Shonkwiler v. AW Chesterton Company (2017)

Our plain-English summary of Shonkwiler v. AW Chesterton Company (U.S. District Court, Northern District of Ohio, March 17, 2017).

Ralph Shonkwiler and his wife Joyce sued many companies in Ohio state court (Cuyahoga County). They alleged his exposure to asbestos-containing products caused his mesothelioma, and they brought state law claims including negligence, strict liability and loss of consortium. Westinghouse (CBS Corporation) removed the case to federal court under the federal officer statute, citing his alleged exposure to a Navy turbine while he was stationed aboard the U.S.S. Ingram. The plaintiffs later said all claims against Westinghouse were resolved, and the court dismissed it. Warren Pumps opposed remand, but the plaintiffs said Mr. Shonkwiler had identified no Warren product in his deposition, and the court dismissed Warren Pumps too. With no federal question left, the court weighed judicial economy, convenience, fairness and comity. It noted that the case was at an early stage and that it had not ruled on any state law claim. It declined to keep the state claims and remanded the case to the Cuyahoga County Court of Common Pleas.

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, Northern District of Ohio
• Decided: March 17, 2017
• Docket: Case No. 1:16-cv-2749
• Stage: Jurisdiction, venue or removal
• State: Ohio

Outcome. The court granted the Shonkwilers' motion to remand to the Cuyahoga County Court of Common Pleas, after dismissing Westinghouse and Warren Pumps, leaving only state law claims.

What the court held. After the defendants able to invoke the federal officer statute were dismissed, only state law claims remained, and a federal court ordinarily declines supplemental jurisdiction and remands them to state court when the case is at an early stage.

Issues decided: Government Contractor Defense and Removal, Product Identification, Venue, Removal and Transfer.

The people and their exposure

• Ralph T. Shonkwiler: mesothelioma

• Joyce Shonkwiler

Who	Work	Where	When	Products
Ralph T. Shonkwiler	stationed aboard the U.S.S. Ingram (the Navy); military service	U.S.S. Ingram		Navy turbine (Westinghouse)

The defendants

• CBS Corporation (Westinghouse) (manufacturer)
• Warren Pumps (manufacturer)
• A.W. Chesterton Company (manufacturer)

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.

RAPLPH T. SHONKWILER, etal., Plaintiffs,

v.

A.W. CHESTERTON COMPANY, etal., Defendants.

Case No. 1:16-cv-2749.

March 17, 2017.

United States District Court, N.D. Ohio, Eastern Division.

Ralph T Shonkwiler, Plaintiff, represented by James L. Ferraro.

Ralph T Shonkwiler, Plaintiff, represented by Ryan J. Cavanaugh, Kelley & Ferraro & Shawn M. Acton, Kelley & Ferraro. Joyce Shonkwiler, Plaintiff, represented by James L. Ferraro, Ryan J. Cavanaugh, Kelley & Ferraro & Shawn M. Acton, Kelley & Ferraro.

A.W. Chesterton Company, Defendant, represented by John P. Patterson, Tucker Ellis & Ryan T. Winkler, Tucker Ellis. Akron Gasket & Packing Enterprises, Inc., Defendant, represented by Brendan P. Kelley, Tucker Ellis & Laura K. Hong, Tucker Ellis.

Jno J. Disch Co., Defendant, represented by Carol K. Metz, Buckley King, Justin W. Whelan, Buckley King & Theodore M. Dunn, Jr., Buckley King.

IMO Industries, Inc., Defendant, represented by Daniel J. Michalec, Gallagher Sharp, Kevin C. Alexandersen, Gallagher Sharp & Matthew T. Norman, Gallagher Sharp.

Warren Pumps, Inc., Defendant, represented by Brendan P. Kelley, Tucker Ellis & Laura K. Hong, Tucker Ellis. Ingersoll-Rand Corporation, Defendant, represented by Daniel J. Michalec, Gallagher Sharp, Kevin C. Alexandersen, Gallagher Sharp & Matthew T. Norman, Gallagher Sharp.

ITT LLC, Defendant, represented by Steven A. Luxton, Morgan, Lewis & Bockius.

Aurora Pump Division of General Signal Corp., Defendant, represented by Tammy L. Imhoff, Dinsmore & Shohl. Viking Pump, Inc., Defendant, represented by Brendan P. Kelley, Tucker Ellis & Laura K. Hong, Tucker Ellis. Carver Pump Company, Defendant, represented by John A. Kristan, Jr., Kelley Jasons McGowan Spinelli & Hanna & John A. Valenti, Kelley Jasons McGowan Spinelli & Hanna.

Goodyear Tire & Rubber Co., Defendant, represented by Perry W. Doran, II, Vorys, Sater, Seymour & Pease, Richard D. Schuster, Vorys, Sater, Seymour & Pease & Stephen C. Musilli, Vorys, Sater, Seymour & Pease.

Uniroyal Holdings, Inc., Defendant, represented by Angela M. Hayden, Faruki Ireland Cox Rhinehart & Dusing. Greene Tweed & Company, Inc., Defendant, represented by Douglas R. Simek, Sutter O'Connell & Matthew C. O'Connell, Sutter O'Connell.

Zurn Industries, Inc., Defendant, represented by Douglas R. Simek, Sutter O'Connell & Matthew C. O'Connell, Sutter O'Connell.

Red Seal Electric Company, Defendant, represented by John A. Kristan, Jr., Kelley Jasons McGowan Spinelli & Hanna & John A. Valenti, Kelley Jasons McGowan Spinelli & Hanna.

Union Carbide Corporation, Defendant, represented by Perry W. Doran, II, Vorys, Sater, Seymour & Pease, Richard D. Schuster, Vorys, Sater, Seymour & Pease & Stephen C. Musilli, Vorys, Sater, Seymour & Pease.

Clark Industrial Insulation Co., Defendant, represented by John A. Kristan, Jr., Kelley Jasons McGowan Spinelli & Hanna & John A. Valenti, Kelley Jasons McGowan Spinelli & Hanna.

UB West Virginia, Inc., Defendant, represented by Daniel J. Michalec, Gallagher Sharp, Kevin C. Alexandersen, Gallagher Sharp & Matthew T. Norman, Gallagher Sharp.

Georgia-Pacific Corp., Defendant, represented by Christine E. Watchorn, Ulmer & Berne & Timothy M. Fox, Ulmer & Berne. Honeywell International, Inc., Defendant, represented by Joseph D. Silvaggio, Willman & Silvaggio, Melanie M. Irwin, Willman & Silvaggio, pro hac vice & Steven G. Blackmer, Willman & Silvaggio.

Bryan Steam Corp., Defendant, represented by Daniel J. Michalec, Gallagher Sharp, Kevin C. Alexandersen, Gallagher Sharp & Matthew T. Norman, Gallagher Sharp.

Genuine Parts Company, Defendant, represented by Thomas R. Wolf, Reminger & Reminger.

Peerless Industries, Inc., Defendant, represented by Bruce P. Mandel, Ulmer & Berne, James N. Kline, Ulmer & Berne, Kurt S. Siegfried, Ulmer & Berne & Robert E. Zulandt, III, Ulmer & Berne.

Crane Co., Defendant, represented by Michele L. Larissey, Swartz Campbell.

Schneider Electric USA, Inc., Defendant, represented by Barbara J. Arison, Frantz Ward & Jenifer E. Novak, Frantz Ward. Carrier Corporation, Defendant, represented by John P. Patterson, Tucker Ellis & Joseph A. Manno, Tucker Ellis. ITT LLC, Cross Defendant, represented by Steven A. Luxton, Morgan, Lewis & Bockius.

Crane Co., Cross-Claimant, represented by Michele L. Larissey, Swartz Campbell.

Ralph T Shonkwiler, Cross Defendant, represented by James L. Ferraro, Ryan J. Cavanaugh, Kelley & Ferraro & Shawn M. Acton, Kelley & Ferraro.

Honeywell International, Inc., Cross-Claimant, represented by Joseph D. Silvaggio, Willman & Silvaggio, Melanie M. Irwin, Willman & Silvaggio, pro hac vice & Steven G. Blackmer, Willman & Silvaggio.

A.W. Chesterton Company, Cross Defendant, represented by John P. Patterson, Tucker Ellis & Ryan T. Winkler, Tucker Ellis. Akron Gasket & Packing Enterprises, Inc., Cross Defendant, represented by Brendan P. Kelley, Tucker Ellis & Laura K. Hong, Tucker Ellis.

Jno J. Disch Co, Cross Defendant, represented by Carol K. Metz, Buckley King, Justin W. Whelan, Buckley King & Theodore M. Dunn, Jr., Buckley King.

IMO Industries, Inc., Cross Defendant, represented by Daniel J. Michalec, Gallagher Sharp, Kevin C. Alexandersen, Gallagher Sharp & Matthew T. Norman, Gallagher Sharp.

Ingersoll-Rand Corporation, Cross Defendant, represented by Daniel J. Michalec, Gallagher Sharp, Kevin C. Alexandersen, Gallagher Sharp & Matthew T. Norman, Gallagher Sharp.

Aurora Pump Division of General Signal Corp., Cross Defendant, represented by Tammy L. Imhoff, Dinsmore & Shohl. Viking Pump, Inc., Cross Defendant, represented by Brendan P. Kelley, Tucker Ellis & Laura K. Hong, Tucker Ellis. Carver Pump Company, Cross Defendant, represented by John A. Kristan, Jr., Kelley Jasons McGowan Spinelli & Hanna & John A. Valenti, Kelley Jasons McGowan Spinelli & Hanna.

Goodyear Tire & Rubber Co., Cross Defendant, represented by Perry W. Doran, II, Vorys, Sater, Seymour & Pease, Richard D. Schuster, Vorys, Sater, Seymour & Pease & Stephen C. Musilli, Vorys, Sater, Seymour & Pease.

Uniroyal Holdings, Inc., Cross Defendant, represented by Angela M. Hayden, Faruki Ireland Cox Rhinehart & Dusing.

Union Carbide Corporation, Cross Defendant, represented by Perry W. Doran, II, Vorys, Sater, Seymour & Pease, Richard D. Schuster, Vorys, Sater, Seymour & Pease & Stephen C. Musilli, Vorys, Sater, Seymour & Pease.

Clark Industrial Insulation Co., Cross Defendant, represented by John A. Kristan, Jr., Kelley Jasons McGowan Spinelli & Hanna & John A. Valenti, Kelley Jasons McGowan Spinelli & Hanna.

UB West Virginia, Inc., Cross Defendant, represented by Daniel J. Michalec, Gallagher Sharp, Kevin C. Alexandersen, Gallagher Sharp & Matthew T. Norman, Gallagher Sharp.

Georgia-Pacific Corp., Cross Defendant, represented by Christine E. Watchorn, Ulmer & Berne & Timothy M. Fox, Ulmer & Berne.

Bryan Steam Corp., Cross Defendant, represented by Daniel J. Michalec, Gallagher Sharp, Kevin C. Alexandersen, Gallagher Sharp & Matthew T. Norman, Gallagher Sharp.

Genuine Parts Company, Cross Defendant, represented by Thomas R. Wolf, Reminger & Reminger.

Peerless Industries, Inc., Cross Defendant, represented by Bruce P. Mandel, Ulmer & Berne, James N. Kline, Ulmer & Berne, Kurt S. Siegfried, Ulmer & Berne & Robert E. Zulandt, III, Ulmer & Berne.

Schneider Electric USA, Inc., Cross Defendant, represented by Barbara J. Arison, Frantz Ward & Jenifer E. Novak, Frantz Ward.

Carrier Corporation, Cross Defendant, represented by John P. Patterson, Tucker Ellis & Joseph A. Manno, Tucker Ellis. Greene Tweed & Company, Inc., Cross Defendant, represented by Douglas R. Simek, Sutter O'Connell & Matthew C. O'Connell, Sutter O'Connell.

Zurn Industries, Inc., Cross Defendant, represented by Douglas R. Simek, Sutter O'Connell & Matthew C. O'Connell, Sutter O'Connell.

Red Seal Electric Company, Cross Defendant, represented by John A. Kristan, Jr., Kelley Jasons McGowan Spinelli & Hanna & John A. Valenti, Kelley Jasons McGowan Spinelli & Hanna.

Warren Pumps, Inc., Cross Defendant, represented by Brendan P. Kelley, Tucker Ellis & Laura K. Hong, Tucker Ellis. MEMORANDUM OPINION AND ORDER OF REMAND

SARA LIOI, District Judge.

Before the Court is the motion of plaintiffs to remand this case to the Cuyahoga County Court of Common Pleas. (Doc. No. 104 ["Mot."].) Defendant Warren Pumps LLC ("Warren Pumps") filed a brief in opposition (Doc. No. 134 ["Opp'n"]), and plaintiffs filed a combined motion to dismiss Warren Pumps and reply memorandum in support of remand. (Doc. No. 135 ["Reply"].) The remaining defendants have failed to file a response to the motion, and the time for responding has passed. For the reasons discussed below, the motion to remand is granted.

I. BACKGROUND

On July 11, 2016, plaintiffs, Ralph and Joyce Shonkwiler, brought suit in state court against various corporations alleged to have "manufactured, sold, distributed, marketed, supplied, advertised, designed, developed, labeled, researched, and/or installed" products containing asbestos. (Doc. No. 134-1 (Amended Complaint ["Compl."]) ¶¶ 2, 4, 16.) Plaintiffs alleged that Ralph Shonkwiler's exposure to these products "directly and proximately caused him to develop mesothelioma." (Id. ¶ 6.) On its face, the complaint raised only state law claims for negligence, strict liability, breach of express warranty, breach of implied warranty, statutory products liability, conspiracy, and loss of consortium. Plaintiffs seek compensatory and punitive damages, costs, expenses, and attorney's fees.

On November 11, 2016, defendant CBS Corporation ("Westinghouse") removed the action to federal court on the basis of federal question jurisdiction, maintaining that this Court had original subject matter jurisdiction because Ralph Shonkwiler's

alleged exposure to Westinghouse's product, a Navy turbine, occurred while Mr. Shonkwiler was stationed aboard the U.S.S. Ingram. (Doc. No. 1 (Notice of Removal) ¶ 6.) Accordingly, Westinghouse represented that the action could be removed to this Court pursuant to 28 U.S.C. § 1442(a)(1), the federal officer statute, because Westinghouse designed and built the turbine "under the direction of a federal officer or agency[.]". (Id. ¶¶ 7-10.) Upon removal, the Court assumed supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(a). On January 3, 2017, upon plaintiffs' representations that all claims against Westinghouse had been resolved, the Court dismissed Westinghouse from this litigation. (Doc. No. 121; see Doc. No. 103.)

Plaintiffs moved to remand the action on the ground that, with the dismissal of Westinghouse, no federal question remained and the Court lacked subject matter jurisdiction. (Mot. at 720.) Warren Pumps opposed the motion to remand, suggesting that, it too, could rely on the federal officer statute (28 U.S.C. § 1442(a)(1)). While underscoring the fact that there were "no allegations, testimony or document" demonstrating a link between Mr. Shonkwiler's illness and any product manufactured by Warren Pumps, it surmised that any exposure Mr. Shonkwiler would have had to one of its products likely "relate[d] to [Mr. Shonkwiler's] claimed exposures during his military service aboard a Navy vessel." (Opp'n at 797.)

In its motion to dismiss Warren Pumps, plaintiffs represent that "[a]fter a four day discovery deposition, Mr. Shonkwiler did not identify any product that Warren [Pumps] would be responsible for." (Reply at 3069.) Noting that "[u]nder Ohio law, a plaintiff must be able to identify the asbestos-containing products they were exposed to in order to hold a manufacturer liable[,]" plaintiffs insist that dismissal of Warren Pumps is appropriate. (Id., citation omitted.) The Court agrees, and construes plaintiffs' motion to dismiss under Rule 41(a)(2) of the Federal Rules of Civil Procedure as a motion to dismiss a single party under Rule 21 and grants the same. Anticipating Warren Pump's dismissal from this action, plaintiffs posit that all federal questions will be extinguished because no other defendant has indicated that it intends to rely on 28 U.S.C. § 1442(a)(1). (Reply at 3071.)

II. LAW AND DISCUSSION

Since the Court has permitted Westinghouse and Warren Pumps to be dismissed from this action, only state law claims remain, and there is no evidence that any other defendant could invoke the federal officer statute. The Court may, in its discretion, either retain jurisdiction over those state law claims and proceed on the merits, Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639-40, 129 S. Ct. 1862, 173 L. Ed. 2d 843 (2009), or decline jurisdiction and remand the complaint to the state court. See 28 U.S.C. § 1367(c)(3). When determining whether to exercise supplemental jurisdiction, "a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity[.]" Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S. Ct. 614, 98 L. Ed. 2d 720 (1988).

"Comity to state courts is considered a substantial interest; therefore, [the] Court applies a strong presumption against the exercise of supplemental jurisdiction once federal claims have been dismissed—retaining residual jurisdiction `only in cases where the interests of judicial economy and the avoidance of multiplicity of litigation outweigh [any] concern over needlessly deciding state law issues.'" Packard v. Farmers Inc. Co. of Columbus Inc., 423 F. App'x 580, 584 (6th Cir. 2011) (quoting Moon v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006) (further citation omitted)). "[G]enerally `[w]hen all federal claims are dismissed before trial, the balance of considerations usually will point to dismissing the state law claims, or remanding them to state court if the action was removed.'" Id. at 585 (quoting Musson Theatrical v. Fed. Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996) (further citations omitted)).

Here, this matter is in an early pretrial procedural posture. The Court has yet to set any dates and deadlines. Additionally, the Court has not had the opportunity to rule on the substance of any of the state law claims. Under these circumstances, judicial economy and the avoidance of multiplicity of litigation do not counsel in favor of retaining this case. Accordingly, the balance of considerations points toward returning the state law claims raised in the complaint to state court. See Moon, 465 F.3d at 728 (where federal claims have been dismissed before trial, a federal court ordinarily should not reach the plaintiffs' state law claims) (citations omitted); Thurman v. DaimlerChrysler, Inc., 397 F.3d 352, 359 (6th Cir. 2004) (similar) (citations omitted).

In reaching this conclusion, the Court rejects the argument of Warren Pumps—made prior to its dismissal—that plaintiffs may not defeat federal jurisdiction by dismissing certain parties. (Opp'n at 797.) A decision relied upon by Warren Pumps, St. Paul Mercury Indem. Co. v. Red. Cab Co., 303 U.S. 283, 58 S. Ct. 586, 82 L. Ed. 2d 845 (1938), actually illuminates the

weakness of this argument. There, a plaintiff brought suit in state court demanding damages in excess of the federal jurisdiction amount for diversity cases. Id. at 284-85. After the defendant removed on diversity grounds, plaintiffs attempted to return to state court by amending the complaint demanding less than the jurisdictional amount to defeat jurisdiction. Id. at 285. Following a trial and appeal, on certiorari review, the Supreme Court held that plaintiff could not escape the reach of federal jurisdiction by altering the jurisdictional amount. Id. at 293.

In so ruling, the Court distinguished cases, such as the present one, where a plaintiff had resolved all claims with parties who could invoke federal subject matter jurisdiction:

In the case of a separable controversy, if, after removal, the plaintiff discontinues or dismisses as to the defendant who removed, so that there no longer exists any separable controversy, the cause must be

remanded. If a cause be removed on this ground the whole case, including the controversy between citizens of the same state, is taken over by the federal court only because one or more of the defendants is entitled to invoke its jurisdiction. The basis of federal jurisdiction failing, it is proper that the remaining parties, who were involuntarily taken into the federal court, should, upon the cessation of the separable controversy which was the cause of their transmission to another tribunal, have their case returned to state court.

Id. at 295 (footnote omitted) (emphasis added). Likewise here, having dismissed the only parties that appear to be able to invoke federal subject matter jurisdiction, remand to state court is warranted.

III. CONCLUSION

For all of the foregoing reasons, plaintiffs' motion to remand (Doc. No. 104) is granted, and this matter is remanded to the Cuyahoga County Court of Common Pleas.

IT IS SO ORDERED.

Sources

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