USDC IN/ND case 1:20-cv-00238 document 8 filed 06/25/20 page 1 of 6
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`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF INDIANA
`FORT WAYNE DIVISION
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`EDMOND ASHER, et al.,
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`Plaintiffs,
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`vs.
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`RAYTHEON TECHNOLOGIES
`CORPORATION f/k/a United
`Technologies Corporation, LEAR
`CORPORATION EEDS AND
`INTERIORS, LLC as successor to United
`Technologies Automotive, Inc.,
`ANDREWS DAIRY STORE, INC., L.D.
`WILLIAMS, INC., CP PRODUCT, LLC,
`as successor to Preferred Technical Group,
`Inc., and LDW Development, LLC
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`
`
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`Defendants.
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`)
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`) No. 1:20–cv–00238
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`PLAINTIFFS’ EMERGENCY MOTION TO REMAND
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`Plaintiffs, by counsel, and pursuant to 28 U.S.C. § 1447, for their Emergency Motion to
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`Remand, state as follows:
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`1.
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`On June 19, 2020, Plaintiffs—77 individuals and the Town of Andrews, Indiana
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`(the “Town”), filed a complaint against six defendant in the Huntington County Superior Court,
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`Cause No. 35D-01-2006-CT-000338. A true and accurate copy of the Complaint is attached
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`hereto as Exhibit #1.
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`2.
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`Plaintiffs’ Complaint brings six state-law causes of action: trespass, nuisance,
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`negligence, negligent infliction of emotional distress, negligent failure to warn, and a statutory
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`claim for Environmental Legal Action, Ind. Code § 13–30–9–2. (Ex. #1, ¶¶ 187–217.)
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`3.
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`The Complaint is based upon personal injuries and damages stemming from two
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`1
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`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF INDIANA
`FORT WAYNE DIVISION
`
`
`EDMOND ASHER, et al.,
`
`
`Plaintiffs,
`
`
`
`
`
`vs.
`
`
`
`
`RAYTHEON TECHNOLOGIES
`CORPORATION f/k/a United
`Technologies Corporation, LEAR
`CORPORATION EEDS AND
`INTERIORS, LLC as successor to United
`Technologies Automotive, Inc.,
`ANDREWS DAIRY STORE, INC., L.D.
`WILLIAMS, INC., CP PRODUCT, LLC,
`as successor to Preferred Technical Group,
`Inc., and LDW Development, LLC
`
`
`
`
`Defendants.
`
`
`
`)
`)
`)
`)
`) No. 1:20–cv–00238
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`PLAINTIFFS’ EMERGENCY MOTION TO REMAND
`
`
`
`
`Plaintiffs, by counsel, and pursuant to 28 U.S.C. § 1447, for their Emergency Motion to
`
`Remand, state as follows:
`
`1.
`
`On June 19, 2020, Plaintiffs—77 individuals and the Town of Andrews, Indiana
`
`(the “Town”), filed a complaint against six defendant in the Huntington County Superior Court,
`
`Cause No. 35D-01-2006-CT-000338. A true and accurate copy of the Complaint is attached
`
`hereto as Exhibit #1.
`
`2.
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`Plaintiffs’ Complaint brings six state-law causes of action: trespass, nuisance,
`
`negligence, negligent infliction of emotional distress, negligent failure to warn, and a statutory
`
`claim for Environmental Legal Action, Ind. Code § 13–30–9–2. (Ex. #1, ¶¶ 187–217.)
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`3.
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`The Complaint is based upon personal injuries and damages stemming from two
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`
`
`1
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`
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`USDC IN/ND case 1:20-cv-00238 document 8 filed 06/25/20 page 2 of 6
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`separate but commingled sources of contamination: (1) contamination from the former United
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`Technologies Automotive site in Andrews, Indiana (the “UTA Facility”)—which was owned
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`and/or operated by Defendants Raytheon Technologies Corp. (“Raytheon”), Lear Corp. Eeds and
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`Interiors, LLC, and CP Product, LLC—collectively, the “Raytheon Defendants”; and (2) a gas
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`station formerly owned by Defendant Andrews Dairy Store, Inc. and now owned and operated by
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`Defendants L.D. Williams, Inc., and LDW Development, LLC. (See Ex. #1, ¶¶ 1, 3–4, 145–186.)
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`4.
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`On the same day the Complaint was filed, the Town filed a Verified Emergency
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`Motion for Preliminary Injunction (“Motion”), seeking preliminary injunctive relief to address
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`the contamination that has pervaded the Town’s municipal water supply. A true and accurate
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`copy of the Town’s Motion is attached hereto as Exhibit #2, and a true and accurate copy of the
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`Town’s brief in support, including all attached exhibits, is attached hereto as Exhibit #3. These
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`documents are expressly incorporated herein.
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`5.
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`The Town’s Motion explains that contamination from the UTA Facility has
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`infiltrated the Town’s water supply, which is drawn from three municipal wells, MW-1, MW-2,
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`and MW-3 (also called WH-1, WH-2, and WH-3). (See Ex. #2, Ex. #3.)
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`6.
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`In 1994, Raytheon was required to install an air stripper at the Town’s water
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`supply, which was intended to remove the contamination from chlorinated solvents that had
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`reached the Town’s wells. (Ex. #4, Aff. of James T. Wells, Ph.D., at ¶ 6.)
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`7.
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`The air stripper has, throughout its lifespan, experienced numerous breakdowns
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`and interruptions, and even when it is online, some chlorinated contamination can and does get
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`past the air stripper. (Id. at ¶¶ 6, 8.)
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`8.
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`From 2012 until May 2020, the Town ceased pumping from MW-1, the most
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`contaminated of the three wells. But since May 7, 2020, a lack of water production from MW-2
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`2
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`USDC IN/ND case 1:20-cv-00238 document 8 filed 06/25/20 page 3 of 6
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`and MW-3 has forced the Town to re-open MW-1. (Ex. #5, Aff. of John Harshbarger, at ¶¶ 12–
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`16.)
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`9.
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`A significant increase in the level of vinyl chloride in MW-1, combined with
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`interruptions in the air stripper’s operation, has created an emergency situation for the Town.
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`Testing of MW-1 two days ago revealed 30 µg/L (micrograms per liter) of vinyl chloride—15
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`times the United States Environmental Protection Agency’s Maximum Contaminant Level
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`(“MCL”) of just 2 µg/L. (Ex. #4, at ¶ 7.) The Town has again turned off WH-1, at the instruction
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`of the Indiana Department of Environmental Management, for fear that this vinyl chloride will
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`reach Town residents. (Ex. #5, at ¶¶ 25–26.) Indeed, a tap water sample taken at the Town’s
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`wastewater treatment plant on June 23 contained 2 µg/L of vinyl chloride. (Ex. #4, at ¶ 8.) The
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`contaminated wells and the state of the air stripper constitute a public emergency. (Id. at ¶ 10.)
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`10.
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`Apart from the Town not being able to provide clean water to its residents, this
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`situation is also causing an emergency with respect to the Town’s volunteer fire department,
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`which is presently unable to adequately respond to fires due to the Town’s inability to provide an
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`adequate water supply from MW-2 and MW-3 alone. (See Ex. #6, Aff. of Thomas Wuensch, at
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`¶¶ 3–9; see also Ex. #5, at ¶ 27.)
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`11.
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`On June 22, 2020, the Honorable Jennifer Newton of the Huntington Superior
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`Court set the Town’s Emergency Motion for a hearing on Thursday, June 25, 2020, at 10 a.m. A
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`copy of the Order is attached hereto as Exhibit #7.
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`12.
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`At the request of the Raytheon Defendants’ counsel, an attorneys’ conference was
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`held at 1:00 p.m. yesterday, June 24, 2020, to discuss the emergency hearing scheduled for this
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`morning. Plaintiffs’ counsel advised Defendants’ counsel that Dr. Wells would testify. Raytheon
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`Defendants’ counsel made no mention of removal.
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`3
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`USDC IN/ND case 1:20-cv-00238 document 8 filed 06/25/20 page 4 of 6
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`13.
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`At approximately 4:20 p.m. on Wednesday, June 24, 2020, Plaintiffs’ counsel
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`received a voicemail from counsel for Raytheon indicating that the case was being removed to
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`federal court. Raytheon subsequently filed its removal papers in this Court and in the Huntington
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`Superior Court later that evening.
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`14.
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`The Raytheon Defendants’ Notice of Removal is frivolous and wholly without
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`merit, and serves only to delay the hearing on the Town’s Emergency Motion for Preliminary
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`Injunction.
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`15.
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`The Raytheon Defendants’ removal is based upon the supposed existence of a
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`federal question under 28 U.S.C. § 1331.
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`16.
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`Citing Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545
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`U.S. 308 (2005), the Raytheon Defendants quote a single line from the introduction of Plaintiffs’
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`Complaint and contend that Plaintiffs’ state-law causes of action hinge on the citizens’ suit
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`provision of RCRA, the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a)(1)(B).
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`(See Notice of Removal, at ¶¶ 7, 13–16.)
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`17.
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`As discussed in Plaintiffs’ brief in support of this Emergency Motion to Remand,
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`being filed contemporaneously, Plaintiffs’ Complaint does not involve, in any manner, a federal
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`question. Plaintiffs have not artfully pled a federal claim disguised as a state-law claim. Nor does
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`Plaintiffs’ Complaint hinge on an “actually disputed and substantial” issue of federal law, as
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`Grable contemplates. See Grable, 545 U.S. at 314.
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`18.
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`The Raytheon Defendants’ Notice of Removal is a shameful and reckless attempt
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`to delay the Town from receiving a timely hearing on its Emergency Motion for Preliminary
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`Injunction, the effect of which is to prolong the period in which the nearly 1,200 residents of the
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`Town are stuck without an adequate supply of clean water. (Ex. #5, at ¶¶ 9–10.)
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`4
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`USDC IN/ND case 1:20-cv-00238 document 8 filed 06/25/20 page 5 of 6
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`19.
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`The Raytheon Defendants’ Notice of Removal has also placed lives and property
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`at risk because the Town does not presently have sufficient water to fight fires. (Ex. #5, at ¶ 27;
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`Ex. #6, at ¶¶ 3–19.)
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`20.
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`Because Plaintiffs’ Complaint does not involve a federal question, this Court is
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`without subject matter jurisdiction, and this Court should remand the case to the Huntington
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`County Superior Court forthwith.
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`21.
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`Further, because the Raytheon Defendants “lacked an objectively reasonable basis
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`for seeking removal,” and because their removal was an act of gamesmanship motivated by a
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`desire to derail the emergency hearing on the Town’s Motion, this Court should award attorneys’
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`fees pursuant to 28 U.S.C. § 1447(c).
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`22.
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`Plaintiffs therefore respectfully request this Court enter an order remanding this
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`case, on an expedited basis, and permit the application of Plaintiffs’ attorneys’ fees in remanding
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`this case to its proper forum.
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`WHEREFORE, Plaintiffs, by counsel, respectfully request this Court enter an Order
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`remanding this case to the Huntington County Superior Court, grant Plaintiffs an award of
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`attorneys’ fees for pursuing remand, and for all other just and proper relief.
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`USDC IN/ND case 1:20-cv-00238 document 8 filed 06/25/20 page 6 of 6
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`Respectfully submitted,
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` /s/ Thomas A. Barnard
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`Thomas A. Barnard, Attorney No. 4011-49
`Rodney L. Michael, Jr., Attorney No. 23681-49
`Benjamin A. Wolowski, Attorney No. 33733-49
`TAFT STETTINIUS & HOLLISTER LLP
`One Indiana Square, Suite 3500
`Indianapolis, Indiana 46204
`tbarnard@taftlaw.com
`rmichael@taftlaw.com
`bwolowski@taftlaw.com
`Telephone: 317.713.3500
`Facsimile: 317.713.3699
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`Attorneys for the Plaintiffs
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on June 25, 2020, a copy of the foregoing was
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`electronically filed with the Clerk of Court using the CM/ECF system, which sent notification of
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`such filing to all counsel of record. Paper copies were sent by US Mail, postage prepaid, to:
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`L.D. Williams, Inc. & LDW Development LLC
`c/o Richard Delaney
`533 Warren St.
`Huntington, IN 46750
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`Andrews Dairy Store, Inc.
`c/o Michael Burton
`138 Snowden Street
`Andrews, IN 46702
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` /s/ Thomas A. Barnard
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`27443807.1 27443807.1
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`6
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