PHILADELPHIA – A federal judge has granted a stay in and set aside the City of Philadelphia’s attempt to remand litigation surrounding PFAS contamination claims to state court.
U.S. District Court for the Eastern District of Pennsylvania Judge Juan R. Sanchez issued the memorandum opinion on Feb. 7, which handed down a stay in the City’s suit against a host of PFAS-manufacturing and John Doe defendants, pending a decision from the Judicial Panel on Multidistrict Litigation.
“On Nov. 4, 2022, the City of Philadelphia brought suit in the Philadelphia County Court of Common Pleas against 24 corporate defendants and 50 John Does for products liability, nuisance, trespass and negligence. The case arises from defendants’ manufacture and distribution of per- and poly-fluoroalkyl substances, including the aqueous film-forming foam used by firefighters to extinguish flammable liquid fires. The City claims these products dangerously contaminated the environment, by, for example, polluting its drinking water supply. On Dec. 1, 2022, defendants Tyco Fire Products LP and Chemguard, Inc. removed the case to federal court on the basis of federal officer jurisdiction. They allege their AFFF was manufactured in accordance with the Department of Defense’s ‘rigorous specifications’ known as MilSpec, such that they should be considered government contractors and immune from tort liability,” Sanchez said.
“Defendants also notified the JPML of the action, and the JPML issued a Conditional Transfer Order on Dec. 7, 2022, designating the action for transfer to the District of South Carolina as part of MDL No. 2873. On Dec. 15, 2022, the City of Philadelphia filed a notice of opposition to the CTO. The JPML has issued a briefing schedule on the CTO and will hear argument on March 30, 2023. In the meantime, the City filed a motion to remand this case back to state court, arguing defendants’ federal contractor defense is meritless. The City also requests an expedited decision by this Court on the issue of remand. Defendants, in turn, filed a motion to stay the case pending the JPML’s decision on the opposed CTO.”
Sanchez explained that the first issue to be examined was whether the Court should address the City’s motion to remand, or grant the defendants’ motion to stay and wait for a final transfer order from the JPML.
“In assessing whether to stay proceedings pending the resolution of another pending federal action, this Court considers “(1) The promotion of judicial economy; (2) The balance of harm to the parties; and (3) The duration of the requested stay.” As discussed above, granting defendants’ motion to stay and allowing the MDL court to address the City’s motion to remand would promote judicial economy and consistency, especially given the identical defenses in other motions to remand in the AFFF MDL,” Sanchez said.
“As to the balance of harm to the parties, it is true the City may be prejudiced by the delay in the action resulting from the stay. However, the JPML has scheduled a final hearing on the CTO for March 31, 2023, and will likely issue its decision soon after. If it declines to transfer the case, this Court will address the remand issue swiftly. If, on the other hand, the Panel decides to transfer the case to the AFFF MDL, the MDL court will be able to intelligently decide the City’s motion, based on experience, together with similar motions filed by similar plaintiffs. Thus, any delay that the City might suffer from a short stay would not be overly prejudicial, and is indeed often inherent in the MDL process. On the other hand, if a stay is not granted, defendants will need to litigate the same issue in multiple forums. Duplicative litigation is a ‘significant burden’ to both litigants and the judiciary. The balance of harm to the parties tips in favor of granting the stay.”
Sanchez added that the duration of the requested stay will likely be short, given that the JPML has set a hearing date for March – and that if the case were to be transferred, the MDL court’s “prior experience with almost identical motions to remand suggests it will address that motion speedily as well…and the short stay will not unduly prejudice the City.”
“Because the interests of judicial economy are so strong in this case, and the risk of prejudice comparatively slight, the Court exercises its discretion and will grant a stay pending the outcome of the objected-to CTO. The City’s motion to remand will be dismissed without prejudice to reassertion if the JPML declines to transfer this case. Finally, the City’s motion to expedite will be dismissed,” Sanchez stated.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-04779
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com