ABUNDIZ v. EXPLOYER PIPELINE CO

BAREFOOT SANDERS, Senior United States District Judge

Before the Court is Valero Energy Corporation's Motion to Reconsider or, in the Alternative, Motion to Alter Memorandum Opinion and Order on Valero Energy Corporation's Motion to Dismiss, filed August 1, 2002; Plaintiffs' Response thereto, filed August 23, 2002. Also before the Court is Valero Energy Corporation's Motion for Leave to File Supplemental Authority, filed August 7, 2002. Upon review of the pleadings, briefs, and relevant authorities, the Court is of the opinion for the reasons stated below that Valero's Motion for Leave should be GRANTED and Valero's Motion to Reconsider should be DENIED.

I. BACKGROUND

Plaintiffs and the Intervenor pursue various state law claims including negligence, gross negligence, and strict liability against the Defendant Valero Energy Corporation ("Valero") as the manufacturer and/or distributor of reformulated gasoline containing methyl tertiary butyl ether ("MTBE"). Plaintiffs and the Intervenor allege that 600,000 gallons of MTBE gasoline allegedly spilled into East Caddo Creek and Lake Tawakoni, the atmosphere, and the properties of the Plaintiffs on or about March 9, 2000. On November 27, 2001, Valero moved to dismiss Plaintiffs' claims on the basis that such claims were preempted by federal law and, in the alternative, failed to state a claim upon which relief could be granted. This Court heard oral argument on March 22, 2002 after reviewing Plaintiffs' Response filed, December 17, 2000 and Valero's Reply, filed January 2, 2002. On July 17, 2002, the Court issued a Memorandum Opinion and Order denying Valero's Motion to Dismiss. Valero now requests that this Court reconsider its July 17, 2002 Order and in the alternative, certify the following question for interlocutory review: "Whether the Clean Air Act (as amended) and the EPA regulations promulgated thereunder preempt Plaintiffs' state law products liability claims." Plaintiffs oppose the request for reconsideration and for certification.

II. ANALYSIS

A. Motion for Reconsideration

Although the Federal Rules do not recognize a Motion to Reconsider, this Circuit provides that such a motion can be considered either as a motion to "alter or amend" under FED. R. Civ. P. 59(e) or as a motion for relief from judgment under Rule 60(b). See Lavespere v. Niagara Machine Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds, Little v. Liquid Air Corporation, 37 F.3d 1069 (5th Cir. 1994) (en banc). The Court determines which rule to apply depending on the date the moving party files its motion. Because Valero filed its motion 10 days after the July 18, 2002 entry of this Court's July 17, 2002 Opinion, Rule 59(e) applies.

Under Rule 59(e), the Court has discretion to consider materials not available at the time of decision. See Ford Motor Credit v. Bright, 34 F.3d 322, 324 (5th Cir. 1994). Valero seeks to submit to the Court as a Supplement to its Motion to Reconsider, two new decisions on preemption issued July 31, 2002 and August 1, 2002. Because these decisions were not available for submission as part of Valero's Motion to Dismiss, the Court will GRANT Valero's Motion for Leave pursuant to its discretion under Rule 59(e).

Addressing the Motion to Reconsider in conjunction with the cases submitted as part of the Motion for Leave, the Court considers Valero's arguments in light of the Fifth Circuit rule that the movant on a motion to reconsider must either establish a manifest error of law or fact or must present newly discovered evidence. See Waitman v. International Paper Co., 875 F.2d 468, 473 (5th Cir. 1989). Valero's arguments made as part of its Motion to Reconsider focus on the substance of the July 17, 2002 Opinion and dispute this Court's reading of the principal case Geier v. American Honda Motor Co., 529 U.S. 861 (2000), although Valero never asserts that this Court's analysis constitutes manifest error. This Court believes that its analysis of Geier is correct in light of well established conflict preemption principles, and the application of Geier to the facts of this case is supported by law.

Furthermore, Valero urges the Court to reconsider its ruling in light of two New York state court opinions, Coppola, et al. v. Amerada Hess Corp., et al., Index No. 2001/3995 (N.Y.Sup.Ct. July 31, 2002) and Molloy, et al. v. Amerada Hess Corp, et al., Index No. 2001/3996 (N.Y.Sup.Ct. Aug. 1, 2002). The additional cases do not warrant reconsideration of the July 17, 2002 Order. Valero notes that these cases are in accord with other state court opinions that were included as part of Valero's Motion to Dismiss. See, e.g., Kubas, et al. v. Unocal Corp, et al., No. BC191876 (Cal.Super.Ct. L.A. Cnty., Aug. 23, 2001); Hixson, et al. v. Unocal Corp, et al., No. DC 195295 (Cal.Super.Ct. L.A. Cnty., Aug. 23, 2001). This Court, however, declined to follow Kubas and Hixson in its July 17, 2002 Order. Given that Coppola and Molloy do not provide any arguments other than those already given by the Court in Kubas and Hixson, this Court finds that these opinions do not warrant reconsideration of its Order. Therefore, Valero's Motion for Reconsideration is DENIED.

B. Request for Certification

28 U.S.C. § 1292(b) permits a District Court to certify an issue for interlocutory appeal where it "[1)] involves a controlling question of law [2)] as to which there is substantial ground for difference of opinion and [3)] that an immediate appeal from the order may materially advance the ultimate termination of the litigation. . . ." 28 U.S.C. § 1292(b). The Court notes that motions to certify issues for interlocutory appeal under this statute are only granted in exceptional circumstances. See Hartsell v. Source Media, Inc., Civ. No. 3:98-CV-1980-R, 1999 WL 649645, at *1 (N.D. Tex. 1999).

This Court agrees with Valero that "whether the Clean Air Act (as amended) and the EPA regulations promulgated thereunder preempt Plaintiffs' state law products liability claims" is clearly the controlling question of law. The Court, however, finds that there is not sufficient ground for difference of opinion. The only other federal court to address preemption with regard to MTBE litigation, has found that state law claims are not preempted. See In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Action, 17SF. Supp.2d 593, 614-16 (S.D.N.Y. 2001). Valero argues that Geier and an Eleventh Circuit case, Taylor v. General Motors Corp, 875 F.2d 816 (11th Cir. 1989) express views that differ from this Court's ruling. Valero contends that Taylor and Geier held that state tort claims that interfere with methods of achieving federal objectives are preempted and that Taylor also held that state tort claims that remove a federally approved compliance option are preempted. Valero asserts that permitting state tort action against manufacturers of MTBE would achieve what Taylor and Geier ban because the EPA has approved the use of MTBE. In the July 17, 2002 Opinion, this Court relied on Perry v. Mercedes Benz of North America, Inc., 957 F.2d 1257 (5th Cir. 1992), which distinguished Taylor as a failure to install case warranting preemption from Perry, which held that preemption was not appropriate where a Plaintiff was asserting tort liability for a particular design. See id. at 1265. To the extent that this Circuit has already rejected the application of Taylor to cases asserting tort liability for a particular design, Taylor does not constitute a difference of opinion sufficient to satisfy the second prong of the statute.

Lastly, Valero asserts that certifying this issue for appeal would advance the termination of litigation. The Court disagrees with that assertion, and believes that it would delay litigation given that the appeal would not affect all Defendants in this suit.

III. CONCLUSION

For the reasons stated above, Defendant Valero's Motion for Leave is GRANTED and Valero's Motion to Reconsider is DENIED.

SO ORDERED.