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DISTRICT OF COLUMBIA v. OWENS-CORNING FIBERGLASS C

March 13, 1985

DISTRICT OF COLUMBIA, Plaintiff,
v.
OWENS-CORNING FIBERGLASS CORPORATION, et al., Defendants



The opinion of the court was delivered by: HARRIS

 STANLEY S. HARRIS, District Judge.

 This suit involves a claim for damages allegedly sustained as a result of the use of defendants' asbestos products in plaintiff's public buildings and facilities. The suit was filed on December 14, 1984, in the Superior Court of the District of Columbia. Named as defendants were 41 identified companies and an additional 200 "John Doe" companies. This case is presently before this Court on defendants' January 14, 1985, petition to remove and on plaintiff's January 25 counter-motion to remand the case back to the Superior Court. *fn1"

 The basic provision governing removal is 28 U.S.C. § 1441, which provides in pertinent part:

 
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

 Removal from the Superior Court of the District of Columbia may be achieved in the same manner as actions removed from State courts. 28 U.S.C. § 1451.

 The notion of removal is directly linked to original jurisdiction. The decisive issue is whether this Court has subject matter jurisdiction to entertain the claim. Defendants contend that this Court's subject matter jurisdiction exists pursuant to 28 U.S.C. § 1332 (diversity) and/or 28 U.S.C. § 1345 (agency of the United States). This Court disagrees, and grants the motion to remand.

 Diversity

 The controlling issue is whether diversity exists between the District of Columbia and the citizens of the various states. Diversity jurisdiction exists when a suit is between citizens of different states. *fn2" Diversity jurisdiction does not exist when a suit is between a state and a citizen of another state. *fn3" Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 91 S. Ct. 1005, 28 L. Ed. 2d 256 (1971). Municipalities are considered citizens of their respective states. Illinois v. City of Milwaukee, Wisconsin, 406 U.S. 91, 92 S. Ct. 1385, 31 L. Ed. 2d 712 (1972). Based on these well-established propositions, defendants argue that the plaintiff is a municipal corporation, and as such, is a citizen of the District of Columbia. Defendants' position is that complete diversity exists in that the District of Columbia is a citizen of itself and the defendants are citizens of other states.

 This same argument previously has been advanced and was rejected by this Court. District of Columbia v. L.B. Smith, Inc., of Virginia, 474 F. Supp. 894 (D.D.C.1979); see also Mann v. District of Columbia, 742 F.2d 750 (3d Cir.1984). L. B. Smith involved a situation procedurally similar to the instant action. The defendant in that case sought to remove the action from the Superior Court of the District of Columbia, alleging subject matter jurisdiction here based on diversity. The Court, in granting plaintiff's motion to remand, stated in part:

 
The rationale for treating a municipal corporation as a "citizen" of its chartering state has no relevance when that corporation is in reality an alter ego for the "State." Consequently, the District's appearance in this suit as a municipal corporation has no bearing on the subject matter jurisdiction of this court. [ L. B. Smith, 474 F. Supp. at 897.]

 This Court is unpersuaded by the defendants' argument in this case and finds no reason to deviate from the holding in L. B. Smith.4 This Court's subject matter jurisdiction ...


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