Judge Won’t Remand|Cosco Busan Case

     SAN FRANCISCO (CN) – A federal judge refused to remand a case that claims Longs Drugs was negligent in giving drugs to the ship pilot responsible for the Cosco Busan’s 2007 oil spill in San Francisco Bay.



     U.S. District Judge Samuel Conti agreed with Longs Drugs that it could remove the case even though Longs was never served with the lawsuit.
     John Cota was pilot of the container ship Cosco Busan when it crashed into the San Francisco-Oakland Bay Bridge on Nov. 7, 2007, dumping more than 53,000 gallons of fuel oil into the bay.
     Regal Stone Limited sued Longs Drugs in January 2011, under seal in San Francisco County Superior Court, under the theory that the pharmacist’s negligence in providing prescription medication to Cota contributed to the collision.
     The plaintiffs never served the defendants because they were waiting for the state court to rule on their motion to seal and to issue guidance on how to treat Cota’s medical information.
     The initial and amended complaints were filed under seal because Cota has claimed a protected privacy interest in medical information they contain.
     The defendants have seen only the public, heavily redacted versions of the complaint.
     The defendants removed the case to Federal Court on Sept. 13, 2011. The court denied defendants’ motion to relate this case to others filed in connection with the crash and oil spill.
     The plaintiffs then filed the instant motion to remand, arguing that the defendants “improperly availed” themselves of the court’s removal jurisdiction. They claimed the 30-day removal window opens upon service and before service removal is premature. Since they never served the defendants, the window never opened.
     Longs Drugs “strenuously contests this point,” arguing that “removal is proper unless a forum defendant already has been ‘properly joined and served.'”
     Since the defendants were joined but never served they say the removal was legal.
     The defendants point out that the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (FCJVA) did not amend portions of law requiring a defendant to be “properly joined and served.”
     The plaintiffs noted that Congress also left untouched requirements that notices of removal “shall be filed within thirty days after the receipt by defendant, through service or otherwise, of the complaint.”
     According to plaintiff Regal Stone, the use of the words “shall” in combination with “within” and “after … confirms Congress’ intent for service to trigger a thirty-day removal period within which removal may be proper, but outside of which it is untimely – either too late, or as plaintiffs would have it here, too early. Plaintiffs suggest that if Congress had intended to permit removal before service, it could have said ‘no later than’ rather than ‘within.”
     Judge Conti disagreed, finding that plaintiffs’ reading would “improperly discard pivotal parts of the statute as mere surplusage.” He noted that Regal Stone’s interpretation ignores the words “and served” in the statute, which refers to defendants “properly joined and served.”
     Regal Stone urged the court to follow cases in other districts that have adopted its reading. However, Conti noted, “the Northern District has consistently followed the alternate view, which gives effect to those words. The Court is not persuaded that it would be appropriate to depart from that position now and thereby disrupt the settled expectations of litigants in this district.”
     He also said that Congress has not commanded as much. “Indeed, the FCJVA’s legislative history strongly suggests that when Congress amended the removal statutes, it simply did not have the issue of premature removal in mind. … As much as the Court may wish that Congress had taken the FCJVA as an opportunity to speak clearly and affirmatively on this point, Congress did not do so, and it is well-settled that where Congress amends part of a statute and leaves another part unchanged, a court must interpret Congress’ inaction as satisfaction with the unamended portion, or at least tolerance of its inadequacies. … The Court is therefore bound to take Congress’ preservation of [the statute’s] ‘properly joined and served’ language as an endorsement.”
     Conti also granted the plaintiffs’ motion to seal part of the first amended complaint, and for a protective order permitting the plaintiffs to serve the defendants with an unredacted copy and prohibiting them from disclosing or making public any sealed information.
     Cosco Busan owner Regal Stone Limited is joined by Fleet Management Ltd., technical manager of the ship, as plaintiffs.
     They sued Longs Drugs under three corporate names along with parent company CVS Caremark and pharmacist Louie Chester.
     The ship hit the Delta tower of the bridge, causing a 150-foot long, 12-foot high gash on the side of the ship and puncturing two of its fuel tanks, spilling 53,500 gallons of thick oil into the bay.
     Officials say at least 2,000 migratory birds died, including endangered brown pelicans, marbled murrelets and Western grebes.
     Cota pleaded guilty to federal water pollution charges in March 2009, and was sentenced to 10 months in prison, 1 year of supervised release and 200 hours of community service.

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