Here is the update on where the State of Ohio lead paint public nuisance lawsuit stands.
Atlantic-Richfield had removed the OH Attorney General Marc Dann's case to federal court: The United States District Court for the Southern District of Ohio - Eastern Division. It also requested a summary judgment based on the unconstitutional retroactivity. The plaintiff, argues ARCO, "seeks to attach retroactive liability to it based on conduct more than six decades ago - an alleged predecessor's manufacture and sale of lead pigment during World War II and before."
In response, the OH AG has filed a motion to remand the case back to state court. A copy of that motion is here. Download sherwinag38stateofohiosmotiontoremandtostatecourt.pdf
AG Dann argues that the case should be remanded to the Franklin County Court of Common Appeals under Fed.R.Civ.Pro. 12(b)(1) and 28 U.S.C. 1447(c). That's because the requirements for removal under 28 U.S.C. 1442(a)(1) have not been met.
According to AG Dann, Arco "has failed to establish that it 'acted under' the direction of a federal officer or that the requisite causal nexus exists between the conduct of its predecessor alleged in the First Amended Complaint and the predecssor's provision of lead to paint companies that contracted to provide lead paint to the federal government during the World War II years. Since there is no other basis for subject-matter jurisdiction in this Court, the removal was improper."
Both parties are waiting for the a reply from the federal court.
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