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Coury v. Air & Liquid Systems Corp.

United States District Court, D. Oregon

February 2, 2018

MELISSA COURY, Personal Representative of the Estate of RAYMOND COURY, Plaintiff,


          Michael H. Simon United States District Judge

         Before the Court are Plaintiff's second motion for remand and first motion for sanctions. Plaintiff originally filed this lawsuit in state court, two Defendants removed the action, and Plaintiff moved for remand. The district court granted Plaintiff's first motion for remand. The same Defendants then removed the case a second time, and Plaintiff has again moved for remand. As Yogi Berra reportedly said, “It's déjà vu all over again.” This time, however, the Court denies Plaintiff's motion for remand for the reasons that follow. The Court also denies Plaintiff's motion for sanctions.


         The standard of review applicable to a motion for remand is the same as that applicable to a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). See Leite v. Crane Co., 749 F.3d 1117, 1121-22 (9th Cir. 2014) (explaining that “[c]hallenges to the existence of removal jurisdiction should be resolved within [the] same framework” as that applicable to motions to dismiss for lack of subject matter jurisdiction, due to “the parallel nature of the inquiry”). Thus, defendants seeking removal bear “the burden of proving by a preponderance of the evidence that each of the requirements for subject-matter jurisdiction” are met. Id. at 1121.


         On February 26, 2016, Plaintiff Melissa Coury (“Plaintiff”), as personal representative of the estate of her father, Raymond Coury, sued eleven defendants in Multnomah County Circuit Court for the State of Oregon. Coury v. Air & Liquid Systems Corporation, No. 16CV06135 (Mult. Cty. Cir. Ct.) (Coury I). Among the named defendants are General Electric Company (“GE”) and CBS Corporation (“CBS”). Plaintiff filed an Amended Complaint on April 8, 2016. Plaintiff alleges that her father died as a result of exposure to asbestos from various equipment while working at Northwest Marine & Iron Works Shipyard and Albina Engine & Machine Works Shipyard. Both shipyards are located in Portland, Oregon, and both serviced military and civilian vessels. Plaintiff did not provide any specific ship information in either the Complaint or the Amended Complaint.

         On May 17, 2016, Plaintiff's counsel sent a declaration to Defendants that stated that Raymond Coury “often worked below deck on naval vessels.” On August 11, 2016, Plaintiff's counsel sent to both GE and CBS (also known as “Westinghouse” in this action) additional information relating to Plaintiff's allegations. This information included a “Ship List” that identified the ships on which Coury allegedly worked, including U.S. Navy vessels. On September 9, 2016, shortly after receiving Plaintiff's Ship List, GE and CBS removed the lawsuit to federal court, based on the federal officer removal statute, 28 U.S.C. § 1442(a)(1). Coury v. Air & Liquid Systems Corporation, No. 3:16-cv-1796-SB (D. Or.) (Coury II). As the basis for their removal, GE and CBS asserted that, in supplying machinery and equipment to the U.S. Navy, GE and CBS were acting under an officer of the United States, within the meaning of the federal officer removal statute.

         On September 22, 2016, Plaintiff moved for remand. Plaintiff argued that she had no evidence that Raymond Coury ever worked on a U.S. Navy ship. Thus, according to Plaintiff, the federal officer removal statute did not apply. In addition, Plaintiff argued that removal was untimely. In support of Plaintiff's motion for remand, Plaintiff's counsel, Jeffrey Mutnick, assured both the federal court and Defendants that Plaintiff did not intend to pursue any claim based on exposure by Raymond Coury aboard a U.S. Navy vessel and that Plaintiff waived any such claims. On March 21, 2017, after a hearing, U.S. Magistrate Judge Stacie Beckerman issued Findings & Recommendation (“F&R”), recommending that the court grant Plaintiff's motion to remand Coury II. Judge Beckerman concluded that, due to “Plaintiff's clarification and waiver of her claims” and because Plaintiff had “explicitly waived any and all claims that could conceivably be brought based on Navy vessel exposure, ” the court lacked federal subject-matter jurisdiction. Judge Beckerman specifically noted that removal jurisdiction was lacking, because Plaintiff stated that she never intended to bring claims based on exposure aboard a U.S. Navy vessel.

         On May 26, 2017, U.S. District Judge Marco Hernandez adopted Judge Beckerman's F&R and remanded the case to state court. On June 1, 2017, the federal court remanded Coury II back to state court. On June 12, 2017, GE and CBS appealed the district court's remand decision to the U.S. Court of Appeals for the Ninth Circuit. That appeal is pending as No. 17-35492 (9th Cir.) (Coury III). On appeal, the parties have filed their opening and answering briefs.

         Notwithstanding the pending appeal, the case was remanded to state court. On July 11, 2017, after the parties were back in state court and while the appeal of the original remand order was progressing before the Ninth Circuit, Plaintiff's counsel, Mr. Mutnick, sent Defendants a request for production of documents in the Coury lawsuit, seeking, among other things: “any evidence which is in your possession and is relevant to the Plaintiff's claim that he [sic] was exposed to asbestos while working in the pump rooms on the USS Franklin D. Roosevelt.” ECF 1-3 at 19 (Request for Production No. 28).

         The next day, July 12, 2017, Randy Iola, a settlement attorney acting on behalf of Plaintiff, sent an email to Richard M. Lauth, counsel for CBS. The subject line of that email read “Raymond Coury (W&K - OR) - CBS/Westinghouse.” In that email, Plaintiff's settlement counsel stated, in relevant part:

Here is what I know about this case in Oregon. Please give me a call after you have a chance to review.
CBS/Westinghouse Equipment Summary
Raymond Coury was diagnosed with mesothelioma on or about March 14, 2014 and passed away on March 19, 2014 at 72 years old. Raymond Coury lived in Portland, OR. He is survived by his daughter Melissa Coury.
From approximately 1960 through the 1990s, Mr. Coury worked as a shipyard worker at Swan Island, a shipyard in Oregon. During this time he was employed by Northwest Machine & Iron Works. US Naval ships were frequently present at Swan Island and Mr. Coury was tasked with overhauling these ships. Naval Ships known to be present and worked on by Mr. Coury include: USS Paul F. Foster (DD-964), USS Henry B. Wilson, and USS Stein (FF/DE-1065). As a shipyard worker, Mr. Coury had to rip out engine rooms, including but not limited to turbines. He was also in the presence of other maintenance personnel working on the engine room equipment.

ECF 1-5 at 2 (emphasis added). As shown in this post-remand email, Mr. Iola represented that “Naval Ships known to be present and worked on by Mr. Coury include: USS Paul F. Foster (DD-964), USS Henry B. Wilson, and USS Stein (FF/DE-1065).” Also in his email, Mr. Iola described the CBS-manufactured (or Westinghouse-manufactured) equipment known to be present on the U.S. Navy vessels USS Paul F. Foster and UUS Stein at the time Raymond Coury worked on those vessels. Id. Mr. Iola invited Mr. Lauth to call to discuss settling the case of Raymond Coury. Id.

         On the same day, July 12, 2017, Mr. Iola sent a similar email to counsel for GE, Paul Slater. ECF 1-4 at 2. Mr. Iola similarly explained in detail the work that Raymond Coury did at Swan Island, including work on the U.S. Navy ships USS Paul F. Foster, the USS Stein, and the USS Henry B. Wilson. Id. Mr. Iola similarly listed the GE-manufactured equipment that was present on the USS Paul F. Foster and USS Henry B. Wilson when ...

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