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February 2012

Removal Pitfalls: Toxic Tort Case Remanded Back To State Court

Siros_Steven_COLORBy Steven M. Siros


A recent federal court decision out of the Northern District of Ohio illustrates the importance of carefully evaluating when the 30-day deadline for filing a removal petition begins to run.  In Tolloty et al. v. Republic Services, Inc. et al., plaintiffs sued defendants in Ohio state court seeking damages for illnesses allegedly caused by exposure to toxic chemicals from a landfill owned and operated by defendants.  Of the four defendants sued, only one of the defendants was incorporated in Ohio. 

During a deposition of one of the defendant's corporate witnesses, evidence came to light that the Ohio defendant-corporation had not been in existence at the time of plaintiffs' alleged injuries; rather, another corporation with the same name (but incorporated in Delaware) had owned and operated the landfill at that time.  Following the deposition, defendants sent a letter to plaintiffs' counsel asking them to dismiss the Ohio corporation from the litigation; plaintiffs refused.  Within 30 days of receipt of that letter, defendants removed the case to federal court, asserting that the federal court had diversity jurisdiction over the matter since none of the defendants were incorporated or domiciled in Ohio (with the exception of the Ohio defendant-corporation that defendants alleged was fraudulently joined to defeat diversity).  Plaintiffs moved to remand the case back to state court on the basis that more than 30 days had passed since the date that defendants received the transcript of the deposition during which the testimony concerning the Delaware corporation had come to light.  In response, defendants argued that the 30-day clock should not have commenced until such time as plaintiffs refused to dismiss the Ohio defendant-corporation from the litigation.

In considering plaintiffs' request to remand the case, the court noted that a "defendant seeking removal must strictly comply with the timing requirements of 28 U.S.C. §1446(b)."  All ambiguity regarding the scope of §1446(b) should be resolved in favor of remand to the state courts.  Here, defendants' removal petition was filed more than 90 days after defendants received the deposition transcript.  Defendants could point to no operative facts or additional evidence relevant to the issue of fraudulent joinder that became known to them subsequent to the deposition at issue.  The court rejected defendants' argument that until such time as the plaintiffs refused to dismiss the Ohio defendant-corporation, their removal petition was not ripe.  Finally, in what was likely the final nail in defendants' removal coffin, the court noted that even before the deposition at issue, defendants should have been on notice of the underlying facts that they rely upon to make their fraudulent joinder argument.  The court therefore granted plaintiffs' motion to remand the case back to state court.  To see a copy of the opinion, please click here.

Water Scarcity Challenges Headed To Supreme Court

Grayson_Lynn_COLORBy E. Lynn Grayson


Three petitions have been filed with the U.S. Supreme Court seeking a review of a recent 11th Circuit Court of Appeals ruling that authorized the U.S. Army Corps of Engineers to allocate additional water from Lake Lanier to meet Atlanta's growing water supply needs. Lake Lanier provides three-fourths of the drinking water for Atlanta. These actions continue the "water wars" litigation between Alabama, Florida and Georgia over the allocation of water resources in this area of the United States.

At issue in these petitions are long term, continuing conflicts over how the Corps manages its projects in the Apalachicola-Chattahoochee-Flint River Basin. In particular, ongoing disputes have focused on the Corps' management of its four Chattahoochee River dams, including the Buford Dam, that creates Lake Lanier.

The petitioners are in agreement that the 11th Circuit Court of Appeals ruling should be overturned citing its failure to recognize that only Congress has the authority to reallocate water stored in Lake Lanier as well as the fact that this latest decision overlooks existing case law to the contrary, some of which relates to the very subject matter at issue here.

These petitions are a reminder of the growing significance over water resources management in the U.S. today. While many view water resources to be abundant and readily available, water scarcity is a reality for many areas right now and these challenges are increasing with population growth and climate change-related impacts.

The 11th Circuit ruling in In re MDL-1824 Tri State Water Rights Litigation is available at

E. Lynn Grayson And Katherine M. Rahill Speak At CBA Corporate Law Department's Committee Meeting

By E. Lynn Grayson and Katherine M. Rahill

E. Lynn Grayson and Katherine M. Rahill will speak at the CBA Corporate Law Department's Committee Meeting this Wednesday, February 22, 2012 at noon. Their presentation titled "2012 Outlook: Corporate Environmental Concerns" will address new and emerging environmental issues important to in-house counsel. These issues will include:

  • Lack of Government Resources/Insufficient Funding
  • Superfund/UAOs
  • Environmental Disclosures
  • Corporate Environmental Responsibility
  • Water Scarcity
  • Memoranda of Understanding (MOUs)
  • Financial Assurance
  • Soil Vapor Intrusion
  • EPA Toxicological Reviews
  • Improved/New Technology

Lynn and Katie are partners in the Environmental and Workplace Health & Safety Law Practice and may be reached at and More information is available at

New MOU For EPA And DoD

Grayson_Lynn_COLORBy E. Lynn Grayson


EPA and DoD have entered into a new Memorandum of Understanding (MOU) to advance the use of innovative technologies and their mutual interests in sustainability. This MOU is entered into between EPA through its Office of Research and Development, and the Department of Defense through its Office of the Deputy Under Secretary of Defense for Installations and Environment, to establish relations between the two institutions regarding collaboration on their mutual goals.

The Office of Research and Development (ORD) is the scientific research arm of EPA, whose leading-edge research helps provide the solid underpinning of science and technology for the EPA. The work at ORD laboratories, research centers, and offices across the country helps improve the quality of air, water, soil, and the way these resources are used.

The Office of the Deputy Under Secretary of Defense for Installations and Environment ((DUSD-I&E)) is the principal advisor to the Secretary of Defense on matters related to Department of Defense (DoD) installation capabilities, programs, and budgets. Responsibilities include installation-energy programs and policy, environmental management, safety and occupational health, environmental restoration at active and closing bases, conservation of natural and cultural resources, pollution prevention, and environmental research technology.

Subject to mutual consent and availability of funding, EPA and DoD intend to carry out joint activities to advance the development and/or demonstration of new applications and technologies that can be used to achieve mutual sustainability goals. These applications and technologies will use both new and existing data about health and the environment, as well as new data developed within the scope of this MOU.

EPA and DoD intend to cooperate in research, development, and demonstration of technologies that can be used to achieve mutual goals. Joint EPA-DoD activities are expected to be undertaken subject to available funding and resources within each agency. Each party may contribute funding and in-kind resources, depending on the collaborative project, which is consistent with the goals, missions, and programmatic requirements of the party.

The MOU is effective for five (5) years until 2017.