Campbell-Mccormick, Inc. v. Oliver, 16-1895.

874 F.3d 390

CAMPBELL–MCCORMICK, INC., and its remaining Director-Trustee, Robert I. McCormick, Defendant and 3rd-Party Plaintiff–Appellant,

v.Clifford OLIVER, Plaintiff–Appellee,andJune R. Stearns, Plaintiff-Appellee,The Walter E. Campbell Company, Inc., Defendant–Appellee,

MCIC, Incorporated, formerly known as McCormick Asbestos Co., Defendant and 3rd-Party Plaintiff–Appellee,

Atwood & Morrill Co., Inc.; Manville Trust Personal Injury Settlement Trust; Aurora Pump; Crane Co.; General Electric Company; Ingersoll-Rand Co., Inc.; Johnson Controls, Inc.; Marotta Controls, Inc.; The Nash Engineering Company; The Weir Group; Velan Valves Corp. ; Viking Pump; Warren Pumps, Inc., Third Party Defendants–Appellees.

No. 16-1895.

United States Court of Appeals, Fourth Circuit.

Argued: September 13, 2017

Decided: October 24, 2017

ARGUED: Steven Joseph Parrott, DEHAY & ELLISTON, L.L.P., Baltimore, Maryland, for Appellant. Ian Gill Thomas, BROWN GOULD KIELY LLP, Bethesda, Maryland; David Michael Sturm, TADDEOSTURM PLC, Richmond, Virginia, for Appellees. ON BRIEF: Patrick C. Smith, John C. Ruff, DEHAY & ELLISTON, L.L.P., Baltimore, Maryland, for Appellant. Daniel A. Brown, Matthew E. Kiely, BROWN GOULD KIELY LLP, Bethesda, Maryland, for Appellees Clifford Oliver and June R. Stearns. F. Ford Loker, MILES & STOCKBRIDGE, P.C., Baltimore, Maryland, for Appellee Aurora Pump Company. Gerry H. Tostanoski, TYDINGS & ROSENBERG LLP, Baltimore, Maryland, for Appellee Atwood & Morrill Company. Malcolm S. Brisker, GOODELL, DEVRIES, LEECH & DANN, LLP, Baltimore, Maryland, for Appellees Johnson Controls, Inc. and Viking Pump, Inc. Anthony B. Taddeo, Jr., TADDEOSTURM PLC, Richmond, Virginia, for Appellee Velan Valve Corp. Michael L. Haslup, Jonathan J. Huber, MILES & STOCKBRIDGE, P.C., Baltimore, Maryland, for Appellee Ingersoll-Rand Company. Robert E. Scott, Jr., Richard J. Medoff, SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for Appellee Marotta Controls, Inc.

Before KING and THACKER, Circuit Judges, and John A. GIBNEY, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.

Appeal dismissed by published opinion. Judge King wrote the opinion, in which Judge Thacker and Judge Gibney concurred.

KING, Circuit Judge:

In these proceedings, plaintiff Wayne Oliver filed a complaint in Maryland state court alleging asbestos exposure claims against, among other defendants, Campbell-McCormick, Inc. ("CMC"). In response, CMC filed a third-party complaint against several entities, including General Electric Company ("GE"). GE then removed the litigation to the District of Maryland, prompting Oliver to move to sever his claims and remand them to state court. The federal district court granted Oliver's motion and concomitantly retained jurisdiction over CMC's third-party claims, which the court stayed. See Oliver v. Campbell-McCormick, Inc. , No. 1:16-cv-01057 (D. Md. July 18, 2016), ECF No. 106 (the "Order"). CMC appeals from the Order, contending that the district court erroneously severed and remanded Oliver's claims. As explained below, we dismiss the appeal for lack of appellate jurisdiction— including jurisdiction, as claimed by CMC, under the collateral order doctrine.¹

I.

In December 2015, Wayne Oliver filed his complaint in the Circuit Court for Baltimore City, Maryland, alleging state law claims against CMC, the Walter E. Campbell Company, Inc., and MCIC, Incorporated. CMC then filed its third-party complaint against GE and twelve other third-party defendants, seeking contribution pursuant to the Maryland Uniform Contribution Among Joint Tort-Feasors Act. See Md. Code, Cts. & Jud. Proc. § 3-1401 (the "UCATA").² In April 2016, GE removed the litigation to federal district court pursuant to 28 U.S.C. § 1442(a), asserting the federal contractor defense. A little more than a month later, in May 2016, Oliver filed his motion to sever and remand his claims. Specifically, Oliver requested the district court to decline to exercise supplemental jurisdiction over his state law claims pursuant to 28 U.S.C. § 1367(c).

By its Order of July 18, 2016, the district court granted Oliver's motion to sever and remand his claims, but retained jurisdiction over and stayed CMC's third-party claims. As the court explained in the memorandum opinion accompanying the Order, its discretion to decline to exercise supplemental jurisdiction over a state law claim is circumscribed by § 1367(c), under which "a declination is permitted only when," inter alia, "the claim ‘substantially predominates over’ the claim [that accords] original or removal jurisdiction." See Oliver v. Campbell-McCormick, Inc. , No. 1:16-cv-01057, at 4, 2016 WL 3878492 (D. Md. July 18, 2016), ECF No. 105 (the " Opinion") (quoting 28 U.S.C. § 1367(c) ). Importantly, the federal contractor defense is the only source of federal jurisdiction herein, because CMC's third-party claims are based entirely on Maryland state law, i.e., the UCATA. The Opinion deemed severance and remand of Oliver's state law claims to be appropriate, in that those claims "substantially predominate over the federal contractor defense that gives this court original jurisdiction." Id. The court emphasized that the federal contractor defense "would become relevant only if the defendants are found to be liable for Oliver's state law causes of action." Id. at 5.

Additionally, the Opinion recognized that the district court's discretion is circumscribed by case law, but found that the relevant " ‘principles of economy, convenience, fairness, and comity’ " further "support severance and remand." See Opinion 4, 6 (quoting Hinson v. Norwest Fin. S.C., Inc. , 239 F.3d 611, 617 (4th Cir. 2001) ). For example, the Opinion reasoned that the "court must respect Maryland's prerogative to apply its own laws, as well as the plaintiff's desire to litigate issues of Maryland law in the Maryland state courts." Id. at 6 (alterations and internal quotation marks omitted). The Opinion also pointed to Oliver's looming October 6, 2016 state court trial date and his then-grim medical prognosis. Id. at 6 & n.4 (observing that "Oliver is more likely to have his day in court before his health significantly declines if the case is remanded"). Rejecting the defendants' protestations of prejudice, the Opinion recognized that Maryland's highest court had interpreted the UCATA as allowing a defendant to initiate a contribution claim in a separate action even after a judgment is entered in the main action. Id. at 7 (citing Mercy Med. Ctr. v. Julian , 429 Md. 348, 56 A.3d 147, 163 (2012) (noting that the UCATA does not provide "that a cross-claim for contribution must be asserted in the original action")). The Opinion reasoned that, if CMC "could sue the third-party defendants after a judgment was entered in the main action, then [CMC] and the third-party defendants cannot argue that they will be prejudiced by this court's decision to sever and remand all but the third-party claims." Id . Consistent with its Opinion, the court's Order administratively closed the litigation in the District of Maryland, "subject to reopening as warranted to pursue third-party claims." See Order 1.

CMC timely noted this appeal, summarily asserting that this Court possesses jurisdiction under 28 U.S.C. § 1291. Nevertheless, "before we consider the merits of an appeal, we have an independent obligation to verify the existence of appellate jurisdiction." See Porter v. Zook , 803 F.3d 694, 696 (4th Cir. 2015) (internal quotation marks omitted). Consequently, prior to oral argument, we directed the parties to file supplemental briefs explaining the theory of § 1291 jurisdiction—such as the collateral order doctrine—that entitles us to review the district court's Order.

II.

In its supplemental appellate brief, CMC contends that a remand order based upon a district court's declination of supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c) is considered to be a final, appealable decision under 28 U.S.C. § 1291 —because it either ends the federal litigation on the merits or qualifies for review under the collateral order doctrine. CMC specifically relies on the collateral order doctrine for our jurisdiction in this appeal from the district court's Order. For his part, Oliver contests this Court's § 1291 jurisdiction, but his supplemental brief only cursorily addresses the potential applicability of the collateral order doctrine.

A.

It is true "that a remand order based on § 1367(c) is appealable as a final order pursuant to § 1291." See Bryan v. BellSouth Commc'ns , 377 F.3d 424, 428 (4th Cir. 2004) ; see also 28 U.S.C. § 1291 (providing that "[t]he courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States").³ The jurisdictional question before us is whether the district court's Order constitutes a final decision within the meaning of § 1291. We have recognized that, "[o]rdinarily, a district court order is not final until it has resolved all claims as to all parties." See Porter v. Zook , 803 F.3d 694, 696 (4th Cir. 2015). That is, "a final decision is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." See Ray Haluch Gravel Co. v. Cent. Pension Fund of Int'l Union of Operating Eng'rs , ––– U.S. ––––, 134 S.Ct. 773, 779, 187 L.Ed.2d 669 (2014) (internal quotation marks omitted). For example, if the Order had dismissed CMC's third-party claims in conjunction with remanding Oliver's claims, the Order would constitute a final decision because there would be no claims left to pursue in federal court. Instead, however, the district court retained jurisdiction over and stayed the third-party claims, leaving those claims to be resolved at a later time. Accordingly, the Order does not constitute a final decision as generally understood for purposes of § 1291.⁴

The collateral order doctrine, however, provides another potential avenue for ...