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Orange County Water Dist. v. Unocal Corp.

ELR Citation: 39 ELR 20224
Nos. No. 07-5724, (2d Cir., 10/01/2009)

The Second Circuit denied a petition for writ of mandamus challenging a district court order denying a California water district's motion to remand its suit against corporations that manufactured, refined, marketed, or distributed gasoline containing methyl tertiary butyl ether to California state court. The Second Circuit's prior opinion in In re MTBE Prods. Liab. Litig., 488 F.3d 112, 37 ELR 20116 (2d Cir. 2007)—which involved other parties in this multi-district litigation—did not preclude the district court's conclusion that the water district failed to file a timely motion for remand. The water district argued that improper removal under the bankruptcy removal statute requires subsequent remand to state court. But the district court's purportedly erroneous removal under 28 U.S.C. §1452(a) did not implicate the court's subject matter jurisdiction. The bankruptcy removal statute is more akin to the general removal statute, 28 U.S.C. §1441, which only provides a procedural mechanism for removal and does not confer subject matter jurisdiction, than it is to the federal officer removal statute, 28 U.S.C. §1442(a)(1), which provides both a procedural mechanism and subject matter jurisdiction. In addition, any challenge to the district court's subject matter jurisdiction is best addressed on direct appeal rather than by a writ of mandamus.

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