18th Annual Workplace Class Action Report - 2022 Edition

688 Annual Workplace Class Action Litigation Report: 2022 Edition as party or counsel to any pending cases, and were not listed on the law firm’s website as attorneys actively soliciting robocall cases. Id . at *2. For these reasons, the Sixth Circuit denied the motion for recusal. (lxiii) Removal And Remand Issues In Class Actions Bell, et al. v. 3M Co ., 2021 U.S. Dist. LEXIS 88792 (D. Minn. May 10, 2021). Plaintiffs, a group of combat soldiers, filed a state court class action alleging that Defendants manufactured combat earplugs and failed to provide adequate instructions and warnings concerning how to properly wear the earplugs and, as a result, they now suffer from hearing loss and/or tinnitus. Defendants removed Plaintiffs’ action, arguing that the Court had jurisdiction based on several grounds. Plaintiffs filed a motion to remand for lack of subject-matter jurisdiction. The Court previously had concluded that Defendant failed to raise colorable government contractor and combatant activities defenses against Plaintiffs’ claims. The Court also previously concluded that Article IV jurisdiction was lacking with respect to combat areas in Iraq, as 3M failed to show that the United States exercised exclusive sovereignty over such areas and, most importantly, failed to show any affirmative act by Congress to regulate them. Id . at *4. The Court noted that before it could “activate the broad power" of Article IV, "Congress must affirmatively act to exercise this power." Id . at *4. The Court held that Defendants failed to provide any basis to conclude that it exercise such power pursuant to Article IV. Accordingly, the Court held that it lacked subject-matter jurisdiction over Plaintiffs’ claims, and granted Plaintiffs’ motion to remand. Fox, et al. v. Chipotle Mexican Grill, Inc. , 2021 U.S. Dist. LEXIS 33782 (W.D. Penn. Feb. 23, 2021). Plaintiffs, a group of customers, filed a state court class action alleging that Defendant violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law by shortchanging customers who paid for their items with cash. Defendant removed the action. Plaintiffs filed a motion to remand, which the Court denied. In addition to serving Defendant with the lawsuit in Pennsylvania, Plaintiffs claimed to have served Defendant at its corporate headquarters in Newport Beach, California by certified mail on August 25, 2020. Plaintiffs assert that because they served the complaint by certified mail on August 25, 2020, Defendant’s notice of removal was untimely because it was filed on September 25, 2020. Defendant argued that Plaintiffs did not properly serve it on August 25, 2020, and that the service should count from August 27, 2020, i.e ., the day the sheriff in Allegheny County served Defendant. Hence, Defendant asserted that the removal filing was timely on September 25, 2020. The Court noted that under Rule 404 of the Pennsylvania Rules of Civil Procedure, Plaintiff may serve process outside the Commonwealth of Pennsylvania by mail in the manner provided by Rule 403 of the Pennsylvania Rules of Civil Procedure, which includes delivery to a proper agent of a corporation. Further, under Pennsylvania law, service by mail upon an out-of-state corporation is not proper unless a form accompanies it requiring a receipt signed by Defendant or his authorized agent. Id . at *6. The Court held that Plaintiffs sent the service to a foreign corporation by certified mail without restricted delivery. Further, since the delivery was made to the security guard at the office building in which Chipotle’s office was located and not to: “(i) an executive officer, partner or trustee of the corporation or similar entity, . . . (ii) the manager, clerk or other person for the time being in charge of any regular place of business or activity of the corporation or similar entity, or . . . (iii) an agent authorized by the corporation or similar entity in writing to receive service of process for it," the service was improper. Id . at *8. Accordingly, the Court denied Plaintiffs’ motion to remand. Graves, et al. v. 3M Co. , 2021 U.S. App. LEXIS 31506 (8th Cir. Oct. 20, 2021). Plaintiffs, a group of civilian and military contractors who used Combat Arms Version 2 ("CAEv2") earplugs, filed a state court class action alleging that the earplugs caused hearing damage and asserting state law failure-to-warn claims against Defendant. After service of the complaint, Defendant removed the action to the District Court, asserting federal officer defenses under 28 U.S.C. § 1442(a)(1). Plaintiffs filed a motion to remand on the grounds that § 1442(a)(1) was not a basis for removal. The District Court granted the motion. On appeal, the Eighth Circuit affirmed in part reversed and remanded in part the District Court’s ruling. Plaintiffs asserted that they were exposed to loud, damaging sounds in the workplace and used either military or commercial CAEv2 earplugs for protection, which caused a range of injuries, including hearing loss and tinnitus. Defendant argued the District Court had federal question jurisdiction because Defendant designed the CAEv2 earplugs in conjunction with the military for military purposes, which therefore provided a federal contractor defense. Id . at *20. The Eighth Circuit explained that the “federal officer removal statute permits a Defendant to remove . . . a state court action brought against the United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of