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On or about May 23, 2018, several Defendants in the Coastal Zone Management Act (“CZMA”) Litigation filed Notices of Removal in 42 lawsuits filed against 212 oil and gas companies by six different parishes (Plaquemines, Jefferson, Cameron, Vermilion, St. Bernard, and St. John the Baptist), removing the cases to federal court.  The timing of the removal was based on Plaintiffs’ expert report, which was produced on April 30, 2018.  In their Notices of Removal, Defendants allege that Plaintiffs’ expert report purportedly identifies state “permitting violations,” which revealed for the first time in the CZMA Litigation that Plaintiffs’ claims primarily attack activities undertaken before the state permitting law at issue was effective and that were instead subject to extensive and exclusive federal direction, control, and regulation.

More specifically, Defendants allege that Plaintiffs’ claims: (1) implicate wartime and national emergency activities undertaken at the direction of federal officers, and (2) necessarily require resolution of substantial, disputed questions of federal law.  In connection with the removals, on May 25, 2018, Defendants filed a Motion for Coordinated Pretrial Proceedings with the Judicial Panel on Multidistrict Litigation asking the Panel to coordinate pretrial proceedings in all 42 federal cases before a single judge.  Finally, on or about May 30, 2018, Defendants filed Motions for Stay Pending MDL Determination with the federal courts requesting that they stay federal proceedings – and particularly consideration of remand – until after the Judicial Panel on Multidistrict Litigation rules on their pending motion to coordinate pretrial proceedings.

In response, Plaintiffs filed: (1) a Memorandum in Opposition to Defendants’ Motions to Stay on June 4, 2018, and (2) Motions to Remand the cases back to state court on June 19, 2018.  In their Memorandum in Opposition to Defendants’ Motions to Stay, Plaintiffs argued that the Court should deny Defendants’ Motions for Stay because the facts concerning both the timeliness of the removals and the actions at issue in each field are different in each of the cases, and the motions were filed as a delay strategy which should not be rewarded.

In their Motions to Remand, Plaintiffs argued that: (1) the removal was not timely because Defendants had notice of the grounds alleged in the removal notice more than thirty days before the cases were removed, (2) Defendants could not satisfy the test for substantial federal question jurisdiction set forth by the United States Supreme Court, and (3) the Defendants could not satisfy the second, third, and fourth requirements of the jurisdictional test for “Federal Officer” Removal Jurisdiction. [1]

All federal courts have granted Defendants’ Motions to Stay.  Furthermore, Defendants’ Motion for Consolidated Pretrial Proceedings is set to be argued before the Judicial Panel on Multidistrict Litigation on July 26, 2018.  Lastly, at this time, no federal court has ruled on Plaintiffs’ Motions to Remand.

[1] According to Plaintiffs, to establish “Federal Officer” Removal Jurisdiction, a defendant must show: (1) that it is a person within the meaning of the statute, (2) that it “acted pursuant to a federal officer’s directions,” (3) “that a causal nexus exists between [its] actions under color of federal office and the plaintiff’s claims,” and (4) that it has “a colorable federal defense.”  Zeringue v. Crane Co., 846 F. 3d 785,789 (5th Cir. 2017)(quoting Bartel v. Alcoa S.S. Co., 805 F. 3d 169, 172 (5th Cir. 2015)); Legendre v. Huntington Ingalls, Inc., 885 F. 3d 398, 400 (5th Cir. 2018).

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