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E-Alert Case Updates

Although Removal Was Timely, Court Abstains from Exercising Jurisdiction Due to Parallel State Court Case

Ackerman v. ExxonMobil Corporation, et al.
No. WDQ-11-3442 (D. Md., January 12, 2012)

by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (

In 2004, hundreds of Fallston, Maryland, residents filed a putative class action (“Koch”) against ExxonMobil Corporation (“Exxon”) and Mr. Hicks (collectively, “the Defendants”), alleging that gasoline at a nearby Exxon station operated by Mr. Hicks contaminated the well-water supply on their residential properties. Exxon removed the case, and then it was transferred to the Multidistrict Litigation Panel and assigned to the Southern District of New York.

In 2006, document discovery began in Koch, and the Defendants deposed the named class representatives. In 2007, Koch was remanded to Harford County Circuit Court, after the Second Circuit decided the case had been removed improperly. In 2009, the Defendants again deposed the named class representatives. In 2010, the Circuit Court for Harford County certified the class. In 2011, the Plaintiffs reiterated their document requests from 2006, and the Defendants deposed the Plaintiffs’ expert and received thousands of documents from her files. The parties also served Interrogatories and Requests for Production of Documents, and exchanged thousands of documents and photographs. Later that same year, the Court decertified the class, and asked the Koch Plaintiffs to file new actions for the former class members, which the Court intended to consolidate with Koch. On November 2, 2011, more than 750 class members filed the instant action (“Ackerman”) in the Harford County Circuit Court, asserting the same facts and state law causes of action as in Koch. On November 29, 2011, the Defendants removed Ackerman. After that, the Plaintiffs amended Ackerman to include all of the same Plaintiffs as the Koch action.

The Plaintiffs moved to remand the case or, in the alternative, asked the Court to abstain. The Plaintiffs argued that the Defendants’ removal was time-barred and that they waived their right to remove by litigating Koch in state court for many years. The Court, however, found that the removal was timely based on the Ackerman Complaint dated November 2, 2011. To the Court, the initial Koch Complaint was not the “initial complaint” for purposes of the removal deadline, and the Ackerman case was “distinct” from Koch, even though it asserted identical facts and legal theories. Further, the defendants did not waive their right to remove by litigating the Koch case in Harford County, because Koch was a separate action, and any litigation in State court by the Defendants of Koch, did not waive the right to remove Ackerman.

The Plaintiffs argued that the Court should abstain from exercising jurisdiction under the Colorado River doctrine, because the instant case duplicated Koch, a contemporaneous state proceeding. Where the state court case and the federal court case had the same parties, factual assertions, and legal claims, the Court held that they were “parallel.” As to the discretionary factors of the doctrine, first, to the Court, because the parties already extensively litigated, served Interrogatories and Requests for Documents, exchanged thousands of documents and photographs, and deposed an expert and many Plaintiffs in the State court action, litigation in Federal court would be “inconvenient.” Second, the court wished to avoid piecemeal litigation. Third, Koch had been filed in State court nearly eight years ago, the State court retained jurisdiction over it, extensive discovery was completed, and the trial was set for September 2012. By contrast, in federal court, the parties had only litigated questions of remand and abstention. Fourth, all of the Plaintiffs’ claims sounded in state law, so the lack of a question of federal law favored abstention. Fifth, the State proceedings were adequate to protect the parties’ rights where state law claims were asserted and where the state court had become familiar with the Plaintiffs and their properties during the years of litigation in State court. Consequently, the Court stayed the case pending the outcome of the State court proceedings in Koch.