United States District Court, D. Oregon
MELISSA COURY, Personal Representative of the Estate of RAYMOND COURY, Plaintiff,
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.
OPINION AND ORDER
Michael H. Simon United States District Judge
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.
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.
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.
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.
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.
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.
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).
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.
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 ...