295 F.3d 485 (5th Cir. 2002), 01-30122, MSOF Corp. v. Exxon Corp.

Docket Nº:01-30122.
Citation:295 F.3d 485
Party Name:MSOF CORPORATION; Jay Paul LeBlanc, Plaintiffs-Appellants, v. EXXON CORPORATION; et al., Defendants, Exxon Corporation; Exxon Chemical Corporation; USS Chemical Co.; Co-polymer Rubber & Chemical Corporation; Uniroyal Corporation; Dow Chemical Company; Ethyl Corporation; Shell Chemical Co.; American Hoechst Corporation; Allied Chemical Corporation;
Case Date:June 20, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 485

295 F.3d 485 (5th Cir. 2002)
MSOF CORPORATION; Jay Paul LeBlanc, Plaintiffs-Appellants,

v.

EXXON CORPORATION; et al., Defendants,

Exxon Corporation; Exxon Chemical Corporation; USS Chemical Co.; Co-polymer Rubber & Chemical Corporation; Uniroyal Corporation; Dow Chemical Company; Ethyl Corporation; Shell Chemical Co.; American Hoechst Corporation; Allied Chemical Corporation; Rubicon Chemical Co.; Petro Processors of Louisiana Inc.; Robert Bolger; J.W. Street; W.L. Rainey; NPC Services Inc.; XYZ Insurance Company, Defendants-Appellees.

No. 01-30122.

United States Court of Appeals, Fifth Circuit

June 20, 2002

Page 486

[Copyrighted Material Omitted]

Page 487

Charles Sterling Lambert, Jr. (argued), Jules Burton LeBlanc, Jr., LeBlanc, Maples & Waddell, Baton Rouge, LA, Patrick W. Pendley (argued), Pendley Law Finn, Plaquemine, LA, for Plaintiffs-Appellants.

William R. D'Armond, Bradley Charles Myers, Sandra Louise Edwards, Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Baton Rouge, LA, for Exxon Corp., Exxon Chemical Corp., USS Chemical Co., Copolymer Rubber & Chemical Corp. and Uniroyal Corp.

John R. Tharp, David Mark Bienvenu, Jr., Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, for Dow Chemical Co., Ethyl Corp. and Shell Chemical Co.

John A. Gray, The Dow Chemical Co., Plaquemine, LA, for Dow Chemical Co.

Stephen W. Glusman, Glusman, Broyles & Glusman, Baton Rouge, LA, for American Hoechst Corp.

James Berry St. John, Jr., Liskow & Lewis, New Orleans, LA, for Allied Chemical Corp.

Gerald L. Walter, Jr. (argued), Anne Jordan Crochet, Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, for Robert Bolger, J.W. Street, W.L. Rainey and NPC Services Inc.

Appeal from the United States District Court for the Middle District of Louisiana.

Before GARWOOD, DAVIS and

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MAGILL,1 Circuit Judges.

GARWOOD, Circuit Judge:

In this removed case, plaintiffs-appellants MSOF Corporation (MSOF) and Jay Paul LeBlanc (collectively, the plaintiffs) appeal the district court's judgment in favor of defendants-appellees Exxon Corporation, Exxon Chemical Corporation, USS Chemical Company, Copolymer Rubber & Chemical Corporation, Uniroyal Corporation, Dow Chemical Company, Ethyl Corporation, Shell Chemical Company, American Hoechst Corporation, Allied Chemical Corporation, Rubicon Chemical Company, Petro Processors of Louisiana, Inc. (PPI), Robert Bolger (Bolger), J.W. Street (Street), W.L. Rainey (Rainey), NPC Services, Inc. (NPC), and XYZ Insurance Company (collectively, the defendants). Appellants contend, inter alia, that the district court erred in denying their motion to remand. We agree with appellants, and accordingly vacate the district court's judgment and remand the case to the district court with instructions to return the case to the state court from which it was removed.

Facts and Proceedings Below

The plaintiffs own land in the Devil's Swamp area in the Parish of East Baton Rouge, Louisiana. On July 5, 1994, the plaintiffs filed suit against the defendants in Louisiana state court on behalf of themselves and all other similarly situated landowners, alleging that the defendants were responsible for contaminating their land with toxic chemicals. The defendants removed the case to the United States District Court for the Middle District of Louisiana. The plaintiffs filed a motion to remand, asserting that the district court did not have subject matter jurisdiction. After a hearing on the motion to remand, the motion was denied. The defendants moved for summary judgment. The district court granted their motion, holding that the plaintiffs had not produced sufficient evidence to create a disputed issue of material fact relating to an essential element of their claim, and rendered judgment for defendants.

PPI, a Louisiana corporation, was the owner and operator of two hazardous waste disposal facilities in the Devil's Swamp region, the Brooklawn Site and the Scenic Highway site. With the exception of NPC, the other corporate defendants were industrial generators of hazardous waste that made use of the PPI disposal facilities. NPC, a Louisiana corporation, was formed by the industrial generator defendants in 1984 to clean up or remediate the PPI sites in accordance with a federal consent decree. Bolger was president of NPC. Street and Rainey were executive officers of NPC.

PPI operated its waste disposal facility, just north of Devil's Swamp, during the 1960's and 1970's. Plaintiffs' property is located approximately three miles south of the PPI facility. In 1980, the United States Department of Justice, on behalf of the Environmental Protection Agency, sued PPI and several of the industrial generators in the United States District Court for the Middle District of Louisiana under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq. The State of Louisiana, the City of Baton Rouge, and the Parish of East Baton Rouge intervened in that suit. On February 16, 1984, a consent decree was entered in that case by the United States District Court for the Middle District of Louisiana under which certain companies, including the industrial generator defendants in the

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present action, agreed to investigate and clean up contamination from the former PPI facility. The consent decree ordered, inter alia, that these sites be monitored for thirty years after the completion of remediation under the continuing supervision and jurisdiction of the district court. On August 28, 1989, the district court ordered that the consent decree be supplemented with a Supplemental Remedial Action Plan prepared by the defendants. In 1984, the industrial generator defendants contracted with NPC to perform the remediation work, which has been underway since 1984 under the supervision of Judge Polozola. None of the plaintiffs in this case was ever a party to the consent decree or the case in which it was entered.

The plaintiffs' state court complaint alleged that toxic chemicals emanating from the PPI facility had contaminated their land in the southern half of Devil's Swamp. In resisting the plaintiffs' motion to remand to state court, the defendants asserted that the district court had original jurisdiction under the All Writs Act, 28 U.S.C. § 1651, federal question jurisdiction pursuant to 28 U.S.C. § 1331, and diversity jurisdiction pursuant to 28 U.S.C. § 1332.2 The district court found that there was federal question jurisdiction because the plaintiffs' claims really arose under CERCLA, or, alternatively, that the All Writs Act conferred jurisdiction, because of the potential for interference with the court's earlier consent...

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