Trimm et al v. 3M Company et al, No. 5:2012cv01145 - Document 133 (N.D.N.Y 2013)
Court Description: MEMORANDUM-DECISION AND ORDER granting Plaintiffs' 103 Motion to Remand the action to the NYS Supreme Court, Onondaga County. Signed by Senior Judge Frederick J. Scullin, Jr on 1/23/2013. (amt)
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Trimm et al v. 3M Company et al Doc. 133 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _________________________________________________________ WILLIAM TRIMM, JR. and HELEN TRIMM, Plaintiffs, v. 5:12-CV-1145 (FJS/ATB) 3M COMPANY, formerly known as Minnesota Mining & Manufacturing Company; 84 LUMBER COMPANY; A.W. CHESTERTON CO., INC.; ABEX CORPORATION, formerly known as American Brake Shoe Company; AIR & LIQUID SYSTEMS CORPORATION, as successor by merger to Buffalo Pumps, Inc.; AMERICAN STANDARD, INC., individually and on behalf of its division The Trane Company; ARMSTRONG INTERNATIONAL, INC.; ARVINMERITOR, INC.; BORG WARNER CORPORATION; CARLISLE COMPANIES INCORPORATED; CBS CORPORATION, formerly known as Viacom, Inc., formerly known as Westinghouse Electric Corporation; CERTAINTEED CORPORATION; CLEAVER-BROOKS INC.; CRANE CO.; CRANE PUMPS & SYSTEMS, INC.; DANA CORPORATION; DAP PRODUCTS, INC.; EATON ELECTRICAL, INC., formerly known as Cutler Hammer; FEDERALMOGUL ASBESTOS PERSONAL INJURY TRUST, as successor to Felt Products Manufacturing Co.; FMC CORPORATION, individually and as Successor to Northern Pump Company and Coffin; FORD MOTOR COMPANY; FOSTER WHEELER, LLC; GARDNER DENVER, INC.; GENERAL ELECTRIC COMPANY; GENUINE PARTS COMPANY; GEORGIA-PACIFIC LLC, formerly known as Georgia-Pacific Corporation; GOODYEAR TIRE & RUBBER COMPANY; GOODRICH CORPORATION, formerly known as B.F. Goodrich Company; GOULDS PUMPS, INCORPORATED; Dockets.Justia.com HB SMITH COMPANY INCORPORATED; HONEYWELL INTERNATIONAL, INC., as success-in-interest to The Bendix Corporation formerly known as Alliedsignal, Inc.; HOWDEN BUFFALO, INC.; IMO INDUSTRIES, INC; ITT INDUSTRIAL, INC., individually and as successor-in-interest to Foster Engineering, Inc.; INGERSOLL-RAND COMPANY; J.H. FRANCE REFRACTORIES COMPANY; JOHN CRANE, INC.; KAISER GYPSUM COMPANY, INC.; KEELER/DORR-OLIVER BOILER COMPANY; KENTILE FLOORS, INC.; MACK TRUCKS, INC.; MAREMONT CORPORATION; NATIONAL AUTOMOTIVE PARTS ASSOCIATION; NAVISTAR INTERNATIONAL CORPORATION; PECORA CORP.; REXNORD INDUSTRIES, LLC, individually and as Successor in Interest to The Falk Corporation; ROCKWELL AUTOMATION, INC., formerly known as Rockwell International Corporation; SPIRAX SARCO, INC.; STANDARD AUTO PARTS; NASH ENGINEERING COMPANY (THE); UNION CARBIDE CORPORATION; VELAN VALVE CORP.; WARREN PUMPS, INC.; WEIL MCLAIN, a division of The Marley Company; WHITE'S LUMBER; YARWAY CORPORATION; CATERPILLAR, INC.; and ROBERT BOSCH CORPORATION, as successor in interest to Bosch Braking Systems Corporation, Defendants. _________________________________________________________ APPEARANCES OF COUNSEL LEVVY PHILLIPS & KONIGSBERG, LLP 800 Third Avenue New York, New York 10022 Attorneys for Plaintiffs AMBER R. LONG, ESQ. -2- LAVIN, O'NEIL, RICCI, CEDRONE & DISIPIO One East Main Street Rochester, New York 14614 Attorneys for Defendant 3M Company BERNADETTE WEAVER-CATALANA, ESQ. BARRY MCTIERNAN & MOORE 2 Rector Street New York, New York 10006 Attorneys for Defendants 84 Lumber Company and John Crane, Inc. WILLIAM A. COONEY, ESQ. BROWN & KELLY, LLP 424 Main Street Buffalo, New York 14202 Attorneys for Defendant Air & Liquid Systems Corporation KENNETH A. KRAJEWSKI, ESQ. KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 1633 Broadway New York, New York 10019 Attorneys for Defendants Arvinmeritor, Inc. and Maremont Corporation PEGGY L. PAN, ESQ. DONOHUE, SABO, VARLEY & HUTTNER, LLP 24 Aviation Road P.O. Box 15056 Albany, New York 12212-5056 Attorneys for Defendant Borg Warner Corporation BRUCE S. HUTTNER, ESQ. WARD GREENBERG HELLER & REIDY LLP 300 State Street Rochester, New York 14614 Attorneys for Defendants Carlisle Companies Incorporated and Georgia-Pacific LLC THOMAS E. REIDY, ESQ. DANIEL P. PURCELL, ESQ. -3- DARGER ERRANTE YAVITZ & BLAU LLP 116 East 27th Street New York, New York 10016 Attorneys for Defendants Certainteed Corporation, Dana Corporation and Union Carbide Corporation JUDITH A. YAVITZ, ESQ. MACKENZIE HUGHES LLP 101 South Salina Street Suite 600 Syracuse, New York 13202-4967 Attorneys for Defendant Cleaver-Brooks Inc. STEPHEN S. DAVIE, ESQ. K & L GATES LLP 599 Lexington Avenue New York, New York 10020-6030 Attorneys for Defendants Crane Co. and Crane Pumps & Systems, Inc. ANGELA DIGIGLIO, ESQ. NICOLE M. KOZIN, ESQ. MCGIVNEY & KLUGER, P.C. AXA Tower - 1 100 Madison Street, Suite 1640 Syracuse, New York 13202 Attorneys for Defendants DAP Products, Inc., Pecora Corp., and Rexnord Industries, LLC ERIC M. GERNANT, II, ESQ. GOLDBERG SEGALLA LLP 665 Main Street, Suite 400 Buffalo, New York 14203-1425 Attorneys for Defendants Eaton Electrical, Inc., Gould Pumps, Inc. and Howden Buffalo, Inc. SUSAN E. VAN GELDER, ESQ. -4- WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 150 East 42nd Street New York, New York 10017-5639 Attorneys for Defendant FederalMogul Asbestos Personal Injury Trust JULIE R. EVANS, ESQ. GIBSON, MCASKILL & CROSBY, LLP Chemical Bank Building, Suite 900 69 Delaware Avenue Buffalo, New York 14202-3866 Attorneys for Defendant Ford Motor Company CHARLES C. BRIDGE, ESQ. PAULETTE E. ROSS, ESQ. SEGAL MCCAMBRIDGE SINGER & MAHONEY, LTD 850 Third Avenue, Suite 1100 New York, New York 10022 Attorneys for Defendant Gardner Denver, Inc. KATRINA H. MURPHY, ESQ. DAMON MOREY LLP 200 Delaware Avenue, 12th Floor Buffalo, New York 14202-2150 Attorneys for Defendants Genuine Parts Company and National Automotive Parts Association CAROL G. SNIDER, ESQ. PHILLIPS LYTLE LLP 3400 HSBC Center Buffalo, New York 14203-2887 Attorneys for Defendant Goodyear Tire & Rubber Company MARY JO HERRSCHER, ESQ. SMITH, STRATTON, WISE, HEHER & BRENNAN, LLP 100 Park Avenue, Suite 1600 New York, New York 10017 Attorneys for Defendant Goodrich Corporation PATRICK J. DWYER, ESQ. -5- MARIN GOODMAN, LLP 500 Mamaroneck Avenue Suite 501 Harrison, New York 10528 Attorneys for Defendant Keeler/ Door-Oliver Boiler Company RICHARD P. MARIN, ESQ. TREVETT CRISTO SALZER & ANDOLINA P.C. Two State Street, Suite 1000 Rochester, New York 14614 Attorneys for Defendant Mack Trucks, Inc. VALERIE L. BARBIC, ESQ. OFFICE OF DONALD A. W. SMITH, PC 125 Sully's Trail, Suite 7 Pittsford, New York 14534 Attorneys for Defendant Navistar International Corporation DONALD A. W. SMITH, ESQ. MCELROY, DEUTSCH MULVANEY & CARPENTER, LLP 1300 Mount Kemble Avenue P.O. Box 2075 Morristown, New Jersey 07962-2075 Attorneys for Defendant Rockwell Automation, Inc. JOSEPH P. LASALA, ESQ. BOUVIER PARTNERSHIP, LLP Main Place Tower, Suite 1400 350 Main Street Buffalo, New York 14202-3714 Attorneys for Defendant Spirax Sarco, Inc. PAULA M. EADE-NEWCOMB, ESQ. MCCARTER & ENGLISH, LLP 245 Park Avenue, 27th Floor New York, New York 10167 Attorneys for Defendant Velan Valve Corp. RICHARD P. O'LEARY, ESQ. -6- LEADER & BERKON LLP 630 Third Avenue New York, New York 10017 Attorneys for Defendant Warren Pumps, Inc. AMY ZUMSTEG, ESQ. HURWITZ & FINE, P.C. 1300 Liberty Building 424 Main Street Buffalo, New York 14202 Attorneys for Defendant Weil McLain V. CHRISTOPHER POTENZA, ESQ. SLYE & BURROWS 104 Washington Street Watertown, New York 13601 Attorneys for Defendant White's Lumber CHRISTINA E. STONE, ESQ. A.W. CHESTERTON CO., INC. NO APPEARANCE ABEX CORPORATION NO APPEARANCE AMERICAN STANDARD, INC. NO APPEARANCE ARMSTRONG INTERNATIONAL, INC. NO APPEARANCE CBS CORPORATION NO APPEARANCE FMC CORPORATION NO APPEARANCE FOSTER WHEELER, LLC NO APPEARANCE GENERAL ELECTRIC COMPANY NO APPEARANCE HB SMITH COMPANY INCORPORATED NO APPEARANCE HONEYWELL INTERNATIONAL, INC. NO APPEARANCE IMO INDUSTRIES, INC. NO APPEARANCE -7- ITT INDUSTRIAL, INC. NO APPEARANCE INGERSOLL-RAND COMPANY NO APPEARANCE J.H. FRANCE REFRACTORIES COMPANY NO APPEARANCE KAISER GYPSUM COMPANY, INC. NO APPEARANCE KENTILE FLOORS, INC. NO APPEARANCE STANDARD AUTO PARTS NO APPEARANCE NASH ENGINEERING COMPANY NO APPEARANCE YARWAY CORPORATION NO APPEARANCE CATERPILLAR, INC. NO APPEARANCE ROBERT BOSCH CORPORATION NO APPEARANCE SCULLIN, Senior Judge MEMORANDUM-DECISION AND ORDER I. INTRODUCTION Currently before the Court is Plaintiffs' motion to remand this case to New York State Supreme Court, County of Onondaga. See Dkt. No. 103. None of the remaining Defendants in this case has filed any papers in opposition to this motion. II. BACKGROUND Plaintiffs filed this civil action in New York Supreme Court, County of Onondaga, on March 30, 2012. Defendant Viad Corp. filed a Notice of Removal pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446 on July 13, 2012, on the ground that it intended to invoke a government-8- contractor defense that raised a federal question, thereby giving this Court jurisdiction over the entire case pursuant to § 1442. See Dkt. No. 1. Plaintiffs initially moved for remand on procedural grounds, see Dkt. No. 33; and Defendant Viad opposed that motion, see Dkt. No. 46. Subsequently, Plaintiffs agreed to dismiss Defendant Viad from this case; and Defendant Viad consented to remand of this case back to the state court where it was originally filed. See Stipulation of Dismissal, Dkt. No. 103-4; Dkt. No. 103-5, Stipulation of Remand. Shortly thereafter, Plaintiff William Trimm passed away, and his wife was appointed representative of his estate. III. DISCUSSION Defendant Viad removed this action from state court pursuant to 28 U.S.C. § 1442(a)(1), which provides, in pertinent part, as follows: (a) A civil action . . . that is commenced in a State court and that is against or directed to 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, in an official or individual capacity, for or relating to any act under color of such office . . . . 28 U.S.C. § 1442(a)(1). Since § 1442(a)(1) "authorizes removal of the entire case even if only one of the controversies it raises involves a federal officer or agency, the section creates a species of statutorily-mandated supplemental subject-matter jurisdiction." 14C Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Joan E. Steinman, Federal Practice and Procedure -9- § 3726 (4th ed. 2009). Furthermore, even if the claim against the federal party is dismissed after removal, the court does not lose its ancillary jurisdiction over the remaining state claims against the non-federal parties. See Torres v. CBS News, 879 F. Supp. 309, 321 (S.D.N.Y. 1995) (quotation and other citation omitted). Thus, as the Torres court noted, in such a situation, "it is a matter of this court's discretion whether or not to retain the case . . . ." Id. When deciding whether to retain jurisdiction or to remand, the court should consider "comity, federalism, judicial economy and fairness to the litigants." Id. (citations omitted). The Torres court concluded that, "[w]hen the federal party is eliminated shortly after removal and there has been 'no substantial commitment of judicial resources' to the remaining state-law claims, remand to the state court is clearly warranted." Id. (quotation and other citations omitted). In this case, it appears that all of the claims in Plaintiffs' second amended complaint are state-law claims. Furthermore, Plaintiffs contend that the parties have taken some depositions in state court and that, prior to removal, Plaintiffs' and Defendants' counsel had agreed in principle to a case management order that would govern the case going forward and were about to send a proposed order to the state court for approval. See Dkt. No. 103-1 at 3. On the other hand, all that appears to have occurred in this action since the time of removal is that some of the Defendants have filed Notices of Appearance, Corporate Disclosure Statements, jury demands, and answers to the second amended complaint. Therefore, the Court finds that all the relevant factors weigh in favor of remand. -10- IV. CONCLUSION After reviewing the record in this matter, Plaintiffs' submissions and the applicable law, and for the above-stated reasons, the Court hereby ORDERS that Plaintiffs' motion to remand this case to New York State Supreme Court, Onondaga County, is GRANTED; and the Court further ORDERS that the Clerk of the Court shall mail a certified copy of this Order to the Clerk of New York State Supreme Court, Onondaga County, as 28 U.S.C. § 1447(c) requires. IT IS SO ORDERED. Dated: January 23, 2013 Syracuse, New York -11-
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