Kenneth Ackerman v. ExxonMobil Corporation

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1103
KENNETH ACKERMAN; JAMES ACKERMAN; APRIL ACKERMAN; MARY
ACKERMAN, Individually and as Personal Representative of
the Estate of Thomas Ackerman; CHARLES V. ADAMS;
CHRISTIANNE M. ADAMS; JOHN ALEXIS; CHARLES J. ARKINS; LULA
M. ARKINS; THOMAS J. ARNO; AMY H. ARNO, Both individually
and as next friends of A.A. and E.A.; ROBERT A. ASKIN;
HELEN V. ASKIN; RICK G. ASTARITA; PATSY L. ASTARITA, Both
individually and as next friends of A. N.A. and G.M.A.,
E.A., Individually; LIONEL J. BANE; LOU ANN BANE; TIMOTHY
BANKS; SUSAN E. BANKS; KRISTIN E. BANKS; DEBRA L. BARE;
LARRY G. BARE; CODY BARE; TONTA FREUND; THOMAS J. BARGER;
KRISTIN C. BARGER, Both individually and as next friends of
K.B., F.B., G.B., N.B.; SEBASTIANO BARRESI; STEVE BAVETT;
ANNA M. BAVETT, As next friend of N.L. and as next friends
of M.B.; GRACE BAYNE; DANIEL BEAUCHEMIN; STELLA E.
BEAUCHEMIN; JOANN K. BELLINGTON, Individually and as
Personal Representative of the Estate of William B.
Bellington; JOHN G.BERGER; DANNY L. BLANKENSHIP; RENEE D.
BLANKENSHIP; MARY BLEVINS; MICHAEL D. BLEVINS; TIMOTHY R.
BLEVINS; JENNIFER M. BLEVINS, Both individually and as next
friends of S.A.B.; JOSHUA R. BLEVINS; HOWARD H. BOND;
RONALD BONNER; RUTH M. BONNER; KENNETH M. BRADLEY; CAROL J.
BRADLEY; BERNADETTE M. BRANNON; RAYMOND E. BREHM, JR.;
CONSTANCE M. BREHM; LOIS J. BRODOWSKI; PAUL J. BROOKS;
MICHELLE D. BROOKS, Both individually and as next friends
of S.D.B.; ZACHARY T. BROOKS, Individually; ALEXANDER M.
BROOKS, Individually; PEEBLE M. BROWNLEE; DONALD C. BURKE;
LISA A. BURKE; JULIA BURKE; MATTHEW BURKE; EDWARD C.
BURTON, JR.; CANDY L. HOBSON-BURTON, Both individually and
as next friends of M.H-B.; MARK A. BURTON, Individually;
CHARLES D. BURTON, Individually; MARCIA BYRNE; PAUL P.
BYRNE; URSULA CAIN-JORDAN; DALE B. JORDAN; JOHN F.
CALLAHAN; DOROTHY H. CALLAHAN; LUKE J. CANFIELD; JANELLE M.
CANFIELD, Both individually and as next friends of S.A.C.;
MARK S. CANHAM; individually and as next friend of M.C.;
JAMES M. CANNELLA; MARCIE G. CANNELLA; CHARLES DAVID CAYCE,
IV; RANDY LOUGHRY, Individually and as next friends of
C.S.L., C.D.L.; KIMBERLEE A. LOUGHRY; RONALD A. CLARK;
CAROL F. CLARK; ALBERT P. CLASS; CAROLYN L. CLASS; MICHAEL
COFIELL; DARLENE S. COFIELL; NANCY L. CONNOLLY; MARY D.
CONWAY; CHARLES H. COON, JR.; DEBORAH A. COON; LAUREN COON;
JORDAN COON; JAMESON COOPER; KATHERINE A. COOPER, Both
individually and as next friends of I.C., E.C., R.C.; JOHN
L. COUNCILMAN; DEBORAH J. COUNCILMAN; COLLEEN CRAVEN; HARRY
F. CRAVEN; ELIZABETH A. D'ANGELO; ROBERT F. D'ANGELO;
CAROLINE DASCHER, individually and as next friends of M.D.,
E.D. and N.D.; KENNETH W. DASCHER, JR.; JESSE L. COLEMAN;
PATRICIA H. COLEMAN; JOHN C. COLT; FRANCES H. COLT; JOHN S.
COMBS; SEA UN COMBS; OWEN CONNOLLY; DONNA J. DAVIDS; JOHN
H. DAVIDS; EMILY GLASER; MARK GLASER; DOUGLAS W. TOWNSLEY,
POA for Helen A. Crowe; JOHN T. DITILLO; RICHARD W. DOYLE;
SHIRLEY A. DOYLE; ALBERT K. DUNSTAN; ALEXANDER A. DUNSTAN;
CELESTE DUNSTAN; CHRISTIE E. DUNSTAN; GLORIA DAVIS,
individually and as next friend of C.D.; WILLIAM F. DAVIS,
individually and as next friend of C.D.; CHRISTOPHER
P.DELVECCHIO; individually and as next friend of J.D.;
PAMELA A. DELVECCHIO, individually and as next fried of
J.D.; JEFFREY DIFATTA, Individually; TERESA L. DIFATTA,
individually and as next friend of S.D.; TIMOTHY DIFATTA,
Individually; VINCENT DIFATTA, individually and as next
friend of S.M.D.; DAVID P. DIGIORGIO, individually and as
next friend of P.A.D. and M.L.G.; MALLORY S. LEGGE-
DIGIORGIO, individually and as next friend of P.A.D. and
M.L.D.; BARBARA DUVALL; JAMES R. EAVERS; PATSY A. EAVERS;
ELAINE H. EHRHARDT; JESSICA CARLOZO; JOSEPH CARLOZO; NICOLE
CARLOZO; LARRY L. ELLIOTT; LAURA ELLIOTT; PAULA A. ELLIOTT;
BEATRICE ELMO; PETER ELMO; ERNESTO ERCOLANO; PHYLLIS
ERCOLANO; CYRUS R. ETEMAD-MOGHADAM, individually and as
next friend of F.R.E-M. and R.A.E-M.; MELODY A. ETEMAD-
MOGHADAM, individually and next friend of F.R.E-M.and
R.A.E-M.; ANASTASIA FAKAS, individually and as next friend
of N.F.; JOHN FAKAS, Individually; WILLIAM J. FAKAS,
individually and next friend of N.F.; JOAN L. FALANGA;
JEROME K. FERRARA, as next friend of K.P.F. and N.J.F.;
KRISTINA FERRARA, as next friend of J.L. and K.H.; CAROL L.
FIALKOWSKI; GEORGE V. FIALKOWSKI; DEMETRIOS FILIPIDIS,
individually and as next friend of G.F.; ROBIN L.
FILIPIDIS, individually and as next friend of G.F.; AILEEN
FLANAGAN, as next friend of G.F.; JOHN S. FLANAGAN, as next
friend of G.F.; DAMION M. FORD; RICHARD A. FORD, III;
KATHLEEN FOX; RONALD L. FOX; SODUS CYNTHIA, individually
and as next friend of G.G. and A.G.; RALPH M FRENCH; GERARD
FREY; JOHN P. FRIES; BARRY G. GABLER, individually and as
next friend of G.G. and A.G.; AUDREY GALLO; ROBERT A.
GALLO; LYNNE M. SCHMIDT-FRIES; JO ANN E. GEARE; CHELSEA
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GEBHARDT; FRED C. GEBHARDT, individually and as Personal
Representative of the Estate of Teri J. Gebhardt; JOCELYN
GEBHARDT, Individually; PETER C. GEORGOPOULOS; SUSAN E.
GEORGOPOULOS; BETTE L. GILL; ROXANNA M. GUINAN; JEFFREY
GUINAN; FALLON GUINAN; WILLIAM GILL; JAMES D. GILPATRICK;
MICHAELE A. GILPATRICK; SCOTT M. GOLLY; JUDITH H. GOULD;
THOMAS H. GOULD; BONNIE L. GRANT; ROBERT F. GRANT; EILEEN
M. GRETES; WILLIAM G. GRETES; MELISSA GRIFFITH; MICHAEL
GRIFFITH; MILTON GRIFFITH; MICHAEL A. GUZMAN, individually
and as next friend of T.G.; STACEY L. GUZMAN, individually
and as next friend of T.G.; SHIRLEY HALL; STEVEN HALL;
THELMA E. HAMEL; MICHAEL HARMON, POA for William B. Harmon
and individually and as next friend of Z.H.; DAWNE JABOBS,
individually and as next friend of Z.H.; PATRICIA O'NEILL,
Personal Representative of the Estate of Elizabeth C.
Gendimenico; MEGAN HEAGY; MICHAEL HEAGY; PATRICIA A. HEAGY;
STEVEN M. HEAGY, JR.; STEVEN M. HEAGY, SR.; LISA R.
HESSELTINE, individually and as next friend of K.H.; MARK
C. HESSELTINE, individually and as next friend of K.H.;
BARBARA A. HOLLER; JIMMY J. HOLLER; LARRY W. HOOPER; PAMELA
E. HOOPER; GWYN HOUSTON, as next friend of D.M.; JANICE A.
HOUSTON, as next friend of D.M.; RITA HOWARTH, as next
friend of P.H.; STEVEN E. HOWARTH, as next friend of P.H.;
DAWNE JABOBS, as next friend of K.H.; DAVID J. HOYT,
individually and as next friend of E.E.H. and L.M.H.;
KETHLEEN H. HOYT, individually and as next friend of E.E.H.
and L.M.H.; VIRGINIA A. HOYT, individually; ALLISON L.
HUNTER; BONNIE L. HUNTER; JAMES D. HUNTER; JEFFREY M.
HUNTER; JAMES D. HUNTER, JR.; SCOTT IANNANTUONO, as next
friend of B.I., J.I. and M.I.; KIMBERLY S. IANNANTUONO, as
next friend of B.I., J.I. and M.I.; CHRISTOPHER JAMISON, as
next friend of C.J., Jr.; MICHELE R. JAMISON, as next
friend of C.J., Jr.; HARRY J. CIMBOLO; ARLENE E. JANUARY;
GLENN K. JANUARY; STEPHEN D. JANUARY; MICHAEL C. JANUS,
individually and as next friend of A.J. and A.J.; TAMMY L.
JANUS, individually and as next friend of A.J. and A.J.;
GREGORY B. JOHNSON, as next friends of R.J. and H.J.;
JENNIFER JOHNSON, as next friends of R.J. and H.J.; BARBARA
A. JUNG; WALTER G. JUNG; HARRIET F. KAHL; HENRY V. KAHL;
TRAVIS BOWEN, individually; ALP A. KAYABASI, individually
and as next friend of C.A.K. and A.D.K.; CHRISTY L.
KAYABASI, individually and as next friend of C.A.K. and
A.D.K.; LOURDES Z. KEISER; RANDALL S. KEISER; COLLEEN
KELLY; JOAN M. KELLY; MICHAEL KELLY; CHRISTINA M. KING,
individually and as next friend of L.K.; JACQUELINE M.
KING; MARK B. KING, individually and as next friend of
L.K.; SUSAN KLUGE, as next friend of R.K. and M.K.; BRENDAN
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C. KLUGE, III, individually; BRENDAN C. KLUGE, JR., as next
friend of R.K. and M.K.; CAROLE A. KLUNK, Individually and
as Personal Representative of the Estate of Joseph A.
Klunk; STERLING LYTLE, Personal Representative of Estate of
Harold J. Kelly; DEVIN PORTZKO; KELLY PROTZKO; RYAN
PROTZKO; LEAH LANGRILL CHILDS; ERIKA KOLAKOWSKI; GLEELA D.
KOLAKOWSKI; JAN E. KOLAKOWSKI; EDWARD D. KOSIBA; JUDITH A.
KOSIBA; KENNETH E. KRAUSZ; MARIE C. KRAUSZ; JOHN F. KRESS;
SHARON J. KRESS; KEVIN J. KRIVACSY, Individually and as
Personal Representative of the Estate of Ruth A. Krivacsy;
JAMES P. KUHLMAN, individually and as next friend of S.A..;
JULIE C. KUHLMAN, individually and as next friend of
S.A.K.; SCOTT C. KUHLMAN, Individually; MARY M. LANGRALL;
CLARKE JR. LANGRALL; JOHN S. LANGRILL; JOSHUA LANGRILL;
LINDA D. LANGRILL; FRANCIS X. LAUER; JUDITH A. LAUER;
ROBERT S. LINDSAY, Individually and as Personal
Representative of the Estate of Sharon V. Lindsay; HOPE
LOOKINGLAND; MICHAEL LOOKINGLAND; CARL R. LUPICA,
individually and as next friend of A.C.L. and V.J.L.; DAWN
L. LUPICA, individually and as next friend of A.C.L. and
V.J.L.; ANNABEL E. LUSARDI, individually and as next friend
of M.L., N.L. and C.L.; THOMAS J. LUSARDI, individually and
as next friend of M.L., N.L. and C.L.; ALICIA LYNCH;
MICHAEL J. LYNCH; JOSEPH E. MACATEE; SAMUEL MACATEE; BETH
G. MACMILLAN, individually and as next friend of K.M., J.M.
and J.M.; PAUL MACMILLAN, individually and as next friend
of K.M., J.M. and J.M.; FREDERICK C. MANFRA; MARLENE F.
MANFRA; STEPHANIE J. MANFRA; JOHN W. MARSHALL, individually
and as next friends of O.G-M.; PAULA M. MARSHALL,
individually and as next friends of L.G-M. and M.G-M.;
BRIAN R. MASTERSON; LYNN M. MASTERSON, Both individually
and as next friends of C.M., L.M.; LINDA MAZZIOTT; VINCENT
T. MAZZIOTT; EVELYN J. MCDERMOTT; TYLER M. MCDERMOTT;
KATHLEEN P. MCGRAW, Both individually and as next friends
of J.W.M.; LAUREN A. MCGRAW; ROBERT S. MCGRAW; CARL WAYNE
MELLOTT; JOAN B. MIRARCHI; RALPH J. MIRARCHI; BARBARA L.
MOORE; CHARLES J. MOORE, III; DENNIS J. MORRISON; NINA
MORRISON; JAMES MOULSDALE; PAMELA S. MOULSDALE, Both
individually and as next friends of M.G.M.; ISA MUFAREH;
RUTH E. MUFAREH; KAREN NICKEL, Both individually and as
next friends of G.N.; SCOTT D. NICKEL; SCOTT DENNIS NICKEL,
Personal Representative of the Estate of Celina M. Rossini;
LAURA NOCAR; JAMES M. NORMAN; EMILY C. NOVAK, Both
individually and as next friends of R.S.N., Jr., J.D.N.,
C.R. N.; RONALD S. NOVAK; FRANCES NOWACKI; LOUIS M.
NOWACKI; DAVID O'NEIL; FATEMEH O'NEIL; SEAN RODGERS OWENS;
KATHERINE W. PARRIS; WAYNE H. PARRIS; LANELL W. PATRICK,
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Both individually and as next friends of R.L.P., III;
ROBERT L. PATRICK, JR.; MARGARET PEACH; WILLIAM PEACH;
JESSICA SIMMS; SUSAN C. MARSHALL, Recovable Trust; GERTRUDE
R. PEARSON; HENRY R. PEARSON, JR.; ANTHONY PERFETTI; SHARON
A. PERFETTI, Individually and as next friends of M.P., G.P.
and M.P.; NORMA M. PERRIELLO; PATRICK J. PERRIELLO; THE
PATRICK AND NORMA PERRIELLO LIVING TRUST; NICOLE M. BORYS-
PIROZZI, individually and as next friend of D.D.P., A.E.P.,
A.F.P., I.S.P. and X.K.P.; M. JEORGEA C. PETERS,
Individually and as next friend of M.V.P.; STEVEN G.
PETERS, Individually; KURT PETERSON, As next friend of
S.P., C.P., R.P. and J.P.; MARY B. PETERSON, As next friend
of S.P., C.P., R.P. and J.P.; JUDY R. PETRALIA; ANTHONY
PETRALIA, JR.; JANE L. PHILPOT; JOHN W. PHILPOT, SR.; LEE
G. PIERCE; CYNTHIA M. PIRACCI; FRANCIS L. PIRACCI; RALPH J.
PIROZZI, individually and as next friend of D.D.P., A.E.P.,
A.F.P., I.S.P. and X.K.P.; ASHLEY PLACK, Individually;
HARRY J. PLACK, individually and as next friend of H.J.P.,
III, E.P. and T.P.; MARY C. PLACK, individually and as next
friend of H.J.P., III, E.P. and T.P.; AVRIL D. PLUNKETT,
individually and as next friend of C.P. and N.P.; MICHAEL
H. PLUNKETT, individually and as next friend of C.P. and
N.P.; ALEXANDRA PONERES; CHRISTOS PONERES; ELIAS PONERES;
EVANGELOS PONERES; DONNA L. POTTER, individually and as
next friend of .B.M.P.; ROBERT K. POTTER, individually and
as next friend of B.M.P.; MARGARET PUSATERI, Individually
and as Personal Representative of the Estate of James
Pusateri; DAVID A. RAINEY; ELIZABETH S. AINEY; LEWIS
RAMAGE; NANCY C. RAMAGE; NACHLAPPAN RAMAN; VIMALA RAMAN;
CAITLIN RAMSEY, Individually; CATHERINE A. RAMSEY,
individually and as next friend of A.R.; DAVID K. RAMSEY,
individually and as next friend of A.R.; EMILY RAMSEY,
Individually; JUDY C. RAMSEY; KIMBERLY B. RAMSEY; KRISTIN
D. RAMSEY; TYLER RAMSEY, Individually; WILLIAM J. RAMSEY;
ROMAN E. RATYCH; BETH A. RHUDY, individually and as next
friend of P.R., G.R. and H.R.; PHILLIP RHUDY, individually
and as next friend of P.R., G.R. and H.R.; CHARLES A.
RITCHEY, individually and as next friend of C.A.R. and
C.A.R.; JOELL L. RITCHEY, individually and as next friend
of C.A.R. and C.A.R.; PATRICIA A. RITTER; DAVID P.
STOLLERY; CAITLIN DAIL; SHELLEY DISHAROON, as next friend
of C.D.; ANITA E. HANSEN, Individually; GAYLEN D. ROBERTS;
RONALD H. ROBERTS; JANE A. RODANO; SALVATORE J. RODANO;
ELLEN M. ROMANKO; THOMAS A. ROMANKO; KATHY ROUBAL; CHELSEA
ROUSE; STEPHEN R. ROUSE; GLENN O. RUBEL, individually and
as next friend of M.R. and C.R.; MARIA L. RUBEL,
individually and as next friend of M.R. and C.R.; MICHAEL
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E. RUDASILL, individually and as next friend of C.R.;
BARBARA RUGGIERO; MARK A. RUGGIERO; JANICE MEYER; LINDA C.
RUTH; RICHARD A. RUTH; BERNEATHA J. SAMPLE; DALE H. SAMPLE;
GREGORY H. SAMPLE, individually and as next friend of H.S.,
J.S. and A.S.; HARVEY F. SAMPLE; SCOTT A. SAMPLE; STEVEN D.
SAMPLE; TINA SAMPLE, individually and as next friend of
H.S., J.S. and A.S.; ALEXANDER SAPIENZA; ANGELINA SAPIENZA;
NICHOLAS SAPIENZA; SALVATORE SAPIENZA; AMANDA R. SCHABDACH;
BRUCE J. SCHABDACH; MARY M. SCHABDACH; BETH F. SCHEIR,
individually and as next friend of E.S. and A.S.; SCOTT W.
SCHEIR, individually and as next friend of E.S. and A.S.;
JOHN G. SCHENK; PATRICIA F. SCHENK; FRANK SCHLOSSER; GLORIA
R. SCHLOSSER; ROBERT SCHMID; JOYCELYN B. QUARANTA; MARIA
SCHMIDT, individually and as next friend of A.S. and A.S.;
MICHAEL T. SCHMIDT, individually and as next friend of A.S.
and A.S.; CHRISTINE M. SCHUELER; ROBERT W. SCHUELER, JR.;
CLIFFORD E. SCHULTE; FRANCINE SCOTT, individually and as
next friend of T.S. and A.S.; JEREMY SCOTT, individually
and as next friend of T.S. and A.S.; KATHLEEN D. SCOTT;
PAUL C. SCOTT; GREGORY N. SELTZER; JUDITH A. SELTZER;
ANDREW D. SHAFF; MARISA SHAFF; NATALIE A. SHAFF; WAYNE D.
SHAFF; IRMA C. SHANAHAN; JOSEPH V. SHANAHAN; KENNETH M.
SIMMONS, individually and as next friend of S.M.S.; MICHAEL
R. SIMMONS, individually; VICTORIA B. SIMMONS, individually
and as next friend of S.M.S.; VINCENT B. SIMMONS,
individually; CHARLES B. SINGLETON; VIRGINIA L. SINGLETON;
CAITLIN M. SONN; JONATHON D. SONN; LETITIA A. SONN; LINDA
KAY FISHER, as Personal Representative of the Estate of
Edward S. Stifler and Co-Personal Representative of the
Estate of Katherine L. Stifler; MICHAEL HENLEY; MILISSA
LESTER; THERESE M. SORRENTINO; MARC A. SPATARO; TERRI
SPATARO; ARMAND M. ST. CROIX; BARBARA A. ST. CROIX; HENRY
STANLEY, individually and as next friend of J.S.; JOANNE
STEPHEN, individually and as next friend of B.S. and S.S.;
HARRY C. STEPHEN, JR., individually and as next friend of
B.S. and S.S.; LESTER E. STEWART, individually and as next
friend of A.A.S.; CYNTHIA L. WARNER, as Co-Personal
Representative of the Estate of Katherine L. Stifler;
ALICIA C. WOODMAN, individually and as next friend of
A.A.S.; COLLEEN B. MCDONOUGH; CAROL LEE STORY; RICHARD W.
STORY; CAROL A. SWAM; HENDRIK J. THEUNS; SUSAN L. THEUNS;
DUREL C. THOMAS; PATRICIA L. THOMAS; ELAINE THOMPSON,
individually and as next friend of J.T. and G.T.; JEFFREY
THOMPSON, individually and as next friend of J.T. and G.T.;
WAYNE PAUL THOMPSON, JR.; CATHERINE C. THRAPPAS,
individually and as next friend of A.T. and L.T.; VINCENT
J. THRAPPAS, individually and as next friend of A.T. and
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L.T.; JOSEPH R. TITO; MARY ELLEN TRACEY; ALLEN ROGER
TRACEY, JR.; CAROLYN M. TURNER, individually and as next
friend of G.T.; STEVEN E. TURNER, individually and as next
friend of G.T.; JOSEPH R. TWANMOH; VALERIE H. TWANMOH;
ANDREA L. TYMINSKI; JOSEPH J. TYMINSKI; TINA M. VALMAS,
individually and as next friend of F.G.V.; THEODORE P.
VALMAS, IV, individually and as next friend of F.G.V.;
THEODORE P. VALMAS, V, Individually; HEATHER L. WARNER;
STANLEY B. WARNER; LIDIA J. GUZMAN; DINA N. VENDELIS,
individually and as next friend of J.V., A.V. and C.V.;
MANUEL A. VENDELIS, individually and as next friend of
J.V., A.V. and C.V.; PAT VILLAVICENCIO; ELEANOR M.
VOLLERTHUM; WILLIAM VOLLERTHUM; STEPHEN WAGNER, as next
friend of J.W. and T.W.; TRACI A. WAGNER, as next friend of
J.W. and T.W.; COURTNAY WALKER, individually and as next
friend of G.W. and K.W.; KENNETH D. WALKER, individually
and as next friend of G.W. and K.W.; STEPHEN E. WALTERMYER;
THERESA K. WALTERMYER; JOHN J. WALTERS; PATRICIA J.
WALTERS; KAREN WASIELEWSKI; THEODORE M. WASIELEWSKI;
GERALYN WEINBERGER; RICHARD WEINBERGER; MAIJA WENTWORTH;
MICHAEL E. WENTWORTH, JR.; MICHAEL C. WHITACRE; VERNA
BILLINGSLEA WHITE; KELLY STRACKE, individually and as next
friend of M.C.; NOVELLA WIEGAND, individually and as next
friend of K.L.W. and J.W.; TONY M. WIEGAND, individually
and as next friend of K.L.W. and J.R.W.; HOWARD WILLIS,
individually and as next friend of K.W.; MARGARET S.
WINKELMAN, individually and as next friend of K.W.; WILLIAM
R. WINKELMAN, individually and as next friend of K.W.;
CHARLES D. WINKLER; LYNN A. WINKLER; DONNA M. WOLFF; JOHN
P. WOLFF, JR.; MARK D. WOLLENWEBER, individually and as
next friend of M.W., Jr. and M.W.; MARY C. WOLLENWEBER,
individually and as next friend of M.W., Jr. and M.W.;
CYNTHIA WURSTA; JAY P. WURSTA; EILEEN M. YANCONE; VICTOR
YANCONE; CHING CHU YEH; HOMER REN YEH; SHERWOOD YELTON,
JR., individually and as next friend of N.Y. and D.Y.,
Plaintiffs - Appellees,
v.
EXXONMOBIL CORPORATION, f/k/a Exxon Corporation, d/b/a
Crossroads Exxon; JOHN R. HICKS, d/b/a Crossroads Exxon,
Defendants - Appellants.
7
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:11-cv-03442-WDQ)
Argued: January 30, 2013 Decided: August 7, 2013
Before TRAXLER, Chief Judge, and GREGORY and DUNCAN, Circuit
Judges.
Affirmed by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge Gregory concurred. Judge Duncan wrote a
separate opinion concurring in the judgment.
ARGUED: Andrew Gendron, VENABLE, LLP, Baltimore, Maryland, for
Appellants. Paul D. Raschke, LAW OFFICES OF PETER G. ANGELOS,
Baltimore, Maryland, for Appellees. ON BRIEF: Michael J. De
Vinne, VENABLE, LLP, Baltimore, Maryland, James F. Sanders, NEAL
& HARWELL, PLC, Nashville, Tennessee, for Appellant Exxon Mobil
Corporation; Paul W. Ishak, April C. Ishak, STARK AND KEENAN,
P.A., Bel Air, Maryland, for Appellant John R. Hicks. H.
Russell Smouse, Joyce R. Lombardi, LAW OFFICES OF PETER G.
ANGELOS, Baltimore, Maryland, for Appellees.
8
TRAXLER, Chief Judge:
ExxonMobil Corporation (“Exxon”) and John R. Hicks
(together, “Defendants”) appeal a district court order
abstaining from exercising jurisdiction under the Colorado River
doctrine in a case brought against Defendants. See Colorado
River Water Conservation Dist. v. United States, 424 U.S. 800(1976). Finding no reversible error, we affirm.
I.
In June 2004, hundreds of residents of Fallston, Maryland,
filed a putative class action (the “Koch” action) against
Defendants in Maryland state court. The complaint alleged
several state law causes of action for the contamination of
their properties by gasoline and the gasoline additive methyl
tertiary-butyl (“MTBE”) from an Exxon station that Hicks
operated.
Exxon later removed the case by invoking federal officer
jurisdiction, see 28 U.S.C. § 1442(a), and it was transferred to
the Multidistrict Litigation Panel and assigned to the Southern
District of New York. See In re MTBE Prods. Liab. Litig., 399
F. Supp. 2d 340, 344 (S.D.N.Y. 2005). However, in May 2007, the
United States Court of Appeals for the Second Circuit determined
in an unrelated case that the history of MTBE production and
marketing did not support federal officer removal. See In re
MTBE Prods. Liab. Litig., 488 F.3d 112, 130 (2d Cir. 2007)
9
(holding that the federal officer removal statute did not
support removal because “the defendants have not met their
burden of providing ‘candid, specific and positive’ allegations
that they were acting under federal officers when they added
MTBE” (citation omitted)). Accordingly, Koch was remanded to
the Harford County Circuit Court.
In February 2010, the state-court judge granted the Koch
Plaintiffs’ request for class certification. On June 16, 2011,
however, the judge reconsidered sua sponte his earlier grant of
certification and decertified the class. On October 26, 2011,
the state-court judge met with counsel in chambers and asked the
Koch Plaintiffs to file a new action for the former class
members so that he could consolidate it with the existing one
and thereby adjudicate the claims of the named plaintiffs in
Koch as well as the former class members. As a result, on
November 2, 2011, more than 750 former class members filed a new
action in the Harford County Circuit Court. The new action (the
“Ackerman” action) alleged the same facts and state law claims
as Koch. That same day, the Koch Plaintiffs informed the judge
that they planned to amend their complaint.
On November 18, 2011, the court informed the parties that
it would “issue, at some point, some sort of an Order of
Consolidation” that combined the two cases. J.A. 136. Ten days
later, the court told counsel that it had delayed issuing the
10
consolidation order only because it was still considering
certain questions concerning the logistics of trial.
On November 29, 2011, Defendants removed Ackerman from
state court under authority of the Energy Policy Act of 2005,
Pub L. No. 109-58, § 1503, 119 Stat. 594, 1076 (2005), which
authorizes the removal of MTBE-related claims and actions filed
after August 8, 2005. On December 1, 2011, the Koch Plaintiffs
then amended their state-court complaint to add all the
individual plaintiffs named in Ackerman. After the Koch
complaint was amended to add the Ackerman plaintiffs, the
Defendants did not remove Koch or ask the state court to strike
the amendment.
The same day the Koch Plaintiffs amended their state-court
complaint, the Ackerman Plaintiffs filed a motion in federal
court seeking to remand that case to state court, arguing that
removal was time-barred and that the Defendants waived their
right to remove by litigating for several years in state court.
Alternatively, the Ackerman Plaintiffs requested that the
district court abstain under the Colorado River doctrine, which
permits federal courts, under exceptional circumstances, to
refrain from exercising jurisdiction in deference to pending,
parallel state proceedings. See Colorado River, 424 U.S. at
817-18.
11
The district court denied the remand motion, see Ackerman
v. ExxonMobil Corp., 821 F. Supp. 2d 811, 814-15 (D. Md. 2012),
but granted the motion to abstain. When concluding that
abstention was proper, the district focused in large part on the
length of time that the Koch action had been pending in state
court and the progress that had been made on the case in the
state system. See id. at 820. As the district court noted, the
Koch case had proceeded in state court for years before the
Ackerman claims were extracted and separately re-filed, and
extensive discovery efforts had been conducted over the course
of those years. Document discovery began in 2006, and the
parties have since conducted numerous depositions, including
depositions of named and proposed class representatives; served
and responded to numerous interrogatories; requested and
produced hundreds of thousands of pages of documents and
photographs. Balancing these facts and the other relevant
factors against its own duty to exercise jurisdiction, the
district court ultimately concluded that “this litigation
presents the rare, exceptional circumstances when wise judicial
administration counsels abstention.” Id. at 821. The court
therefore stayed Ackerman pending the resolution of the Koch
proceedings in state court.
The Defendants now appeal, arguing that the district court
erred by granting the Plaintiffs’ motion to abstain. The
12
Plaintiffs have not cross-appealed the denial of the motion to
remand. 1
II.
“Despite what may appear to result in a duplication of
judicial resources, the rule is well recognized that the
pendency of an action in the state court is no bar to
proceedings concerning the same matter in the Federal court
having jurisdiction.” McLaughlin v. United Va. Bank, 955 F.2d
930, 934 (4th Cir. 1992) (internal quotation marks and
alteration omitted)). “Indeed, with regard to parallel state
and federal proceedings, the Supreme Court has held, over and
over, as have we, that in the usual case the federal courts must
hear the cases that fall within their jurisdiction.” Id.; see
Colorado River, 424 U.S. at 817 (emphasizing the “virtually
unflagging obligation of the federal courts to exercise the
jurisdiction given them”).
The duty to exercise jurisdiction, however, is not
absolute; “federal courts may decline to exercise their
jurisdiction, in otherwise exceptional circumstances, where
denying a federal forum would clearly serve an important
countervailing interest.” Quackenbush v. Allstate Ins. Co., 517
1
Upon learning of the proceedings in this case, the state
court sua sponte stayed all proceedings in Koch pending
resolution of this appeal.
13
U.S. 706, 716 (1996) (citation and internal quotation marks
omitted). The Supreme Court has identified various
circumstances where abstention may be warranted, including cases
where exercising federal jurisdiction would interfere with a
pending state criminal proceeding, see Younger v. Harris, 401
U.S. 37 (1971), and cases involving complex state administrative
procedures, see Burford v. Sun Oil Co., 319 U.S. 315 (1943).
At issue in this case is the form of abstention approved by
the Court in Colorado River Water Conservation District v.
United States, 424 U.S. 800 (1976) – abstention in favor of
ongoing, parallel state proceedings in cases where
“considerations of wise judicial administration, giving regard
to conservation of judicial resources and comprehensive
disposition of litigation” clearly favor abstention. Id. at 817(alteration and internal quotation marks omitted).
The threshold question in a Colorado River inquiry is
whether the pending state and federal suits are parallel. See
Chase Brexton Health Servs., Inc. v. Maryland, 411 F.3d 457, 463
(4th Cir. 2005). If parallel suits exist, the district court
must then “carefully balance several factors, with the balance
heavily weighted in favor of the exercise of jurisdiction.” Id.(internal quotation marks omitted). The factors relevant to the
inquiry include “the relative inconvenience of the federal
forum, the relative order of the two suits, the source of law in
14
the case, and the relative progress of the two proceedings.”
Al-Abood v. El-Shamari, 217 F.3d 225, 232 (4th Cir. 2000).
Because Colorado River abstention is premised on
consideration of “wise judicial administration” rather than the
“weightier considerations of constitutional adjudication and
state-federal relations” underpinning other abstention
doctrines, Colorado River, 424 U.S. at 818, its application is
proper in a “more limited” range of circumstances, id. When
courts consider requests to abstain, the task “is not to find
some substantial reason for the exercise of federal jurisdiction
by the district court; rather, our task is to ascertain whether
there exist exceptional circumstances, the clearest of
justifications, . . . to justify the surrender of that
jurisdiction.” Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 25-26 (1983) (internal quotation marks
omitted).
III.
The Defendants challenge the court’s decision to abstain,
arguing that the district court erred by finding the Koch and
Ackerman actions parallel. The Defendants challenge only the
district court’s threshold determination that the Koch action
was parallel to Ackerman. They do not challenge the court’s
balancing of the Colorado River factors, and they concede that
if this court concludes that the state and federal actions are
15
parallel, then the district court’s decision to abstain should
be affirmed. See Brief of Appellants at 42-43 & n.135.
State and federal actions are parallel “if substantially
the same parties litigate substantially the same issues in
different forums.” Chase Brexton, 411 F.3d at 464 (internal
quotation marks omitted). The Defendants agree that the Koch
action as amended on December 1, 2011, is parallel to the
Ackerman action, given that almost-the-same plaintiffs 2 are suing
the same defendants on the same state-law claims. The
Defendants argue, however, that the amendment itself is void,
and that the Ackerman action and the pre-amendment Koch action
are not parallel. According to the Defendants, the amendment is
void ab initio by operation of 28 U.S.C. 1446(d) and because the
amendment could have been enjoined under the “expressly
authorized” exception to the Anti-Injunction Act, 28 U.S.C. §
2283.
2
All of the plaintiffs in Ackerman are plaintiffs in Koch,
but the seven named plaintiffs in Koch are not plaintiffs in
Ackerman. Because the claims of all plaintiffs can be resolved
in the state proceeding, the fact that the federal action
includes seven fewer plaintiffs than the state action does not
prevent the actions from being parallel for Colorado River
purposes. See Chase Brexton Health Servs., Inc. v. Maryland,
411 F.3d 457, 464 (4th Cir. 2005) (concluding that actions were
not parallel where, inter alia, five federal plaintiffs were not
parties to the underlying state proceedings and noting that “the
parties involved [must] be almost identical”).
16
A.
Under § 1446(d), removing defendants must promptly provide
written notice of the removal to opposing parties and to the
state court. See 28 U.S.C. § 1446(d). The statute specifies
that removal is effected by the filing of the notice of removal
with the state-court clerk, at which point “the State court
shall proceed no further unless and until the case is remanded.”
Id. (emphasis added). Defendants argue that under § 1446(d),
any post-removal action taken by the state court is void.
Although the Defendants have not sought an order invalidating
the amendment from the state court or the district court, they
argue that, even absent any injunction, the amendment to the
Koch complaint was void ab initio because “[t]he § 1446(d) bar
is self-acting.” Brief of Appellants at 32.
Because § 1446(d) explicitly states that “the State court
shall proceed no further” once removal is effected, 28 U.S.C. §
1446(d), we agree with the Defendants that the statute deprives
the state court of further jurisdiction over the removed case
and that any post-removal actions taken by the state court in
the removed case action are void ab initio. See South Carolina
v. Moore, 447 F.2d 1067, 1072-73 (4th Cir. 1971); accord
Polyplastics, Inc. v. Transconex, Inc., 713 F.2d 875, 880 (1st
Cir. 1983) (“[A]ny action taken by the Puerto Rico court after
17
removal was effected was a nullity anyway, with or without the
order against further proceedings.”).
Section 1446(d), however, speaks only in terms of the
removed case. See 28 U.S.C. § 1446(d) (“Promptly after the
filing of such notice of removal of a civil action . . . .”
(emphasis added)); id. (“[T]he State court shall proceed no
further unless and until the case is remanded.” (emphasis
added)). Because the statute focuses only on the removed case,
it deprives the state court of jurisdiction and restricts the
state court’s actions only as to the removed case. See Kansas
Pub. Emps. Ret. Sys. v. Reimer & Koger Assocs., Inc. (“KPERS”),
77 F.3d 1063, 1069 (8th Cir. 1996) (“[T]he removal statute only
commands the state court to stay the case that was actually
removed . . . .” (emphasis added)); Lou v. Belzberg, 834 F.2d
730, 740 (9th Cir. 1987) (“[A] federal court may enjoin the
continued prosecution of the same case in state court after its
removal.” (emphasis added)). There simply is no language in the
statute that reasonably can be interpreted as constraining the
state court’s authority over any case other than the case that
was removed to federal court. Section 1446(d) may be self-
acting, in that improper post-removal actions are void whether
or not a court has so declared, see Polyplastics, 713 F.2d at
880, but it acts only within its reach. Because § 1446(d)’s
prohibition against post-removal proceedings does not extend
18
beyond the removed case, § 1446(d) does not render void the
December 1 amendment of the Koch action.
B.
Contrary to the Defendants’ argument, our conclusion that §
1446(d) does not invalidate the amendment of the Koch complaint
does not change when the Anti-Injunction Act is added to the
mix. Before addressing the merits of this argument, we will
first sketch out the basics of the Anti-Injunction Act and the
district court’s approach to the issue.
(1)
The Anti-Injunction Act provides that “[a] court of the
United States may not grant an injunction to stay proceedings in
a State court except as expressly authorized by Act of Congress,
or where necessary in aid of its jurisdiction, or to protect or
effectuate its judgments.” 28 U.S.C. § 2283. The Act “is an
absolute prohibition against enjoining state court proceedings,
unless the injunction falls within one of [the] three
specifically defined exceptions.” Atlantic Coast Line R.R. Co.
v. Brotherhood of Locomotive Eng’rs, 398 U.S. 281, 286 (1970).
Because the Act reflects and respects “the fundamental
constitutional independence of the States and their courts, the
exceptions should not be enlarged by loose statutory
construction.” Id. at 287.
19
At issue in this case is the Act’s “expressly authorized”
exception. A federal statute expressly authorizes an injunction
of state-court proceedings when the statute creates “a specific
and uniquely federal right or remedy, enforceable in a federal
court of equity, that could be frustrated if the federal court
were not empowered to enjoin a state court proceeding.” Mitchum
v. Foster, 407 U.S. 225, 237 (1972). Section 1446(d), with its
“proceed no further” directive, has generally been understood to
expressly authorize injunctions of state courts ignoring that
directive. See id. at 234 & n.12; Fulford v. Transport Servs.
Co., 412 F.3d 609, 612 (5th Cir. 2005).
Although this court has yet to address the issue, other
courts have concluded that, under certain circumstances,
§ 1446(d) also authorizes injunctions against separate “copycat”
actions – actions involving essentially the same parties and
claims that are filed in state court after removal of the
original action. See Quackenbush v. Allstate Ins. Co., 121 F.3d
1372, 1378 (9th Cir. 1997); KPERS, 77 F.3d 1070-71; Frith v.
Blazon-Flexible Flyer, Inc., 512 F.2d 899, 901 (5th Cir. 1975);
see also Davis Int’l, LLC v. New Start Group Corp., 488 F.3d
597, 605 (3d Cir. 2007) (“Courts considering the question have
unanimously held that a plaintiff’s fraudulent attempt to
subvert the removal statute implicates the ‘expressly
20
authorized’ exception to the Anti-Injunction Act and may warrant
the granting of an anti-suit injunction.”).
As the Ninth Circuit has observed, “[i]t would be of little
value to enjoin continuance of a state case after removal and
then permit the refiling of essentially the same suit.” Lou,
834 F.2d at 741. Accordingly, these courts have held that §
1446(d) authorizes the issuance of an injunction against
separate, state-court copycat proceedings commenced for the
purpose of subverting federal jurisdiction over a removed case.
See, e.g., KPERS, 77 F.3d at 1069 (“[A]fter removal the
plaintiff cannot file essentially the same case in a second
state action to subvert federal jurisdiction.”); Lou, 834 F.2d
at 741 (“[W]here a second state court suit is fraudulently filed
in an attempt to subvert the removal of a prior case, a federal
court may enter an injunction.”).
The district court here began its analysis of the
abstention with the question of whether the actions were
parallel, which turned on whether the Koch Plaintiffs
successfully amended their complaint or whether the amendment
was void ab initio. See Ackerman, 821 F. Supp. 2d at 816. When
considering the validity of the amendment, the district court
noted that it had not issued an injunction of the Koch
proceedings and that the Defendants had not even sought an
injunction. See id. at 817. As to whether an injunction would
21
be permissible under the Anti-Injunction Act, the court
concluded, consistent with the line of cases discussed above,
that the “expressly authorized” exception would permit an
injunction in cases where the plaintiff “fraudulently files a
second state lawsuit to undermine the removal statutes.” Id.
at 817 (internal quotation marks omitted). The court indicated,
however, that the exception would not apply to the facts of this
case:
[T]he Defendants have not sought, nor has this
Court granted, an injunction of the Koch proceedings.
Thus, nothing prohibits the state court from amending
the Koch complaint to include the Plaintiffs here.
Although the Plaintiffs concede that Koch was amended
after the removal of this action “to blunt” the
perceived “dilatory tactics of the Defendants,” the
amendment was not an attempt to fraudulently undermine
the removal statutes. The Plaintiffs told the state
court and the Defendants weeks before removal that
Koch would be amended. Koch was not amended to obtain
a favorable decision on an issue this Court has
already decided, nor have the Plaintiffs misled the
Court about the existence and amendment of Koch.
Absent fraud, a secondary state action should not be
enjoined.
The primary purposes of amending Koch were not to
fraudulently defeat this Court’s jurisdiction, but to
comply with the state court’s instructions and to ease
administration of the litigation after class
decertification. The parties had already extensively
litigated the matter in state court. . . . After
decertification, the state court asked the Koch
plaintiffs to amend Koch and file new actions for the
former class members, which the court planned to
consolidate after determining the budget, location,
and other logistics of trial.
22
Id. at 817-18 (citations omitted). The district court further
explained that, even if an injunction were permissible under the
Anti-Injunction Act, it would not exercise its discretion to
enjoin proceedings in Koch: “[E]ven if an injunction were
permissible, the Court would not be bound to issue it. In light
of the unusual circumstances of this litigation, the Court finds
that enjoining the Koch amendment would undermine the important
goal of preserving an effective dual system of federal and state
courts.” Id. at 818 (citation and internal quotation marks
omitted)).
(2)
The Defendants contend that the amendment of the Koch
complaint was a clear attempt by the Plaintiffs to subvert
removal jurisdiction and that an injunction barring proceedings
on the amended complaint would be permissible under the
“expressly authorized” exception to the Anti-Injunction Act.
And in the Defendants’ view, the fact that the amendment was
enjoinable means that the amendment is void:
[I]f a state-court proceeding is prohibited by §
1446(d), that proceeding is automatically null [and]
absolutely void, . . . whether enjoined or not.
Thus, if a district court has the power to enjoin a
nearly-but-not-quite-identical action filed in state
court with intent to subvert the district court’s
jurisdiction over a previously removed action . . .
then that second action, even though captioned
differently and assigned a different docket number,
must also be null [and] void . . . .
23
Reply Brief at 6 (emphasis added; footnotes and internal
quotation marks omitted).
We disagree. As discussed above, § 1446(d) invalidates
post-removal actions taken in state court in the removed case,
but it does not reach (and therefore does not invalidate)
actions taken in cases other than the removed case. Section
1446(d) may serve as the statutory authority for an injunction
against a separately filed copycat action, see, e.g., KPERS, 77
F.3d at 1069, but serving as the source of authority for
injunctions that might be issued from time to time is not the
same as invalidating from the get-go every action that might
someday be enjoined.
When an exception to the Anti-Injunction Act is present, a
district court may issue an injunction, but it is not required
to do so. Because “principles of comity, federalism, and equity
always restrain federal courts’ ability to enjoin state court
proceedings,” In re Diet Drugs Prods. Liab. Litig., 369 F.3d
293, 306 (3d Cir. 2004), whether to enjoin state-court
proceedings is always discretionary. See Chick Kam Choo v.
Exxon Corp., 486 U.S. 140, 151 (1988) (“Of course, the fact that
an injunction may issue under the Anti-Injunction Act does not
mean that it must issue. On remand the District Court should
decide whether it is appropriate to enter an injunction.”). As
discussed above, § 1446(d) does not render void state-court
24
actions taken in non-removed cases, and those actions may not be
treated as if they were void simply because a district court
might have elected to exercise its discretion to enjoin the
state proceedings.
C.
For the reasons explained above, we reject the Defendants’
claim that the amendment of the Koch complaint was void, whether
by operation of § 1446(d) alone or by operation of § 1446(d) in
conjunction with the “expressly authorized” exception to the
Anti-Injunction Act.
The determination that the Koch amendment is not void
effectively ends the inquiry into parallelism. The Defendants
did not ask the state court or the district court to strike the
amendment or to enjoin the Plaintiffs from proceeding on the
amended Koch complaint, nor do they argue on appeal that the
district court should have enjoined the Koch proceedings sua
sponte. Because the amendment is not void under § 1446(d), we
therefore have no basis to disregard the otherwise valid state-
court amendment of the Koch complaint. Accordingly, because the
action now pending in state court is the Koch action as amended
to include the Ackerman plaintiffs, the district court properly
concluded that the actions are parallel for purposes of Colorado
25
River abstention. 3 See Chase Brexton, 411 F.3d at 464 (“Suits
are parallel if substantially the same parties litigate
substantially the same issues in different forums.” (internal
quotation marks omitted)).
And the determination that the Koch and Ackerman actions
are parallel effectively ends our inquiry into the court’s
decision to abstain. As previously noted, the Defendants
explicitly do not challenge the district court’s balancing of
the Colorado River factors and concede that if the Koch
amendment is not void, “the district court’s decision to abstain
and stay should be upheld.” Brief of Appellant at 43 n.135.
IV.
In the course of arguing that the amendment of the Koch
complaint was void, the Defendants identify certain errors in
the district court’s analysis of the Anti-Injunction Act. They
argue that the district court improperly required a tort-like
intent to deceive, when all that is required to enjoin a copycat
action is the intent to subvert removal jurisdiction, which the
Defendants contend was conclusively established by the
Plaintiffs’ concession before the district court that the
3
The Defendants understandably do not argue that the
temporary stay by the state court of proceedings in Koch pending
resolution of this appeal prevents Koch from being parallel to
Ackerman.
26
amendment was intended to “blunt” the effect of the removal.
The Defendants thus contend that the court clearly erred by
finding as a factual matter that the Plaintiffs had no intent to
subvert jurisdiction and erred by concluding that the “expressly
authorized” exception was inapplicable.
As the Defendants argue, the Plaintiffs’ conceded intent to
blunt the removal might well be sufficient to establish the
intent to subvert jurisdiction necessary to authorize an
injunction under the Anti-Injunction Act. See, e.g., KPERS, 77
F.3d at 1069-70 & n.5 (explaining that in federal question
cases, a plaintiff attempts to subvert federal jurisdiction when
he seeks to have the claims in the removed case resolved in
state court rather than federal court).
The issue in this case, however, is a bit more complicated
than the Defendants would like it to be. As the district court
noted, see Ackerman, 821 F. Supp. 2d at 818, there were some
“unusual circumstances” that opened the door to federal
involvement in this case: a state-court action not requested by
the Koch Plaintiffs (the sua sponte decertification of the class
action) and the Plaintiffs’ compliance with the state court’s
request that it file the separate Ackerman complaint. These
facts, of course, would not preclude a finding that the
Plaintiffs intended to subvert jurisdiction. Nonetheless, even
if the court’s determination that the Plaintiffs did not intend
27
to subvert jurisdiction was clearly erroneous, the district
court clearly had the discretion to consider these “unusual
circumstances” when determining the advisability of issuing an
injunction permitted under the Anti-Injunction Act. Because the
Anti-Injunction Act’s “core message is one of respect for state
courts,” Smith v. Bayer Corp., 131 S. Ct. 2368, 2375 (2011), we
believe it was within the district court’s discretion to decide
that the unusual circumstances behind the federal involvement in
the matter would counsel against the issuance of an injunction.
See id. (“[A]ny doubts as to the propriety of a federal
injunction against state court proceedings should be resolved in
favor of permitting the state courts to proceed.” (internal
quotation marks omitted)).
In the end, however, we do not think it necessary in this
case to decide whether the court clearly erred when concluding
that the Plaintiffs did not intend to subvert jurisdiction or
otherwise erred when analyzing the scope of the “expressly
authorized” exception to the Anti-Injunction Act, because the
asserted errors in the district court’s analysis of the
exception played no role in the district court’s resolution of
the issues raised on appeal.
Although the district court indicated that the “expressly
authorized” exception would not apply to this case, the court’s
analysis did not stop there. The court also explained that even
28
if an injunction were permissible under the Anti-Injunction Act,
it would decline to issue one. See Ackerman, 821 F. Supp. 2d at
818 (“In light of the unusual circumstances of this litigation,
the Court finds that enjoining the Koch amendment would
undermine the important goal of preserving an effective dual
system of federal and state courts.” (internal quotation marks
omitted)). The district court’s resolution of the Anti-
Injunction Act question therefore turned not on the court’s
arguably incorrect understanding of the “expressly authorized”
exception, but on the court’s unchallenged-on-appeal
determination that an injunction would not be advisable even if
permissible.
Moreover, the errors identified by the Defendants have no
bearing on the only abstention issue the Defendants raise on
appeal – whether the Koch amendment was void, such that the
state and federal actions were not parallel. Even if we assume
that § 1446(d) authorizes an injunction of separate actions
filed for the purpose of subverting federal jurisdiction and
that the amendment here was indisputably an attempt to subvert
federal jurisdiction, those assumptions only establish that an
injunction would be permissible under the “expressly authorized”
exception to the Anti-Injunction Act. But as we have already
explained, the abstract enjoinability of the Koch amendment does
not establish that the amendment was void.
29
At bottom, this case is about abstention, not the Anti-
Injunction Act. The Defendants did not ask the district court
to enjoin the Koch proceedings, do not argue on appeal that the
district court erred by not issuing an injunction sua sponte,
and do not ask us to issue an injunction of the state-court
proceedings. The Anti-Injunction Act came into the case only
indirectly, when the Defendants opposed Plaintiffs’ abstention
request by arguing that the amendment was void, and the
Defendants pursue the issue on appeal only in the context of
their claim that the enjoinability of the Koch amendment renders
it void. Under these circumstances, we believe it prudent to
leave the questions about the precise scope and applicability of
the “expressly authorized” exception for another case where the
issues are properly presented.
V.
To summarize, we hold that 28 U.S.C. § 1446(d) affects only
the jurisdiction of the state court only with regard to the case
actually removed to federal court. Because Koch was not
removed, the state court maintained jurisdiction over it, and
the amendment to the complaint in that case was not void ab
initio. That the district court might have had authority to
issue an injunction striking the amendment does not make the
amendment void when the district court never issued an
injunction. The district court thus was correct to consider the
30
amended Koch complaint in determining whether the Koch and
Ackerman actions were parallel, and the court did not abuse its
discretion when concluding that exceptional circumstances
warranted abstention in favor of the pending Koch action.
Accordingly, for the foregoing reasons, we hereby affirm the
district court’s order.
AFFIRMED
31
DUNCAN, Circuit Judge, concurring in the judgment:
I admire the majority’s deft circumnavigation of serious
errors of fact and law in pursuit of an ultimately defensible
result. I write separately because the district court’s errors
were so many and of such significance that I cannot share the
majority’s confidence that they did not contribute to that
result. More importantly, I believe that leaving those errors
not only unaddressed but unacknowledged will allow, if not
encourage, their repetition.
My fundamental concern with the majority’s opinion is that
in its magnanimity to a profoundly flawed disposition below, it
omits critical facts at the expense of our well-established
obligation to exercise the jurisdiction that we have. See
Colorado River Water Conservation Dist. v. United States, 424
U.S. 800, 813, 817 (1976) (federal courts have a “virtually
unflagging obligation” to exercise jurisdiction absent
“exceptional circumstances”). For example, it fails to
recognize the significance of the Energy Policy Act of 2005 in
its analysis; it cites the Act only once, and even then merely
in passing in explaining the procedural history of the case.
See Majority Op. at 11.
By way of further example, I fully agree with the
majority’s conclusion that the removal statute, 28 U.S.C. §
1446(d), is not self-acting, and that the Koch amendment was not
32
void ab initio. See Majority Op. at 17-18. However, I feel
compelled to point out what the majority does not: the futility
of Defendants’ seeking an injunction to bar the amendment, when
the district court erroneously believed it lacked authority to
grant one. Indeed, Defendants had no reason to request such an
injunction in advance of Plaintiffs’ motion, and instead had
every reason to believe there was no need to seek one because
the state court action had been stayed.
I concur in the judgment because of my respect both for my
colleagues and for our deferential standard of review. However,
I set forth the district court’s errors in some detail here
because I believe it to be incumbent upon us to provide such
guidance and in the hope that it will discourage their
reoccurrence.
I.
A. Error of Fact
I believe the district court’s finding of fact regarding
the propriety of Plaintiffs’ amendment of the Koch complaint is
clearly erroneous. The district court concluded that “[t]he
primary purposes of amending Koch were not to fraudulently
defeat this Court’s jurisdiction, but to comply with the state
court’s instructions and to ease administration of the
litigation after class decertification.” 821 F. Supp. 2d 811,
33
818 (D. Md. 2012). However, Plaintiffs conceded all that need
be shown to establish an improper intent by stating that they
filed the amendment “to blunt the perceived dilatory tactics of
the Defendants,”--i.e., to subvert Defendants’ proper removal of
the Ackerman action. See id. Regardless of any other asserted
purposes, Plaintiffs have acknowledged that they acted with the
intent to defeat federal jurisdiction over their claims. This
error is particularly significant because of the stringency with
which abstention analysis is to be applied.
B. Errors of Law
1.
I fully understand the majority’s preference for avoiding
dealing with the district court’s view of its authority (or lack
thereof) under the Anti-Injunction Act, 28 U.S.C. § 2283 (the
“AIA”). I am far less sanguine that the court’s confusion in
that regard did not contribute to its ultimate conclusion. I
therefore feel the issue requires consideration.
To start, nothing in the text of the AIA requires that a
defendant request an injunction issued under one of its
exceptions. Rather, the AIA states simply: “A court of the
United States may not grant an injunction to stay proceedings in
a State court except as expressly authorized by Act of Congress,
or where necessary in aid of its jurisdiction, or to protect or
effectuate its judgments.” 28 U.S.C. § 2283 (emphasis added).
34
The plain meaning of this language is that one circumstance in
which the district court may enjoin a state court proceeding
arises when the court has been “expressly authorized” to do so
by Congress, 1 which generally has nothing to do with whether or
not a party explicitly sought the injunction.
As the Supreme Court has explained, the AIA “is a necessary
concomitant of the Framers’ decision to authorize, and Congress’
decision to implement, a dual system of federal and state
courts. It represents Congress’ considered judgment as to how
to balance the tensions inherent in such a system.” Chick Kam
Choo v. Exxon Corp., 486 U.S. 140, 146 (1988). It would seem to
me inconsistent with this careful scheme to render a federal
court’s authority to enjoin a state proceeding entirely
dependent on strategic decisions made by the parties, rather
1
As the majority explains, it is well established that the
removal statute provides the necessary express authorization in
certain circumstances. See Majority Op. at 19-20. By
establishing that removal is effected by a defendant’s filing a
notice of removal in state court, and ordering that “the State
court shall proceed no further unless and until the case is
remanded,” 28 U.S.C. § 1446(d) expressly authorizes a federal
court to enjoin the continued prosecution of the same case in
state court after it is removed. See Mitchum v. Foster, 407
U.S. 225, 234 & n.12 (1972); Vendo Co. v. Lektro-Vend Corp., 433
U.S. 623, 640 (1977) (plurality opinion). The majority also
acknowledges, as did the district court (ostensibly), that many
courts have extended this express authorization to “copycat”
actions filed in state court after removal, permitting
injunctions to prevent a plaintiff from filing exactly the same
case in state court after it is removed, particularly where the
latter is filed with the intent to subvert federal jurisdiction.
See Majority Op. at 20-21.
35
than on the “considered judgment” of Congress embodied in the
AIA.
Furthermore, interpreting the AIA in other contexts, the
Supreme Court has made clear that, where it is not barred by the
Act, a federal court’s authority to enjoin a state court
proceeding is bounded only by the court’s sound discretion, not
by the precise procedural mechanism employed by a party to the
action. See McFarland v. Scott, 512 U.S. 849, 858 (1994)
(affirming the district court’s discretion to issue a stay of
execution under the AIA’s “expressly authorized” exception even
where the defendant had not filed a formal habeas corpus
petition, because 28 U.S.C. § 2251 provides the requisite
express authorization). 2 Accordingly, unlike the district court,
I would not find Defendants’ failure to explicitly request an
2
Further support for viewing the district court’s authority
to enjoin a state proceeding, where the court is “expressly
authorized,” as inherent and independent rather than subservient
to a party’s request, may be found in the All-Writs Act, which
affirmatively grants federal courts license to “issue all writs
necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of
law.” 28 U.S.C. § 1651(a). In this context, courts have
recognized that injunctions exist outside of the traditional
injunction framework governed by Fed. R. Civ. P. 65. See In re
Baldwin-United Corp., 770 F.2d 328, 338-39 (2d Cir. 1985)
(contrasting the concerns motivating ordinary injunctions with
those underlying injunctions issued under the All-Writs Act “to
prevent . . . parties from thwarting the court’s ability to
reach and resolve the merits of the federal suit before it”).
36
injunction in opposing Plaintiffs’ motion determinative, or even
persuasive, on the facts of this case.
The district court went on to say that even if it had the
authority to grant an injunction, it would not have done so.
Here, the district court’s analysis, although perhaps ultimately
defensible in its conclusion, is troubling because it
misconstrues the removal statute and ignores the policy goals
behind that statute.
2.
This brings me to a second legal error apparent in the
district court’s reasoning. As part of its misreading of the
removal statute, the district court concluded, in my view
erroneously, that the Ackerman claims as amended to the Koch
action would not be removable. This was apparently relevant to
the district court’s analysis because it allowed the court to
distinguish the Koch amendment from what it “may appear to be,”
that is, “‘an end run around 28 U.S.C. § 1446(d),’” 821 F. Supp.
2d at 818 (citation omitted), and to downplay the import of
federal jurisdiction over the properly removed Ackerman action.
The court thus attributed this case’s presence in federal court
to bad luck, or perhaps bad strategy: “Had the Plaintiffs merely
amended Koch--rather than filing this separate action--the
Defendants would not have been able to remove these claims.”
Id.37
The district court’s statements do not comport with my
reading of the Energy Policy Act of 2005, which the majority
does not address at all. As it relates to MTBE cases, the Act
memorializes certain Congressional findings regarding the role
of the Clean Air Act Amendments of 1990 in causing the fuel
industry to make investments in MTBE production capacity and
delivery of MTBE-containing gasoline to consumers. See Pub. L.
No. 109-58, § 1502, 119 Stat. 594. The Act also allows for the
removal of MTBE-related “claims and legal actions filed after
the date of enactment.” Id. § 1503 (emphasis added). 3 This
right of removal must apply to the Ackerman claims because they
are MTBE-related claims filed after August 8, 2005, which is all
that § 1503 requires. If Congress intended to provide removal
only for independent legal actions filed after the date of
enactment, it would not have included the word “claims” in the
text of the Act, which is otherwise redundant given that any
claim that is removable must be contained within some sort of
legal action.
3
Initial drafts also included “a safe harbor provision
retroactively limiting or even eliminating liability for MTBE
producers and distributors.” In re MTBE Prods. Liab. Litig.,
674 F. Supp. 2d 494, 498 (S.D.N.Y. 2009) (citing 149 Cong. Rec.
S15212 (daily ed. Nov. 20, 2003) (statement of Sen. Diane
Feinstein)). Following objections from members of Congress, a
compromise was attained whereby the safe harbor was replaced by
§ 1503’s right of removal. Id.
38
As soon as the class of property owners in Koch was
decertified, all of the non-named class members--the future
Ackerman Plaintiffs--were effectively severed from any
involvement in that action. Whether these individuals
subsequently chose to file their claims as an amendment to the
Koch action, as more than 750 individual actions, or as one
separate action later consolidated with Koch, does not change
the fact that these were newly filed claims.
3.
Though the limitations period for the Ackerman Plaintiffs’
claims was tolled by the pendency of the putative class action
in Koch, their claims do not relate back to the original Koch
filing. On this point the district court erred yet again. See
821 F. Supp. 2d at 818-19. The Ackerman Plaintiffs’ claims are
new causes of action seeking distinct damages based on
individualized harm. See Grand-Pierre v. Montgomery Cnty., 627
A.2d 550, 553-54 (Md. Ct. Spec. App. 1993) (“When amendment is
sought to add a new party to the proceedings . . . any cause of
action as to that party is, of course, a new action. . . .
Unless the additional plaintiff[s] will merely be sharing in the
damage award, and not ‘pyramiding’ the original amount
requested, relation back will not be applied[.]”). Given that
the new claims were first filed as an independent legal action
in Ackerman, it is difficult to see how the district court could
39
justify its finding that they merely sought to share in the Koch
Plaintiffs’ damages request.
Indeed, pursuant to 28 U.S.C. § 1446(b)(3), the thirty-day
removal window is revived for circumstances such as these, in
which it may be ascertained from a party’s filing that a case
has become newly removable. Thus, the plain language of both
the Energy Policy Act of 2005 and the removal statute bolsters
the conclusion that the post-amendment Koch action would be
removable. This in turn supports the exercise of federal
jurisdiction over the Ackerman Plaintiffs’ claims.
Consequently, contrary to the district court’s
determination, we cannot blame the creation of this procedural
quagmire on Plaintiffs’ accidental misstep, nor some instruction
of the state court, nor Defendants’ failure to explicitly
request an injunction. Rather, responsibility lies with
Plaintiffs’ deliberate manipulation of federal jurisdiction,
which we ultimately permit, but unfortunately without an
explanation of the serious concerns implicated.
II.
The removal process utilized by Defendants on the Ackerman
Plaintiffs’ claims is consistent with the principles of comity
embodied in the AIA, as well as the preference inherent in the
Energy Policy Act of 2005 to allow defendants to litigate MTBE
40
claims filed after August 8, 2005 in federal court if they so
choose. We have explained that this right of removal resulted
from extensive Congressional negotiations, and represents a
concerted effort to provide some benefit to MTBE defendants in
recognition of Congress’s prior role in facilitating the
widespread use of MTBE as a gasoline additive.
Unlike the majority, I am unable to conclude that these
errors in the district court’s analysis played no role in its
decision to abstain, or in “the issues raised on appeal.”
Majority Op. at 28. At the very least, if--as the majority
asserts--“this is a case about abstention, not the Anti-
Injunction Act,” Majority Op. at 29, then abstention ought to be
analyzed thoroughly and with due consideration for the
presumptions that guide it. After such an analysis, I believe
the district court would have exercised its discretion soundly
by declining to abstain from exercise of federal jurisdiction.
Nonetheless, as the majority recognizes, the issuance of an
anti-suit injunction is highly discretionary. See Chick Kam
Choo, 486 U.S. at 151 (“Of course, the fact that an injunction
may issue under the Anti-Injunction Act does not mean that it
must issue.”). I concur in the result here because I do not
feel comfortable ordering the district court to grant an
injunction, despite its flawed analysis. Cf. Bryan v. BellSouth
Commc’ns, Inc., 492 F.3d 231, 242 (4th Cir. 2007) (“Because the
41
decision to enjoin a state court proceeding . . . is a
discretionary one, our disagreement with the manner in which the
district court approached the question . . . given the
particular circumstances of this case, [does not] prevent[] us
from affirming the court’s decision[.]”) (citation omitted).
Given the district court’s decision not to enjoin the
amendment in state court, I cannot conclude that its decision to
abstain constitutes an abuse of discretion. Because of the
narrow scope of our appellate review, I would affirm on the
narrowest possible grounds, and join only in the judgment of the
majority.
42