Mayor & City Council of Balt. v. BP P. L.C., Civil Action No. ELH-18-2357

MAYOR AND CITY COUNCIL OF BALTIMORE, Plaintiff, v. BP P.L.C., et al., Defendants.

Civil Action No. ELH-18-2357

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

July 31, 2019

MEMORANDUM

In this Memorandum, I address defendants' motion to stay the Court's Order (ECF 173) remanding this case to the Circuit Court for Baltimore City. See ECF 173 ("Remand Order"). Defendants seek the stay pending resolution by the United States Court of Appeals for the Fourth Circuit of their appeal of the Remand Order. Defendants' motion (ECF 183) is supported by a memorandum of law (ECF 183-1) (collectively, "Motion to Stay"). Plaintiff, the Mayor and City Council of Baltimore (the "City"), opposes the Motion to Stay. ECF 186. Defendants have replied. ECF 187.

No hearing is necessary to resolve the Motion to Stay. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion to Stay.

I. Factual and Procedural Background

On July 20, 2018, the City filed suit in the Circuit Court for Baltimore City against twenty-six multinational oil and gas companies. ECF 42 (Complaint). The City alleges that defendants have substantially contributed to greenhouse gas pollution, global warming, and climate change by extracting, producing, promoting, refining, distributing, and selling fossil fuel products (i.e., coal, oil, and natural gas), while simultaneously deceiving consumers and the public about the dangers associated with those products. Id. ¶¶ 1-8. As a result of such conduct, the City claims that it has sustained and will sustain several injuries, including a rise in sea level along Maryland's coast, as well as an increase in storms, floods, heatwaves, drought, extreme precipitation, and other conditions. Id. ¶ 8.

The Complaint contains eight causes of action, all founded on Maryland law: public nuisance (Count I); private nuisance (Count II); strict liability for failure to warn (Count III); strict liability for design defect (Count IV); negligent design defect (Count V); negligent failure to warn (Count VI); trespass (Count VII); and violations of the Maryland Consumer Protection Act, Md. Code (2013 Repl. Vol., 2019 Supp.), Com. Law §§ 13-101 to 13-501 (Count VIII). ECF 42 ¶¶ 218-98. The City seeks monetary damages, civil penalties, and equitable relief. Id.

Two of the defendants, Chevron Corp. and Chevron U.S.A., Inc. (collectively, "Chevron"), timely removed the case to this Court. ECF 1 (Notice of Removal). They asserted the following eight grounds for removal: (1) the case is removable under 28 U.S.C. § 1441(a) and § 1331, because the City's claims are governed by federal common law, not state common law; (2) the action raises disputed and substantial issues of federal law that must be adjudicated in a federal forum; (3) the City's claims are completely preempted by the Clean Air Act ("CAA"), 42 U.S.C. § 7401 et seq., and/or other federal statutes and the Constitution; (4) this Court has original jurisdiction under the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1349(b); (5) removal is authorized under the federal officer removal statute, 28 U.S.C. § 1442(a)(1); (6) this Court has federal question jurisdiction under 28 U.S.C. § 1331 because the City's claims are based on alleged injuries to and/or conduct on federal enclaves; (7) removal is authorized under 28 U.S.C. § 1452(a) and 28 U.S.C. § 1334(b), because the City's claims are related to federal bankruptcycases; and (8) the City's claims fall within the Court's original admiralty jurisdiction under 28 U.S.C. § 1333. ECF 1 at 6-12, ¶¶ 5-12.

Thereafter, the City filed a motion to remand the case to state court, pursuant to 28 U.S.C. § 1447(c). ECF 111. The motion was supported by a memorandum of law (ECF 111-1) (collectively, "Remand Motion"). Defendants filed a joint opposition to the Remand Motion (ECF 124, "Opposition"), along with three supplements containing numerous exhibits. ECF 125; ECF 126; ECF 127. The City replied. ECF 133.

While the City's Remand Motion was pending, defendants filed a conditional motion to stay the execution of any order to remand. ECF 161. They asked that, in the event this Court grants the City's Remand Motion, the Court issue an order staying execution of the remand for thirty days to allow time to appeal the ruling. Id. at 1-2. The City initially opposed that motion (ECF 162), but subsequently stipulated to the requested stay. ECF 170. This Court accepted the parties' stipulation by Consent Order of April 22, 2019. ECF 171.

In a Memorandum Opinion (ECF 172) and Order (ECF 173) of June 10, 2019, I granted the City's Remand Motion. After consideration of all eight bases for removal relied on by defendants, I concluded that removal was improper. See ECF 172. However, in accordance with the parties' joint stipulation (ECF 170) and the Court's prior Order (ECF 171), I stayed execution of the Remand Order for thirty days. ECF 173.

On June 13, 2019, defendants filed a Notice of Appeal of the Remand Order to the United States Court of Appeals for the Fourth Circuit. ECF 178. Then, on June 23, 2019, defendants filed the Motion to Stay currently pending before this Court. ECF 183. Defendants ask this Court to stay execution of the remand until their appeal is resolved by the Fourth Circuit, arguing that their appeal "presents substantial legal questions on which Defendants are likely to succeed." ECF183 ¶ 3. In the alternative, they ask the Court to extend the current stay until this Court resolves their Motion to Stay and, should the Court deny the Motion, until the Fourth Circuit resolves the Motion to Stay. Id. ¶ 4.

That same day, the City stipulated to a partial extension of the current stay. ECF 184. That is, the City agreed to stay the execution of the remand "through and including this Court's resolution of Defendants' Motion to Extend the Stay Pending Appeal, and if that motion is denied, through the resolution of Defendants' anticipated Motion to Stay in the U.S. Court of Appeals for the Fourth Circuit." ECF 184 at 2. This Court accepted the parties' joint stipulation by Consent Order of June 24, 2019. ECF 185.

However, the City opposes the defendants' Motion to Stay pending resolution of the merits of the appeal of the remand. ECF 186. It argues that defendants are unlikely to succeed on the merits of the appeal, that defendants would not suffer irreparable harm absent a stay, and that a stay would delay resolution of its claims. Id. at 4-17.

II. Discussion

A stay is "'an exercise of judicial discretion' and '[t]he propriety of its issue is dependent upon the circumstances of the particular case.'" Nken v. Holder, 556 U.S. 418, 433 (2009) (quoting Virginia Ry. Co. v. United States, 272 U.S. 658, 672 (1926)). The party requesting a stay bears the burden of showing that a stay is warranted. Id. at 433-34. When evaluating a motion to stay, courts consider four factors: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay, (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Id. at 434; see Hilton v. Braunskill, 481 U.S. 770, 776 (1987); Nero v. Mosby, No. MJG-16-1288, 2017 WL 1048259, at *1 (D. Md. Mar. 20,2017); Realvirt, LLC v. Lee, 220 F. Supp. 3d 704, 705 (E.D. Va. 2016). The first two factors are the "most critical." Nken, 556 U.S. at 434.

The Court begins with the first factor - the defendants' likelihood of success on the merits of their appeal. Nken, 556 U.S. at 434. Defendants assert that their appeal presents substantial legal questions, particularly whether removal was proper because the City's claims "necessarily arise under federal common law." ECF 183-1 at 2. They point out that other district courts in similar cases have reached different conclusions on this issue. Id. at 2, 5-9. Thus, according to defendants, the first factor supports the issuance of a stay pending resolution of the appeal. Id.

The Court agrees that the removal of this case based on the application of federal law presents a complex and unsettled legal question, as evidenced by the diverging opinions reached by other district courts that have considered the issue. Compare California v. BP P.L.C., No. WHA-16-6011, 2018 WL 1064293, at *5 (N.D. Cal. Feb. 27, 2018) (upholding removal of plaintiffs' public nuisance claims against fossil fuel companies because, "though pled as state-law claims, [they] depend on a global complex of geophysical cause and effect involving all nations of the planet" and, thus, "are governed by federal common law"), appeal docketed sub. nom., City of Oakland v. BP, P.L.C., No. 18-16663 (9th Cir. Sept. 4, 2018), with County of San Mateo v. Chevron Corp., 294 F. Supp. 3d 934, 937-39 (N.D. Cal. 2018) (remanding plaintiffs' tort claims against oil companies relating to global warming because removal was not supported by federal common law or any of the other bases relied upon by defendants), appeal docketed sub. nom., County of Marin v. Chevron Corp., No. 18-15503 (9th Cir. Mar. 27, 2018), and Rhode Island v. Chevron Corp., No. WES-18-0395, 2019 WL 3282007, at *2-3 (D.R.I. July 22, 2019) (same). But, of course, this issue does not support a stay pending resolution of defendants' appeal if it is not actually presented on appeal. And, as the City points out, a remand based on a finding of lackof subject matter jurisdiction—like that issued by this Court—is typically not subject to appellate review. See ECF 173.

The scope of appellate review over remand orders is "substantially limited" by 28 U.S.C. § 1447(d). Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 229 (2007). That section provides: "An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to ...