Clapper, Patti, Schweizer and Mason

The District Court for the Northern District of California stayed the asbestos lawsuit Timothy Vest, et al. v. Allied Packing and Supply, Inc., et al.  The stay was granted to allow defendant McDonnell Douglas Corporation's notice of a tag-along action to transfer the case to the asbestos Multidistrict Litigation, which is pending in the District Court for the Eastern District of Pennsylvania, to be heard.  The Court did not hear Plaintiffs' Emergency Motion to Remand to state court.

In December 2009, Plaintiffs filed an asbestos lawsuit in Alameda Superior Court, alleging in part that Timothy Vest was exposed to asbestos fibers from his father when his father worked at World Airways, Inc. and also when he visited his father at work.  The Complaint also alleged that some McDonnell Douglas aircraft were serviced in the World Airways' hangars. Exposure to asbestos, whether first hand or through fibers carried home on clothes to family members, causes serious and fatal illnesses, such as mesothelioma, asbestosis and lung cancer.  Because manufacturers and employers were aware of such dangers but failed to adequately protect, they are liable for asbestos related injuries caused by exposure.

While the case was pending, one of the defendants, McDonnell Douglas Corporation, removed the action to federal court on the basis of federal officer jurisdiction.  Defendant argued that removal was proper because some of it’s aircraft serviced in the World Airways' hangers were military aircraft.  Federal officer jurisdiction allows a defendant to remove the case to federal court if the defendant can show that the alleged wrongful conduct was done because of directions from a federal office or agency.  See 28 USCS § 1442.  McDonnell Douglas Corporation also filed a Notice of Tag-Along Action, where it contended that the action should be transferred to Multidistrict Litigation No. 875, In re Asbestos Products Liability Litigation (No. 6).  Plaintiffs immediately filed an Emergency Motion to Remand.

The District Court considered that "'In deciding whether to rule on the motion to remand, courts consider whether the motion raises issues likely to arise in other actions pending in the MDL transferee court.' Conroy v. Fresh Del Monte Produce Inc., 325 F. Supp. 2d 1049, 1053 (N.D.Cal.2004)).  The Conroy court laid out a three step approach for addressing simultaneous requests to stay and to remand. First, a court 'should give preliminary scrutiny to the merits of the motion to remand. If this preliminary assessment suggests that removal was improper, the court should promptly complete its consideration and remand the case to state court.' Id. Second, if the question of jurisdiction appears 'factually or legally difficult, the court should determine whether identical or similar jurisdictional issues have been raised in other cases that have been or may be transferred to the MDL proceeding.' Id. Finally, 'if the jurisdictional issue is both difficult and similar or identical to those in cases transferred or likely to be transferred, the court should stay the action.' Id. "  (Court's January 31, 2011 Order Granting Motion to Stay.) 

As the Court could not say that removal to federal court was improper, and because the jurisdictional issue is factually and legally difficult and is being raised in the Multidistrict Litigation proceeding, the Court found that a stay would be warranted.  The Court did note that if the Multidistrict Litigation "proceedings regarding the propriety of transfer become unreasonably protracted, or if Plaintiffs' medical circumstances should change, Plaintiffs may file a motion seeking to lift the stay and obtain a ruling on their motion to remand."  Id.