Morey v. BNSF Railway Company (2023)

Our plain-English summary of Morey v. BNSF Railway Company (U.S. District Court, District of Montana, November 30, 2023).

Karen Morey, a resident of Libby, Montana, sued BNSF Railway in Montana's Asbestos Claims Court. She alleged continuous asbestos exposure and said she developed malignant pleural mesothelioma, diagnosed in November 2022. She asserted negligence and strict liability claims against BNSF. RTX Corporation, a defendant, had removed the case to federal court under the federal officer removal statute. By the time of this order, a co-plaintiff and more than 30 defendants, including RTX, had been dismissed, and BNSF was the only defendant left. The court said it had discretion to keep or remand the case once the federal officer party was gone. It weighed factors including the early stage of the case, with no discovery begun, and comity and federalism. It noted Montana's interest in asbestos cases and the expertise of its specialty court. It also found the complaint, which stated no sum certain, did not show the amount in controversy needed for diversity jurisdiction. The court remanded the case to the Asbestos Claims Court.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, District of Montana
• Decided: November 30, 2023
• Docket: No. CV-23-59-GF-BMM
• Stage: Jurisdiction, venue or removal
• State: Montana

Outcome. The district court remanded Karen Morey's asbestos suit against BNSF Railway to the Montana Asbestos Claims Court after the federal-officer defendant (RTX) was dismissed, so Morey obtained the state forum and BNSF's side lost the federal forum.

What the court held. After the federal officer defendant is dismissed, a district court has discretion to remand the remaining state claims, weighing the stage of the case, comity, federalism, judicial economy and fairness. Here remand was appropriate, and the complaint as pleaded did not show the amount in controversy needed for diversity jurisdiction.

Issues decided: Government Contractor Defense and Removal, Personal Jurisdiction, Venue, Removal and Transfer.

The people and their exposure

• Karen L. Morey (resident): pleural mesothelioma

The defendants

• BNSF Railway Company (railroad)
• RTX Corporation

Mines named here

Asbestos mines this opinion is about. Each mine's page says who ran it, when it worked, and what it produced.

• Libby vermiculite mine, Montana

All asbestos mines

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

KAREN L. MOREY, Plaintiff,

v.

BNSF RAILWAY COMPANY, Defendant.

No. CV-23-59-GF-BMM.

November 30, 2023.

United States District Court, D. Montana, Great Falls Division.

ORDER

BRIAN MORRIS, Chief District Judge.

INTRODUCTION

Plaintiff Karen L. Morey ("Morey") filed this action in the Asbestos Claims Court of the State of Montana, Twenty-Third Judicial District on September 18, 2023. (Doc. 1-2 at 60.) RTX Corporation ("RTX") removed this action on the basis of federal officer removal jurisdiction, pursuant to 28 U.S.C. § 1442(a)(1), on September 29, 2023. (Doc. 1). The Court dismissed Plaintiff Leonard D. Love ("Love") and all of his claims without prejudice on November 27, 2023. (Doc. 167.) RTX is no longer a party to this action because Morey asserts no claim against it. The Court remands this action back to the Asbestos Claims Court of the State of Montana, Twenty-Third Judicial District, based on the following discussion. FACTUAL BACKGROUND

This case concerns alleged asbestos exposure in Libby, Montana. Morey is a resident of Libby, Montana. (Doc. 22 at 3.) Morey claims that she was continuously exposed to asbestos, and, as a result, developed malignant pleural mesothelioma. (Id. at 8.) Morey was diagnosed with mesothelioma in November 2022. (Id.)

LEGAL STANDARD

Federal courts are courts of limited jurisdiction. Federal courts can adjudicate only those cases that the Constitution or Congress authorize them to adjudicate. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). Federal courts maintain an "independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press." Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434, 131 (2011); see also Allstate Ins. Co. v. Hughes, 358 F.3d 1089, 1093 (9th Cir. 2004) (courts retain a sua sponte obligation to examine subject matter jurisdiction even if no party raises the issue.) "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).

DISCUSSION

Former defendant FTX removed this action on the basis of federal officer removal jurisdiction pursuant to 28 U.S.C. § 1442(a)(1). (Doc. 1). Section 1442(a)(1) of Title 28 of the U.S. Code provides in pertinent part:

a) A civil action or criminal prosecution 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. . . .

Id. Federal officer removal is proper where a defendant 1) is a federal officer or a person "acting under" a federal officer; and 2) raises a federal defense. See Mesa v. California, 489 U.S. 121 (1989).

It is widely recognized that a district court retains the discretion to either adjudicate or remand the remaining state claims if the federal officer party is dismissed. See 14C C. Wright & A. Miller, Fed. Prac. & Proc. § 3726, Removal of Particular Cases —Federal Officers and Agencies (Rev. 4th ed.); see also Gulati v. Zuckerman, 723 F. Supp. 353, 359 (E.D. Pa. 1989); Spencer v. New Orleans Levee Bd., 737 F.2d 435, 438 (5th Cir. 1984).

Numerous cases exist where district courts have declined to remand actions after the federal officer party has been dismissed. See, e.g., Myers v. Moore Eng'g, Inc., 42 F.3d 452, 454 (8th Cir. 1994). The Court recognizes that relevant factors in determining whether to remand an action include the stage of the proceedings, the time passed since removal, and considerations of comity, federalism, judicial economy, and fairness. See C. Wright & A. Miller, Fed. Prac. & Proc. § 3726 (Rev. 4th ed.). The Court determines that remand proves appropriate.

This action remains in its early stages, as it originally had been filed in the Montana Asbestos Claims Court on September 18, 2023. (Doc. 1-2 at 60.) Discovery has not yet begun. The Court recently dismissed Morey's co-plaintiff Love and his associated claims. (See Doc. 167.) This dismissal required the removal of more than 30 defendants. (See id.) The parties dismissed include RTX, the party that initiated federal officer removal. (See Doc. 1.) Burlington Northern Santa Fe Railway Company ("BNSF") stands as the only remaining defendant.

The Court recognizes that the plaintiffs filed this action in the Asbestos Claims Court of the State of Montana, a specialty court created by the Montana Supreme Court in 2017 specifically to adjudicate asbestos exposure cases. See In Re Asbestos Litigation, Cause No. AC 17-0694 (Nov. 28, 2017) (order establishing the Asbestos Claims Court and consolidating cases). The Court determines that remanding this action to the Asbestos Claims Court furthers the principles of comity and federalism because it recognizes the interest Montana has in the adjudication of asbestos exposure actions and the subject matter expertise of the Montana Asbestos Claims Court. The Court recognizes further that neither party likely will suffer prejudice by remand because this action remains in its early stages.

A possibility exists, admittedly, that the Court may retain this action pursuant to diversity jurisdiction. See 28 U.S.C. § 1332. Morey asserts two claims for relief against BNSF: 1) a claim of negligence; and 2) a claim of common law strict liability. (See Doc. 1-2 at 25-26.). The complaint states that BNSF is a Delaware corporation with its principal place of business in Texas. (Id. at 12.) The complaint does not provide a sum certain figure, however, for the relief sought by Morey. (See id. at 47-48.) Morey instead seeks "reasonable damages" for the lost enjoyment of her established course of life, for the loss of services, for the physical, mental, and emotional pain, for medical expenses, rehabilitation expenses, and related expenses, for advance payment of medical expenses and special damages not in dispute, and for payment of costs. (Id.) Diversity jurisdiction exists where the plaintiff claims damages of more than $75,000. 28 U.S.C. § 1332(a). A court must determine the amount in controversy from the allegation or prayer of the complaint. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938). The Court determines that this action, as pleaded, fails to meet the requirements for diversity jurisdiction. This factor further supports the Court's determination that remand proves appropriate.

ORDER

Accordingly, IT IS ORDERED:

1. This action is remanded to the Asbestos Claims Court of the State of Montana Twenty-Third Judicial District.

Sources

• The opinion on Google Scholar
• Montana asbestos laws
• Montana asbestos exposure sites