Breuer v. Weyerhaeuser NR Company

• Court: District Court, W.D. Washington
• Decided: July 24, 2020
• Docket: 2:20-cv-00479
• Status: Unknown

Opinion

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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 10 ALEX BREUER, et al., CASE NO. C20-0479JLR 11 Plaintiff, ORDER GRANTING v. PLAINTIFFS’ MOTION TO 12 DISMISS WITHOUT PREJUDICE WEYERHAEUSER NR 13 COMPANY, 14 Defendant. 15 I. INTRODUCTION 16 Before the court is Plaintiffs Alex Breuer, Clarence Brigner, Cynthia Hodo, Agwu 17 Mong, Marquise Murphy, Deantwon Norris, Devin Pettis, and Angelo Junkins’ 18 (collectively, “Plaintiffs”) motion to dismiss without prejudice. (MTD (Dkt. # 18).) 19 Defendant Weyerhaeuser NR Company (“Weyerhaeuser”) opposes the motion. (MTD 20 Resp. (Dkt. # 20).) The court has considered the motion, the relevant portions of the 21 // 22 1 record, and the applicable law. Being fully advised,1 the court GRANTS Plaintiffs’ 2 motion to dismiss this action without prejudice, and GRANTS Weyerhaeuser’s request

3 for reasonable costs and fees. 4 II. BACKGROUND 5 Plaintiffs are residents of midwestern states who allege injuries due to exposure to 6 “Flak Jacket” (Compl. (Dkt. # 1-2) ¶¶ 4, 6), which is “a proprietary fire-retardant 7 coating” “used to enhance the fire resistance of [Weyerhaeuser’s] joists” (see Answer 8 (Dkt. # 13) ¶ 2). The fourth generation of Flak Jacket “contains a formaldehyde-based

9 resin” (id. ¶ 3), and “Plaintiffs, who worked constructing homes with joists and removing 10 defective joists,” allege that they “were unknowingly exposed to dangerous levels of 11 formaldehyde” while working around Flak Jacket (Compl. ¶ 6). 12 On March 16, 2020, Plaintiffs filed suit against Weyerhaeuser, a Seattle 13 corporation, in King County Superior Court, alleging violations of the Washington

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1 Weyerhaeuser requests oral argument (see MTD Resp. at 1), but Plaintiffs do not (see 16 MTD at 1). Oral argument is only necessary “when a party would suffer unfair prejudice as a result” of the court’s refusal to hear oral argument. Mahon v. Credit Bureau of Placer Cty. Inc., 17 171 F.3d 1197, 1200 (9th Cir. 1999) (citing Houston v. Bryan, 725 F.2d 516, 518 (9th Cir. 1984)). Parties suffer no prejudice when they have “provided the district court with complete 18 memoranda of the law and evidence in support of their respective positions.” Mahon, 171 F.3d at 1200. When the only prejudice a party suffers is the court’s “adverse ruling on the motion[,] 19 [t]his is not sufficient to establish the required showing of prejudice.” Id. (citing Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998)). “When a party has an adequate opportunity to 20 provide the trial court with evidence and a memorandum of law, there is no prejudice [in refusing to grant oral argument].” Partridge, 141 F.3d at 926 (quoting Lake at Las Vegas Inv’rs Grp., Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991)) (alterations in 21 Partridge). Here, the issues have been thoroughly briefed by the parties, and oral argument would not be of assistance to the court. See Local Rules W.D. Wash. LCR 7(b)(4). 22 Accordingly, the court DENIES Weyerhaeuser’s request for oral argument. 1 Products Liability Act, RCW 7.72 et seq. (Id. ¶¶ 27-39.)2 On March 27, 2020, Plaintiffs’ 2 counsel emailed Weyerhaeuser’s counsel “to ask whether Weyerhaeuser would authorize

3 its counsel to accept service of the suit and enclosed a copy of the complaint and 4 summons.” (MTR (Dkt. # 14) at 7.) After receiving the email, “Weyerhaeuser evaluated 5 its options for one business day and filed its [n]otice of [r]emoval the following day.” 6 (MTR Resp. (Dkt. # 16) at 8.)3 Plaintiffs initially filed a motion to remand (see generally 7 MTR) but withdrew that motion before it noted for the court’s consideration (Not. of 8 Withdrawal (Dkt. # 17) at 1).

9 Plaintiffs now seek to voluntarily dismiss their case so that they may refile in King 10 County Superior Court. (See MTD at 7.) Plaintiffs allege violations of Washington State 11 law, are suing a corporation headquartered in Seattle, “and wish to have [their] claims 12 heard in King County Superior Court, preferably as plaintiffs in the Boudreaux matter 13 which is set for trial in [January 2021].” (Id.) Plaintiffs assert that Weyerhaeuser will not

14 suffer prejudice if this case is voluntarily dismissed and Plaintiffs refile in state court. 15 (Id. at 7-10.) Weyerhaeuser asserts that “Plaintiffs’ motion to dismiss their suit is a 16

2 Plaintiffs’ counsel previously filed two lawsuits alleging injuries sustained due to 17 exposure to Flak Jacket in King County Superior Court: Tango v. Weyerhaeuser, King County Case No. 17-2-26527-6-SEA, which has been resolved, and Boudreaux v. Weyerhaeuser, King 18 County Case No. 17-2-26527-6-SEA, which is set for trial on January 25, 2021. (Reply (Dkt. # 22) at 5.) 19 3 In removing the action to this court before Plaintiffs could “properly join[] and serve[]” 20 Weyerhaeuser, see 28 U.S.C. § 1441(b)(2), Weyerhaeuser engaged in a practice known as “snap removal,” a controversial procedural practice that seeks to avoid the forum defendant rule. See Amir Schachmurove, Making Sense of the Resident Defendant Rule, 52 U.C. Davis L. Rev. 21 Online 203, 214-15 (2019). The Ninth Circuit has not yet determined whether snap removal comports with 28 U.S.C. § 1441’s requirements, but the majority view among federal circuits is 22 that it does not. See id. at 207. 1 backdoor attempt to accomplish what their previously filed motion to remand could not— 2 to obtain what they think is a more favorable forum in state court.” (MTD Resp. at 6.)

3 Weyerhaeuser also argues that it will suffer prejudice if Plaintiffs’ motion is granted. 4 (Id.) The court now considers whether dismissal without prejudice is appropriate. 5 III. ANALYSIS 6 A. Legal Standards 7 Federal Rule of Civil Procedure 41(a)(2) states that, after a defendant serves an 8 answer, and absent a stipulation by all parties who have appeared, “an action may be

9 dismissed at the plaintiff’s request, only by court order, on terms that the court considers 10 proper.” Fed. R. Civ. P. 41(a)(2). A motion for voluntary dismissal under Rule 41(a)(2) 11 “is addressed to the sound discretion of the District Court, and its order will not be 12 reversed unless [it] has abused its discretion.” Hamilton v. Firestone Tire & Rubber Co., 13 679 F.2d 143, 145 (9th Cir. 1982). “A district court should grant a motion for voluntary

14 dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain 15 legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). Thus, 16 the court must determine whether Weyerhaeuser will suffer plain legal prejudice if 17 Plaintiffs voluntarily dismiss this case. 18 “Legal prejudice” is “prejudice to some legal interest, some legal claim, [or] some

19 legal argument.” Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996). 20 “For example, in determining what will amount to legal prejudice, courts have examined 21 whether a dismissal without prejudice would result in the loss of a federal forum, or the 22 right to a jury trial, or a statute-of limitations defense.” Id. However, the loss of a federal 1 forum does not constitute prejudice to forum defendants. See Lively v. Wild Oats Mkts., 2 Inc., 456 F.3d 933, 940 (9th Cir. 2006). “Removal based on diversity jurisdiction is

3 intended to protect out-of-state defendants from possible prejudices in state court. . . . The 4 need for such protection is absent, however, in cases where the defendant is a citizen of 5 the state in which the case is brought.” Id.; see also Charles Warren, New Light on the 6 History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 83 (1923) (“The chief 7 and only real reason for this diverse citizenship jurisdiction was to afford a tribunal in 8 which a foreigner or citizen of another State might have the law administered free from

9 the local prejudices or passions which might prevail in a State Court against foreigners or 10 non-citizens.”). Moreover, “[p]lain legal prejudice . . . does not result simply when [the] 11 defendant faces the prospect of a second lawsuit,” has “begun trial preparations,” or 12 “when [the] plaintiff merely gains some tactical advantage.” Hamilton, 679 F.2d at 145 13 (affirming a grant of voluntary dismissal when the district court awarded costs to the

14 defendant upon dismissal to avoid prejudice). 15 B. Plaintiffs’ Motion 16 Weyerhaeuser asserts that the court should deny Plaintiffs’ motion because “[t]he 17 legal prejudice that such efforts would inflict upon Weyerhaeuser is plain.” (MTD Resp. 18 at 7.) Weyerhaeuser avers that “Plaintiffs have withdrawn their remand motion and

19 supplanted it with a motion for voluntary dismissal in an attempt to frustrate the removal 20 statutes and forum shop.” (Id. at 8.) Because Weyerhaeuser has the burden to establish 21 plain legal prejudice, see Smith, 263 F.3d at 975, the court considers each of 22 Weyerhaeuser’s arguments against Plaintiffs’ motion (see MTD Resp. at 7-11). 1 1. Forum Shopping 2 Weyerhaeuser first argues that Plaintiffs’ motion is motivated by forum shopping

3 and will “frustrate Weyerhaeuser’s procedural rights to remove this case.” (Id. at 8.) 4 Although granting Plaintiffs’ motion will allow Plaintiffs to refile their case in state court, 5 this does not amount to plain legal prejudice. See Smith, 263 F.3d at 976 (“[T]he need to 6 defend against state law claims in state court is not ‘plain legal prejudice’ arising from 7 voluntary dismissal of the federal claims in the district court.”); Hamilton, 679 F.2d at 8 145; see also Westlands, 100 F.3d at 97 (citing Am. Nat’l Bank & Trust Co. of Sapulpa v.

9 Bic Corp., 931 F.2d 1411, 1412 (10th Cir. 1991) (“The possibility that plaintiffs may gain 10 a tactical advantage by refiling in state court is insufficient to deny a voluntary motion to 11 dismiss without prejudice especially when state law is involved.”)). 12 There is little concern that Weyerhaeuser will suffer prejudice if Plaintiffs refile in 13 King County Superior Court because, as a corporation headquartered in Washington

14 State, Weyerhaeuser is a forum defendant. See Lively, 456 F.3d at 940 (9th Cir. 2006). 15 Weyerhaeuser’s need for protection from out-of-state biases is “absent” in King County 16 Superior Court because Weyerhaeuser is headquartered in King County. See id. 17 Therefore, the prejudice that an out-of-state defendant might face when defending itself 18 in Washington’s state court system is not present here.

19 Weyerhaeuser relies on out-of-circuit authority to bolster its argument. (See, e.g., 20 MTD Resp. at 8 (citing Hayden v. Westfield Ins. Co., No. CIV.A. 12-0390, 2013 WL 21 5781121, *2 (W.D. Pa. Oct. 25, 2013); In re Rezulin Prods. Liab. Litig., No. 00-cv-2842, 22 2002 WL 31002809, *1 (S.D.N.Y. Sept. 2, 2002)).) However, the facts of those cases are 1 distinguishable from the present case. In Hayden, for example, the “case [had] 2 progressed through vigorous litigation and motions practice . . . for over a year and a

3 half.” 2013 WL 5781121, at *7. In Rezulin, the plaintiff seeking dismissal had already 4 had her motion to remand denied, “questionably” sought dismissal because “she ‘no 5 longer wished to proceed with her claim,’” and gave “no reason why any dismissal 6 should be without prejudice.” 2002 WL 31002809, *1. This case is still in its inception, 7 meaning the loss of this forum will have a minimal impact on Weyerhaeuser. Moreover, 8 the court did not rule on Plaintiffs’ motion to remand, and it is Weyerhaeuser’s burden to

9 establish that it will suffer prejudice as a result of dismissal. See Smith, 263 F.3d at 975. 10 Indeed, Weyerhaeuser appears more concerned that this case might be 11 consolidated with another Flak Jacket case than the fact that it may have to litigate in 12 King County Superior Court. (See MTD Resp. at 11 (“Plaintiffs’ voluntary dismissal 13 directly affects Weyerhaeuser’s ability to defend this action, as it might be consolidated

14 with an entirely distinct case with different plaintiffs that has been pending for years.”).) 15 However, the mere possibility that this case might be consolidated with another does not 16 amount to prejudice, even if it gives Plaintiffs “some tactical advantage.” See Hamilton, 17 679 F.2d at 145. Weyerhaeuser does not contend that it will be unable to assert the same 18 defenses or that its ability to conduct discovery will be hampered in King County

19 Superior Court, even if the cases are consolidated. (See generally MTD Resp.) Although 20 Plaintiffs would prefer to consolidate this case with the Boudreaux matter (see MTD at 21 7), it is ultimately up to that court to determine whether the cases are “entirely distinct” 22 // 1 and should or should not be consolidated, see Wash. King Super. Ct. Civ. R. 42 2 (requiring a motion to consolidate cases).

3 2. Avoiding a Near-Certain Adverse Ruling 4 Weyerhaeuser next asserts that “Plaintiffs cannot use voluntary dismissal to avoid 5 a near-certain adverse ruling” on their withdrawn motion to remand. (See MTD Resp. at 6 8.) Weyerhaeuser cites Maxum Indemnity Insurance Co. v. A-1 All American Roofing 7 Co., 299 F. App’x 664, 666 (9th Cir. 2008), to support its claim. In that case, the Ninth 8 Circuit notes that “[a] district court may consider whether the plaintiff is requesting a

9 voluntary dismissal only to avoid a near-certain adverse ruling.” Id. (citing Terrovona v. 10 Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988)). In both Maxum and Terrovona, however, 11 the plaintiffs attempted to avoid substantive rulings on the merits of the case. See 12 Maxum, 299 F. App’x at 665 (“The district court denied [the plaintiff’s] Rule 41(a)(2) 13 motion . . . [and] then granted summary judgment to [the defendants].”); Terrovana, 852

14 F.2d at 426 (“Three months after the state moved for summary judgment . . . [the 15 plaintiff] filed a motion . . . to dismiss the petition without prejudice.”). Weyerhaeuser 16 also relies on Corales v. Flagstar Bank, FSB, No. C10-1922JLR, 2011 WL 1584284 17 (W.D. Wash. Apr. 26, 2011), another case in which the plaintiffs sought dismissal after 18 the defendant filed a motion for summary judgment, but this court found abuse in

19 Flagstar only after determining that the plaintiffs were “attempting to use the federal 20 courts as a tool to improperly delay adjudication of issues presently before the court.” Id. 21 at *6. Even if Plaintiffs’ motion to voluntarily dismiss this case is an attempt to avoid an 22 // 1 adverse ruling on their motion to remand, Plaintiffs are not seeking dismissal to avoid a 2 ruling on the merits of the case, as in Weyerhaeuser’s cited authority.

3 Moreover, Weyerhaeuser substantially overstates its position in asserting that 4 Plaintiffs necessarily faced a “near-certain adverse ruling” on their motion to remand. 5 (See MTD Resp. at 8.) Snap removal is a controversial procedure and its compliance 6 with the removal statute, 28 U.S.C. § 1441, is questionable. See Schachmurove, supra, at 7 214. Moreover, Weyerhaeuser’s position appears to be the minority view among the 8 courts that have ruled on the matter. See id. at 207 (“At present, an apparent majority

9 prohibits this pre-service removal tactic in the face of tenacious protests by a passionate 10 minority.”); see also Hawkins v. Cottrell, Inc., 785 F. Supp. 2d 1361, 1378 (N.D. Ga. 11 2011) (“The 1948 changes to the removal statute were . . . not intended to allow a forum 12 defendant who had not been served to remove an action.”); but see Colo. Seasons, Inc. v. 13 Friedenthal, No. LA CV 19-09050 JAK (FFMx), 2020 U.S. Dist. LEXIS 84645, *8 (C.D.

14 Cal. May 13, 2020) (“Permitting snap removal does not necessarily cause an absurd 15 result. Nor is it contrary to the clearly expressed intent of Congress.”). Thus, 16 Weyerhaeuser’s contention that “[g]ranting this motion will undermine the authority [it] 17 cited in its opposition to the motion for remand” is unconvincing and, more importantly, 18 fails to establish any plain legal prejudice.4 (See MTD Resp. at 9.)

19 20 4 Because Plaintiffs’ motion to remand is no longer before the court, and because the court grants Plaintiffs’ motion to voluntarily dismiss this case without prejudice, it is 21 unnecessary for the court to determine whether Weyerhaeuser’s snap removal in this case was proper. Nevertheless, the court notes that Weyerhaeuser’s use of snap removal calls into 22 question Weyerhaeuser’s representations that Plaintiffs would have faced near-certain defeat on 1 3. Pyrrhic Victories for Defendants 2 Weyerhaeuser next argues that “[t]he rules regarding removal would be reduced to

3 a nullity if Plaintiffs are simply able to dismiss and refile with impunity.” (Id.) 4 Weyerhaeuser contends that removal amounts to no more than “[p]yrrhic victories for 5 defendants seeking to exercise their statutory rights” if the court dismisses plaintiffs’ suits 6 and allows them to refile in state court. To avoid triggering a “never-ending cycle of 7 removals and dismissals” after granting a Rule 41(a)(2) motion to dismiss, courts 8 generally impose certain conditions on plaintiffs or grant reasonable costs and fees. See

9 Lang v. Mfrs. & Traders Trust Co., 274 F.R.D. 175, 186 (D. Md. 2011). “Rule 41(a)(2) 10 allows the court to grant a plaintiff’s dismissal motion only with appropriate terms and 11 conditions to protect the defendant from prejudice.” U.S. ex rel. Sequoia Orange Co. v. 12 Baird-Neece Packing Corp., 151 F.3d 1139, 1145 (9th Cir. 1988). For example, in Lang, 13 the court conditioned dismissing the plaintiffs’ case on the plaintiffs’ agreement that,

14 should they refile in state court, they would demand less than $75,000.00 in damages so 15 the case could no longer be removed on diversity grounds. See Lang, 274 F.R.D. at 186. 16 In Hamilton, the Ninth Circuit determined that “the District Court addressed and disposed 17 of the issue of possible prejudice by awarding costs to [the] defendant upon dismissal.” 18 679 F.2d at 145; see also Westlands, 100 F.3d at 97 (“The defendants’ interest can be

19 protected by conditioning the dismissal without prejudice upon the payment of 20 appropriate costs and attorney fees.”). 21

their motion to remand. See Hawkins, 785 F. Supp. 2d at 1361; but see Colo. Seasons, 2020 U.S. 22 Dist. LEXIS 84645, at *8. 1 Indeed, costs and fees “are often imposed upon a plaintiff who is granted 2 voluntary dismissal under [Rule] 41(a)(2).” Stevedoring Servs. of Am. v. Armilla Int’l

3 B.V., 889 F.2d 919, 921 (9th Cir. 1989); see also Marlow v. Winston & Strawn, 19 F.3d 4 300, 306 (7th Cir. 1994) (“As a general rule, an award of reasonable attorneys’ fees, less 5 any fees for work that may be utilized in subsequent litigation of the same claim, is an 6 entirely appropriate condition of dismissal.”). In this case, the only prejudice 7 Weyerhaeuser will suffer upon dismissal is in the form of the fees it expended in federal 8 court for purposes that cannot be used in state court. The court recognizes that

9 Weyerhaeuser “expend[ed] considerable resources with respect to the remand motion.” 10 (See MTD Resp. at 14.) Specifically, Weyerhaeuser requests “the payment of 11 Weyerhaeuser’s reasonable costs and attorney fees for responding to Plaintiffs’ motion 12 for remand.” (Id. at 15.) Thus, to avoid prejudicing Weyerhaeuser, the court GRANTS 13 Weyerhaeuser’s request for its reasonable fees incurred in responding to Plaintiffs’

14 motion to remand. (See generally MTR; MTR Resp.) 15 IV. CONCLUSION 16 For the reasons set forth above, the court GRANTS Plaintiffs’ motion to dismiss 17 without prejudice (Dkt. # 18). The court ORDERS Plaintiffs to pay the reasonable 18 expenses, including attorneys’ fees, Weyerhaeuser incurred in responding to Plaintiffs’

19 withdrawn motion to remand. Weyerhaeuser shall submit a memorandum setting forth 20 its reasonable attorneys’ fees and expenses, along with supporting declarations and 21 // 22 // 1 documentation, by no later than seven (7) days from entry of this order. Plaintiffs may 2 file a response within seven (7) days of their receipt of Weyerhaeuser’s memorandum.

3 Dated this 24th day of July, 2020. 4

5 A 6 7 JAMES L. ROBART United States District Judge 8

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