1 6465911A argument 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 IN RE: 3 SEPTEMBER 11 LITIGATION 21 MC 97 (AKH) 4 21 MC 100 (AKH) 4 21 MC 102 (AKH) 5 5 ------------------------------x 6 6 New York, N.Y. 7 April 6, 2006 7 11:00 a.m. 8 8 Before: 9 9 HON. ALVIN K. HELLERSTEIN, 10 10 District Judge 11 11 APPEARANCES 12 12 KREINDLER & KREINDLER 13 Attorneys for Plaintiffs WD/PI 21 MC 97 13 BY: MARC S. MOLLER 14 14 ROBERT A. GROCHOW, P.C. 15 Attorneys for Plaintiffs Foremska, Urso, Acosta, Arce in 15 21 MC 102 16 BY: ROBERT A. GROCHOW 16 17 THE LAW FIRM OF GREGORY J. CANNATA 17 Attorneys for Plaintiffs Foremska, Urso in 21 MC 102 18 BY: GREGORY J. CANNATA 18 19 SEGAN, NEMEROV & SINGER 19 Attorneys for Plaintiff Daly in 21 MC 100 20 BY: J. NEMEROV 20 21 GOLDBERG & CARLTON, P.L.L.C. 21 Attorneys for Plaintiff Milling in 21 MC 100 22 BY: MICHAEL S. LEYDEN 22 23 ANTIN, EHRLICH & EPSTEIN 23 Attorneys for Plaintiffs Buonamini in 21 MC 100 24 BY: JOSEPH L. EHRLICH 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 6465911A argument 1 APPEARANCES (Continued) 2 BARISH LAW OFFICES, P.C. 2 Attorneys for Plaintiffs Arenas, Esposito, Hilger, 3 McGuire, Roman, Walker in 21 MC 97 3 BY: SAMUEL J. ROSENTHAL 4 4 MARION S. MISHKIN 5 Attorney for Plaintiff Monaco in 21 MC 100 5 6 JOEL M. LUTWIN 6 Attorney for Plaintiff Sferazza in 21 MC 100 7 7 NAPOLI BERN RIPKA, L.L.P. 8 Attorneys for Plaintiffs 8 BY: PAUL J. NAPOLI 9 9 LONDON FISCHER, L.L.P. 10 Attorneys for Plaintiff DeFillipo in 21 MC 100 10 BY: DANIEL ZEMANN, JR. 11 11 FLEMMING, ZULACK, WILLIAMSON & ZAUDERER, L.L.P. 12 Attorneys for Defendants Port Authority of NY and NJ and 12 World Trade Center Properties, L.L.C., in 21 MC 97, 21 MC 100, 13 21 MC 101 and 21 MC 102 13 BY: THOMAS A. EGAN 14 CHRISTINA M. RACKETT-SOLIS 14 M. BRADFORD STEIN 15 RICHARD A. WILLIAMSON 15 16 KIRKLAND & ELLIS, L.L.P. 16 Attorneys for Defendant Verizon in 21 MC 100 and 21 MC 102 17 BY: ERIC LEON 17 LEE ANN STEVENSON 18 18 FRIEDMAN, HARFENIST, LANGER & KRAUT 19 Attorneys for Defendant Envirotech Clean Air 19 BY: HEATHER L. SMAR 20 20 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER 21 Attorneys for Defendant Battery Park City Authority 21 BY: JOHN M. FLANNERY 22 22 LATHAM & WATKINS 23 Attorneys for Defendants City of New York and contractors 23 BY: JAMES E. TYRRELL, JR. 24 JOSEPH E. HOPKINS 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 6465911A argument 1 (In open court) 2 THE COURT: We have a lot of ground to cover today and 3 a lot of motions. I think what would be best is after we get 4 through with the grouping, is perhaps to shift places so that 5 those who are up, their colleagues can take the tables, if that 6 works. But let's see how we go along. 7 I give you three large groups, the motions to confirm 8 jurisdiction, the motions to remand, and the motions to sever 9 the FELA cases, but that also will have many jurisdictional 10 aspects. 11 Before we begin, where is Mr. Rosenthal -- Samuel 12 Rosenthal? 13 MR. ROSENTHAL: Here, your Honor. 14 THE COURT: Your motion to argue today is granted, so 15 get your applications in quickly. 16 MR. ROSENTHAL: I will. 17 THE COURT: Now, on the motions to confirm 18 jurisdiction, these are cases that deal with largely 19 respiratory injuries, perhaps all respiratory injuries that 20 occurred at sites away from the World Trade Center, sometimes 21 close to the World Trade Center. The Verizon case can be 22 argued to be part of the World Trade Center. And I want to 23 argue those first. 24 In looking at the papers, and particularly the first 25 case, the Foremska case, I think it is that case, there are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 6465911A argument 1 many cases that seem to be comprehended within one index 2 number. 3 As I have done with the respiratory injury cases, if I 4 retain jurisdiction, there is going to be one case for one 5 plaintiff, one plaintiff meaning husband and wife, that's the 6 case. But, there will not be many plaintiffs subsumed under 7 one index number. So, that will be one remedy. 8 We will also see, as we get into the arguments, that I 9 am going to be focused on what is the federal interest that's 10 involved, and sometimes it is hard to discern that because 11 there is an exceeding generality that has been used by some of 12 the lawyers in describing the alleged acts of negligence, in 13 describing the responsibilities of the numerous defendants that 14 are said to have been negligent, and in sometimes focusing on 15 defendants who have a federal protection in terms of a 16 liability cap and non so protected defendants. 17 So, it may not be easy to discern the federal 18 interests but we will get into this as we go along. 19 So, first the group will be Foremska, Thomson, 20 Arsenault, D'Amato, Urso, Acosta, Arce and Asencio, and we will 21 take the Verizon, Asencio against Verizon. 22 Who is going to argue the case for the plaintiffs? 23 You are not going to argue the case for the plaintiffs. 24 MR. WILLIAMSON: I will, your Honor, for movants. 25 THE COURT: For plaintiff? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 6465911A argument 1 MR. CANNATA: I am Gregory Cannata. Thank you. 2 THE COURT: How are you, Mr. Cannata? 3 MR. CANNATA: I'm fine. Thank you. 4 THE COURT: I haven't seen you in a while. 5 Okay, Mr. Williamson, go ahead. 6 MR. WILLIAMSON: Good morning, your Honor. 7 THE COURT: Good morning. 8 MR. WILLIAMSON: On behalf of the movants the 9 analysis, we believe, begins with the statute, of course, 10 408(b), which provides that there is a federal cause of action 11 which is the exclusive remedy, as we know. And then we take a 12 look at 408(b)(3) which tells us that there is jurisdiction 13 over all actions brought for any claim. 14 The opposition posits, essentially, a contradiction to 15 408(b)(3) and says, no, it shouldn't be jurisdiction over all 16 actions. We would like to revise that to read: Only actions 17 which are against certain defendants. And then they go on to 18 explain which defendants they would like to have that read as 19 being applicable to. 20 The problem with that effort to essentially and, in 21 effect, edit 408(b)(3) of the statute, is that the statute 22 speaks for itself and it is add odds with the McNally decision 23 of the Second Circuit. 24 McNally, in its construction of the statute, looked at 25 and italicized the two words I emphasized when I spoke by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 6465911A argument 1 inflection -- all actions -- any claim. 2 McNally went on to explain of course why, consistent 3 with Canada Life, there was a desire on the part of Congress to 4 centralize all actions of this nature in one district. It 5 explained the need for avoiding inconsistent rulings between 6 state and federal courts, the need for judicial efficiency, and 7 so on and so forth. And that is set forth in McNally at 378 8 where the Second Circuit analyzes it. 9 They also went on to explain that cases alleging 10 respiratory injuries, whether allegedly suffered at the World 11 Trade Center site or in the words of the Second Circuit, 12 elsewhere, are cases that fall within the ambit of the statute 13 and this Court's exclusive jurisdiction. And the Second 14 Circuit discussed that in several places but, for example, at 15 pages 377 and 380 of McNally. 16 The Second Circuit also discussed the legislative 17 history. And Battery Park City's authority proposition that it 18 is urging this Court today is also at odds not just with the 19 statute, not just with the Second Circuit's teaching of 20 McNally, but with the legislative history as well and that's 21 set forth in our papers. And, again, the Second Circuit 22 analyzes and discusses the legislative history at page 377 of 23 McNally. 24 So those, your Honor, are the reasons that we believe 25 that the arguments set forth by Battery Park City, in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 6465911A argument 1 opposition to the motions to confirm, simply don't withstand 2 scrutiny whether as I say, measured against statute, Second 3 Circuit's teaching, or the legislative history. 4 THE COURT: How is the Port Authority implicated in, 5 for example, in the Foremska lawsuit? 6 MR. WILLIAMSON: How is it what? I'm sorry. 7 THE COURT: Implicated. 8 MR. WILLIAMSON: Let me just check that. Mr. Egan 9 advises -- and I pulled it -- it is Exhibit D to Mr. Tyrell's 10 affidavit, I don't think the Port Authority is a defendant in 11 that particular one. 12 THE COURT: So why do you care? 13 MR. WILLIAMSON: I'm arguing on behalf, your Honor, of 14 the movants to save the Court's time. Mr. Tyrrell and I 15 conferred in advance, as we did with Mr. Leon and Ms. Stevenson 16 with Kirkland & Ellis with respect to these motions, and it was 17 agreed rather than have all three of us get up at the same time 18 or one after another, I would try to take the lead on this, 19 your Honor, for efficiency's sake. 20 THE COURT: What is the federal interest? 21 MR. WILLIAMSON: I don't know, your Honor, that the 22 Second Circuit comes at it that way. 23 THE COURT: I think I have to. 24 MR. WILLIAMSON: I'm sorry? 25 THE COURT: I think I have to, since ultimately I have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 6465911A argument 1 to justify any kind of federal jurisdiction by some federal 2 interest. I mean, Judge Kearse did not modify the statute. 3 She was applying the statute and some general language did not 4 displace a careful analysis of what the purpose of the statute 5 was. 6 The purpose of the statute, of course like all 7 statutes, serves a number of purposes, but the dominant purpose 8 was to protect particular defendants against crushing 9 liability, among them the Port Authority, the City, because of 10 their property interests and the airline and various aircraft 11 companies, airports and the like. 12 MR. WILLIAMSON: I think the answer, your Honor, is -- 13 THE COURT: Part of the problem is that it is very 14 hard to understand the Foremska case. 15 MR. WILLIAMSON: If I may? 16 THE COURT: Yes; but let me just go on for a minute. 17 MR. WILLIAMSON: Yes. I'm sorry. I wasn't sure. 18 THE COURT: Foremska alleges, presumably, respiratory 19 injuries at various locations in downtown New York. One Wall 20 Street, for example, is located at Broadway and Wall Street 21 near Trinity Church, it is about 15 blocks, 10 blocks, I 22 suppose, from the World Trade Center. 61 Broadway, a building 23 that I am familiar with, is two blocks to the south on 24 Broadway. What does that have to do with federal interest? 25 And then Foremska, in paragraph 3, seeks money damages SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 6465911A argument 1 for personal injuries, pain and suffering, loss of income and 2 other damages sustained by the plaintiff as a result of the 3 careless recklessness and negligence of the defendants, etc. in 4 failing to provide the plaintiff with a safe place to work at 5 various locations. 6 Well, the plaintiff, working at 16 Broadway to clean 7 it up from the dust that spewed out of the World Trade Center, 8 the two buildings, the World Trade Center, was not working for 9 the City, was not working for Port Authority, working for the 10 owners and managers of, for example, 61 Broadway which, in the 11 defendants is probably Crown Broadway L.L.C., Crown Properties, 12 Inc., Crown 61 Associates L.L.P., Crown 61 Corp. 13 This is not a very informative complaint but it is 14 hard to see what the federal interest is here. 15 MR. WILLIAMSON: If I may? 16 THE COURT: Yes. 17 MR. WILLIAMSON: I think, your Honor, that there are a 18 number of points to be made in response to your question. The 19 first is that in examining the federal interest, the beginning 20 of the analysis is that Congress enacted the federal statute 21 creating federal jurisdiction over all of these claims. 22 The Second Circuit tells us in McNally how we approach 23 these cases and it says that all cases of exposure to such 24 dust, debris and other hazardous conditions belong in this 25 court. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 6465911A argument 1 THE COURT: If they sued you, your client, 2 Mr. Williamson, I would hardly agree. I didn't before McNally 3 came down but, as I indicated earlier, I'm quite willing to go 4 along with her point of view. 5 But, you are not being sued. 6 MR. WILLIAMSON: A couple of other points. 7 THE COURT: And the City is being sued in various 8 areas but the City of New York is being sued. But, what the 9 City of New York had to do with cleanup at 61 Broadway is not 10 alleged. I would think that if Mr. Tyrrell made a motion, all 11 these City defendants would probably get out. 12 MR. WILLIAMSON: A few more thoughts, your Honor? 13 THE COURT: Is someone noting that down, Mr. Tyrrell? 14 Mr. Hopkins? 15 MR. WILLIAMSON: I am going to defer to Mr. Tyrrell 16 and Mr. Hopkins in a second, if I may. 17 Federal interest here is also set forth by the Second 18 Circuit in enforcing the statute at page 378 of McNally, and 19 the Second Circuit takes us through the analysis of why there 20 should be a single forum for all respiratory injuries by 21 workers in sifting, removing, transporting and disposing of 22 that debris. And there is no difference, the Second Circuit 23 teaches us, whether it is at the World Trade Center site, at 24 the marine transfer points, at the landfill. These are all the 25 Second Circuit's words, as you know -- or elsewhere. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 6465911A argument 1 That's what the Second Circuit tells us. 2 THE COURT: You know, again. I don't think Judge 3 Kearse was focusing on defendants other than those that were 4 intimately involved with the dust that was spewed and caused 5 alleged respiratory injury, but that was in the context of 6 lawsuits against institutions that had the cap because that was 7 the federal interest that she really defined. 8 MR. WILLIAMSON: It actually, I think your Honor was 9 not the only federal interest that Second Circuit was 10 discussing, it is certainly not the only federal interest that 11 Second Circuit addressed in Canada Life at all. And the 12 discussion at 378 of McNally is utterly consistent with the 13 same points being made previously by the Second Circuit in 14 Canada Life. 15 I would also note that if you look at the very first 16 page in paragraph 1 of the Foremska complaint which you began 17 with, we see that the Deutsche Bank building is in that 18 complaint and the Deutsche Bank Building is at the World Trade 19 Center site. 20 THE COURT: It is right next to it. It is as close to 21 it as Verizon. 22 MR. WILLIAMSON: It is at the World Trade Center site 23 in the definition of World Trade Center site that we have been 24 using in Case Management Order No. 3. 25 THE COURT: What was that definition? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 6465911A argument 1 MR. WILLIAMSON: It is a definition that's in the 2 order of this Court, No. 3, that listed all of the places that 3 were deemed to be the World Trade Center site. 4 THE COURT: And that includes Deutsche Bank? 5 MR. WILLIAMSON: Correct, your Honor. That's set 6 forth in this Court's orders of February 10, 2005. And the 7 third line up from the bottom specifically includes the 8 Deutsche Bank building which, no coincidence, is one of the 9 buildings in the very first paragraph of this complaint. 10 THE COURT: Yes, but my order that tries to effect 11 order in these sets of proceedings should not have substantive 12 significance because they were not intended to have substantive 13 significance. 14 Deutsche Bank is across the street. Let's put it 15 where the world is. It is across what was it, Barclay Street 16 from the south tower that was hit. And as we read the papers 17 now, once workers have gotten into that closed building, 18 they're finding remains from people who worked in the World 19 Trade Center and we are allowed to guess, perhaps, that those 20 people who clustered on the top floors of the buildings and 21 didn't get out when the building collapsed, may be ultimately 22 identified with those remains. Who knows. It is very close. 23 Verizon is very close but that's not the issue I'm talking 24 about. 25 I recognize what you are saying, Mr. Williamson. I'm SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 6465911A argument 1 not trying to run away from that logic either, but I'm trying 2 to define what I think has to be at the heart of a removal 3 issue, and that is the federal interest. And I don't quite 4 believe that a sense of order in terms of avoiding efficiency 5 between federal and state or a certain consistency in rules is 6 the paramount federal interest. 7 MR. WILLIAMSON: If I may actually, your Honor, the 8 Deutsche Bank building is not only in case management order 9 No. 3 which was drafted by the parties, discussed with the 10 Court and so ordered, but it is also site number 5, and I 11 quote: Site No. 5 of the federal definition of the World Trade 12 Center. 13 So, it is not just something that found its way into 14 CMO No. 3. We submit it is part of the World Trade Center site 15 and, specifically, it is site 5. 16 THE COURT: What does that mean? 17 MR. WILLIAMSON: It is where the fifth tower will be 18 built. It is part of the World Trade Center site. I -- 19 THE COURT: It's not. 20 MR. WILLIAMSON: There was really -- 21 THE COURT: There was no fifth tower. 22 MR. WILLIAMSON: It is where the fifth tower will be 23 built. 24 THE COURT: Oh. 25 MR. WILLIAMSON: It is part of the site. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 6465911A argument 1 THE COURT: So what. Those plans change every day. 2 MR. WILLIAMSON: Well, it just is consistent with -- 3 THE COURT: It would be nice to see the first tower 4 before we worry about the fifth tower. 5 MR. WILLIAMSON: That's true, too. 6 One other thought, your Honor, that 'lest there be any 7 doubt, plaintiff's counsel makes the point in their papers, and 8 that's at page 8 in support of our motion, that it is the same 9 debris we are talking about, the same dust that we are talking 10 about. 11 THE COURT: No question. 12 MR. WILLIAMSON: That both of those groups were 13 exposed. 14 THE COURT: No question. The same dust I used to 15 breathe when I came down on the highway coming to this 16 building, and it is the same dust that I used to breathe in the 17 lobby of this building, the same dust that you could breathe on 18 the west side of Manhattan, but. Again, I think I have taken 19 my point. 20 Mr. Tyrrell, let me ask if the City were to be 21 dismissed from the lawsuit -- 22 MR. TYRRELL: Yes, your Honor. 23 THE COURT: -- as having nothing to do with the 24 properties that are itemized in paragraph 1; would there be a 25 federal interest? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 6465911A argument 1 MR. TYRRELL: Absolutely, your Honor. 2 THE COURT: Why so? 3 MR. TYRRELL: Let me take a cut at it, because I think 4 I disagree with the angle your Honor is coming at it, and let 5 me make four points. 6 You asked what is the federal interest. The federal 7 interest is Congress' decision in passing the statute that all 8 that refers and relates to the crashes of 9/11 it wants in one 9 Federal Court in Manhattan. And your Honor is stuck with it, 10 which I apologize for. 11 THE COURT: Why? Why? 12 MR. TYRRELL: Because it is a tremendous burden on the 13 Federal Court System to do it otherwise. There is a tremendous 14 risk of inconsistent adjudications between state and federal 15 courts. 16 THE COURT: Let's say otherwise and Crown Associates 17 got hit with a lesser or larger amount than the city. Why do 18 you care? 19 MR. TYRRELL: We care because -- 20 THE COURT: What is the distributed justice between 21 Crown Associates and City of New York? 22 MR. TYRRELL: Let me give you a couple of examples. 23 The City of New York has a right not to be in state 24 court at all with anybody allocating responsibility to it. It 25 has a right to litigate in one forum. Congress decided that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 6465911A argument 1 So do all of the other 150 of my clients, the contractor 2 defendants. Not just the City. They have the right to be here 3 too. 4 THE COURT: Because you assume responsibility for 5 them? 6 MR. TYRRELL: I'm sorry? 7 THE COURT: Because you have assumed the liability 8 exposure for them? 9 MR. TYRRELL: No. The analysis, I think respectfully, 10 your Honor, is not the question, particularly for a 11 jurisdictional determination, of what happened at One Wall 12 Street. That's not the way to go about this. 13 The question is, if the allegations are that the same 14 dust, the same fumes that emanated from the World Trade Center 15 site are now being cleaned up by a private cleaning crew, maybe 16 by one of my contractor clients at One Wall Street, that issue 17 with respect to all of the liabilities flowing from that dust 18 and that debris belongs in Federal Court. 19 THE COURT: As a lawyer you don't have any special 20 entitlement to the Federal Court, Mr. Tyrrell. It is not that 21 you represent these clients. Perhaps there is some 22 relationship of those clients with the City that may be the 23 basis of an argument but I haven't heard it yet. 24 MR. TYRRELL: Your Honor, it is an arising out of 25 argument and the entitlement my client has, whatever may be the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 6465911A argument 1 normal case, comes from two sources -- two sources -- the Air 2 Transportation Safety Act, which we are talking about, because 3 Congress chose to give it to my clients -- 4 THE COURT: Congress chose to give it to the City of 5 New York. 6 MR. TYRRELL: No, it did not. It gave it to -- the 7 fundamental mistake, respectfully, that I think your Honor is 8 making, is you are accepting the analysis, the slippery slope 9 analysis that plaintiffs have offered, namely that if you are 10 not under the liability cap you don't get the benefit of the 11 jurisdictional section. That makes no sense whatsoever. 12 Congress, under the liability cap, specified who got the 13 benefit. 14 THE COURT: And? 15 MR. TYRRELL: And whoever isn't under there may not 16 get the benefit of the cap but they sure get the benefit of the 17 other section, the ability to have all of their litigation in 18 one court. 19 THE COURT: The jurisdiction serves the substance. If 20 there is no substantive purpose there is no reason for a 21 extraordinary grant of jurisdiction. 22 MR. TYRRELL: Let me take a look and read together the 23 jurisdictional language and then talk to you about the 24 substantive purpose. 25 The section says: The United States District Court SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 6465911A argument 1 for the Southern District of New York shall have original and 2 exclusive jurisdiction over all -- all -- actions for any -- 3 any -- any claims including any claim for loss of property, 4 personal injury, or death, resulting from or relating to the 5 terrorist-related aircraft crashes of September 11, 2001. 6 But, let me answer your question directly. What 7 federal interests are there in this? 8 We have been talking about judicial administration, 9 the fact that Congress passed the statute, but let's talk 10 practicality. 11 The federal agencies, that we now know because your 12 Honor permitted us discovery, had significant leadership and 13 control responsibilities on that site. You have seen it in the 14 motions that have been filed already in the record and will see 15 more with respect to the immunity arguments. 16 OSHA is the one that specified the respirators. FEMA 17 provided the money. EPA did the air monitoring. The Army 18 Corps of Engineers controlled various things including all of 19 Fresh Kills. 20 When you make a determination as to whether or not the 21 dust was properly suppressed or not suppressed, we're going to 22 be arguing that that dust that sat at the World Trade Center 23 site, we're entitled to federal officer jurisdiction and 24 federal officer immunity on that. 25 Just as that dust drifted over to One World Trade SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 6465911A argument 1 Center, say, we did not lose our federal officers jurisdiction 2 argument and we do not lose our federal officer immunities. 3 So, if you want to say what federal interest is there, 4 there is an interest in determining and not having a state 5 court all over the place deciding what was the appropriate or 6 not appropriate immunized or not immunized conduct by a host of 7 federal agencies that, thanks to your discovery, we now know 8 played controlling roles. 9 THE COURT: I will ask you this. Let's suppose this 10 was a simple complaint against Crown Associates, period. 11 MR. TYRRELL: Yes; covered by the act. 12 THE COURT: So, Crown Associates could remove. 13 MR. TYRRELL: Crown Associates could remove. Had to, 14 only jurisdiction in the Court. But what is the nature of the 15 claim? If the nature of the claim is -- 16 THE COURT: Nature of the claim, Crown Associates will 17 say failed to provide appropriate safety masks in the cleaning 18 up of World Trade Center. 19 MR. TYRRELL: Right. 20 THE COURT: Does did that have anything to do with 21 what any of the federal agencies were doing? 22 MR. TYRRELL: Absolutely. Crown Associates is going 23 to say the dust shouldn't have been there if the federal 24 agencies properly suppressed the dust. Nobody should have been 25 there if the EPA reported adequately with respect to what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 6465911A argument 1 the -- I'm making this up, I'm not suggesting this. 2 THE COURT: How could anybody suppress dust? 3 MR. TYRRELL: Of course you can suppress dust -- those 4 are going to be issues in front of you -- all kinds of ways, 5 watering it down, putting the site under all kinds of things, 6 plastic and other sorts of stuff. 7 There are going to be all kinds of arguments about 8 what federal agencies did and how they controlled the 9 situation. 10 THE COURT: So you worry that Crown Associates might 11 have an action over against the City and that's where the issue 12 might come in against the City? 13 MR. TYRRELL: Even if they have an action over against 14 anyone, against my contractor clients who were the people who 15 controlled, let's say Zone No. 2, they're going to stand up and 16 say, you know what was underground at Zone No. 2? Lots of PCBs 17 or some other toxin and your contractor client should have 18 known it and they should have better controlled it. And now 19 those PCBs have drifted through the air and they're in the 20 ventilation system and Crown Associates had to deal with it at 21 One World Trade Center. 22 Do we really want multiple State Courts deciding those 23 issues? 24 That's what Congress was after. That's what we are 25 urging your Honor not to go down the path that counsel is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 6465911A argument 1 suggesting, that somehow those specifically defined as 2 benefitting from liability caps are the only people who benefit 3 from exclusive federal jurisdiction. Congress could have said 4 that if it wanted to. McNally would have never been as 5 expansive as it is if that was the rule. 6 I strongly suggest -- and I will defer back to my 7 colleague -- that there is federal interest both in terms of 8 the statute which makes it clear, administration, the acts of 9 the federal agencies, and the entitlement of everyone who is 10 being sued or is suing in connection with matters that relate 11 to 9/11 -- injuries, dust, debris -- the appropriate nexus to 12 9/11 and the air crashes. But, if it is there, I don't care if 13 it is One World Trade Center or Two Journal Square in Jersey 14 City, it is covered under that Act. 15 THE COURT: Mr. Cannata? 16 MR. CANNATA: Your Honor, first of all, I want to 17 correct a misstatement that was made that the plaintiffs 18 position is that the limitations of liability, in some aspect, 19 affects the jurisdictional. That is not our position. 20 Our position is the opposite, that Section A of 408 21 limits liability to certain entities -- the City of New York, 22 the owners of the World Trade Center site and the like. 23 However, Section B confers jurisdiction on all defendants, not 24 those just articulated in section A. 25 The federal interest, your Honor, is the consistency SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 6465911A argument 1 of the result. 2 Think of the chaos if the Southern District, Eastern 3 District, Northern New Jersey District, Connecticut 4 Massachusetts and a host of other federal courts all deal with 5 the same case. Think about the lack of consistency if dozens 6 of state courts also address the issue. 7 THE COURT: Does that mean that one jury has to decide 8 every case? 9 MR. CANNATA: No, no. But the legal rulings that your 10 Honor is making at this stage and other stages, and certainly 11 stages that will come, will provide the consistency which I 12 think is exactly what Senator Hatch, when he debated the issue, 13 these are his words: "For those who seek to pursue the 14 litigation route, I am pleased that we consolidated the cause 15 of action in one federal court so there will be some 16 consistency in the judgments awarded." 17 This was cited by the McNally Court. That is the very 18 essence of why we are here. All of the suits, whether they be 19 workers on the mound, whether they be firemen, rescue 20 personnel, whether it be our clients who cleaned the debris in 21 the various office buildings, have a right to be in federal 22 court. 23 THE COURT: So why are you suing Crown Associates? 24 MR. CANNATA: We are suing the owners of the 25 buildings, Judge. The suits against the City of New York are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 6465911A argument 1 only for the properties that they owned as owners -- schools 2 and other public buildings. We have not sued -- 3 THE COURT: Well Foremska doesn't help you in that 4 regard. I mean, you sue everybody in the world but you don't 5 sue, you don't -- you're located in various properties. 6 MR. CANNATA: We have only sued the owners of the 7 properties where our clients worked, the actual buildings. We 8 have not sued any of the contractors who worked on the mound, 9 we have not sued the City and their position as -- 10 THE COURT: Well, Foremska, why is the City of New 11 York a defendant? 12 MR. CANNATA: Because the City of New York owns 13 numerous buildings that were cleaned, your Honor; public 14 schools, 100 Church Street. 15 THE COURT: Does it own any of the properties alleged 16 in paragraph 1? 17 MR. CANNATA: Your Honor, I can't tell you offhand 18 because we have so many clients that worked in so many 19 different buildings, I can't give you an answer. 20 THE COURT: It is hard to understand this complaint. 21 MR. CANNATA: Your Honor, in the suits that we started 22 in my name, those workers each worked on an average of 10 23 buildings. Those are the parties that we sued. We did not sue 24 generally Port Authority, City of New York in their capacities 25 and municipalities or public authorities. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 6465911A argument 1 THE COURT: Paragraph 11 of Foremska alleges who the 2 defendants are but it doesn't tell the reader which buildings 3 relate to which defendant. 4 MR. CANNATA: There are supplemental charts, your 5 Honor, for each of the complaints which itemize the owners of 6 each building and where the plaintiffs worked. I just don't 7 know if we did that with that particular case. That was one of 8 the earlier cases. 9 THE COURT: I think you did. 10 MR. CANNATA: The reason why there is so many 11 attorneys here in the courtroom is because they represent the 12 various buildings and that's who we sued. 13 THE COURT: Well, Exhibit A is the chart to which you 14 are referring and, for example, Foremska, 12 locations are 15 identified and one can't know which defendant is involved with 16 which location. 17 MR. CANNATA: Your Honor, we have a chart in our 18 complaint which lists each defendant by address, by ownership 19 interest of each address, so I would be able to tell you. And 20 the defendants have received this, which specific defendants 21 own operated managed maintained each particular address. 22 I am being told, your Honor, that the master complaint 23 that we have drafted will be specific as to each defendant in 24 each location. Some of the earlier complaints that we prepared 25 did not have that chart and it wasn't as comprehensive as the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 6465911A argument 1 later complaint. 2 THE COURT: Let's say let's isolate 61 Broadway. And 3 let's say you are only focused on that building and neither the 4 Port Authority nor the City has any ownership interest in that 5 building, nor did it direct any of the workings in that 6 building. Is the gravamen of the action against the party that 7 caused the toxins and the dust? Or is the gravamen of the 8 action against the people who are responsible for the cleanup 9 in 61 Broadway? 10 MR. CANNATA: Under the labor law of the State of New 11 York Section 241.6 it is the owners of the property, the 12 contractors hired by the owners of the property and their 13 agents who contracted or who represented the owners and 14 contractors to clean up the debris and the dust. 15 THE COURT: None of which includes the City of New 16 York or the Port Authority? 17 MR. CANNATA: Correct. 18 By the way, your Honor, 61 Broadway, Crown Broadway 19 L.L.C., Crown properties Inc. and the like and they're listed 20 in the Cannata report actually. 21 THE COURT: Does anybody else wish to speak on the 22 issue confirming jurisdiction? 23 Mr. Williamson. 24 MR. WILLIAMSON: Quickly, two points. 25 If we were to follow this thread of analysis and your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 6465911A argument 1 Honor were to end up finding there were no jurisdiction despite 2 the fact that plaintiffs and defendants in these specific cases 3 believe there is and we go back to state court, we submit that 4 there that does no service to plaintiffs because what will 5 happen -- 6 THE COURT: I think Mr. Cannata agrees with you. 7 MR. WILLIAMSON: -- we will end up with a motion to 8 dismiss those cases. 9 THE COURT: Well, that can be done in my court too. 10 MR. WILLIAMSON: There we would be moving to dismiss 11 them for lack of subject matter jurisdiction. That's my point. 12 THE COURT: That's true, because if you are right 13 there is exclusive jurisdiction in this court. 14 MR. WILLIAMSON: Right. 15 THE COURT: But the only way I could dismiss or not 16 accept the removal -- the only way I could remand is to not 17 accept the removal is hold that I do not have exclusive 18 jurisdiction -- the federal court does not have exclusive 19 jurisdiction. 20 You can make the argument again to the state court 21 judge but again that's the conundrum. If I'm wrong, the 22 problem is that we may not be able to find out for some time 23 and meanwhile a lot of wasted activity would be done in the 24 state court. But that's true with a lot of jurisdictional 25 arguments. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 6465911A argument 1 MR. WILLIAMSON: True. That was the point I was 2 trying to make. And in these, in the five cases in which -- 3 THE COURT: That's why I did what I could do create a 4 basis for appellate review when I decided Hickeys. The Second 5 Circuit would have an opportunity to review. And I noted that 6 particular point that you noted just now. I understand. And 7 no one should confuse the tenor of my questions with any kind 8 of feeling on my part which way I would like to go on this 9 situation. 10 As a student of Herbert Wechsler in terms of federal 11 jurisdiction, I'm mindful that it has to be limited and 12 justified. The type of jurisdiction that we have here which is 13 kind of a totality of federal jurisdiction, it goes beyond the 14 well-pleaded complaint, it has been limited by Supreme Court to 15 two fields, essentially. Not explicitly limited but its 16 decisions limited to ERISA and labor law. This would be a 17 third extension of the doctrine. 18 I don't think Judge Kearse was single-minded in the 19 way that she urged that my rulings should not be the rule of 20 law in the case. She was also concerned that the logical 21 consequence of all that we did was not necessarily the way to 22 go. The logical consequence of the rulings or the statute was 23 not necessarily the way to go. There were limits. They were 24 hard to find. I had trouble finding them in Hickey but okay, I 25 think I have got the points. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 6465911A argument 1 MR. WILLIAMSON: Could I add one thing? 2 THE COURT: Yes. 3 MR. WILLIAMSON: Thank you. You are absolutely right 4 that you are evoking now the very discussion we had when we 5 argued Hickey before McNally but that conundrum, as you say, 6 with respect to jurisdiction. 7 Just last for your Honor's consideration, with respect 8 to what is the federal interest, the Second Circuit said that 9 requiring a single forum must have as its goal, i.e., what is 10 the federal interest, what is the goal here. And I just ticked 11 off, very quickly, five of the points the Second Circuit made. 12 THE COURT: Mr. Cannata agrees, the sense of a 13 distributive justice, there is certain consistency of rulings 14 and dispositions. I take your point. 15 MR. WILLIAMSON: There is more to it than that was my 16 only point. 17 THE COURT: Well, the reasons for -- I think I have 18 your point. 19 MR. WILLIAMSON: Absolutely. You're right, there is 20 that, and there are four other reasons that the Second Circuit 21 addresses why they should all be here. 22 Thank you very much your Honor. 23 THE COURT: If you want to tick them off again, fine. 24 Tick them off. 25 MR. WILLIAMSON: No. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 6465911A argument 1 THE COURT: Go ahead. Maybe I'll forget. 2 MR. WILLIAMSON: I wanted to be sure that we weren't 3 limited in the analysis to inconsistent adjudications. 4 THE COURT: I don't want to be limited so tell me 5 again. 6 MR. WILLIAMSON: Thank you. I appreciate the 7 indulgence. 8 The second is the adjudications having preclusive 9 effect on nonparties, or substantially impairing or impeding 10 nonparties ability to protect their rights, something that 11 would be avoided by being here. 12 THE COURT: I don't understand that. Nonparties are 13 not bound by what I do. 14 MR. WILLIAMSON: It could be argued that nonparties, 15 there would be a preclusive effect on nonparties, or would 16 substantially impair or impede nonparties' abilities to protect 17 their rights, something that was discussed by the Second 18 Circuit in McNally as something that -- 19 THE COURT: Because my views would be more predictable 20 to nonparties? Is that it? 21 MR. WILLIAMSON: No. I think that some people are in 22 federal court, some people are in state court, some people are 23 in some cases and not in other cases and they don't have the 24 ability to come here today as they do and know what is going on 25 in the cases with coordinated discovery. The Second Circuit SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 6465911A argument 1 said it could have the effect of substantially impairing or 2 impeding nonparties ability to protect their rights. And that 3 was one of the goals or federal interest, if you will, to be 4 protected against. 5 The third was they were concerned with something that 6 your Honor has grappled with before in other dockets, and that 7 was the possibility of no recovery if the limits of liability 8 were exhausted. Essentially the flipside of dealing with this 9 is a limited funds situation, and that can be avoided if all 10 the cases are before your Honor. 11 THE COURT: That one I appreciate. 12 MR. WILLIAMSON: And the fourth, something else your 13 Honor has raised before sua sponte and that's actually resulted 14 in success in 21MC 97 docket, the Second Circuit specifically 15 referenced as the fourth point in the analysis of why the cases 16 should all be here, the difficulties in mediation when state 17 and federal courts both have different groups of cases, a point 18 that Mr. Tyrrell and I, as well as plaintiff's liaison counsel 19 have discussed with your Honor, getting all the cases -- which 20 is one of the goals of the McNally appeal -- back before your 21 Honor at least creates the possibility for successful mediation 22 that is being enjoined currently, as I say, in wrongful death 23 cases in the 21 MC 97 docket. And again, that is something 24 your Honor has raised several times. 25 And the fifth point is simply the waste of private and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 6465911A argument 1 judicial resources of having multiple state and federal courts 2 hearing the cases involving the same factual and legal issues. 3 That's something that Justice Michael Stallman grappled with 4 when he was concerned with about what he should be doing 5 especially if he didn't have jurisdiction over the cases we 6 will be discussing shortly 7 THE COURT: Justice Stallman has done very well with 8 the cases before him. I don't see any improvement in the 9 efficiency or coordination of litigation because I have it in 10 preference to him. There is no superiority of federal judges 11 over state court judges, in my view. 12 MR. WILLIAMSON: I think it was the thought, your 13 Honor, of efficiency in terms of coordinating and having the 14 same people being able to conduct the discovery in a 15 coordinated way so that it wasn't duplicative, something that 16 was sought to be avoided. 17 THE COURT: The owners and managers of a building, for 18 example 61 Broadway, are doing things differently -- sometimes 19 the same, sometimes differently -- than what was done at the 20 World Trade Center site. They're going to have to be sued on 21 the basis of the reasonableness of their conduct to the sites. 22 They're not being sued, in my judgment, because the air was bad 23 in lower Manhattan. The air was bad in lower Manhattan but 24 they're being sued because of the reasonableness or not 25 reasonableness of their conduct in safeguarding the work site SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 6465911A argument 1 in that building. 2 I think the differences may outweigh the commonality. 3 Everybody was involved in the cleanup, that's the commonality. 4 The source of the contaminants was the same, that's also the 5 commonality. But the real guts of what is likely to happen is 6 a contention over whether the right thing was done in a 7 particular work site. That's different. And the problem with 8 these complaints is that the pleaders made no effort to analyze 9 the case to something that was neat and compartmentable and 10 perhaps readily soluble. 11 Thank you. 12 Mr. Tyrrell, you wanted the last word. 13 MR. WILLIAMSON: One point for clarification. These 14 cases were not removed. These cases in which we moved were all 15 originally commenced in the federal court, just so your Honor 16 is aware of that. 17 Thank you. 18 MR. TYRRELL: Just two brief points, your Honor. 19 I wouldn't agree that you could plead around the 20 jurisdictional provisions of the aviation act. 21 THE COURT: Right, because if you believe that, this 22 is like the ERISA case and the labor case that the events of 23 9/11 so affected everything here that it is all a federal 24 claim. 25 MR. TYRRELL: I do. But I also suggest, with regard SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 6465911A argument 1 to getting us all comfortable with regard to the federal 2 interest concern, and it is an analogy to what we all learned 3 in law school and lived with since, federal diversity 4 jurisdiction. You can say to yourself what is the federal 5 interest that a car accident in Ohio and someone in Michigan, 6 what does the federal government care? 7 THE COURT: Professor Frank of the University of 8 Arizona Law School has taught us all what the federal interest 9 is -- because before there was a federal question jurisdiction 10 in federal court there was a diversity of citizenship 11 jurisdiction. 12 MR. TYRRELL: And that's because Congress said so, 13 just like it said in the Air Transportation and Safety Act. 14 THE COURT: Okay. Got it. 15 My last word on this is if I retain this, we are not 16 going to have situations like Acosta where many plaintiffs are 17 suing in one index number, nor are we going to have a situation 18 where there is no relationship between the owner and manager 19 who is a defendant and the particular property with which that 20 owner and manager is associated. And the same will go with 21 contractors who worked on it. It has to be a specifically 22 alleged relationship and that will become manifest more when 23 there are individual pleadings. 24 Third. References to American Express Company as a 25 site will not pass since the American express Company is in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 6465911A argument 1 various sites in Manhattan. 2 Fourth. Ferry is not a location. A ferry boat moves 3 from place to place and there are ferry terminals in Staten 4 Island and in New York and in New Jersey. 5 The reference to "other work sites" won't be allowed. 6 The reference to "a spread of locations," for example 7 "Canal Street to Battery Park" won't pass. 8 Kings County District Attorneys is not a location. 9 New York City department of sanitation is not a 10 location. And so on. 11 These lawsuits are becoming increasingly difficult to 12 manage. I have well over 5,000 now. Unless I get better 13 cooperation in the pleadings, there is no way I can manage 14 these. And the people who are causing this problem are the 15 very ones who have the biggest interest in advancing these 16 cases to the point where you can make some money, and that is 17 when they're ready to be tried. 18 So, sloppiness, laziness, deferring issues won't work 19 in them. There will have to be precision in pleading. And 20 Mr. Cannata, your group is the one that has the most interest 21 in doing that. 22 MR. CANNATA: Message heard, your Honor. 23 THE COURT: If there is nothing more on these motions 24 to confirm jurisdiction, decision is reserved. 25 MS. STEVENSON: Your Honor, if I may address this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 6465911A argument 1 motion on behalf of Verizon? 2 THE COURT: You are? 3 MS. STEVENSON: Lee Ann Stevenson Kirkland & Ellis. 4 THE COURT: Thank you. I almost forgot you. 5 MS. STEVENSON: Thank you, your Honor. 6 Verizon defendants have been named as defendant in 69 7 cases currently pending before your Honor, and all 69 of those 8 cases are currently in the 100 docket reserved for the onsite 9 defendants. Jurisdiction as to those claims, as your Honor is 10 aware, is not disputed. The cases are properly in the 100 11 docket because Verizon owned and operated a building at 140 12 West Street which has been consistently treated both by this 13 Court and by Federal, State and City authorities as part of the 14 World Trade Center site. In the aftermath of September 11th. 15 THE COURT: Geographically it is just to the north, 16 right? 17 MS. STEVENSON: Correct. It faced the main towers on 18 West Street and it was bounded to the south by Vesey Street -- 19 or is bounded by the south by Vesey Street. 20 Because Verizon is considered an onsite defendant, 21 claims against it have properly been docketed in the 100 22 docket, but for some reason there are five cases that are also 23 listed in the 102 docket and the sole purpose of Verizon's 24 motion to confirm jurisdiction is to confirm jurisdiction over 25 those five cases. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 6465911A argument 1 To be clear, I don't think there should be any 2 questions that -- 3 THE COURT: 100 is because Verizon is a defendant in 4 respiratory actions? 5 MS. STEVENSON: Correct. And these five cases are 6 respiratory actions as well as they're listed in -- 7 THE COURT: 102 also? 8 MS. STEVENSON: Correct. These cases are listed in 9 the 100 docket -- 10 THE COURT: There is no reason why you should be in 11 two different dockets. 12 MS. STEVENSON: We agree with that, your Honor. 13 THE COURT: Except that there may be other defendants. 14 MS. STEVENSON: Perhaps that's the reason. It is 15 unclear, although in at least one of these cases Verizon is 16 the -- Verizon, the City of New York and Tishman are the only 17 defendants, so at least in that one it seems crystal clear that 18 it should be in the 100 docket. 19 There does not seem to be any substantive question of 20 jurisdiction over Verizon because it is an onsite defendant. 21 I realize your Honor is -- 22 THE COURT: Well, I'm not really of the view that 23 because I have classified it that way in a procedural rule that 24 that makes any substantive difference. 25 MS. STEVENSON: It is not only your Honor's ruling or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 6465911A argument 1 classification, and CMO No. 3 that classified Verizon as an 2 onsite defendant, FEMA has classified Verizon as an onsite 3 defendant. The City of New York has treated -- I'm sorry, not 4 classified as onsite defendant but has considered it part of 5 the World Trade Center site. The City of New York, New York 6 State authorities, these -- 7 THE COURT: And you have another very powerful point 8 that the telephone switching in New York City is, a large part 9 of New York City is controlled by that Verizon location. 10 MS. STEVENSON: That's correct. 11 THE COURT: And there was a period of time where the 12 telephone systems in New York City were not working. You were 13 directly affected by the terrorist-related aircraft crashes. 14 Your need to provide service was paramount. And there is a 15 strong federal interest, if not exactly the same as that 16 affecting the area of the World Trade Center, almost the same. 17 I could see Verizon in pay a that I don't necessarily see other 18 locations. 19 MS. STEVENSON: That's correct. And the days we -- 20 THE COURT: And you were also, in a way, sandwiched 21 between the tower to the south of you and the tower to the east 22 of you. 23 MS. STEVENSON: Right. Seven World Trade Center 24 actually fell directly into the Verizon building and a huge 25 hole was actually ripped into the Verizon building which was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 6465911A argument 1 the cause of much of the destruction to the Verizon 2 communications center. 3 THE COURT: Is there any reason -- you are safe on 4 jurisdiction at this point. 5 MS. STEVENSON: Thank you, your Honor. 6 THE COURT: Is there any reason why I should have five 7 cases in 102? 8 MS. STEVENSON: Why you should have five cases. 9 THE COURT: I know you say there is no -- 10 MS. STEVENSON: I don't believe so. Those cases are 11 already in the 100 docket, so it is not a motion. 12 THE COURT: So you are in both dockets? 13 MS. STEVENSON: We are in both dockets, so you 14 wouldn't be transferring them from the 102 to the 100 docket. 15 You would just be removing them from the 102 docket. 16 THE COURT: I'm sorry for interrupting Ms. Stevenson 17 but I can't help that. 18 There are interests that you have that transcend the 19 particular docket. There are other cases that have these 20 problems as well and I'm not able to make such a nice division 21 among some cases as I would like to. 22 I will be sympathetic to arguments of efficiency and 23 the like, and whatever specific rules that you would like to 24 help you I'm glad to entertain, but I just can't make those 25 kinds of clean and neat distinctions. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 6465911A argument 1 MS. STEVENSON: I perceived that, your Honor. Thank 2 you. 3 THE COURT: With that, we will move on to the cases 4 that I have grouped under motions to remand. That's Montalvo, 5 Buonamini -- two Buonaminis, DeFillipo, Campo, Milling, 6 Johnson, Fergus, Sferazza, Strohschein, Daly, Nimmo, Pursley 7 and Beattie. 8 Why don't we take up Milling, which is a slip and fall 9 case. 10 MR. LEYDEN: Your Honor, Michael Leyden Goldberg & 11 Carlton, I represent Sandra Milling. 12 Your Honor is correct, Sandra Milling is involved in a 13 slip and fall, sidewalk slip and fall in May of 2002 on Battery 14 Place about 50 feet east of Grant Street. She fractured two 15 ankles. It is our position that somehow she's got caught up in 16 this particular litigation but that somehow her case is 17 distinct from all the other plaintiffs without speaking to the 18 merits of those, my co-plaintiffs in this case, simply because 19 of the fact that she was not in any way connected to the site 20 or the World Trade Center cleanup. She wasn't a worker, she 21 was just a pedestrian passing by. 22 THE COURT: Who did you sue? 23 MR. LEYDEN: Originally we sued the City of New York. 24 We then received notice that the filing notice of claim 25 starting the lawsuit against the City of New York, about the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 6465911A argument 1 other entities involved in the work that was going on at that 2 particular location that included Tully Construction, Con Ed, 3 Liro, and there was one other private defendant. 4 THE COURT: On what did she slip and fall? 5 MR. LEYDEN: It was a -- it was the center median of 6 that particular roadway, a broken portion of that roadway, 7 right at the area where the median reaches the street area. 8 THE COURT: Was it broken before 9/11? 9 MR. LEYDEN: You know, I mean, as far as I know it may 10 have been but we don't -- I don't know that offhand. 11 THE COURT: Any median in the City of New York is 12 likely to be broken. 13 MR. LEYDEN: Just on the assumption even without any 14 factual evidence, I think that's a fair assumption. 15 THE COURT: What happened to your client? 16 MR. LEYDEN: Two fractured ankles, she was out of work 17 for several months. She is dealing with residual -- the 18 residual effect of that now four years later but those were the 19 injuries involved. 20 THE COURT: Why is actually construction involved? 21 MR. LEYDEN: We received notice from the city there 22 was work ongoing there which, as we have been told, was 23 involved in some kind of World Trade Center project in the 24 after effects. 25 Incidentally, the work that was titled was called SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 6465911A argument 1 milling work, which for whatever reason the connection of that 2 with the name of the client, because Tully was the contractor 3 for the work that was going on at that particular location. 4 THE COURT: But, if your client slipped and fell on 5 the median -- I don't think Tully works on medians. 6 MR. LEYDEN: We haven't had an opportunity to depose 7 Tully Construction. Our understanding after having sued just 8 the City of New York was that the work that was being done in 9 and around that general area on Battery Park near Battery Place 10 near Greenwich Street was being done under the control of Tully 11 Construction. There was one other that was sort of a joint 12 project that was signed out to the general contractors. 13 THE COURT: What was the date of the slip and fall? 14 MR. LEYDEN: May 14th, 2002, about eight months after 15 September 11. 16 THE COURT: Do you know anything about this, 17 Mr. Tyrrell? 18 MR. TYRRELL: I know more about it since he argued. I 19 know a little but I think enough, I hope, your Honor. 20 Tully was one of the four primary contractors that had 21 a quadrant of the site. It was responsible for working on and 22 rebuilding the West Side Highway that collapsed. Certain of 23 the things, because of the conditions on the site, it had to 24 bring in specialized construction equipment. In some places 25 huge cranes had to be brought into the site well beyond SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 6465911A argument 1 anything at a normal site. 2 There are going to be arguments made that this median 3 was broken and that Tully should have done something about it. 4 And Tully is going to stand up and say the unique conditions of 5 9/11 caused us to bring in this huge equipment and it was the 6 only way to deal with rescue and search and it is related and 7 arising out of the offense of 9/11. 8 And so, I don't know how we can distinguish this from 9 the other activities that Tully was performing in its quadrant 10 in rebuilding the West Side Highway. 11 THE COURT: An argument of necessity would perhaps be 12 a justification for having to break a median. Whether the City 13 can get out if the City is responsible for the roadways without 14 having posted some kind of a warning or some kind of a 15 correction is another issue. 16 I don't see how I can let you out with the state of 17 facts. 18 MR. LEYDEN: Your Honor, our position with respect to 19 Sandra Milling, even with respect to other plaintiffs -- 20 THE COURT: I take that back. I don't know about 21 that. 22 MR. LEYDEN: Our position is that there is nothing 23 unique involved. 24 THE COURT: Yes, there is something unique. The 25 uniqueness is the urgency of fixing up the World Trade Center SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 6465911A argument 1 site and getting it cleaned. That was an urgent situation. 2 MR. LEYDEN: That is certainly true, but this was more 3 than half a mile away, a pedestrian who had no connection, was 4 not a worker involved in the cleanup herself. This was a 5 simple passer-by. The fact that Tully Construction was 6 somehow, in some way, involved itself with the World Trade 7 Center cleanup is not relevant to the fact that there was a 8 passer-by. This could have been anybody walking in that 9 general vicinity. 10 And what are we saying here? Clearly I think that in 11 looking at the Second Circuit decision and the previous cases 12 that your Honor has decided upon, there is a line to be drawn 13 at some point. And where that line is going to be drawn you 14 are talking about an ordinary passer-by having no connection to 15 the World Trade Center site herself passing by on a 16 city-controlled sidewalk or center median in which she was 17 caused to trip and fall. 18 Trip and falls are typically state jurisdiction cases. 19 The fact that Tully Construction was involved in this 20 particular lawsuit or involved in this particular action, I 21 don't think, trumps the fact that in and of itself a trip and 22 fall eight months later is not unique to the World Trade Center 23 and the attacks that occurred on 9/11. 24 THE COURT: Thank you, Mr. Leyden. 25 Mr. Tyrrell, anything more on this? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 44 6465911A argument 1 MR. TYRRELL: Just a short observation. Where the 2 hotel was, the Battery Park area, was the staging ground for 3 all of the heavy equipment that Tully had to use to take back 4 and forth and do its job at the site. 5 THE COURT: Where is this precise location, 6 Mr. Leyden? 7 MR. LEYDEN: It is on Battery Place about 50 feet East 8 of the Greenwich Street. 9 THE COURT: So it is in the area of the World 10 Financial Center. 11 MR. LEYDEN: No. It is right by -- right by the area 12 where the Battery Tunnel is -- or leading into that area. 13 THE COURT: Battery Place is west of West Street and 14 it is west of the tunnel. 15 MR. LEYDEN: Correct. 16 THE COURT: The location of the Ritz Carlton Hotel 17 now, isn't it? 18 MR. LEYDEN: Yes. Where that has been built is across 19 the street from that, I believe. 20 THE COURT: Is that the staging area? 21 MR. TYRRELL: I believe so, your Honor. But certainly 22 it was one of the areas that. 23 Enormous equipment had to go to and from, the staging area to 24 site, which was the West Side Highway. 25 THE COURT: In order to reach the west side of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 45 6465911A argument 1 World Trade Center site -- I take that back, too. 2 Thank you. 3 Tell me about these lawsuits, are these personal 4 injury lawsuits now, the motions to remand? 5 MS. MISHKIN: Yes, your Honor. 6 THE COURT: Do you want to give me the arguments on 7 those, Ms. Mishkin? 8 MS. MISHKIN: Yes, your Honor. 9 Unlike the issue that was just raised to the specific 10 location, on the federal interest, the federal interest is 11 addressed to the nexus between the claim and the objective 12 sought to be achieved by Congress. So, therefore, whether 13 something happened on the site, off the site, miles away, 14 should conceivably not be the pivotal point of concern. 15 And our position is that our claims are consistent 16 with Graybill and Spagnuolo, that our claims did not arise 17 out -- both decisions arise, are consistent with your Honor's 18 decisions in those two cases. 19 THE COURT: Splendid decision. 20 MS. MISHKIN: I didn't hear that. 21 THE COURT: Splendid decisions. 22 MS. MISHKIN: I just -- that's an understatement. 23 Consistent with your splendid decisions. 24 The issue, as a matter of fact as defendants 25 themselves have demonstrated as to whether or not these claims SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 46 6465911A argument 1 arise out of, result from, or related to the terrorist-related 2 acts can only be assessed within the context of a Graybill 3 causal analysis. This is demonstrated by defendants own 4 insistence on re-characterizing the tasks that were performed 5 and re-characterizing the nature of the claims. These are not 6 respiratory claims. 7 THE COURT: These are all personal injury claims. I 8 held in Graybill and Spagnuolo that the work on the World Trade 9 Center site may have been the occasion for the injuries, but 10 they were the kinds of workplace injuries that are common to 11 construction and they should be considered in that light rather 12 than something that arises from or relates to the 13 terrorist-related aircraft crashes. 14 Since I decided those cases followed by my Hickey 15 decision, McNally came down. And Mr. Tyrrell will very soon 16 argue that the McNally case changed the world, at least in that 17 section of the world. 18 So, should I re-visit Spagnuolo and Graybill in light 19 of McNally? 20 MS. MISHKIN: Judge, absolutely. 21 It is our position that Graybill and Spagnuolo 22 represent the only precedential law on this issue. 23 In McNally, Judge Kearse specifically addressed the 24 case as the content of appeals were founded, to begin with, to 25 respiratory related injuries. And the reason that that, and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 47 6465911A argument 1 the analysis used by the Second Circuit was notwithstanding 2 defendant's position on it, a causally-based analysis exactly 3 like the analysis that you used in your superlative decision in 4 Graybill. 5 And, as a matter of fact, the Second Circuit 6 specifically not only in their prefatory language do they say 7 this, this appeal is addressed to respiratory cases, but also 8 the case that -- 9 THE COURT: But the logic of the Judge Kearse decision 10 would make no distinction between a personal injury that is of 11 the skin and bones to a personal injury that deals with the 12 respiratory tract. Both are injuries. Both are occurring at 13 the work site. 14 MS. MISHKIN: The language of that decision in -- if 15 you will just give me one second? 16 THE COURT: Sure. 17 If you are more comfortable at the podium you can do 18 that too. 19 MS. MISHKIN: No, I'm good. 20 I prefer to directly reference the portion of the 21 decision and I just need a second to find that, your Honor. 22 THE COURT: Which parts are you thinking about? 23 MS. MISHKIN: 414 F.3d at 358. 24 THE COURT: What point are you looking for? 25 MS. MISHKIN: Conditions at the World Trade Center SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 48 6465911A argument 1 disaster site. 2 THE COURT: Pages 358. 3 MS. MISHKIN: This language is clearly set forth in 4 the decision for conversational purposes. The language 5 specifically illustrates the causal analysis that the Second 6 Circuit used in McNally, and it is based on that that the 7 Second Circuit found that it was the unbroken continuum from 8 between the planes crashing into the buildings and carrying 9 tens of thousands of gallons of jet fuel, the tower collapsing 10 trapping and killing people, the compressive force of the 11 towers collapsing upon themselves had crashed such building 12 components as concrete, glass, steel and fireproofing material 13 causing -- 14 THE COURT: Crushed not crashed -- crushed such 15 building components such as concrete, glass, steel and 16 fireproofing material, as well as material, furniture, 17 equipment, causing clouds of dust and mountains of debris. The 18 City's air sampling at the disaster site revealed particulate 19 matter consisting of pulverized building materials and 20 contaminants such as asbestos, organic compounds, dioxins and 21 heavy metals -- not the music. 22 Further fires at the site burned underground for more 23 than three months and smouldered for another month. They, in 24 the above ground fires produced a pall of acrid smoke over 25 Manhattan and Brooklyn. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 49 6465911A argument 1 As early as September 12 the City was asked to provide 2 respirators for workers at the disaster site. The numbers 3 requested, however, far exceeded the numbers the City could 4 supply. 5 It is the mountains of debris that you skipped over 6 that Mr. Tyrrell or Mr. Williamson will focus on. 7 MS. MISHKIN: I respect that, your Honor. And while 8 addressing that first, without alienating any -- 9 THE COURT: This was -- and I am articulating now all 10 the thoughts that went through my head and which did not enter 11 into my decision in Graybill and Spagnuolo, but -- the work 12 site was not the same as the ordinary work site. The shifting 13 ground underneath -- and some of the complaints refer to the 14 shifting ground -- created a greater danger than other places. 15 The smoke and the heat and the mixture of all other 16 kinds of dangers and the equipment that sometimes couldn't get 17 a foothold, all these created a different kind of problem. 18 Still, I thought that -- and I may still think now 19 that work sites are inherently dangerous, that the need to 20 safeguard equipment exists in all work sites, the need to take 21 care of the fellow employees exists on all work sites, and the 22 Labor Law of the State of New York reflecting over a hundred 23 years of experience at work sites creates duties and 24 responsibilities on the part of the employers that did not 25 change because this was a work site that was caused by a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 50 6465911A argument 1 terrorist-related aircraft crash which is something that we see 2 every day on the streets of New York. And I thought that that 3 was a sufficient distinction to warrant a remand to the state 4 courts and I may still think that now. 5 That's the very issue that I have to deal with and it 6 is very much raised by what Mr. Tyrrell and Mr. Williamson have 7 been talking about, raising the same issues -- unless there is 8 one difference. The impact on the Twin Tower, the twin impacts 9 on the Twin Towers and the collapse of those towers issuing the 10 mounds of the dust that were like tornados coming up and down 11 the streets. 12 One can never forget the television picture of the 13 tornado cloud threatening to engulf the racing people running 14 north on Church Street and on Greenwich Street. One can never 15 forget that. It was a scene that only the most imaginative 16 movie producer could create who has seen the power that, at 17 least, I will never forget. 18 There may be a difference between the air, the 19 contaminants in the air that directly issued from the collapse 20 of the towers and the work that went on afterwards to move the 21 debris away from the site to other places. I thought that to 22 be an important distinction but I don't know. Maybe not. 23 MS. MISHKIN: Your Honor, I would like to just focus 24 in on that issue, the question. The question is did the 25 terrorist-related aircraft crashes provide the basis for the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 51 6465911A argument 1 claims alleged. And it is our position that regardless if 2 there were smoke or fire or any of those other elements going 3 on at the time, there are several cases including one of my own 4 in this where the defendants superseded any potential nexus by 5 giving my client construction worker a defective scaffold six 6 months later. So that even if, under the greatest stretch of 7 imagination, a nexus could be found between the terrorists 8 flying into the buildings and the work being performed at the 9 World Trade Center site by these demolition workers, that nexus 10 no longer should reasonably exist under any body of law once 11 the defendants affirmatively take action to supersede any chain 12 of causation otherwise existed. 13 THE COURT: In the securities law reform act -- I know 14 you don't practice in this area -- but Congress mandated a 15 federal jurisdiction for class actions brought under state law. 16 There used to be and there still is in the Securities Act of 17 1933, a savings provision that allowed litigants to choose 18 either the state or the federal forum. And there is a 19 parallelism between state anti-fraud laws and federal 20 anti-fraud laws that Congress mandated that all class actions, 21 even though based on state law, would have to be brought in the 22 federal court. 23 And Mr. Tyrrell hasn't referred to this but it is the 24 same point, the point is that a federal interest, to gather 25 everything together in a federal court and oust a state court SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 52 6465911A argument 1 may have been reflected in the Air Transport Safety and System 2 stabilization Act. 3 MS. MISHKIN: The other federal interest, if I could 4 point out, your Honor, are interests in federalism. There is a 5 clear and express federal interest in the statute 1446(b), 6 which is a very clearly enunciated federal interest, that cases 7 are only to be properly removed within a 30-day window or -- 8 THE COURT: That's the removal statute. 9 MS. MISHKIN: That's right. 10 THE COURT: I can't agree with that, Ms. Mishkin; 11 because although McNally is distinguishable, the rule of law 12 that suggested, in dictum, and which I ultimately accepted, 13 changed the world in a sense, changed the particular legal 14 environment. And under the removal statute when a federal 15 claim first becomes evident, people can remove. And I think 16 that's the basis for the removal. 17 So if you win, it is not going to be on the procedural 18 ground. 19 MS. MISHKIN: I appreciate that, your Honor. And I 20 would just mention that clearly the McNally decision didn't 21 make evident for the first time the removability of the case. 22 THE COURT: Remember that Spagnuolo and Graybill were 23 removed. 24 MS. MISHKIN: Sorry? 25 THE COURT: Spagnuolo and Graybill were removed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 53 6465911A argument 1 MS. MISHKIN: Yes, and as a matter of fact -- 2 THE COURT: And I remanded them. 3 So now another opportunity came to remove them with 4 the McNally decision and defendants can't be faulted for taking 5 advantage of that. 6 MS. MISHKIN: Well, unfortunately though 7 notwithstanding the fact that you deliberately remanded 8 Graybill and Spagnuolo, the defendants then proceeded to 9 interpose as an affirmative defense in their initial pleading, 10 a defense of the liability cap under ATSSSA. 11 THE COURT: So, what's wrong with that? That's the 12 logic of my Spagnuolo decision. 13 Ms. Mishkin, that argument won't work. 14 MS. MISHKIN: Okay. Let me try something else. 15 Can I reserve my right? I'm sorry. Mr. Lutwin would 16 like to say something. 17 THE COURT: Sure. 18 Mr. Lutwin? 19 MR. LUTWIN: Judge, Judge Kearse gave you, I guess, 20 some marks in her decision. She says: "We agree with the 21 District Court --" 22 THE COURT: I think three. 23 MR. LUTWIN: -- "that Congress did not intend to 24 dismiss the entire panoply of state law regulating the health 25 and safety of the workplace." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 54 6465911A argument 1 THE COURT: Aggression, Mr. Lutwin. People feel when 2 they read they're on borrowed time and they hurry to go 3 forward. But, the very purpose of reading is to cite me 4 something that has been carefully worded and which a lawyer 5 thinks is persuasive -- so one would suggest. 6 MR. LUTWIN: I will try to persuade you, your Honor. 7 THE COURT: Go slower on the reading than even on the 8 speaking. 9 MR. LUTWIN: Yes. All right. 10 "We agree with the District Court that Congress did 11 not intend to displace the entire panoply of state law 12 regulating the health and safety of the workplace." 13 Judge Kearse goes on to say: "No doubt, there will be 14 some claims whose relationship to the terror-related aircraft 15 crashes of September 11, 2001, is 'too tenuous, remote, or 16 peripheral.'" Citing Travelers, 514 U.S. at 661. 17 On January 3rd, 2001, four months after the planes 18 went into the World Trade Center, my client was stepping down 19 for what he thought with a rung on a ladder on Ground Zero. 20 There was no rung and he was injured. It is clearly a labor 21 law case. It has nothing to do with the fact that the 22 buildings came down. The machine was defective. It didn't 23 have a ladder. 24 THE COURT: Mr. Lutwin, I thought so too, which I 25 forget whether it was Graybill or Spagnuolo; a crane dropped a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 55 6465911A argument 1 piece of steel and it glanced off a workman and caused him an 2 injury. It is a workplace injury. 3 MR. LUTWIN: Right. 4 THE COURT: A ladder, ladders have defective rungs. 5 The defective rungs could have been on a ladder if it was on 6 42nd Street and Broadway but it happened to be at the World 7 Trade Center site. And so the adventitious location of a 8 ladder should control, should it, jurisdiction? You would 9 argue no. 10 MR. LUTWIN: But the focus should be whether the claim 11 is too tenuous, remote or peripheral. 12 Four months later a rung of a ladder goes down and 13 just because it is the World Trade Center site they should have 14 exclusive jurisdiction? I don't think so. I don't think 15 McNally holds that either. 16 THE COURT: Suppose the ladder slipped because the 17 debris gave way -- the debris gave way because the fires 18 underneath created an impermanent foundation. I distinguish 19 the two. 20 MR. LUTWIN: That's a different fact pattern. 21 What I am basically saying is that your reasoning in 22 Spagnuolo and Graybill basically is predicated on Cardozo's 23 decision in Pfalzgraph against Long Island Railroad, reasonably 24 the risks reasonably perceived to be define the duty to be a 25 big and risk imports. It is the duty to another or to others SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 56 6465911A argument 1 within the range of apprehension. 2 So, there is knowledge with that discussion. And if 3 you go with the two things that Judge Kearse said in McNally, 4 your Honor, then you just analyze the fact patterns from these 5 personal injury plaintiffs that have nothing to do with the 6 crash. 7 THE COURT: Judge Kearse also said that I could still 8 apply the New York Labor Law within the umbrella of federal 9 jurisdiction. 10 MR. LUTWIN: That's true too. 11 THE COURT: I have your argument, Mr. Lutwin. 12 MR. LUTWIN: Thank you. 13 THE COURT: And you know my leanings are that way. 14 Whether they still go that way is a matter of the law I have to 15 apply is another question. 16 MR. LUTWIN: All I am saying is McNally says you can. 17 THE COURT: I understand. Clearly I can. I'm a 18 Judge. 19 The other side, Mr. Tyrrell? 20 MR. TYRRELL: May it please the Court, for the record 21 I'm James Tyrell. 22 THE COURT: For the record, my wife told me just 23 yesterday don't do it because you're the Judge. 24 MR. TYRRELL: For the record, I would argue you can 25 but you shouldn't. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 57 6465911A argument 1 May it please the Court, my name is James Tyrrell. 2 I'm arguing today in my role as liaison counsel with 3 Mr. Williamson on behalf of all defendants, and the Court 4 should know that defendants have consented to have 5 Mr. Williamson and I do our best to try to represent them. 6 In that connection, Mr. Williamson and I have very 7 carefully prepared to avoid duplicative and repetitive 8 arguments and we are determined to present a seamless web of 9 jurisdictional analysis. 10 THE COURT: Wow. 11 MR. TYRRELL: If, however, we fail, we would like to 12 apologize in advance. 13 THE COURT: You have never failed, Mr. Tyrrell. I am 14 waiting for the first time. 15 MR. TYRRELL: The question before this Court is 16 whether there is subject matter jurisdiction over claims 17 relating to the air crashes of 9/11 involving non-respiratory 18 bodily injury and exposures off the World Trade Center site. 19 That's what we are here about. 20 We suggest that the Air Transportation Safety and 21 Systems Stabilization Act, which every time I argue I have to 22 write down because I never get all of the Ss in the right place 23 and, with the Court's indulgence, I will hereinafter refer to 24 as "the Act," it provides jurisdiction. 25 But, secondly, independent of the Act there is federal SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 58 6465911A argument 1 officer removal jurisdiction in this Court. 2 And third, these cases should not be remanded for many 3 important practical considerations. I will advance three 4 arguments in support of our position. 5 No. 1. McNally controls and supersedes Graybill and 6 Spagnuolo. They may have been splendid decisions but they were 7 a tad less splendid after McNally, respectfully. 8 The petition for removal was timely filed. 9 THE COURT: They rusted. 10 MR. TYRRELL: And this Court has federal officer 11 removal jurisdiction, so let me talk to the first point and the 12 individual themes that we think support that point, drawing 13 heavily on the specific language of the Court -- and I will try 14 to read it slowly. 15 No. 1. The Second Circuit's decision in McNally 16 supersedes this Court's pre-McNally decision in Graybill and 17 Spagnuolo. In addressing the relevant section of the Act, the 18 Second Circuit wrote: "Section 408(b), in creating the federal 19 cause of action superseding state law remedies and giving the 20 federal court exclusive jurisdiction, makes no mention of any 21 particular timing or situs of alleged injury." 22 The Second Circuit went on to stress that the section 23 applies: "to all actions brought for" -- underlined by the 24 Court or italicized -- "any claim resulting from or" -- again 25 underlined -- "relating to the crashes. Restrictions on the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 59 6465911A argument 1 scope of the Court's exclusive jurisdiction may not be imposed 2 when, according to the Second Circuit, nothing in the language 3 of the statute or its legislative history suggests such lines 4 of demarcation." 5 We will be urging that the Second Circuit explicitly 6 said that offsite is covered and by the logic of its reasoning 7 there is no basis to demarcate between bodily injury, 8 respiratory cases, and bodily injury non-respiratory cases. 9 Let me come to the second theme. 10 Plaintiffs' cause of action is federal in nature and 11 can only be heard by this Court. The argument, with respect, 12 that counsel made suggesting that McNally, that there is going 13 to be a problem applying the substantive rule of decision if 14 jurisdiction is recognized in this court, is just not so. Why? 15 Because the statute provides a jurisdictional basis and says 16 that the substantive law to be applied by the federal court is 17 the substantive law of the applicable state so there is no 18 conflict there whatsoever. 19 What did the Court say? 20 In McNally the Second Circuit made clear that Section 21 408(b) of the Act does not displace any state health and safety 22 laws pertaining to the workplace, and that Congress 23 specifically contemplated that federal courts would apply state 24 substantive law. 25 Nothing unusual about that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 60 6465911A argument 1 THE COURT: One of the reasons for not having total 2 jurisdiction is that the burden on me becomes almost 3 questionable. And a very good reason to have various 4 categories of decisions of cases go where they might is that 5 the dispersal of the cases makes it easier for the cases to 6 proceed, both from the plaintiffs' and defendants' points of 7 view. 8 That's an important point -- an important point of 9 jurisdiction. 10 Companies find that the results of the consolidation 11 can create such an ossifiable structure that things become less 12 efficient, less organized, less directed, slower, more 13 expensive and on and on. 14 The same goes in terms of federal jurisdiction and 15 that's why I am trying, and perhaps I will try unsuccessfully, 16 to find some logical point where I can say a slip and fall case 17 doesn't belong to me. A workplace injury which could happen in 18 any workplace doesn't belong to me. The respiratory cases 19 where the same pattern caused all of the injuries does belong 20 to me. That's possible. 21 I understand what you are saying, Mr. Tyrrell, and it 22 is hard to argue with that logic. It is easier always to 23 extend logic but there is also a consideration of practicality. 24 MR. TYRRELL: Your Honor, we believe that if your 25 Honor's efficiency ever waned, which it has not to date, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 61 6465911A argument 1 right place to share the burden is with another federal judge 2 and not back in state court. 3 And, in any event, we respectfully believe that 4 Congress has imposed this burden on you. 5 THE COURT: What is the difference between other 6 Federal Judges and Justice Stallman? 7 MR. TYRRELL: Federal jurisdiction. 8 THE COURT: So what? What does that mean? 9 MR. TYRRELL: Federal Judges can coordinate. And I'm 10 not urging that, your Honor. We want one Judge, one Court. 11 That is our theme from the beginning. I am simply trying to 12 deal with your Honor's observations that you might not have the 13 energy to do it all. We think you do. But, there is help 14 right here in the court house and you don't have to go across 15 the street. 16 Let me go to my third theme if I may, your Honor. 17 The World Trade Center site was never an ordinary 18 workplace. This Court must apply the McNally determination 19 that the World Trade Center was not an ordinary workplace, 20 rather it was a rescue, recovery, debris removal and cleanup 21 site where the exigent need to protect the public health and 22 safety had to be balanced every day against the need to protect 23 workers from injury. 24 You know, there is no need to go to the evidence on it 25 other than to go to the quotation from the Second Circuit SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 62 6465911A argument 1 itself. 2 THE COURT: Didn't I write that also? 3 MR. TYRRELL: I think you did, your Honor. And the 4 Second Circuit may have picked it up and it is worth reading 5 because both of you may have said it. The Second Circuit has 6 described the dangers at the site. "The continuing need to 7 sift through human remains, the unprecedented quantity of the 8 debris the" -- and I highlight -- "ever present need for 9 engineering, evaluation of the structural safety of the 10 remaining walls and foundations, and the character of the crash 11 site as a crime scene creating security concerns and affecting 12 the manner in which the demolition and debris removal 13 operations were conducted and the manner in which the debris 14 was treated both at the site and at marine transfer points and 15 the landfills." 16 THE COURT: Practically speaking, how will that change 17 the proofs in a case like Graybill or Spagnuolo? 18 MR. TYRRELL: There will be proofs in Graybill and 19 Spagnuolo that, let's assume which one it was that the steel 20 beam fell and glanced off someone. 21 THE COURT: Let's take the steel beam. 22 MR. TYRRELL: Let's go through some of the 23 possibilities, you have said some of them. 24 People were working 24/7 at the site, not the typical 25 construction site. It was a shifting pile of unstable debris. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 63 6465911A argument 1 Decisions were made by federal and state authorities as to 2 special equipment that could and could not be used on the site 3 that never would be allowed at a normal construction site. For 4 example, one of the largest cranes in the world, or at least on 5 the east coast that was used for mining operations, was brought 6 in in order to have the reach to get out over that pile. Was 7 that not part of the exigent circumstances unique to 9/11? The 8 City would have never allowed that. Its ordinances, its safety 9 laws would have never allowed that at a typical construction 10 site. 11 So, when we then say or when the plaintiffs say, But 12 my fella fell off a ladder, or my fella got hit with a steel 13 beam and it was at the World Trade Center site at the time 14 period that all of these emergency operations were going on, 15 how can we not say that it refers and relates, within the 16 meaning of the statute and McNally, to the events of 9/11? 17 The exigent circumstances determined the response and 18 that's going to be clearly involved in every one of these 19 cases. 20 THE COURT: I'm trying to put this in a more practical 21 way. 22 The discovery is going to have to get into all of 23 these kinds of issues. While each particular case may be 24 isolated in what happened, inevitably the same witnesses will 25 be involved and the discovery will have to embrace all these SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 64 6465911A argument 1 issues. 2 On the other hand, Justice Stallman has already 3 patterned discovery in his cases so that they are coordinated 4 with mine. There will not be any duplication of effort. Not 5 only I and Justice Stallman concede to it, but that's been a 6 pattern that Judge Weinstein and Justice Freeman have worked 7 out with the asbestos cases. And there are many other efforts 8 of cooperation between federal and state courts to cite. 9 The danger, as I said before, is that the effects of 10 9/11 can stop analysis. They are so huge and engulfing and 11 there is an argument for allowing things to split away and be 12 governed by their own sets of logic, taking care to assure that 13 witnesses are protected and economies are affected. 14 I don't know the answer, Mr. Tyrrell. 15 MR. TYRRELL: Your Honor, not wishing to burden you, 16 but our position is that the burden on the Court is not a basis 17 for remand. And in the cases you cite in Asbestos, there is no 18 aviation act providing for exclusive federal jurisdiction. It 19 is just different. 20 But let us have any doubt about half of what we are 21 talking about because McNally squarely decided it. Just 22 because you are injured offsite is absolutely no basis to think 23 that exclusive federal jurisdiction does not apply. 24 Let's look at the language and the exact holding of 25 McNally which addresses it and, I suggest, it is dispositive. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 65 6465911A argument 1 McNally demonstrates that exclusive federal 2 jurisdiction created by the Act is not limited to injuries 3 suffered at Ground Zero itself, quote McNally: "We are 4 constrained to note that we see no bases for the District 5 Court's ruling that the Act's pre-empted effect differs 6 depending on whether the respiratory injuries were at the World 7 Trade Center site or elsewhere." 8 THE COURT: She was reacting to my holding that Fresh 9 Kills was not involved and the barges were not involved. That 10 was the basis for that observation. 11 MR. TYRRELL: Well, if it is covered at Fresh Kills is 12 it not covered across the street? 13 THE COURT: Well, maybe. I don't know. Maybe not. 14 Maybe yes. 15 She also said that more than but-for causation was 16 required. There has got to be more arguments than but for that 17 really because the chain of events arose with the 18 terrorist-related aircraft crashes does not necessarily mean 19 that federal jurisdiction extends to have the emanation from 20 that. 21 MR. TYRRELL: I take myself back to answer that 22 question to the gospel of the Second Circuit in McNally where 23 the Court -- 24 THE COURT: It is not gospel. 25 MR. TYRRELL: Pardon? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 66 6465911A argument 1 THE COURT: It is not gospel. It is a recent decision 2 of an experienced and extremely able Federal Judge but it is 3 not gospel. 4 MR. TYRRELL: I remove the word "gospel" but it does 5 bind this Court. 6 THE COURT: As dictum. 7 MR. TYRRELL: Well, let's see what it says, because it 8 is pretty close to talking about exactly what our situation is 9 with regard to this piece location. 10 The Court says -- 11 THE COURT: This location is right in the World Trade 12 Center. We're right in the World Trade Center with these 13 cases. 14 MR. TYRRELL: We are right in the World Trade Center 15 with these cases but my argument is there are a number of cases 16 that are also suggested that they should be remanded because 17 they're offsite, so I'm dealing with both prongs of the 18 argument. 19 THE COURT: Not these 14, I think. 20 MR. TYRRELL: I will come back, and when my conscience 21 addresses that -- Mr. Hopkins -- I will be able to say whether 22 we are right on that. I can pass the issue. 23 THE COURT: I will ask the folks here, are any of 24 these 13 cases outside of the World Trade Center site? 25 MR. ZEMANN: Daniel Zemann, Jr., I represent DeFillipo SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 67 6465911A argument 1 and Gordon in that case, one of the defendants that arises from 2 the landfill. 3 THE COURT: And that case involves the site? 4 MR. ZEMANN: A police officer who was sifting through 5 debris sustained a crush injury to his hand, I believe. 6 THE COURT: At the World Trade Center site? 7 MR. ZEMANN: No, at the landfill. 8 THE COURT: The landfill. 9 MR. TYRRELL: Which is why we tried to argue the 10 offsite issue here as well. 11 THE COURT: Sure. 12 MR. LEYDEN: I have Sandra Millings. 13 THE COURT: That's why I said 13, not 14. 14 MR. LEYDEN: I just wanted to clarify that. 15 MR. TYRRELL: We certainly know that an explicit 16 holding in McNally was that respiratory injuries that allegedly 17 occurred at the Fresh Kills Landfill were covered. Would it 18 not be ironic that anything other than a respiratory injury at 19 the Fresh Kills Landfill would not be covered? 20 But I will come to the specific injury types in a 21 moment. 22 THE COURT: I'm not going to draw any distinction. 23 The DeFillipo case, because it was in Fresh Kills, is not at 24 the World Trade Center site. 25 MR. TYRRELL: I want to move to the issue of injury SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 68 6465911A argument 1 type. And again, I ground my argument in the teaching of 2 McNally which says you don't draw a line of demarcation that's 3 not in the statute or legislative history. 4 There is nothing that suggests that there is something 5 so unique about respiratory injury from any other type of 6 bodily injury. They're all forms of bodily injury actions. 7 And I use the following examples because, again, there is 8 something to be said for logic. 9 If, on a given day at the site, worker 1 claims there 10 he was and the conditions injured his lungs; there is no doubt 11 under McNally that he is covered. 12 Worker 2 stands next to him, doesn't allege that his 13 lungs were injured but alleges that a beam hit him on the same 14 day at the same site next to each other with the same 15 conditions; how peculiar would it be that that goes to state 16 court? 17 THE COURT: And then there is worker 3 that alleges 18 that both his arms were hurt and his lungs were hurt. 19 MR. TYRRELL: And I don't think any of us are 20 Solomon-like and can split them in half and send half of them 21 to State Court and half to Federal Court. So, your Honor has 22 the point and I would like to move on. 23 THE COURT: Solomon never split the baby also. 24 MR. TYRRELL: I'm hoping you won't either, your Honor. 25 If I can turn now to the issues of procedural defect SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 69 6465911A argument 1 but subject only. 2 THE COURT: Don't bother. 3 MR. TYRRELL: What do you want me to say about it? 4 THE COURT: Don't bother. 5 MR. TYRRELL: I like that, your Honor. So, I would 6 like to move on to the third issue, which is federal officer 7 removal jurisdiction, because that really is important because 8 no matter what you decide about this Act, you have got 9 jurisdiction under federal officer removal and every single 10 defendant has an independent right upon being joined in the 11 case to remove it and keep it here under federal officer 12 removal jurisdiction. 13 THE COURT: I won't reel that motion in. 14 MR. TYRRELL: My motion? 15 THE COURT: Immunity. 16 MR. TYRRELL: Immunity. 17 THE COURT: That's where you are going to set out the 18 facts of the federal officer activity. 19 MR. TYRRELL: That's true, your Honor, which means 20 that the cases will be held jurisdictionally here at least 21 until you decide that issue. Because if you remanded it 22 without deciding that issue, we would lose jurisdiction so we 23 couldn't do that. 24 THE COURT: You can make that motion in state court 25 also but that's not the place it is supposed to be made. Is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 70 6465911A argument 1 that right? 2 MR. TYRRELL: No, no. Basically one under federal 3 officer removal jurisdiction, let's assume we meet the tests 4 and standards we get that into Federal Court and each defendant 5 has an independent right to do it -- 6 THE COURT: So let's say, for argument, if I were to 7 remand cases now and you were, three months later, to prove 8 federal officer immunity, or even to say under the facts of 9 federal officer immunity you would remove. 10 MR. TYRRELL: There would be issues about that. I 11 would try. I would certainly try but here is the problem. I 12 have -- 13 THE COURT: Let's set this up. 14 Let's say tomorrow I would say no, Mr. Tyrrell, you 15 are wrong and I agree with Ms. Mishkin and these cases are 16 going to the state court. When you were ready with your 17 summary judgment papers showing the federal officer removal you 18 could then remove the case once again from the state court. 19 MR. TYRRELL: I have two points on that. It may be 20 since I have urged upon you federal officer jurisdiction now 21 that if you remand and don't say on what grounds and it is 22 gone, jurisdictionally it is now back in state court. If I'm 23 Ms. Mishkin, I am going to argue when I try to remand again 24 that I'm taking a double bite at the apple because you ask is 25 it at any time and -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 71 6465911A argument 1 THE COURT: If I send it back I will make it clear 2 that I didn't rule on this issue and it is not before me. 3 MR. TYRRELL: But there is also the fact -- 4 THE COURT: I'm saying it. If I were to send this 5 back it is not because of any ruling I am making on federal 6 officer removal. I have not considered the issue, I'm not 7 aware of the issue except that you tell me it is coming. 8 MR. TYRRELL: And I just mean to make this 9 observation. We need to show a lot less for federal officer 10 removal jurisdiction than we perhaps might need to show for 11 federal immunity because you only need a colorable claim. And 12 I suggest to you there is a colorable claim there now. The 13 very fact that you have allowed a year and a half of discovery 14 on these issues and we briefed it so extensively makes it 15 colorable. If it wasn't colorable, you wouldn't have allowed 16 us a year and a half to do this. 17 THE COURT: That's not true. I allowed it because you 18 said there was a defense. 19 But just tell me more about this. If the federal 20 authorities were to tell someone come on to the work site and 21 work, is that federal officer removal? 22 MR. TYRRELL: If they acted under the direction and 23 control of the federal authority, yes. 24 THE COURT: So what does it mean under -- the statute 25 follows, it is 28 U.S.C. 1442, a civil action commenced in a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 72 6465911A argument 1 state court against any of the following groups may be removed, 2 and the first category, the United States or any agency 3 thereof, or any officer or any person acting under that officer 4 of the United States or of any agency thereof, sued in an 5 official or individual capacity for any act under color of such 6 office or on account of any right, title, or authority, claimed 7 under any act of Congress. 8 And it deals with apprehension of punishment, 9 criminals or the collection of revenues. It is not that 10 simple. 11 Second category. A property holder whose title is 12 derived from any such officer. 13 Third. Any officer of the Courts of the United 14 States -- it is not that. 15 I guess maybe B. A personal action commenced in any 16 state court -- I don't see any point in my reading this out 17 because I am not familiar with the statute. 18 What is it that you are going to tell me that involves 19 this basis of removal? 20 MR. TYRRELL: It would be useful, perhaps, to 21 articulate the required elements and then why. 22 The required elements for federal officer jurisdiction 23 are three-fold: 24 Number one. The removing party alleges that it was 25 acting under the direction of a federal officer. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 73 6465911A argument 1 Number two. The removing party raises a colorable 2 federal defense. 3 Number three. A causal nexus exists between the 4 plaintiff's claims and the acts purportedly performed under 5 color of federal office. 6 Let's give it an example. OSHA was in charge of 7 respirator distribution. The Army Corps of Engineers, the 8 evidence will show, is indisputably in charge of Fresh Kills. 9 Everything that happened -- let's use Fresh Kills as an 10 example -- was under the control of the Army and so, prong one, 11 we alleged that we were acting under the direction of the 12 federal officer. The contractors who were there, any of them, 13 the City who was there, perhaps, but federal officer, so we 14 allege that. 15 Second. The removing party raises a colorable federal 16 defense. You have to act under the authority of federal 17 officer but you have to also allege colorable federal defense. 18 What is the colorable federal defense? We partake in 19 derivative federal sovereign immunity and the related doctrine 20 of the government contract defense like Judge Weinstein has 21 addressed in the Agent Orange cases. 22 The third prong is there is a causal nexus between the 23 plaintiffs' claims and the acts purportedly performed under 24 color of federal office. 25 Plaintiffs say you didn't give me the right SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 74 6465911A argument 1 respirators at Fresh Kills, or I didn't have the right 2 equipment and I fell. Okay. And the defense is the Army told 3 me to do it. 4 If there is a colorable claim of that nature you are 5 in Federal Court. You have an opportunity to be here 6 independent of the Aviation Act. And that is what we claim for 7 these cases. 8 That's really the essence of the federal officer. 9 THE COURT: So, your argument is that I would have to 10 reject that defense before I could remand to the state court? 11 MR. TYRRELL: Yes. And you can't reject that defense 12 without going into the merits, which is why when you decide 13 jurisdiction at the threshold, if there is a colorable claim 14 you stay in federal court. 15 THE COURT: So I should have decided -- I should have 16 heard these arguments after immunity arguments? 17 MR. TYRRELL: Well, I mean I -- if you think there is 18 a colorable enough now you can keep jurisdiction. You can 19 reconsider your jurisdictional determination when you hear the 20 other arguments. The Court is always free to re-examine its 21 own subject matter jurisdiction. 22 THE COURT: Right. 23 MR. TYRRELL: But it would be a mistake now, I 24 suggest, for lots of reasons, particularly case administration, 25 to take these cases and send it back. And that leads me to my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 75 6465911A argument 1 last point which is to say every now and then one can argue 2 that your legal arguments are matched by the crucible of 3 practical common sense, and I would like to talk about three 4 practical considerations which, I suggest, strongly urge that 5 the Court not remand these cases. 6 First. It will threaten the very efforts at case 7 management which your Honor has worked with in this case and in 8 other dockets and with liaison counsel and all parties for 9 years. 10 Why? There is no aspersion cast on the state courts. 11 They are great courts of coordinate jurisdiction. Justice 12 Stallman or whoever is going to get this if it went back to 13 state court, there is no doubt that they'll do a great job. 14 However, we have worked so hard together to be able to set this 15 up for a single controlling decision, for example on immunity. 16 We put a year and a half into that together. If you send 17 anything back to state court that starts all over again in the 18 state court. 19 Look at what already happened in the state court 20 before we had McNally and got back to you. We had several 21 inconsistent state court decisions on the scope of immunity. 22 That threatens all you have invested in case management. 23 Second. Your Honor has frequently talked about, we 24 all have, the critical issue of delay. 25 THE COURT: What was inconsistent? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 76 6465911A argument 1 MR. TYRRELL: One of the state court decisions in Daly 2 decided that the SDEA immunity tracking your Honor's decision 3 in Hickey before McNally extended only to the 29th of 4 September. 5 THE COURT: Because I said that. 6 MR. TYRRELL: Because you said that. 7 THE COURT: Right. He was trying to be consistent. I 8 led him into error. 9 MR. TYRRELL: Yes. But another state judge in a case, 10 in Thomson, didn't limit it to the 29th of September. 11 THE COURT: He got it right. 12 MR. TYRRELL: But your Honor sees my point. 13 THE COURT: Yes. 14 MR. TYRRELL: And I go to delay. I go to delay. Your 15 Honor has emphasized, throughout, the importance of us all 16 working forward. I mean, let's understand, we have lots of 17 victims here who unfortunately are fighting each other. We 18 have the workers, the policemen, the firefighters who were 19 heroes and went to that site, and God bless them they did what 20 they should. But we also have the City of New York, the Port 21 Authority and hundreds of contractors who went to that site and 22 buttressed the City's responsibility and did what they should. 23 Both of them are heroes. Unfortunately, the terrorists are not 24 around to respond to this. But, we certainly should not, for 25 all of those people, now create the confusion and delay that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 77 6465911A argument 1 will be created by sending this back to state court and here is 2 why. What is going to happen? 3 Your Honor knows the defendants. They're not going to 4 fail to make motions. So, you decide to take some of these 5 cases and you send them back to state court. Let's assume that 6 group, we can't appeal to the Second Circuit which we would 7 want to try to do, okay? So, it goes to state court. So, what 8 happens in state court?. The defendants move to dismiss for 9 lack of subject matter jurisdiction. However that is decided 10 we are in the box that that goes to the intermediate appellate 11 court, that goes to the New York Court of Appeals. Let alone, 12 God help us, if it went to other states one doesn't know what 13 would happen there. But there are certainly many out-of-state 14 first responders who could can sue in their home district. 15 THE COURT: It wouldn't go to the Court of Appeals but 16 your point is made. 17 MR. TYRRELL: And because it is a federal issue, maybe 18 the Supreme Court. 19 Meanwhile, that's going on, your Honor knows that we 20 have teed this up so that some of these cases -- 21 THE COURT: You would need a certiorari jurisdiction 22 to get the Court of Appeals, but the point is made. I take 23 your point. 24 MR. TYRRELL: The flipside of my point is that would 25 be going on in tandem with some of these cases going up to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 78 6465911A argument 1 Second Circuit because some of these cases were filed 2 originally in Federal Court; and if your Honor throws them out 3 for lack of subject matter jurisdiction because it is another 4 kind of injury and isn't covered by the Act, that's a final 5 decision and that goes to the Second Circuit. 6 So, it creates delay and it is a mess. 7 And last. We do not need duplicative jurisdictional 8 determinations. This is the heart of what Congress asked. One 9 court, one judge. McNally affirmed that. We strongly urge your 10 Honor, respectful of the burdens on you, keep it and decide it. 11 THE COURT: Ms. Mishkin, would I do you any favor by 12 granting your motion to remand? 13 MS. MISHKIN: I didn't hear that. 14 THE COURT: Would I be doing you any favor, in light 15 of what Mr. Tyrrell is saying now? 16 MS. MISHKIN: Yes, your Honor. And I frankly dispute 17 a number of the points that Mr. Tyrrell made. However, we are 18 now a core group of maybe 20 cases, 13 of which moved for 19 remand before your Honor. That's it. We are bodily injury 20 cases. We have no nexus between the basis of our claim and the 21 air crash. 22 THE COURT: Why would you be slowed down in this 23 court? 24 MS. MISHKIN: We would be slowed down in this court 25 because issues of discovery distinctly differ between what is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 79 6465911A argument 1 needed in the respiratory cases. 2 THE COURT: Have you started discovery? 3 MS. MISHKIN: We haven't been able to start discovery. 4 THE COURT: Why? 5 MS. MISHKIN: Why? Because as the defendant, as 6 Mr. Tyrrell pointed out, that there was another decision on 7 immunity the defendants, with all due respect, decided to -- it 8 was their own volition that they decided, knowing they're going 9 to make the motion up here before you, they decided to dry run 10 it before Judge Stallman. So, we were then stayed for a year 11 on that issue fighting that issue, okay? That's what -- 12 THE COURT: So maybe you would have been better off 13 here. 14 MS. MISHKIN: Maybe the defendants would have been 15 better -- 16 THE COURT: You don't have an automatic stay under 17 311? 18 MS. MISHKIN: I have sat through a number of 19 depositions on the immunity motion and a substantial portion of 20 the testimony was focused specifically on the propriety of the 21 distribution of the filters that go into the mask and the air 22 quality. And the witnesses even that were -- 23 THE COURT: You are not involved with that. 24 MS. MISHKIN: I'm sorry? 25 THE COURT: You are not involved with respiratory SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 80 6465911A argument 1 issues. 2 MS. MISHKIN: That's right. But they're inseparable 3 once we're in this court house. 4 THE COURT: Who said? 5 MS. MISHKIN: Once we're in -- 6 THE COURT: Who said? Even if I put you into the same 7 track you could have a subtrack. 8 MS. MISHKIN: Well, I would then go back to the fact 9 that there are strong issues of federalism and that the state 10 court is, by all intents and purposes, the proper place to 11 decide traditional state interests such as regulation of safety 12 and health. 13 THE COURT: Maybe I should hold these cases until 14 after the immunity decision, until maybe discovery is finished 15 and then remand them then? 16 MS. MISHKIN: Well, if I could also submit to that, 17 your Honor, it appears that you are not going on procedural 18 issues, however -- 19 THE COURT: No procedural issues. I have thought 20 about it. I'm not faulting the defendants for removal. When 21 McNally came down they saw they had an opening to come back. 22 MS. MISHKIN: There is no way at all, in any shape or 23 form, that McNally addressed federal officer immunity. That 24 was there in front -- 25 THE COURT: But that's not the point here. The point SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 81 6465911A argument 1 is that they removed within the requisite number of days 2 counting McNally mandate as the triggering point. And if they 3 did that, that's fine. 4 MS. MISHKIN: But that's not consistent with this, 5 with Judge Mukasey's decision in Castle Whitaker that was 6 decided by this Court. 7 There is a standard of an intelligently ascertained 8 test which has across the board been -- 9 THE COURT: Ms. Mishkin, I am not going to give you 10 that part. I have thought about it and it is not going to be 11 removed on that basis. It is not going to be remanded on that 12 basis, if at all. 13 MS. MISHKIN: Then I would just then say that there is 14 nothing, as far as our position to support, to be given support 15 in McNally that creates a causal nexus sufficient to put us 16 under the exclusive jurisdiction of this Court under the 17 transportation statute. 18 THE COURT: Okay, thank you. 19 MS. MISHKIN: You're welcome. 20 THE COURT: Ms. Stevenson? 21 MS. STEVENSON: Your Honor, if I could respond briefly 22 to the plaintiff? Lee Ann Stevenson on behalf of Verizon. 23 Plaintiff's counsel has asserted that there is no 24 nexus between the cases that there is pending for remand and 25 the cases pending before your Honor. Verizon is named as a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 82 6465911A argument 1 defendant in one of the cases, one of these 14 cases -- the 2 Campo case. 3 Mr. Campo was employed as a plumber in the Verizon 4 building. He was employed to help pump out the roughly 10 5 million gallons of contaminated water that had ended up in the 6 subbasement of the Verizon building after the September 11th 7 attacks. That water needed to be pumped out of the subbasement 8 of the Verizon building in order to restore the phone service 9 to lower Manhattan. 10 There will obviously be many common issues of fact 11 between the Campo case and the other cases pending before your 12 Honor against Verizon such as the scope of the work, the work 13 conditions in the Verizon building, directions that Verizon was 14 receiving from government authorities to restore that 15 communication services. 16 It is not a respiratory injury that Mr. Campo 17 sustained so there will be different questions regarding his 18 injuries. But, as to the work conditions and the restoration 19 of the communications services, those are common questions and 20 there is a direct nexus between the Campo case and the other 21 claims and cases against Verizon currently pending before your 22 Honor. 23 THE COURT: Thank you. 24 MR. WILLIAMSON: If I may, your Honor? Four quick 25 points? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 83 6465911A argument 1 First, with respect to the geographical limitation -- 2 THE COURT: I don't want to hear it again. I have 3 heard it. Next point. 4 MR. WILLIAMSON: Obviously it was a unanimous 5 decision. 6 Third point. With respect to the but-for analysis, 7 the only reason that arose is because the plaintiffs counsel -- 8 Mr. Tyrrell and I argued the appeal of course in McNally -- 9 plaintiff's counsel were trying to say we were making a but-for 10 argument in light of the Canada Life decision and its 11 reasoning. We never made a but-for argument as I explained to 12 the Second Circuit. Those words never appeared in our briefs 13 so the Second Circuit was simply dealing with that being raised 14 by plaintiffs counsel. 15 And the last point, your Honor, is just echoing and 16 supporting Mr. Tyrrell's point that we are entitled to be in 17 federal court as long as we have a colorable federal officer 18 jurisdiction claim. We actually have discussed that with your 19 Honor and you indeed had so ordered in your memorandum and 20 order of October 8, 2004 that since Section 1442 defense did 21 not arise until we filed answers we should answer, as we did; 22 and you had said at that time, "that perhaps it may not be 23 susceptible to jurisdictional adjudication until discovery has 24 been taken." Which, I think, is exactly where we are at today. 25 Defendants are entitled to stay in federal court until SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 84 6465911A argument 1 that discovery is taken and then your Honor eventually could 2 make a decision on whether in fact we are as we claim, entitled 3 to federal Officer jurisdiction as a separate independent 4 ground. 5 THE COURT: And we have keyed that up for argument in 6 June, I think. 7 MR. WILLIAMSON: I didn't think I had seen a specific 8 day. 9 THE COURT: We haven't set a date. We are thinking of 10 a date in early June. 11 MR. WILLIAMSON: Yes, because we are engaged and 12 awaiting opposition papers. 13 THE COURT: Beyond that, there are certain parties 14 that have asked for time. Whether they will join the motion 15 papers or not the opposition papers are due on April 7, which 16 is tomorrow; and I am setting April 21 as the date that parties 17 will either have to sign on to somebody who has already stated 18 a position either for or against, or state their own position. 19 I will not take any additional papers after April 21 except if 20 they are reply papers, and the reply papers are due, by 21 previous order, on May 5. 22 We will be setting a date in June very soon. 23 MR. NAPOLI: Hello, your Honor, Paul Napoli. Just a 24 brief issue of concern. 25 Your Honor, I have been listening to the argument and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 85 6465911A argument 1 as co-liaison counsel we have no position on the remand, but I 2 am just concerned because we have spent a year on discovery and 3 our brief is due tomorrow. Mr. Tyrrell raised three issues 4 which I would ask the Court to wait until briefing before they 5 decide, if possible. 6 THE COURT: Don't worry about it. 7 MR. NAPOLI: And your Honor, just a point of handling 8 issues. We weren't even aware, as liaison counsel, that 9 federal officer jurisdiction was raised in the briefs served on 10 Ms. Mishkin. We have never been provided with those briefs. 11 We just ask that -- 12 THE COURT: We will work it out to get a better 13 service. You should be aware of things. 14 MR. NAPOLI: Thank you, your Honor. 15 THE COURT: That closes the arguments on the motions 16 to remand. Decision is reserved. We have one more set of 17 motions, the FELA claims, but it is 1:25 and I would like to 18 suggest that we come back, those who are interested in that, at 19 2:30. Will that be all right? 20 We are recessed until 2:30. 21 (Luncheon recess) 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 86 6465911A argument 1 A F T E R N O O N S E S S I O N 2 2:30 p.m. 3 THE COURT: These are the motions to sever the FELA 4 claims. 5 MR. HOPKINS: Your Honor, if I might be heard on a 6 brief scheduling issue before the motions? 7 THE COURT: Yes. 8 MR. HOPKINS: Just before the break your Honor 9 indicated that there was an April 21st date for certain 10 plaintiffs to submit possible joinder papers or additional 11 moving papers in immunity briefing of April 21st, two weeks 12 after the April 7th day when co-liaison counsel's papers are 13 do. 14 My request is that defendants be given a separate date 15 from their May 5th reply date that is two weeks later to 16 respond to those, or there could be one reply date two weeks 17 later that then provides us the opportunity to give one set of 18 reply papers in response to both sets of plaintiff's papers. 19 THE COURT: In other words, the time between April 21 20 and May 5 is too short? 21 MR. HOPKINS: Yes, your Honor. I think May 17th is 22 two weeks from the 5th and a Friday. 23 MR. EGAN: 19th. 24 THE COURT: How about May 12? 25 MR. HOPKINS: Okay, that's one week after, I guess. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 87 6465911A argument 1 THE COURT: Yes. 2 MR. HOPKINS: If that's what we can get then that's 3 what we will take. 4 THE COURT: We have lots of boxes to study and it is 5 not easy to study them until you have all the papers. And I 6 would like to set as early a date as possible in June. 7 MR. HOPKINS: Very good, your Honor. 8 THE COURT: May 12. If you need more time, you will 9 ask. 10 MR. HOPKINS: Yes, your Honor. Thank you. 11 We will send a confirming e-mail to the Court, your 12 Honor, with copy to all plaintiffs' counsel noting the reasons 13 for the adjustment of the date and the new date, if that's 14 acceptable. 15 THE COURT: You don't need to. Just file the dates. 16 MR. HOPKINS: Very good. 17 THE COURT: I don't need to see it. You can send it 18 to everybody else. 19 MR. HOPKINS: Will do. 20 THE COURT: Okay, let's get into these cases. 21 MR. ROSENTHAL: Your Honor, may it please the Court, I 22 want to apologize for not having my papers in and I thank you 23 for allowing me to argue this now. 24 I represent six plaintiffs who were railroad workers 25 who were injured on September 11th somewhere between New Jersey SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 88 6465911A argument 1 and New York and the cases were consolidated into the 97 group 2 of cases. 3 I filed a motion to sever these cases because the laws 4 and the facts really relating to those cases are going to be 5 completely different than any of the other cases in the 97 6 group. The cases are all FELA cases, they're all substantively 7 FELA cases, and that's actually going to cause some issues to 8 be argued later on as to what substance means in terms of the 9 FELA and its connection with the ATSSSA. 10 THE COURT: Give me a minute. 11 MR. ROSENTHAL: Damages under the FELA are matter of 12 substance and they're not -- it is very important under the 13 FELA to allow a plaintiff to recover his full measure of 14 damages. I set forth some of that in my reply brief just to 15 alert the Court to some of the issues that are going to be 16 coming up later on substantively with regard to these cases 17 which really separate them from every other case in the 97 18 group. 19 These six people are the only FELA -- Federal Employer 20 Liability Act -- plaintiffs probably in the entire group of 21 5,000 suits that are in this court. We are not contesting, at 22 this point, the jurisdiction. We originally brought suit in 23 New Jersey. There is a whole fight over there and we agreed to 24 bring the cases here because of the -- because it wasn't worth 25 fighting that issue any longer. So, we are here. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 89 6465911A argument 1 Jurisdictionally the Court has jurisdiction regardless because 2 of the FELA or under ATSSSA. 3 But, we feel that being in this group, even though we 4 can be separate in this group and do separate discovery -- and 5 we submitted to your Honor a joint discovery plan -- at some 6 point these cases are going to have to be tried separately and 7 either we sever then now or we sever them then, because the law 8 and the facts that relate to this case, much of which, occur 9 before 9/11. 10 The plaintiff's theory, to a large extent, involves 11 lack of training and lack of having emergency and crisis 12 procedures in place for trains and train movement. And all of 13 that took place prior, obviously, to 9/11. 14 So, there is a lot of issues that are going to be 15 specific to these cases. The law is going to be completely 16 different and there is really no reason -- the discovery 17 that -- the other discovery in the 97 cases is not going to be 18 of any relevance to these cases and vice versa. 19 THE COURT: Is that so clear? 20 MR. ROSENTHAL: I believe so. I don't think that --- 21 THE COURT: What's the gravamen? 22 Well, first of all, how did the plaintiffs become 23 injured? Is it respiratory injury? 24 MR. ROSENTHAL: There is respiratory and emotional 25 damage claim in each case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 90 6465911A argument 1 THE COURT: There is no physical injury? 2 MR. ROSENTHAL: Well, respiratory is the physical 3 injury but there is no -- there is no other physical injury. 4 THE COURT: So these are respiratory cases. 5 MR. ROSENTHAL: These are respiratory and emotional 6 damage cases, yes, but not -- the actual damage, for the most 7 part, the major damage is going to be on the emotional side. 8 THE COURT: Has there been manifestation of injury so 9 far? 10 MR. ROSENTHAL: Yes. In terms of diagnoses of 11 post-traumatic stress. 12 THE COURT: How about respiratory effect? 13 MR. ROSENTHAL: I am not aware of any of these cases 14 having significant respiratory problems. 15 THE COURT: You would need some kind of physical 16 injury before you were able to recover for any emotional 17 damage. 18 MR. ROSENTHAL: Or that they were in the zone of 19 danger at the time that the injury occurred, under Gotshal. 20 THE COURT: Let's assume they were in the zone of 21 danger but they didn't suffer any manifested injury in other 22 words they didn't cough, they didn't wheeze. 23 MR. ROSENTHAL: Well, they had respiratory problems 24 but none of them really -- none of the respiratory problems, 25 that I know of, have continued to today. They had respiratory SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 91 6465911A argument 1 problems. There was a physical impact, a Gotshal physical 2 impact to the extent that they had physical injury. But even 3 if they didn't have physical injury they would still be able 4 to -- 5 THE COURT: So the alleged negligence is that the 6 command and control center, in dealing with trains, didn't get 7 a signal to these trains not to go into the World Trade Center? 8 MR. ROSENTHAL: That they were aware that, and they -- 9 that management actually instructed the trains and the 10 trainmaster to -- 11 THE COURT: Keep flowing. 12 MR. ROSENTHAL: To -- no, to stop the trains. And the 13 trainmaster didn't do that. There was no procedure. 14 THE COURT: Where was the block in communications? To 15 what level and on what level? 16 MR. ROSENTHAL: The block in communications, as we 17 know it, is that the people in the trainmaster's office left 18 their posts. 19 THE COURT: Where was the trainmaster's office? 20 MR. ROSENTHAL: It was in the World Trade Center. 21 THE COURT: So that evacuated? 22 MR. ROSENTHAL: So they evacuated the office, although 23 I don't think that -- I'm not actually sure where this 24 particular trainmaster's office was at this point. 25 THE COURT: But you think in one of the Twin Towers? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 92 6465911A argument 1 MR. ROSENTHAL: I think it was but I'm not sure. We 2 haven't been able to really to do much discovery, so. 3 THE COURT: So won't there be important pieces of 4 evidence having to do with what happened to them on 9/11? 5 MR. ROSENTHAL: Why they left? 6 THE COURT: Yes. 7 MR. ROSENTHAL: There will be discovery as to why they 8 left, yes; why they left their posts. 9 THE COURT: How can I separate you? 10 MR. ROSENTHAL: But I'm not asking to deal with the 11 issues of -- we would still be in this grouping but that 12 discovery, just as to why the people left their posts, I'm not 13 sure what relevance that's going to have to -- 14 THE COURT: If the conductors in the trains didn't get 15 communication because those who were to give the communication 16 are no longer at their posts, and if those who were no longer 17 at their posts were told to flee their posts -- 18 MR. ROSENTHAL: Oh, but that wasn't -- 19 THE COURT: -- that inevitably the defendants will 20 discuss that because that will be urged as an excuse to 21 negligence. 22 MR. ROSENTHAL: But that wasn't what happened. 23 THE COURT: What did happen? 24 MR. ROSENTHAL: They were told to stop all trains 25 coming in and they -- and this order, because they left and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 93 6465911A argument 1 knew of it, that order was never given to the trains, the 2 trains continued in. 3 THE COURT: They were no longer at their posts. 4 MR. ROSENTHAL: No. They were at the posts when they 5 got the order. 6 THE COURT: But not when they executed the order. 7 MR. ROSENTHAL: Well they could -- they should have 8 executed the order right away. 9 THE COURT: That's going to be an issue. 10 MR. ROSENTHAL: Right. 11 The issue is what were the procedures that they had in 12 place. And they didn't have procedures in place to deal with 13 any sort of emergency and that's -- 14 THE COURT: I think, Mr. Rosenthal, much as I would 15 like to give you -- much as I would like to remand your case 16 given these set of facts, I don't see how I can. 17 MR. ROSENTHAL: I'm not looking to be remanded. All 18 I'm looking for at this point is -- and some of it has already 19 been done. 20 THE COURT: You would like to be separate. 21 MR. ROSENTHAL: I just want this separate at the time 22 of trial. I know that that's coming. 23 THE COURT: Mr. Rosenthal, I have not yet begun to 24 think of trial. 25 MR. ROSENTHAL: I understand that, your Honor. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 94 6465911A argument 1 understand that. 2 THE COURT: So you will remind me when it comes time 3 to fixing trials. You will remind me. You are not a bashful 4 fellow, are you? 5 MR. ROSENTHAL: I can be forgetful, though. 6 THE COURT: Well, make a note. Remind me. 7 MR. ROSENTHAL: Okay. 8 THE COURT: I can't see how I could try your railroad 9 workers with other people. 10 MR. ROSENTHAL: Right. It can't be done, but -- 11 THE COURT: But I'm not going to make a rule about it 12 now. I might want to rethink a lot of things. 13 MR. ROSENTHAL: But there is a lot of discovery that's 14 going to occur with the 97 cases that the discovery in these 15 cases can be done fairly quickly, and they can be -- they could 16 be -- discovery could be finished in 90 days. 17 THE COURT: How are you on this discovery order? 18 MR. ROSENTHAL: There has been no discovery -- 19 THE COURT: I ordered that on or before January 31 20 PATH was to produce various rings. 21 MR. ROSENTHAL: They never got the signed order. 22 MS. RACKETT-SOLIS: Christina Rackett-Solis for the 23 Port Authority Trans Hudson. 24 After this motion was fully briefed your Honor sent us 25 an order stating that any decision would be held in abeyance SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 95 6465911A argument 1 until the parties propose a mutually agreeable discovery plan, 2 and that's what your Honor has before him. We did not begin 3 working on this discovery because the order was never so 4 ordered. We thought your Honor wanted to consider it before 5 deciding plaintiff's motion. 6 THE COURT: Oh, because I didn't sign it. 7 MS. RACKETT-SOLIS: I'm not sure if Mr. Rosenthal is 8 finished yet. I wanted to add one point. 9 MR. ROSENTHAL: No, please. 10 MS. RACKETT-SOLIS: Thank you. 11 If you look at the proposed discovery plan, you will 12 see that it tracks exactly the 21 MC 97 supplemental CMO. 13 There are only two FELA-specific provisions. And the bulk of 14 the discovery will be as your Honor has indicated, all about 15 the timing of the events on 9/11 -- the communications between 16 the governmental entities and the Port Authority, what exactly 17 happened to the building the conditions of the smoke there, the 18 air conditioning, the electrical. These are all issues that 19 need to be dealt with within 21 MC 97. 20 I just fear that by plaintiff's motion they're not 21 just seeking severance, they're seeking to jump over the 22 wrongful death plaintiffs which your Honor has played a 23 priority in this litigation. 24 Every plaintiff would like to come forward and 25 distinguish their cases so they get their own separate docket SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 96 6465911A argument 1 but what that will result in is all the pitfalls. 2 THE COURT: I'm not giving them a separate docket. 3 MS. RACKETT-SOLIS: Thank you, your Honor. 4 THE COURT: Excuse me a moment. 5 (Pause) 6 THE COURT: It seems what happened is that I signed an 7 order on November something of 2005 ordering the parties in 8 these cases to submit a joint discovery plan and a report of 9 any agreements or disagreements by November 28. I ordered the 10 discovery plan to focus primarily on Rule 33 and Rule 34 11 discovery, followed by depositions of witnesses likely to have 12 discoverable information who are unlikely to be witnesses in 13 the discovery conducted under 21 MC 97, and I said that I would 14 consider the issue of severance at a later date. 15 Thereafter, we received a stipulation between Flemming 16 Zulack representing PATH and Locks law firm representing 17 plaintiffs proposing a discovery plan by way of amendment to my 18 November 10 order. I didn't sign that. There had been no 19 provision made for my signature and I therefore overlooked it 20 but there was no purpose on my part to interfere with what you 21 agreed to. So, move forward. 22 And Mr. Rosenthal, you have got to monitor this. 23 MR. ROSENTHAL: Excuse me? 24 THE COURT: You have got to monitor this. If we're 25 not responsive to something you have asked us to do, you need SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 97 6465911A argument 1 to remind us. 2 MR. ROSENTHAL: I didn't know whether -- as counsel 3 said, I didn't know whether you were going to rule on this 4 motion or how it related. 5 THE COURT: I said I was not -- not I said I was not, 6 I considered your motion premature. 7 I can't figure out from the complaint and figure out 8 what is going on. I couldn't figure out what your injuries 9 were supposed to be. Your complaint is uninformative, so I was 10 going to wait for discovery and see what happened. And from 11 the discussion we have had, things looked to be a lot more 12 complicated than I thought they would be. 13 I'm not going to rule on this motion except perhaps to 14 deny it as premature, and I will deal with it at a later time, 15 but I would like this discovery to go forward. 16 MR. ROSENTHAL: Yes, your Honor. 17 MS. RACKETT-SOLIS: Your Honor, may I ask that counsel 18 and I confer and propose new dates since those dates have 19 passed? 20 THE COURT: Yes. 21 So, you can recite this, just give me new dates, but I 22 would like to get new dates. And there is no reason why I 23 can't accommodate it, Mr. Rosenthal. 24 MR. ROSENTHAL: Okay. 25 THE COURT: We are well before trial and parts of your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 98 6465911A argument 1 case can move forward promptly and other parts may need more 2 time. 3 I am anxious that discovery go forward in all the 4 cases so your motion is denied as premature. I wish that 5 counsel would confer and give me a superseding paragraph 9A as 6 a supplemental case management order that will propose new 7 dates promptly, from today. 8 Let's get this show going. 9 MR. ROSENTHAL: Thank you, your Honor. 10 THE COURT: Had I known that this would just take a 11 few more minutes we would have done it before lunch. I'm sorry 12 to have held you all up. 13 Okay. Since some of you were around from this 14 morning, I have thought more about it and what I am likely to 15 do is to punt. 16 I think the issues of jurisdiction are rather murky at 17 this point in time and I need more time to consider the issues 18 and I need to see how the litigations go forward. 19 I think Mr. Tyrrell's points this morning about how I 20 would not be doing any benefit to anybody by deciding this case 21 if it were to be in favor of remand to state court before I had 22 time to consider the motions that are coming on immunity. And 23 it may be that the best thing to do is to keep these cases as a 24 unified way of conducting pretrial proceedings until we see how 25 these cases shape up and then decide. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 99 6465911A argument 1 Frankly, I have a lot of trouble thinking why there 2 really is a federal interest with regard to what may have 3 happened at different places and locations in the city where 4 neither the City nor the Port Authority was involved and where, 5 I think, the interests of coordination and consistency are 6 relatively weak in relationship to the interest of letting 7 these things proceed on their own tracks -- at least until such 8 time as I see that there is a problem. 9 But, it may be that these cases can go forward and I 10 can retain jurisdiction if only to see whether or not there is 11 any jurisdictional relationship of any substantial degree 12 between these separate cases. 13 If I were to remand, the consequences of a mistake 14 would be rather serious. If I kept these cases for a while, 15 assuming that I could handle them without failing into 16 paralysis, I might be doing everybody a favor. 17 So, from a very practical purpose of allowing 18 everything to go forward, it may be that the best thing is not 19 to make any decisions where I am unsure of myself and just keep 20 and hold these cases and trying to get them to move as fast as 21 I can make them move. 22 That's the way I was thinking over lunch, but maybe if 23 I had a better lunch I might think in a more constructive way. 24 We are recessed. Thanks very much. 25 MR. WILLIAMSON: Just offering a thought: In SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 100 6465911A argument 1 listening to it, it makes a lot of sense. 2 o0o 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300