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Date: 05-03-2023
Case Style:
Case Number: 1:22-cv-4611
Judge: Noel L. Hillman
Court: United States District Court for the District of New Jersey (Camden County)
Plaintiff's Attorney:
Defendant's Attorney: THEODORE V. WELLS, JR.
Description: Newark, New Jersey personal injury lawyer represented Plaintiff who sued Defendant on product liability theory.
In March and June of 2022, Plaintiffs filed their complaints in the Superior Court of New Jersey, docketed as follows: Baker, et al. v. A. Clemente, Inc., et al., Case No. SLM-L-000098-22; Medford, et al. v. Clemente, Inc., et al., Case No. SLM-L-000046-22; Wilson v. Clemente, Inc., et al., Case No. MID-L-001204-22; Elizabeth Kulik, v. A. Clemente, Inc., et al., Case No. SLM-L-000100-22; Elizabeth Leptien, v. A. Clemente, Inc. et al., Case No. SLM-L-000099-22.
The complaints seek to recover for personal injuries caused by Defendants' alleged improper disposal, use, and discharge of “toxic and dangerous chemicals and substances” including poly-and perfluoroalkyl substances (&ldquo ;PFAS”), halogenated hydrocarbons, heavy metals, freons, industrial alcohols and solvents, “numerous mixtures and wastes consisting of multiple compounds, substances, and/or products,” polycyclic aromated hydrocarbons (“PAHs”), and “particulate matter and airborne waste.” (Baker Compl. at ¶¶ 3-4).[3]
Plaintiffs contend that these chemicals cause a variety of severe diseases, persist in the environment, and that “mixed” exposures can enhance the harm experienced by those who are exposed. (Id. at ¶ 5-6, 44). Plaintiffs allege that “although the calculation of the precise dose of exposure to each toxin or mixture (and to the aggregate of all exposures) is not presently known, these exposures, from both a qualitative and quantitative perspective, are more than sufficient to have caused the injured Plaintiff's injuries.” (Id. at ¶ 10). Plaintiffs allege that PFAS chemicals were produced at the West Deptford facility since before 1990. (Id. at ¶¶ 62-73). Plaintiffs note that the various chemicals alleged were produced at the Chambers Works facility starting as early as 1891. (Id. at ¶¶ 74-95). Plaintiffs allege that “Defendants knew or should have known of the severe and adverse health and environmental effects and impacts of PFAS and other toxins.” (Id. at ¶ 107). Plaintiffs specifically disclaim harm arising from DuPont's government contracts. (Id. at ¶ 119).
DuPont was served the complaints on March 23, 2022 (Medford Compl.); April 4, 2022 (Wilson Compl.); and June 21, 2022 (Baker Compl., Kulik Compl., Leptien Compl.). DuPont subsequently removed these five cases to this Court April 22, 2022 (Medford Compl.); April 25, 2022 (Wilson Compl.); and July 15, 2022 (Baker Compl., Kulik Compl., Leptien Compl.), respectively, asserting that it had basis to remove under 28 U.S.C. § 1442(a)(1). (Notices of Removal at ¶ 1).[4] On October 11, 2022, Plaintiffs filed a motion to remand and supporting brief. (ECF 53, 54). DuPont filed its response on November 7, 2022, (ECF 66), and Plaintiffs filed their reply on November 14, 2022. (ECF 67). Plaintiffs' Motion to Remand is now ripe for adjudication.
* * *
28 U.S.C. § 1442(a)(1) provides that a defendant may remove a civil suit brought in state court “to the district court of the United States for the district and division embracing the place wherein it is pending” if the defendant is “[t]he 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 . . . .” See 28 U.S.C. §1442(a)(1). Section 1442(a) is considered “an exception to the well-pleaded complaint rule, under which (absent diversity) a defendant may not remove a case to federal court unless the plaintiff's complaint establishes that the case arises under federal law.” Kircher v. Putnam Funds Trust, 547 U.S. 633, 644 n.12, (2006) (internal quotation marks and citation omitted). Therefore, a matter “may be removed despite the nonfederal cast of the complaint; the federal-question element is met if the defense depends on federal law.” Jefferson Cty., Ala. v. Acker, 527 U.S. 423, 431 (1999).
It is well settled that the language of this statute is “to be liberally construed in favor of the federal forum.” Cessna v. REA Energy Cooperative, Inc., 753 Fed.Appx. 124, 127 (3d Cir. 2018) (citations omitted)); see also Willingham v. Morgan, 395 U.S. 402, 406 (1969) (noting that the scope of the federal officer removal statute “is not ‘narrow' or ‘limited'”). This is because the purpose of § 1442(a)(1) is to “ensure a federal forum in any case where a federal official is entitled to raise a defense arising out of his official duties.” Arizona v. Manypenny, 451 U.S. 232, 241 (1981). “[O]ne of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court.” Willingham, 395 U.S. at 407.
“The party asserting jurisdiction bears the burden of showing that at all stages of the litigation the case is properly before the federal court.” Samuel-Bassett v. KIA Motors America, Inc., 357 F.3d 392, 396 (3d Cir. 2004). In order to properly remove a case from state court to federal court on such a basis, the defendant bears the burden of showing:
(1) [the defendant] is a “person” within the meaning of the statute; (2) the [plaintiff's] claims are based upon the [defendant's] conduct “acting under” the United States, its agencies, or its officers; (3) the [plaintiff's] claims against [the defendant] are “for, or relating to” an act under color of federal office; and (4) [the defendant] raises a colorable federal defense to the [plaintiff's] claims.
Papp v. Fore-Kast Sales Co., 842 F.3d 805, 812 (3d Cir. 2016). Moreover, a “motion to remand shares essentially identical procedural posture with a challenge to subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)” and therefore it should be “evaluated using the same analytical approach.” Id. at 811.
Subject matter jurisdiction can be challenged either through a facial or a factual attack. Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial attack “challenges subject matter jurisdiction without disputing the facts alleged in the [notice of removal], and it requires the court to consider the allegations . . . as true.” Id. (internal quotation marks and citations omitted). In contrast, a factual attack “disputes ‘the factual allegations underlying the [] assertion of jurisdiction,' and involves the presentation of competing facts.” Papp, 842 F.3d at 811 (quoting Davis, 824 F.3d at 346). Accordingly, a factual challenge allows “a court [to] weigh and consider evidence outside the pleadings.” Davis v. Wells Fargo, 824 F.3d at 346.
18:1349 CONSPIRACY TO COMMIT HEALTH CARE FRAUD AND MAIL FRAUD (DOO 1/2015 THRU 3/2021)
(1)
18:1341 AND 2 MAIL FRAUD (DOO 3/14/2016 THRU 3/16/2016)
(2-3)
18:1001(a)(2) FALSE STATEMENTS (DOO 3/29/2021)
(4)
21:843(a)(3) AND 18:2 ACQUIRING OXYCODONE THROUGH MISREPRESENTATION, FRAUD, AND FORGERY (DOO 6/2015 THRU 3/27/2019)
(5)
Outcome: For the reasons expressed above, Plaintiffs' Motion to Remand this matter to state court, (ECF No. 53), will be denied.
An appropriate Order will be entered.
Plaintiff's Experts:
Defendant's Experts:
Comments: