Gaston v. State of Alaska

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
BARBARA GASTON,
Plaintiff,
v.
STATE OF ALASKA,
Defendant.
Case No. 4:21-cv-00019-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 14 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. Plaintiff
Barbara Gaston responded in opposition at Docket 24, to which Tyco replied at
Docket 26.
Case 4:21-cv-00019-SLG Document 31 Filed 11/29/21 Page 1 of 5

Case No. 4:21-cv-00019-SLG, Gaston v. State of Alaska, State of Alaska v. 3M Company et al.
Order re Motion to Stay
Page 2 of 5
DISCUSSION
Plaintiff commenced this action in state court against the State of Alaska in
2019.1 Plaintiff alleges that the State negligently used aqueous film-forming foams
(“AFFF”) firefighting agent, which contains toxic chemicals, at an airport near
Plaintiff’s property, which contaminated Plaintiff’s groundwater.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 entire 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 Plaintiff has filed a motion to vacate the CTO with 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. These parties had originally been named as defendants by Plaintiff, but were
not included in Plaintiff’s first amended complaint.
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.
Case 4:21-cv-00019-SLG Document 31 Filed 11/29/21 Page 2 of 5

Case No. 4:21-cv-00019-SLG, Gaston v. State of Alaska, State of Alaska v. 3M Company et al.
Order re Motion to Stay
Page 3 of 5
JPML,6 which the panel 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 Plaintiff opposes the motion to stay and moves
separately to remand this action back to Alaska state court.9 Plaintiff contends that
the federal contractor defense does not apply to confer federal jurisdiction and that
there is no other basis for federal jurisdiction. Accordingly, Plaintiff ask this Court
to deny the motion to stay and instead grant Plaintiff’s motion 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 Plaintiff.11
Plaintiff’s motion to vacate the CTO contains many of the same jurisdictional
arguments presented in her opposition to the stay and in her motion to remand
6 Docket 1134, 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 14.
9 See Docket 15.
10 See Docket 24.
11 See Bowie v. Medtronic, Inc., Case No. 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))).
Case 4:21-cv-00019-SLG Document 31 Filed 11/29/21 Page 3 of 5

Case No. 4:21-cv-00019-SLG, Gaston v. State of Alaska, State of Alaska v. 3M Company et al.
Order re Motion to Stay
Page 4 of 5
filed in this Court. By granting the stay, the Court avoids the risk of duplicative
work and potentially inconsistent rulings with respect to these 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 Plaintiff in granting the stay. The JPML likely will decide Plaintiff’s
motion to vacate within a matter of weeks, presenting only minimal delay to an
action for damages filed in 2019. Should the JPML deny transfer, Plaintiff’s motion
to remand is already ripe for consideration by this Court; and, in the event the case
is transferred to the MDL, Plaintiff may present the same jurisdictional arguments
to the MDL court, which can rule on the motion to remand. 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 Plaintiff’s motion to vacate the CTO.
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).
Case 4:21-cv-00019-SLG Document 31 Filed 11/29/21 Page 4 of 5

Case No. 4:21-cv-00019-SLG, Gaston v. State of Alaska, State of Alaska v. 3M Company et al.
Order re Motion to Stay
Page 5 of 5
CONCLUSION
In light of the foregoing, Tyco’s motion to stay at Docket 14 is GRANTED.
The Court hereby stays all proceedings in this matter until the JPML rules on
Plaintiff’s motion to vacate and renders a final transfer decision.
DATED this 24th day of November, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
Case 4:21-cv-00019-SLG Document 31 Filed 11/29/21 Page 5 of 5