily, Inc., 904 F.Supp. 912, 913

(S.D. Ind. 1995), Cervantes v. Civil Service Com'n, 99 F.3d 730. 732

(Sth Cir. 730), Barbara v. New York Stock Exchange, 99 F.3d 49, 53

(2nd Cir. 1996).

aS

a:

Removal is purely statutory and should be construed strictly

in favor of state court jurisdiction and against removal. Frank v. Bear

Stearns & Co., 128 F.3d 919 (Sth Cir. 1998), Carroll v. United

Airlines, Inc., 7 F.Supp. 516, (D. N.J. 1998), Laughlin v. Kmart

Corp., 50 F.3d 871, 873 (10th Cir. 1995), cert. den. 116 S.Ct. 174

(1995), Heckelmann v. Piping Companies, Inc., 904 F Supp. 1257,

1260 (N.D. Okl. 1995), Barber v. Albertson's, Inc., 935 F.Supp.

1188, 1189 (N.D. Ok. 1995) and cases cited therein. Schlumberger

Industries, Inc. v. National Sur. Corp., 36 F.3d 1274, 1284 (4th Cir.

1994), Naef v. Masonite Corp., 923 F.Supp. 1504, 1507 (S.D. Alla.

1996), Rodgers v. Northwestern Mut. Life Ins. Co., 939 F.Supp.

1254, 1255 (D. W.Va. 1996), J.R. Laughead v. Air Dayco Corp.,

942 F.Supp. 339, 340 (S.D. Tex. 1996), Kenro, Inc.. supra, 904

F.Supp. at 913.

In the face of a Motion to Remand, the defendant has the

burden of establishing the propriety of removal and this burden

extends not only to demonstrating the jurisdictional basis for

removal, but also necessary compliance with requirements of the

removal statute. 7owmajian v. Frailey, 135 F.3d 648 (9th Cir. 1998),

Pachecho de Perez v. AT&T Co., 139 F.3d 1368 (11th Cir. 1998), De

Young, supra, 887 F.Supp. at 257, McCain v. Cahoj, 794 F.Supp.

1061, f. 1 (D. Ken. 1992), Laughlin, supra, 50 F.3d at 873, JR.

Laughead, supra, 942 F Supp. at 340, Eyal Lior v. Sit, 913 F.Supp.

13

868, 874 (D.N.J. 1996), Westinghouse Electric Corp. v. Newman &

Holtzinger, 992 F.2d 932, 934 (9th Cir. 1993). If there is any doubt

that a right to removal exists, ambiguities are to be construed against

removal. Delgado v. Shell Oil Co., 890 F.Supp. 1324, 1341 (S.D.

Tex. 1995), Mulcahey v. Columbia Organic Chemicals, Co., Inc., 29

F.3d 148, 151 (4th Cir. 1994), Kenro, Inc., supra, 904 F.Supp. at

913, Kluksdahl v. Muro Pharmaceutical, Inc., 886 F.Supp. 535, 537

(E.D. Va. 1995).

A petition for removal must be filed within 30 days of the

receipt of the state court initial pleading or within 30 days "from

which it may be ascertained” that the case is removable. 28 U.S.C. §

1442(b). Wright, Miller, and Cooper, Federal Practice and

Procedure: Jurisdiction 2d, Section 3732. (1998 Supp.).

Even if a federal question claim is joined with other

nonremovable claims, the entire case is removable. City of Chicago,

supra, 118 S.Ct. at 529 (federal question plus purely state

administrative review); Weimer v. City of Johnstown, 931 F.Supp.

985, 988 (N.D. N.Y. 1996).*

The failure to timely file a notice of removal requires remand

to the state court. Rothwell v. Durbin, 872 F.Supp. 880, 881 (D. Kan.

1994), First Nat. Bank & Trust Co. in Great Bend v. Nicholas, 768

F.Supp. 788, 790 (D. Kan. 1991),

Because removal implicates concerns of federalism, the

combined effect of these various rules is that removal is not favored,

should be denied if any doubt exists and the removing party has the

* At the hearing, the Court acknowledged that GE could remove

the case on the federal officer basis even if the enclave jurisdiction

was in doubt because of a colorable uncertainty as to whether the

exposures might have also occurred outside TAFB. "Under the

enclave theory, he couldn't remove [if the exposures were not solely

on a federal enclave]. Under federal officer he could.”

1A

14

burden of resolving any such doubts. As demonstrated below. the

decision of the Circuit Court turns these justifiable rules on their

head-the removing party can delay removing the case until it is

absolutely certain of the basis of removability ("unequivocal notice")

from pleadings in the state case even if its has indisputable

knowledge of its own activities that gave it actual knowledge of the

removability of the case many months before it filed its notice of

removal.

Assuming arguendo that the original Petition alone did not

provide GE "unequivocal notice” of its removability, where GE knew

from its own activities that the Petition was removable, the thirty-day

time limit under 28 U.S.C. § 1446(b) should begin to run.

REASONS FOR GRANTING THE WRIT

I. THE PETITION SHOULD BE GRANTED

BECAUSE THE ISSUE PRESENTED BY THIS

CASE IS AN IMPORTANT QUESTION OF

FEDERAL LAW THAT HAS NOT BEEN, BUT

SHOULD BE SETTLED BY THE COURT.

As in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc..

supra, the courts have treated the question of any steps necessary to

ascertain the removability of a case in widely disparate fashion.

A long line of cases have addressed the impact of lack of

diversity (i.e. citizenship) or jurisdictional amount allegations in an

initial state pleading on the timeliness of removal. focusing on what

duty, if any, a removing party has to go outside the pleading itself if

the pleading is ambiguous as to removability.”

” See Annot., When Period for Filing Petition for Removal of Civil

Action from State Court to Federal District Court Begins to Run

15

A. Cases Requiring Inquiry or Use of

Knowledge Starting Removal Clock

One line of cases requires the defendant in a state suit to

make inquiry or use the knowledge it has obtained to ascertain the

removability of an otherwise "ambiguous" pleading.

For example, in Kaneshiro v. North American Co. for Life

and Health Ins., 496 F.Supp. 452, 496 (D.C. Hawaii 1980), the

court, applying the removability rules outlined above, found that:

Where the initial pleading is indeterminate, absent

fraud by the plaintiff or pleadings that provide ‘no

clue’ that the case is ‘not removable’, the burden is on

the defendant desiring removal to scrutinize the case

and to remove it in a timely fashion.'°

Interpreting Kaneshiro to require that a petition for removal

be filed within 30 days of receipt of any initial pleading "which does

not on its face preclude removal”, the court in Blow v. Liberty Travel,

under 28 U.S.C. § 1446(b), 16 A.L.R.Fed. 287, §§ 11 and 12 (Supp.

1998) and its superceding annotation, Annot, When Does Period For

Filing Petition For Removal Of Civil Action From State Court To

Federal Court Begin To Run Under 28 USCS § 1446(b), 139 ALR

Fed 331, § 8 (1998). These annotations gather cases relating to the

effect of the defendant having information apart from the intial

pleading on the time for removal and demonstrates that both

removing parties and parties resisting removal lack clear guidelines.

'° See also additional cases cited in § 8(b), Annot., supra, 139

ALR Fed 331, 398-403.

16

Inc., 550 F.Supp. 375, 376 (D.C. Pa. 1982), again placed the burden

on the removing party to ascertain the citizenship of plaintiffs that

had alleged they were residents of Pennsylvania.

Citing Kaneshiro, the court in Kanter & Eisenberg vy.

Madison Associates, 602 F.Supp. 798, 801 (D.C. Ill. 1985),

remanded for untimely removal, finding that the removing party

failed to take adequate steps to ascertain the existence of diversity.''

In Knudsen v. Samuels, 715 F.Supp. 1505 (D.Kan. 1989) the court

held that the defendant's knowledge of its own citizenship required

the defendant to commence removal even if the initial pleading

alleged defendant's state of citizenship. (see Keller v. Carr, 534

F.Supp. 100 (W.D. Ark. 1981 to same effect).

In the somewhat related issue of vague allegations in the state

court pleading, in Scott v. Greiner, 858 F Supp. 607, 610, n. 2 (S.D.

W.Va. 1994) the court determined that the defendant was able to

ascertain federal question jurisdiction sufficiently from the state

complaint and could not wait for receipt of admissions even though

the state pleading was vague. In Golke v. Lee Lumber & Bldg.

Materials Corp., 671 F.Supp. 568,571 (N.D. Ill. 1987), the court

found the original petition "fairly stated a colorable claim for

retaliatory discharge even though "arguably, inartfully pleaded" and

could not say the defendant had "no clue". In Golden Apple

'' The court rejected the defendant's assertion that the earliest it

could have known of the removability of the case was the deposition

of one of the plaintiff five months after the state petition was filed. at

799. The court determined that the allegations of the petition

provided sufficient information of the residency of the plaintiffs that

could have been resolved by a simple phone call to plaintiffs’ counsel.

at 801.

17

Management Co., Inc. v. GEAC Computers, Inc., 990 F.Supp. 1364

(M.D. Ala. 1998) the court found a settlement negotiation letter

(treated as an "other paper") sufficiently informed the defendant that

the thirty day removal period was triggered.

For jurisdictional amount, the removing party has the burden

of proving by a preponderance of the evidence that the amount in

controversy exceeded $50,000. Laughlin, supra, 994 F.2d at 873,

Gafford v. General Electric Co., 997 F.2d 150, 157-60 (6th Cir.

1993), Barber, supra, 935 F.Supp. at 1190-91.’

Similarly concentrating on whether the pleading allows the

defendant to “intelligently ascertain removability" are cases

determining whether certain state-authorized pleadings or the practice

of "courtesy-copy” triggers the thirty day removal period-the issue

now pending before the court in Murphy Bros., Inc, supra.

B. Cases Limiting Starting of Removal

Clock to Pleadings

Another line of cases flatly decline to require the defendant

to inquire into grounds for removal (usually, citizenship, amount or

federal question) or to charge the defendant with its own knowledge

in starting the time limit for removal.

For example, in Chapman vy. Powermatic, Inc., 969 F.2d

160, 162-63, reh, en banc, den, 976 F.2d 774 (Sth Cir. 1992), cert

'? In Barber, the court specifically rejected the argument that the

removing defendant ought to be able to await the response to a

request for admission to establish the amount in controversy. at 1191,

aS:

4 c , , u = sont Ss

Ouiioa pei Ata ieee? Ba Re

18

den, 507 US 967 (1993), the court declined to consider matters

known to the defendant or that the defendant could have known

through investigation. Similarly, in Smith v. Bally's Holiday, 843

F.Supp. 1451, 1453 (N.D. Ga. 1994) the court restricted the

jurisdictional amount issue to the plaintiff's state court pleading. Also,

Pack v. AC & S, Inc., 838 F.Supp. 1099, 1101 (D.Md. 1993 ), a case

relied upon by the District Court (App. A-17), held only a paper

generated in the state litigation would suffice to start the removal

period. In the two annotations above-cited, there are additional cases

which interpret § 1442 to be limited to matters within the pleadings

be The Importance of the Question

Presented

As in the Murphy Bros. case now pending before the court".

this case presents an issue of exceptional importance to litigants and

their counsel not previously presented to the Court. in part, because

of the procedural roadblocks that exist to the review of many removal

issues. See 28 U.S.C. § 1447(d), Things Remembered v. Petrarca.

516 U.S. 124, 127 (1995). The opportunities for this court to review

removal matters have been rare and this is apparently the first time

for the court to review the issue of the knowledge of the removing

party as impacting on the starting of the time for removal. The Court

should seize this opportunity to review this issue and exercise it

supervisory jurisdiction in order to provide much needed guidance to

the lower courts, litigants and their counsel on this issue and resolve

any uncertainty as to the calculation of removal time.

'® see Petition for Writ of Certiorari at 15-17.

19

CONCLUSION

In summary, if the Court of Appeals’ decision is allowed to

stand, a party may wait many months while state court litigation

proceeds apace (even allowing other co-defendants to carry the

defense burden) to remove the case to federal court to start anew,

despite indisputably having knowledge that the case was always

removable. Given the thousands of cases removed annually, in

conjunction with the certiorari granted in Murphy Bros., the Court

can establish guidelines for the parties and the courts to follow.

The petition for writ of certiorari should be granted.

Respectfully submitted,

JAMES A. IKARD

211 North Robinson, Suite 600

Oklahoma City, Oklahoma 73102

(405) 239-7046

Counsel of Record

E. HART GREEN

MITCHELL A. TOUPS

WELLER, GREEN, MCGOWN & TOUPS

2615 Calder Street, Suite 400

Beaumont, Texas 77702

409-838-0101

SHARON A. WRIGHT

ROBERT J. BINSTOCK

REICH & BINSTOCK

4624 San Felipe, Suite 1000

Houston, Texas, 77027

(713) 622-7271

Attorneys for Petitioners

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

JAMES E. AKIN. §

ET AL. §

Plaintiffs, §

§

VS. § NO. 1:93-CV-0352

§

BIG THREE INDUSTRIES, §

INC., ET AL., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER DENYING

PLAINTIFFS’ MOTION TO REMAND AND

GRANTING DEFENDANTS' MOTION

TO TRANSFER VENUE

Pending before the court are the following motions: (1)

Plaintiffs’ Motion to Remand and (2) Defendants’ Motion to Transfer

Venue. The court, having considered the briefs and arguments of

counsel, is of the opinion that the Plaintiffs' Motion to Remand

should be DENIED and the Defendants’ Motion to Transfer Venue

should be GRANTED.

ere ee bo

SR eR ee eR

SEN ET A LORIE FBT ET i alates Erg tte saint ig

a as Oe

A-2

| BACKGROUND

This toxic tort case arises out of alleged chemical exposure

at Tinker Air Force Base in Oklahoma City, Oklahoma.

Approximately two hundred Tinker employees brought negligence

and strict products liability claims against various corporate

manufacturers. Plaintiffs allege multiple adverse health affects

resulting from work performed on jet engines manufactured for the

United States Air Force.

On November 13, 1992, plaintiffs filed a state court suit in

Beaumont, Texas. The pleadings alleged "[p]laintiffs would show that

all Plaintiffs were exposed to hazardous chemicals, including, but not

limited to cobalt, chromium, cadmium. acetylene, ethanol and

heptane while working for the United States Air Force at Tinker Air

Force Base in Oklahoma City, Oklahoma." The plaintiffs further

alleged "[e]ach plaintiff. .. was exposed to the dust and fumes of the

jet engine and jet engine parts” and that "plaintiffs were also exposed

to numerous other hazardous chemicals while working at the air force

base." Plaintiffs’ first, second, and third amended petitions made

similar allegations.

During discovery, defendants sent interrogatories to

plaintiffs. This discovery sought evidence regarding the precise

location of each exposure and the extent to which the plaintiffs

performed their duties "on base.” The interrogatories also sought

information regarding the types of chemicals to which plaintiffs were

exposed. In addition, the defendants-requested information about

any adverse health effects which were caused by materials worked

with at Tinker.

On July 16, 1993, the plaintiffs served responses to the

A-3

interrogatories. With respect to questions inquiring where the

various plaintiffs performed their duties, each response stated “all

duties were performed on base." (See, e.g., Plaintiff James E. Akin's

Answers to Interrogatories, Interrogatory No. 32). Additionally, the

responses identified various chemicals to which each plaintiff was

exposed. (See id., Interrogatory No. 5). Finally, the plaintiffs

identified the health problems, if any, caused by substances worked

with at Tinker. (See id., Interrogatory No. 12).

On August 13, 1993, Defendant General Electric Company

(GE), joined by all other defendants, removed the case to this court.

The notice of removal asserted two bases for federal Question

jurisdiction: (1) the alleged exposures occurred on a federal enclave,

and (2) GE was a person acting under a federal officer.

Simultaneously, defendants moved to transfer venue to the Western

District of Oklahoma on the grounds that it is a more convenient

forum in which to litigate. In opposition, plaintiffs moved to

remand, Asserting (1) federal question jurisdiction does not exist and

(2) the removal was untimely.

I. PLAINTIFFS' MOTION TO REMAND

The Court first considers plaintiffs’ motion to remand.

Resolution of the motion requires the court to delve into issues of

federal enclave jurisdiction, federal officer removal, and timeliness

of removal. Addressing the issues in that order, the Court will first

determine whether federal enclave jurisdiction is present.

A. Federal Enclave Jurisdiction

The Fifth Circuit described the nature of federal enclave

jurisdiction in Mater v. Holley, 200 F.2d 123 (Sth Cir. 1952). Mater

;

H

;

j

m4

4

!

aks be.

NGA CI STE AE ND ER NS Lia NEP Cle ek

A-4

involved a persona! injury sustained at Fort McPherson, Georgia. The

plaintiff originally brought a negligence claim in federal district

court, but her suit was dismissed by that court for lack of subject

matter jurisdiction.

On appeal, the Fifth Circuit reversed. That court noted that

as a Constitutional matter, the Congress had exclusive legislative

power over "all Places purchased by the consent of the legislature of

the State in which the same shall be, for the Erection of Forts,

Magazines, Arsenals, dock- Yards, and other needful Buildings." U.S.

CONST. Art. I, § 8, cl. 17. The Court reasoned that any law existing

in territory over which the United States has exclusive sovereignty

must derive its authority and force from the United States and is for

that reason federal law. Mater, 200 F.2d at 124. The Court held that

the district court had federal question jurisdiction over the case

because it "would be incongruous to hold that although the United

States has exclusive sovereignty in the area here involved, its courts

are without power to adjudicate controversies arising there... ." /d

James Madison proposed the idea of granting Congress

exclusive legislative powers over land purchased for the public

benefit. See generally Capt. Richard T. Altieri, Federal Enclaves:

The Impact of Exclusive Legislative Jurisdiction Upon Civil

Litigation, 72 MIL. L. REV. 55, 59 (1976). The Constitutional clause

prevents state legislative interference with publiclands. Similarly,

Maiter's conclusion that there should be a federal forum in which to

litigate controversies arising on such lands prevents state judicial

interference with matters likely to involve substantial federal

interests.

The present conflict presents a compelling argument for a

A-5

holding that federal enclave jurisdiction exists over the tort claims.

The United States Air Force is entrusted with this nation's defense.

The Air Force entreated plaintiffs to perform important maintenance

tasks on jet engines. All plaintiffs performed all duties on Tinker Air

Force Base. And the plaintiffs now claim that these very

duties--repairing jet engines--resulted in personal injuries. As a result,

this court holds that in a toxic exposure case such as this, when the

plaintiffs’ claims arise out of exposure to chemicals on base in

furtherance of their employment duties, enclave jurisdiction is

properly invoked. The result of this holding is that the case presents

a question arising under federal law, 28 U.S.C. § 1331, and is

removable under 28 U.S.C. § 1441(a).'

B. Federal officer Removal Jurisdiction

GE also argues that, even if federal enclave jurisdiction is not

present, it is entitled to remove under 28 U.S.C. § 1442 (a) (1). That

section allows federal officers or persons acting under them to

remove a case provided certain requirements are met. First, since GE

is not a federal officer, it must be a "Person" within the meaning of

28 U.S.C. § 1442(a)(1). Second, GE must assert a colorable claim to

a federal defense. Third, GE must show that it is being sued for acts

taken "under color of" or at the direction of the federal officer.

' Plaintiffs’ argument that state courts have concurrent jurisdiction

over transitory tort actions misses the point. Whether the state court's

jurisdiction is concurrent is irrelevant to the issue whether a federal

question is presented. Many federal questions may be heard

concurrently in a federal system. The removal statutes permit a

defendant to exercise the option of having a federal question decided

by a United States court.

A-6

1. Is GE a "person" as contemplated by 28 U.S.C.

§ 1442(a)(1)?

The first question is whether GE, as a corporation, is a

"Person" as that term is contemplated by 28 U.S.C. § 1442(a)(1).

The Fifth Circuit spoke to this issue in Peterson v. Blue Cross Blue

Shield of Texas, 508 F.2d 55 (Sth Cir. 1975). Peterson involved a

malicious prosecution case brought by a physician against corporate

defendants for his alleged wrongful suspension under the Medicare

program. Peterson, 508 F.2d at 57. The defendants removed the case

under § 1442(a)(1) alleging federal officer removal Jurisdiction. The

court stated that "[i]t is indisputable that each of the defendants was

either an ‘officer of the United States or an agency thereof, or person

acting under him." /d. (emphasis added). Peterson, therefore.

Suggests that the term "person" encompasses more than just natural

persons.* Many district courts have also concluded that ‘person’, as

used in § 1442(a)(1) includes corporations. See Pack v. AC and S

/nc., 838 F.Supp. 1099, 1102 (D.Md. 1993): Fung v. Abex Corp.,

816 F.Supp. 569, 572 (N.D.Cal. 1992): Ryan v. Dow Chemical Co..

781 F.Supp. 934, 946 (E.D.N.Y. 1992),

Plaintiffs' reliance on /nternational Primate Protection

League v. Administrators of Tulane Educ. Fund. ite gba BCR

1700 (1991) is misplaced. /nternational Primate simply holds that

a federal agency is not entitled to remove under § 1442 (a\(1).

* See also 1 U.S.C. § 1 (instructing that when construing

Congressional acts, unless context indicates otherwise. “person”

includes corporations).

A-7

That case does not apply for two reasons: First, GE is not a federal

agency. Second, GE asserts it acted under the Secretary of the Air

Force and not under the direction of any federal agency. In

accordance with the great weight of authority, the Court therefore

holds that GE is a person within the meaning of 28 U.S.C. §

1442(a)(1).

2. Can GE assert a colorable claim to a federal defense?

To remove as a federal officer, GE must assert a colorable

claim to a federal defense. Mesa v. California, 489 U.S. 121 (1989).

The purpose for this requirement is to ensure that the federal district

court is passing on a question of federal law. In other words, assertion

of the federal defense provides federal question jurisdiction which

makes the case suitably removable. Therefore, the defendant

removing under the federal officer statute is not bound by the

well-pleaded complaint rule which ordinarily governs whether the

case presents a federal question. Mesa, 489 U.S. 136-37.

GE argues it has a colorable claim to the government

contractor defense set forth in Boyle v. United Technologies Corp.,

487 U.S. 500 (1987). In Boyle, the Supreme Court held that liability

fordesign defects in military equipment cannot by imposed under

State law if:

1. The United States approved reasonably precise

specifications;

2. The equipment conformed to those specifications; and

3. The supplier warned the United States about the dangers

in the use of the equipment.

A-8

Boyle, 487 U.S. at 512.

In opposition to the motion to remand, GE submits the

Affidavit of Dempsey L. Hodges, manager of GE's Midwest City

Office. Hodges states that GE manufactured the jet engines repaired

at Tinker under contract with the Secretary of the Air Force or his

delegee. According to Hodges, GE manufactured the engines

pursuant to specifications set by the Air Force.

Although GE might or might not ultimately prevail on its

government contractor defense, that issue is beside the point. All that

is required under § 1442 (a) (1), as interpreted by Mesa, is that GE

assert a colorable claim to the defense. Any determination as to the

merits 1s collateral to the jurisdictional question here presented. The

court, therefore, holds that GE has set up a colorable claim to the

government contractor defense set forth by Boyle.

3. In GE being sued for actions taken "under" or at

the direction of a federal officer?

Finally, GE must establish a nexus between the acts it

performed at the direction of the Secretary of the Air Force and the

present claims for relief. Many courts have concluded that removal

is proper when the lawsuit arises out of actions taken by a

government contractor at the direction of a federal officer. See. e.g.,

Pack v. AC and S Inc., 838 F.Supp. 1099, 1103 (D.Md. 1993): Fung

v. Abex Corp., 816 F.Supp. 569 (N.D.Cal. 1992): Gulati v

Zuckerman, 723 F.Supp. 353 (E.D.Pa. 1989). For example, in Pack.

the court considered whether Westinghouse, a government contractor.

acted sufficiently at the direction of the Navy when manufacturing

turbine generators. The court concluded that Westinghouse satisfied

the "acting under" requirement of § 1442(a(1). Pack, 838 F.Supp.

at 1103.

The same rationale applies here. The plaintiffs's discovery

responses indicated that certain chemicals had caused adverse health

effects. The chemicals were emitted during the repair of GE's jet

engines. The repair involved grinding engine parts manufactured by

GE. Plainly, when a government contractor builds a product pursuant

to Air Force specifications and is later sued because compliance with

those specifications allegedly causes personal injuries, the nexus

requirement is satisfied. GE, therefore, acted under a federal officer

and has satisfied each of the requirements necessary to assert federal

officer removal jurisdiction under 28 U.S.C. § 1441(a)(1).

C. Timeliness of Removal Under 28 U.S.C. § 1446(b)

The final question is whether the defendants timely removed

this case under 28 U.S.C. § 1446(b). That section requires that the

notice of removal be filed within thirty days after the receipt by the

defendants, through service or otherwise, of a copy of the initial

pleading setting forth the claim for relief upon which such action is

based. 28 U.S.C. § 1446(b). However, an exception applies if the

case stated by the initial pleading is not removable--the notice of

removal may be filed within thirty days after receipt by the

defendant, through service or otherwise, of a copy of an amended

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

ascertained that the case is one which is or has become removable.

28 U.S.C. 5 1446(b). This exception to the general rule serves the

laudable purpose of preventing the defendant from having to

speculate whether a case is removable. It also functions as a deterrent

to the plaintiff seeking to disguise the true federal character of a

eT en ee rT

Ree eee Nr eee Oma ak coe Oe

iano sR SDE aa ewe

A LR Ra en citi,

claim.’

The Fifth Circuit applied this exception in Burks vy. Amerada

Hess Corp., 8 F.3d 301 (5th Cir. 1993). Burks involved a case which

the defendants removed on the grounds that ERISA completely

preempted certain of the plaintiff's state law claims. The plaintiff's

original pleadings alleged that wrongful termination caused the

plaintiff to lose "benefits." An amended pleading alleged the denial

of benefits caused the plaintiff to suffer emotional distress. The

defendants removed within thirty days after they received the

amended pleading. In opposition to the removal, the plaintiff argued

that his initial pleading triggered the thirty day clock and the removal,

outside this period, was untimely. The Fifth Circuit reasoned that the

case stated by the initial pleading was not removable because a claim

that wrongful termination resulted in a loss of benefits was not

completely preempted by ERISA. The rule derived from the case is

that the thirty day period announced in § 1446(b) does not begin to

run from an original pleading that does not specifically state a

removable claim. Rather, the defendant has thirty days from the date

he is on notice via receipt of a subsequent document indicating that

the case is or has become removable. The issue in the present case is

more complicated than that in Burks because the defendants rely in

part on enclave jurisdiction to sustain removal. Unlike other federal

question cases, whether the present pleadings set forth a removable

case is not determined by reference to ordinary causes of action and

elements thereof. The typical case simply involves an examination of

the pleadings to determine whether the rights asserted are federal

* The court in no way suggests the plaintiffs in the present case

engaged in any such conduct.

A-11

rights set forth by the Constitution or Acts of Congress. Quite to the

contrary, in enclave jurisdiction, the determinative fact is the precise

location of the events giving rise to the claims for relief. It is only

when the-geography is mapped in a certain way that an otherwise

state claim presents a federal question.

The defendants maintain they timely removed within thirty

days after having received discovery responses revealing the exact

location the chemical exposures in fact occurred. The plaintiffs

strongly disagree, arguing that their original and amended pleadings

placed the defendants on notice that the case was removable.

According to plaintiffs, the time to remove was not tolled because the

initial pleading stated a removable case. As noted at the outset, the

original petition states in relevant parts: "[p]laintiffs would show that

all Plaintiffs were exposed to hazardous chemicals, including, but not

limited to cobalt, chromium, cadmium, acetylene, ethanol and

heptane while working for the United States Air Force at Tinker Air

Force Base in Oklahoma City, Oklahoma." The plaintiffs further

alleged "[e]ach plaintiff was exposed to the dust and fumes of the jet

engine and jet engine parts" and that "plaintiffs were also exposed to

numerous other hazardous chemicals while working at the air force

base." Plaintiffs, amended petitions contained similar allegations.

The Court holds that the state court pleadings are subject to

two reasonable constructions and are, therefore, ambiguous. One

construction, advanced by plaintiffs, is that the phrase "while working

for the United States Air Force at Tinker Air Force Base", is a

geographical modifier, referring to the location of the exposures. The

other, advanced by defendants, is that the entire phrase is a

durational modifier, describing the time period in which the

exposures occurred. Regardless of which construction is more

plausible, they are both reasonable. At the hearing on this matter,

A TANT ae OPE ee ee

A-12

plaintiffs sought to dispel the defendants’ construction as

unreasonable. However, the duration of the exposures is highly

relevant to a defendant any time it reviews a toxic tort pleading

because of its significance as to limitations periods. Further, the

exposure period is relevant as to causation and the extent of injury.

Finally, the length of exposure time is relevant insofar as it might

absolve a defendant which made few or no product sales during a

given period. In addition, as defendants point out, the pleadings do

not exclude the possibility that some or all plaintiffs claimed injury

due to exposures occurring off-base. Had some exposure occurred

off-base, the defendants burden of establishing enclave jurisdiction

would have been heavier.*

The court, therefore, holds that the pleadings are ambiguous

and the thirty days set forth in 28 U.S.C. § 1446(b) were tolled until

the defendants received sufficient notice of removability via receipt

of an "other paper". See Pack v. AC and S. Inc., 838 F.Supp. 1099,

1101-02 (D.Md. 1993) (holding that when initial pleading required

defendant to guess as to removability, such pleading is insufficient to

trigger thirty day limit). This holding advances both policies behind

§ 1446(b)--the defendants should not have to speculate as to

removability, and plaintiffs should not be encouraged to draft

pleadings with an eye toward insulating federal cases from removal.

The discovery responses received by the defendants without

doubt provided notice that the case was removable. Defendants

* When exposures allegedly occur partially inside and partially

outside the boundaries of an enclave an argument would surface that

the state"s interest increases proportionally, while the federal interest

decreases.

A-13

correctly point out that many courts have held that discovery

responses can serve as “other papers” within the meaning of

§1446(b). See, e.g., Chapman -18, Powermatic, Inc., 969 F.2d 160,

164 (Sth Cir. 1992), cert. denied, U.S. _, 113 S.Ct. 1402 (1993),

Johnson v. Dillard Department Stores, Inc., 836 F.Supp. 390, 391

(N.D.Tex. 1993); Pack, 838 F.Supp. at 1101-02; Jong v. General

Motors Corp., 359 F.Supp. 223, 226 (N.D.Cal. 1973). The

interrogatory answers informed the defendants that all plaintiffs

performed all duties on Tinker Air Force Base, and all claimed

chemical exposure occurred while plaintiffs performed these duties.

These papers precisely identified the location of the claimed

exposures, which is the singularly relevant fact when Determining the

applicability of enclave jurisdiction. As such, the defendants were

required to remove within thirty days from Receipt of these

responses. Defendants have done just that. The court concludes the

removal was timely under § 1446(b).°

* For the same reasons discussed above, federal officer removal

was timely. The responses provided GE with notice that certain

products manufactured by GE caused plaintiffs’ injuries. Thus. the

discovery adequately notified GE of the required nexus between its

manufacturing process and the claimed injuries. See Pack v. AC and

S, Inc., 838 F.Supp. 1099, 1102 (D.Md. 1993). The court notes,

however, that the principal dispute at the hearing on this matter was

whether GE timely asserted federal enclave jurisdiction.

Moreover, plaintiffs, waiver argument is unsound. Plaintiffs

argue that because defendant Chemical Specialists and Development,

Inc. filed a motion for summary judgment in state court, this resulted

in a waiver of the right to remove. Waiver is the voluntary

relinquishment of a known right. Because the court has concluded

ae i a ti tl a he,

eee ee eh

A-14

For the above reasons, the plaintiffs’ motion to remand is

DENIED.

Ill. DEFENDANTS' MOTION TO

TRANSFER VENUE

Defendants move to transfer venue to the Western District of

Oklahoma. Given that the court has denied the motion to remand,

transfer is appropriate under 28 U.S.C. § 1404. That section allows

for discretionary transfer of cases for the convenience of the parties

and witnesses and in the interest of justice. 28 U.S.C. § 1404(a).

It is a rare case that more aptly illustrates the policies driving

§ 1404. None of the plaintiffs resides in the Eastern (or any other)

District of Texas. All of the alleged exposure occurred in Oklahoma

City, Oklahoma. The defendants allegedly delivered their products to

Tinker Air Force Base, located in Oklahoma City. The Plaintiffs are

Oklahoma residents. The only connections to Beaumont are lawyers

representing the parties. Having weighed the above factors relevant

under § 1404(a), the Court concludes that this case should be

transferred to the Western District of Oklahoma.

The defendants, motion to transfer venue to the Western

District of Oklahoma is hereby GRANTED. The C lerk of the Court

is hereby ORDERED to forward the file of this matter to the Clerk

the case was not removable until plaintiffs served discovery

responses, the defendants did not possess the removal option at the

time Chemical Specialists filed its motion for summary judgment.

Chemical Specialists’ actions could not waive a right which had not

yet accrued. Therefore, the court holds no waiver occurred.

A-15

of the Court for the Western District of Oklahoma.

ORDERED, ADJUDGED, and DECREED that Plaintiff 's

Motion to Remand is DENIED. It is further ORDERED,

ADJUDGED, and DECREED that Defendant's Motion to Transfer

Venue to the Western District of Oklahoma is GRANTED. It is

further ORDERED that decision on any other pending motions is

deferred to the court in the Western Division of Oklahoma to which

this case is assigned.

SIGNED this the 31st day of March, 1994.

/s/

HOWELL COBB

UNITED STATES DISTRICT JUDGE

ibaa haat abalone Sina

sted

te egal A te a ak elect debe pee Rye on

A-16

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

JAMES E. AKIN, §

ET AL. N

Plaintiffs, §

§

VS. § NO. 1:93-CV-0382

§

BIG THREE INDUSTRIES, §

INC., ET AL., §

§

Defendants. §

ORDER

For the reasons set forth in the court's memorandum opinion,

it is ORDERED that the plaintiffs’ motion to remand is DENIED.

The defendants’ motion to transfer venue to the Western District of

Oklahoma is GRANTED. The Clerk of Court is ORDERED to

deliver the file to the Clerk of Court for the Western District of

Oklahoma. Rulings on all other pending motions are DEFERRED

to the Court of the Western District of Oklahoma to which this case

is reassigned.

SIGNED this the 31st day of March, 1994.

/s/

HOWELL COBB

UNITED STATES DISTRICT JUDGE

A-17

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

JAMES E. AKIN, §

ET AL. §

Plaintiffs, §

§

VS. § NO. 1:93-CV-0382

§

BIG THREE INDUSTRIES, §

INC., ET AL.., §

§

Defendants. §

ORDER

Pending before the court are the following motions: (1)

Plaintiffs’ Motion to Reconsider and (2) Plaintiffs’ Motion to Attach

Additional Exhibits.

This court issued its memorandum opinion and order on

March 21, 1994. On March 31, 1994, plaintiffs filed their motion to

reconsider. Inadvertently omitted from that motion was a copy of an

arbitration award which, according to plaintiffs, deprives the court of

federal officer removal jurisdiction because it suggests the United

States government was never warned about potentially hazardous

products manufactured by General Electric.

oot inicio lla

i a tar lesnaQhI™ a Seiten NA

A-18

The motion for leave to attach this exhibit is GRANTED.

The court will now address the plaintiffs’ motion for reconsideration.

The motion for reconsideration essentially rehashes the same

basic arguments offered by plaintiffs at the hearing on this matter and

in the briefing. The court has very carefully considered the law in this

area and remains of the opinion that its earlier opinion was correct.

The motion to reconsider is therefore DENIED, with one caveat: the

court's earlier memorandum opinion deferred ruling on all pending

motions to the court sitting for the Western District of Oklahoma.

One of these motions was filed by General Electric for leave to file

a third party action against the United States of America. This

motion is GRANTED. Rulings on any remaining motions is

DEFERRED to the court sitting for the Western District of

Oklahoma. The clerk is again ORDERED to transfer the file in this

cause to the Clerk of Court for the Western District of Oklahoma.

All future filings in this matter are to be made with the Clerk of Court

for the Western District of Oklahoma.

SIGNED this the 9th day of May, 1994.

/S/

HOWELL COBB

UNITED STATES DISTRICT JUDGE

A-19

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

JAMES E. AKIN,

—

et al., ) ra

)

Plaintiffs. )

)

)

)

VS. ) No. CIV-94-832-C

)

)

)

)

)

BIG THREE )

INDUSTRIES, INC.., )

et al.,

)

Defendants )

ORDER

This matter 1s before the Court for consideration of plaintiffs’

motion to remand. Having reviewed the pleadings, the Court finds

plaintiffs’ motion is untimely, previous rulings made in this case are

correct and on this issue constitute the law of this case, and, in any

A-20

event, the denial of the motion to remand was not clearly erroneous

or manifestly unjust

IT IS THEREFORE ORDERED that plaintiffs’ motion to

remand is hereby DENIED

IT IS SO ORDERED this 12 day of August, 1994

Is

ROBIN J. CAUTHRON

UNITED STATES DISTRICT JUDGE

A-21

James E. AKIN: Richard G. Arellano; Charles L. Baldwin; Annie M.

Barnes; Terry D. Blain; Marcia Bannock; Delton E.Brown; Timothy

L. Caraway; Thomas W. Clark; Richard Cotey; Connie Cottrell;

Ronnie D. Cottrell; Steven L. Coy; Hugh Crow; Nathan D'Amico;

Donna M. Davis; Louis R. Dickinson; Ollie Dillishaw, Jr.; Danny L.

Dunn; Jenny L. Duren; Bill R.Durington; Steven Ray Duty; Leon

Ealon; Debra M. Emerich; Janette K. Farley; Jon G. Gabbard; Linda

D. Gatewood; Max R.Glover; Wendell P. Gomez; Eric L. Janousek;

David Keiser; Larry D. Lidell; Robert C. Love; Jack L. Manning;

Thomas Marshall; Michael D. Mowles; Jeffrey Murray; Melvin

E.Norton; Zenephor Overstreet; James M. Owen; Terry W. Oxley;

Ronald K. Peoples; Michael Phillips; Marie L. Plumlee; Phillip

Plumlee; Rick Reames; Jack D. Rhoden: Wayne Richardson; Norma

Roberts; Charlon S. Rogers; Sandra Rolland; Marlys Rone; Judy A.

Rowland; Tony E. Ruble; ReathaR. Schlegel; Glona Shelton, as

representative of the estate of Wilton F. Shelton, deceased; Charlie

Sheppard; Herman D.Sikes; William D. Slattery; Clayton D. Statsny;

Melissa C.Statsny; Gayla S. Staton; Martha J. Storozyszyn; Rick

L.Stuart; Mike Sullivan; Emmett Thomas, Jr.; Benjamin Tingle;

Marilyn J. Tracey; Helen Walker; Randy F. Wiens; Leonard

Williams; Leonard Williams; Morten D. Williams; Glenda Wnght;

Herman Dale Wright; Kenneth L. Wnght; Albert A. Wyatt; James D.

Wyatt; Johnnie R. York; Larry N. Smith; Danny Driskill; Gerald

Houston,

Plaintiffs--Appellants,

»

ASHLAND CHEMICAL COMPANY; Dow Chemical Company;

McGean-Rohco, Inc.; Thunderbird Sales Company, Inc.,

A-22

Defendants--Appellees,

and

E.1. DUPONT DE NEMOURS & CO.: General Electric Company;

JW. Harris Co., Inc; Metallurgical Technologies, Inc.; Ashland

Oil; Spray on Systems, Inc.; Plaze. Inc.: Royal Lubricants Company,

Inc.; Stetco Inc.; Thompson & Formby, Inc.; L & F Products, Inc.:

Miniwax Company, Inc.; Dow Industrial Service of the Dow

Chemical Co.; Dowell Division of the Dow Chemical Co. & Brasos

Oil & Gas Division of the Dow Chemical Co., Dow Industrial

Service of the Dow Chemical Company; Dow Division of the Dow

Chemical Company; Brazos Oil & Gas of the Dow Chemical

Company; 3M Company; Minnesota Mining and Manufacturing

Corporation; Diamond Shamrock Corporation; Diamond Shamrock

Corporation, aka Occidental Electro-Chemicals Inc.; Allied

Corporation; Allied Signal, Inc.: Exxon Corporation; Exxon

Chemical; Mobil Oil Corporation: Ameron. Inc.; Blazer East, Inc.,

formerly know as Koppers C ompany, Inc.; Saral Protective Coatings

Co.; Seymour of Sycamore, Inc.: Dexter Corporation; Uni-Kem

International, Inc.; Miller-Stephenson Chemical Company, Inc...

formerly known as Miller-Stephenson Company of Conn, _Inc.:

Cabot Corporation; Borden, Inc.: Phipps Products, a Division of

Dow Chemical Company; Desoto, Inc.

Defendants.

V.

GENERAL ELECTRIC COMPANY.

Third-Party-Plaintiff.

A-23

V.

UNITED STATES of America,

Third-Party-Defendant.

No. 97-6030.

United States Court of Appeals, Tenth Circuit.

Aug. 31, 1998.

Appeal from the United States District

Court for the Western District of Oklahoma (D.C. No.

Civ-94-832-C).

Before TACHA and BALDOCK, Circuit Judges, and GREENE,

District Judge.(FN)

BACKGROUND

On November 13, 1992, plaintiffs filed this toxic tort case in

state court at Beaumont, Texas. After receipt of answers to

interrogatories, defendant General Electric (GE) removed the case to

the United States District Court for the Eastern District of Texas. The

Texas district court judge upheld removal jurisdiction, denied

plaintiffs’ motion to remand and transferred venue to the Western

District of Oklahoma as a more convenient forum. The Oklahoma

district court judge granted summary judgment in favor of

defendants.

(FN) The Honorable J. Thomas Green, Senior United States District

Judge for the District of Utah, sitting by designation.

A-24

Plaintiffs appealed, arguing that removal was untimely and

summary judgment unwarranted.

STANDARD OF REVIEW

Summary judgment is appropriate "if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a Judgment as a

matter of law." Fed.R.Civ.P. 56(c): see also Celotex Corp. v. Catrett,

477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We

review a grant of summary judgment de novo, applying the same

standard as the district court. See Wolf v. Prudential Ins. Co. of Am.,

50 F. 3d 793, 796 (10th Cir. 1995). "[We] examine the record to

determine whether any genuine issue of material fact was in dispute;

if not, we determine [whether] the substantive law was correctly

applied," and in so doing "we examine the factual record and

reasonable inferences therefrom in the light most favorable to the

party opposing" the motion. Applied Genetics Int'l. Inc. y. First

Affiliated Sec. Inc., 912 F.2d 1238, 1241 (10th Cir. 1990).

However, "where the non moving party will bear the burden

of proof at trial on a dispositive issue" that party must "go beyond the

pleadings” and designate specific facts so as to "make a showing

sufficient to establish the existence of an element essential to that

party's case" in order to survive summary judgment. Celotex, 477

U.S. at 322, 324. A dispute is genuine only if the evidence is such

that a reasonable jury could retum a verdict for the nonmoving party.

See Vitkus v. Beatrice Co., 11 F. 3d 1535, 1539 (10th Cir. 1993).

DISCUSSION

A-25

1. REMOVABILITY TO FEDERAL COURT

-- Federal Enclave Jurisdiction

The United States has power and exclusive authority "in all

Cases whatsoever ... over all places purchased” by the government

"for the erection of "Forts, Magazines, Arsenals, Dock-Yards, and

other needful Buildings," U.S. Const. art. 1, § 8, cl. 17. Such places

are "federal enclaves” within which the United States has exclusive

jurisdiction. ' Personal injury actions which arise from incidents

occurring in federal enclaves may be removed to federal Court as a

part of federal question jurisdiction. There is no dispute that Tinker

Air Force Base at Oklahoma City, Oklahoma is such a federal

enclave.

-- Federal Officer Removal

Plaintiffs argue that the removal petition was defective in that

all co-defendants did not consent and join in the removal papers. In

the case at bar, defendant GE removed the case based on its status as

a "person acting under” a federal officer, as well as the status of

Tinker Air Force Base as a federal enclave. Federal officer removal

' The Constitutional language is that the Congress shall have

power "[t]o exercise exclusive Legislation," see id., which has been

construed to mean exclusive jurisdiction under 28 U.S.C. § 1331. See

Mater v. Holley, 200 F.2d 123, 124-25 (Sth Cir. 1952). Noting that

the United States has exclusive sovereignty in enclave areas, the Fifth

Circuit said that it "would be incongruous to hold that ... (courts of

the United States) "are without power to adjudicate controversies

arising” therein. Id. 124.

A-26

constitutes an exception to the general removal rule under 28 U.S.C.

§ 1441 and § 1446 which require all defendants to join in the removal

petition. The exception is set forth at 28 U.S. C. § 1442(a)(1) which

provides in part that:

(a) "A civil action or criminal prosecution commenced in a

State court against any of the following may be removed by them to

the district court of the United States for the district and division

embracing the place wherein it is pending:

(1) The United States or any agency thereof or any

officer (or any person acting under that officer) of the United

States or of any agency thereof, sued in an official or individual

capacity for any act under color of such office _." (emphasis

added).

This statutory exception allows a federal officer

independently to remove a case to federal court even though that

officer is only one of several named defendants. The Congressional

policy permitting federal officer removal could easily be frustrated

by simply joining non-federal defendants unwilling to remove if

consent of co-defendant(s) were required. Thus in Bradford y.

Harding, 284 F.2d 307, 310 (2d Cir. 1960), the Second circuit ruled

that " [t]he ‘general government’ must be able to assure each of its

officers that a federal forum will be available if he wishes it, whether

others sued with him wish it or no.” Likewise, in Fowler v. Southern

Bell Tel. & Tel. Co., 343 F.2d 150, 152 (Sth Cir.1965), the Fifth

circuit held “it is settled that the filing of a petition for removal by a

single federal officer removes the entire case to the federal court." In

Ely Valley Mines, Inc. v. Hartford Accident & Indem. Co.. 644 F.2d

1310, 1315 (9th Cir. 1981), the Ninth circuit reasoned that "[s]ince

the federal officer is the only one entitled to remove under § 1442, he

A-27

alone can remove without other defendants joining in the petition,

and the entire case is removed to the federal court.” In City of Aurora

v. Erwin, this court noted the importance to the United States and the

absolute nature of federal officer removal jurisdiction, quoting the

Supreme Court that exercise of such jurisdiction "should not be

frustrated by a narrow, grudging interpretation."", 706 F. 2d 295, 296

(10th Cir. 1983) (quoting Arizona v. Manypenny, 451 U.S. 232, 242,

101 S.Ct. 1657, 68 L.Ed.2d 58 (1981)). On the basis of the

foregoing, we hold that G.E. properly removed the case to federal

court without the consent of co-defendants.

-- Right to Remove Must be Clearly Determinable

The right to remove a case to federal court is determined

from allegations set forth in the initial pleading, "or other paper from

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

become removable . . ." 28 U.S.C. § 1446(b) (emphasis added).

Appellants argue that removal was untimely because the

initial pleading provided defendants with all necessary information

to ascertain removability.* Appellees argue that plaintiffs’ allegations

* In this regard, appellants rely on non-binding case law from

other jurisdictions to the effect that where it is apparent that removal

may be justified a duty is imposed upon movants to investigate

potential reasons for removal. See Scott v. Greiner, 858 F.Supp. 607,

610 & n. 2 (S.D.W.Va.1994) (motion for more definite statement

required where federal question jurisdiction cannot be ascertained

from the complaint); Golke v. Lee Lumber & Bldg. Materials Corp.,

671 F. Supp. 568, 571 (N.D. 111. 1987) (inartfully pleaded

complaint provided sufficient notice to start time running for

A-28

of injuries sustained "while working at" Tinker Air Force Base and

"while working for" the United States were ambiguous.’ The district

judge in Texas ruled that the word "at" in the phrase "while working

at" could serve as either a "geographical modifier" or a "durational

modifier" (Order at 12, 13), and that only after receipt of "other

paper"--in this case answers to interrogatories--were defendants

provided sufficient notice that the conduct sued upon took place

wholly within the enclave, and under federal direction.’

removal); Cantrell v. Great Republic Ins. Co., 873 F.2d 1249. 1256

(9th Cir. 1989) (inartfully pleaded complaint may provide sufficient

notice for removal).

* The initial pleading could have been understood as referring to

injuries sustained off Base but during the time frame plaintiffs were

working on the Base and/or working for the government. Plaintiffs

alleged that they were "exposed to hazardous chemicals, including,

but not limited to cobalt, chromium, cadmium. acetylene, ethanol and

heptane while working for the United States Air Force at Tinker Air

Force Base in Oklahoma City, Oklahoma,” and that they "were also

exposed to numerous other hazardous chemicals while working at

the air force base." Appellant's App. at 1, 5, 6 (emphasis added).

* Judge Cobb ruled that only after receipt of the Answers to

Interrogatories were federal enclave and federal officer removal

jurisdiction apparent. The court said:

The interrogatory answers informed the defendants

that all plaintiffs performed all duties on Tinker Air

Force base, and all claimed chemical exposure

A-29

We agree that the initial pleading in this case was ambiguous

in that it did not provide unequivocal notice of the nght to remove,

and that the first clear notice of removability was given in answer to

an interrogatory.”

~

occurred while plaintiffs performed these duties.

These papers precisely identified the location of the

claimed exposures, which is the singularly relevant

fact when determining the applicability of enclave

jurisdiction. As such, the defendants were required

to remove within thirty days from receipt of these

responses. Defendants have done just that. The

court concludes that removal was timely under §

1446(b).

Akin v.. Big Three Indus., Inc., 851 F. Supp. 819, 825 (E. D. Tex.

1994). The court further stated that:

For the same reasons discussed above, federal

officer removal was timely. The responses provided

GE with notice that certain products manufactured

by GE caused plaintiffs’ injuries. Thus, the

discovery adequately notified GE of the required

nexus between its manufacturing process and the

claimed injuries.

Id. at 825 n. 5.

* In response to interrogatories, defendants learned that the

chemical exposure only occurred within the confines of the Tinker

Air Force Base in Oklahoma City, Oklahoma. Plaintiff Akin's

A-30

In DeBry v. Transamerica ( ‘orp., 601 F. 2d 480, 489 (10th

Cir. 1979), we held that " [i]f the statute is going to run, the notice

ought to be unequivocal. It should not be one which may have a

double design.” We further ruled that "ascertained" as used in section

1446(b) means a statement that "should not be ambiguous" or one

which "requires an extensive investigation to determine the truth." Id.

at 490. DeBry is consistent with our prior ruling in Ardison v. Villa,

248 F. 2d 226 (10th Cir. 1957), in which we interpreted the

predecessor provision of § 1446(b), holding that the key to

determining the date from which the clock begins to run is when the

defendant is able to "intelligently ascertain removability." Id. at 227.

We disagree with cases from other jurisdictions which impose a duty

to investigate and determine removability where the initial pleading

indicates that the right to remove may exist. ° Rather, this court

requires clear and unequivocal notice from the pleading itself, or a

subsequent "other paper” such as an answer to interrogatory

-- Proceedings in State Court Before Removal

Plaintiffs contend that defendant Chemical Specialist was

barred from consenting to removal because it had previously filed a

motion for summary judgment in state court. which motion was

pending when removal was granted, citing Scholz v. RDV Sports,

Inc , 821 F.Supp. 1469, 1471 (M.D.Fla. 1993). That case is inapposite

because actions in state court by defendant Chemical Specialist in this

Response to Interrogatory 32 was that "all duties were performed

base."

° See supra footnote 3.

A-31

case were taken before it was unequivocally apparent that the case

was removable.’ This court rules that a defendant who actively

invokes the jurisdiction of the state court and interposes a defense in

that forum is not barred from the right to removal in the absence of

adequate notice of the night to remove.

Proceedings in Federal Court after Removal

After removal of the case to federal court and the motion to

remand was denied, plaintiffs voluntarily amended their complaint,

asserting a cause of action in federal court against defendants Dow

Chemical, Ashland Chemical and McGean-Rohco, Inc. This court

holds that plaintiffs cannot voluntarily invoke, and then disavow,

federal jurisdiction. In Bernstein v. Lind-Waldock & Co., the Seventh

Circuit stated:

But once [plaintiff] decided to take

advantage of his involuntary presence in

federal court to add a federal claim to his

complaint he was bound to remain there.

Otherwise he would be in a position where

if he won his case on the merits in federal

court he could claim to have raised the

’ In Scholz, the court held that filing motions and scheduling

hearings on motions indicated an intent to litigate in state court,

which resulted in waiver of the right to remove the case. However,

plaintiff's claims included federal employment discrimination claims

under Title VII, so that the right to remove was apparent from the

face of the Complaint.

A-32

federal question in his amended complaint

voluntarily, and if he lost he could claim to

have raised it involuntarily and to be entitled

to start over in state court. He "cannot be

permitted to invoke the jurisdiction of the

federal court, and then disclaim it when he

loses." (citations omitted).

see also Barbara v. New York Stock Exch. Inc., 99 F. 3d 49 (2d Cir.

1996); Tolton v. American Biodyne, Inc., 48 F. 3d 937 (6th Cir.

1995). In Johnson v. Odeco Oil & Gas Co., 864 F. 2d 40 (Sth Cir.

1989), an amendment in federal court after removal was found to

constitute a waiver of later objection to removal. In the circumstances

of this case, the amendment adding parties also amounted to a waiver

of alleged defective removal.

If WARNINGS CONCERNING HAZARDOUS

MATERIALS NEED NOT BE PROVIDED TO

"SOPHISTICATED" AND KNOWLEDGEABLE PURCHASERS

--State Law Applies in Failure to Warn Cases

This products liability action is premised on the

manufacturer's failure to warn purchaser's employees of the danger of

low level exposure to certain chemicals. We apply Oklahoma law in

such cases. See Chiles v. Ceridian ( ‘orp., 95 F.3d 1505, 1510 (10th

Cir.1996). We review the district court's interpretation of Oklahoma

law de novo, see Salve Regina College v. Russell, 499 U.S. 225, 231.

111 S.Ct. 1217, 113 L.Ed.2d 190 (1991), and “as a matter of

independent federal procedure we utilize the normal federal standards

of appellate review to examine the district court's decision process.”

Mid-America Pipeline Co. v. Lario Enters.. 942 F. 24 1519, 1524

A-33

(10th Cir. 1991).

-- Sophisticated Purchaser Defense

Plaintiffs contend that they were injured while cleaning jet

engine parts due to low-level, chronic exposure to defendants’

chemicals. Plaintiffs argue that defendants breached their duty to

warn potential users of the dangerous propensities of these chemicals

even though the chemicals supplied were not improperly

manufactured or contaminated.

Under Oklahoma law, the general rule applies that chemicals

will be considered defective only if the following three elements are

satisfied: (1) the product was unreasonably dangerous; (2) there was

a failure to warn of its dangerous characteristics; and (3) the failure

to warn was the cause of the plaintiff's injury. See Cunningham v.

Charles Pfizer & Co., 532 P. 2d 1377 (Okla. 1975). But Oklahoma

law authorizes an important exception to the second element of the

general rule, namely that there is no duty to warm members of a

profession against dangers generally known to members of that

profession. Hence, in Mayberry v. Akron Rubber Mach. Corp., the

court said that "where the danger or potentiality of danger is known

or should be known to the user, the duty (to warn) does not attach.”

483 F.Supp. 407, 413 (N.D.Okla.1979) (citing Berry v. Porsche

Audi, Inc., 578 P.2d 1195 (Okla. 1978); Nicholson v. Tacker, 512

P.2d 156 (Okla. 1973)); see also Davis v. Fox River Tractor Co., 518

F. 2d 481 (10th Cir.1975); Marshall v. Ford Motor Co., 446 F.2d

712 (10th Cir.1971). --We read Oklahoma case law to impose no

duty to warn a purchaser as knowledgeable as the United States Air

Force of the potential dangers of low-level chemical exposure.

Plaintiffs rely on the argument that the Air Force did not actually

know of the nsks involved in low-level chemical exposure. However,

A-34

Oklahoma law clearly imposes a "should have known" standard as

well, applicable to "knowledgeable purchasers," Mayberry, 483 F.

Supp. at 413. This is tantamount to the familiar “sophisticated

purchaser defense" exception which is based upon the principles set

forth in the Restatement (Second) of Torts.* This exception absolves

suppliers of the duty to warn purchasers who are already aware or

should be aware of the potential dangers. See O'Neal v. Celanese

Corp., 10 F.3d 249, 251-52 (4th Cir.1993): see also Davis v

Avondale Indus., 975 F.2d 169, 171 (5th Cir. 1992) (a manufacturer

is not required to provide an adequate warning about his product

when the user or handler of the product already knows or reasonably

should be expected to know of the characteristics of the product that

may cause damage and the danger of such characteristics.) In

Apperson v. E.L du Pont de Nemours & Co., 41 F.3d 1103. 1108 (7th

Cir. 1994), the Seventh Circuit stated: "a duty to warn arises only

when there is unequal knowledge with respect to the risk of the

harm.

”

* One who supplies directly or through a third person a chattel

for another to use is subject to liability to those whom the supplier

should expect to use the chattel with the consent of the other or to be

endangered by its probable use, for physical harm caused by the use

of the chattel in the manner for which and by a person for whose use

it is supplied, if the supplier (a) knows or has reason to know that the

chattel is or is likely to be dangerous for the use for which it is

supplied, and (b) has no reason to believe that those for whose use

the chattel is supplied will realize its dangerous condition, and (c)

fails to exercise reasonable care to inform them of this dangerous

condition of the facts which make it likely to be dangerous.

Restatement (Second) of Torts § 388 (1965)(emphasis added).

A-35

Because of the wealth of research available, the ability of the

Air Force to conduct studies, and its extremely knowledgeable staff,

we find that the Air Force easily qualifies as a knowledgeable

purchaser” that should have known the risks involved with low-level

chemical exposure. Employees of the Air Force are also deemed to

possess the necessary level of sophistication, so that defendants had

no duty to warn the Air Force or its employees of the potential

hazards. See Mayberry, 483 F.Supp. at 413.

Based upon the foregoing, this court concludes from

uncontroverted evidence viewed in a light most favorable to the

plaintiffs that the district court's decision granting defendants’ Motion

for Summary Judgment should be affirmed.

AFFIRMED.