Saracco et al v. State of Alaska et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JAMES F. SARACCO and LISA
ETHERINGTON.,
Plaintiffs,
v.
STATE OF ALASKA and CITY OF
GUSTAVUS,
Defendants.
Case No. 1:21-cv-00015-SLG
STATE OF ALASKA,
Third-Party Plaintiff,
v.
3M COMPANY, et al.,
Third-Party Defendants.
ORDER RE MOTION TO STAY
Before the Court at Docket 15 is Third-Party Defendants Tyco Fire Products,
LP and Chemguard, Inc.’s (collectively, “Tyco”) Motion to Stay This Action Pending
Final Transfer Decision by the Judicial Panel on Multidistrict Litigation. Plaintiffs
James F. Saracco and Lisa L. Etherington (collectively, “Plaintiffs”) responded in
opposition at Docket 26. The City of Gustavus (the “City”) also responded in
opposition at Docket 27. Tyco replied at Docket 32.
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Case No. 1:21-cv-00015-SLG, Saracco v. State of Alaska et al., State of Alaska v. 3M Co. et al.
Order re Motion to Stay
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DISCUSSION
Plaintiff commenced this action in state court against the State of Alaska and
the City in 2019.1 Plaintiffs allege that the City negligently used aqueous film-
forming foams (“AFFF”) firefighting agent, which was contained in a firefighting
truck provided to the City by the State, to extinguish a brush fire on Plaintiffs’
property. Plaintiffs further allege that the City and State knew or should have
known that AFFF firefighting agent contained toxic chemicals that have
contaminated Plaintiffs’ property.2
In April 2021, the State filed a third-party complaint against numerous AFFF
manufacturers as third-party defendants, including Tyco and Chemguard.3 In
August 2021, Tyco removed the action to this Court under the federal officer
removal statute, 28 U.S.C. § 1442(a)(1).4 Tyco then sought to transfer this action
to the multidistrict litigation (“MDL”) proceeding, In re Aqueous Film-Forming
Foams (AFFF) Products Liability Litigation, MDL No. 2873, currently pending in the
District of South Carolina. The Judicial Panel on Multidistrict Litigation {“JPML”)
issued a conditional transfer order (“CTO”) to the MDL court.5 Plaintiffs and the
1 Plaintiff’s original complaint had originally named AFFF manufacturers as defendants, but these
entities but were not included as named defendants in Plaintiff’s First Amended Complaint.
2 See Docket 1-2.
3 See Docket 1-1.
4 See Docket 1.
5 Conditional Transfer Order, In re Aqueous Film-Forming Foams Prods. Liab. Litig., MDL No.
2873 (J.P.M.L. Aug. 20, 2021), Docket 1077.
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Case No. 1:21-cv-00015-SLG, Saracco v. State of Alaska et al., State of Alaska v. 3M Co. et al.
Order re Motion to Stay
Page 3 of 5
City have filed motions to vacate the CTO,6 which the JPML has stated it will
consider at its December 2, 2021 hearing session.7
Tyco now moves to stay this action pending the JPML’s decision on the
motion to vacate the CTO.8 Both Plaintiffs and the City oppose the motion to stay
and move separately to remand this action back to Alaska state court.9 Plaintiffs
and the City contend that the federal contractor defense does not apply to confer
federal jurisdiction and that there is no other basis for federal jurisdiction.
Accordingly, Plaintiffs and the City ask this Court to deny the motion to stay and
instead grant their motions to remand.10
For the reasons discussed below, the Court finds that granting the stay
would advance judicial economy, promote consistency, and present minimal
hardship to Plaintiffs and the City.11
6 Dockets 1132, 1133, In re Aqueous Film-Forming Foams Prods. Liab. Litig., MDL No. 2873 (Sept.
27, 2021).
7 Hearing Order, In re Aqueous Film-Forming Foams Prods. Liab. Litig., MDL No. 2873 (J.P.M.L.
Oct. 18, 2021), Docket 1143.
8 See Docket 15.
9 See Dockets 16, 19.
10 See Dockets 26, 27.
11 See Bowie v. Medtronic, Inc., Case No. 3:08-CV-00090 TMB, 2008 WL 11336904, at *1 (D.
Alaska Aug. 13, 2008) (addressing judicial economy, consistency, and hardship to plaintiff in
considering whether to stay the proceeding); see also Lyon v. DePuy Orthopaedics, Inc., Case
No. 19-cv-05270-PJH, 2019 WL 4933586, at *2 (N.D. Cal. Oct. 7, 2019) (“Courts generally grant
a stay pending resolution of consolidated proceedings when a stay would avoid the needless
duplication of work and the possibility of inconsistent rulings.” (quoting Freitas v. McKesson Corp.,
Case No. C 11-05967 JW, 2012 WL 161211, at *2 (N.D. Cal. Jan. 10, 2012))).
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Case No. 1:21-cv-00015-SLG, Saracco v. State of Alaska et al., State of Alaska v. 3M Co. et al.
Order re Motion to Stay
Page 4 of 5
Plaintiffs’ and the City’s motions to vacate the CTO contain many of the
same jurisdictional arguments presented in their oppositions to the stay and their
motions to remand in this Court. By granting the stay, the Court avoids the risk of
duplicative work and potentially inconsistent rulings with respect to Plaintiffs’ and
the City’s jurisdictional arguments. Moreover, it is within the Court’s discretion to
issue a stay pending the JPML’s decision on transfer even when there is a pending
challenge to the federal district court’s jurisdiction.12 The Court also finds there will
be minimal hardship to Plaintiffs and the City in granting the stay. The JPML likely
will decide their motions to vacate within a matter of weeks, presenting only
minimal delay to an action for damages. Should the JPML deny transfer, Plaintiffs’
and the City’s motions to remand are already ripe for consideration by this Court;
and, in the event the case is transferred to the MDL. Either way, a brief stay of this
matter while the JPML considers the motion to vacate is likely to preserve judicial
resources, avoid duplicative litigation in multiple fora, and ensure consistent
outcomes on common questions.
Accordingly, the Court will stay the litigation in this forum until the JPML
determines the until the JPML determines Plaintiff’s and the City’s motions to
vacate the CTO.13
12 See, e.g., Bowie v. Medtronic, Inc., Case No. 3:08-CV-00090 TMB, 2008 WL 11336904, at *1
(D. Alaska Aug. 13, 2008).
13 While recognizing the City’s unique position in this litigation, the Court has confidence in both
the JPML and the MDL court to consider the unique factual nature of this case and the parties’
positions and discovery needs.
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Case No. 1:21-cv-00015-SLG, Saracco v. State of Alaska et al., State of Alaska v. 3M Co. et al.
Order re Motion to Stay
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CONCLUSION
In light of the foregoing, Tyco’s motion at Docket 15 is GRANTED. The
Court hereby stays all proceedings in this matter until the JPML rules on Plaintiffs’
and the City’s motions to vacate the CTO and renders a final transfer decision.
DATED this 24th day of November, 2021 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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