Boone v. DuBose

• Decision Date: 11 August 1988
• Docket Number: 87-695-B,86-550-B,88-195-B and 88-480-B.,86-551-B,86-549-B,87-1055-B,86-694-B,87-694-B,Civ. A. No. 86-548-B,86-627-B
• Parties: Ernest BOONE, et al. v. Earl G. DuBOSE, et al. Glynn McCRORY, et al. v. Earl G. DuBOSE, et al. LIVINGTON PARISH POLICE JURY, et al. v. ACADIANA SHIPYARD, et al. Susan CAMPO v. Earl G. DuBOSE, et al. Milton E. WINDHAM, Jr., et al. v. Earl G. DuBOSE, et al. Charles R. CRESSIONNIE, Jr., et al. v. Earl G. DuBOSE, et al. Joe C. DEAN, et al. v. Earl G. DuBOSE, et al. (Two Cases) Jeremiah J. NAYLOR, et al. v. Earl G. DuBOSE, et al. Thomas BOUTWELL, et al. v. Earl G. DuBOSE, et al. Tom SELF, et al. v. Earl DuBOSE, et al.
• Court: U.S. District Court — Middle District of Louisiana

718 F. Supp. 479

Ernest BOONE, et al. v. Earl G. DuBOSE, et al.

Glynn McCRORY, et al. v. Earl G. DuBOSE, et al.

LIVINGTON PARISH POLICE JURY, et al. v. ACADIANA SHIPYARD, et al.

Susan CAMPO v. Earl G. DuBOSE, et al.

Milton E. WINDHAM, Jr., et al. v. Earl G. DuBOSE, et al.

Charles R. CRESSIONNIE, Jr., et al. v. Earl G. DuBOSE, et al.

Joe C. DEAN, et al. v. Earl G. DuBOSE, et al. (Two Cases)

Jeremiah J. NAYLOR, et al. v. Earl G. DuBOSE, et al.

Thomas BOUTWELL, et al. v. Earl G. DuBOSE, et al.

Tom SELF, et al. v. Earl DuBOSE, et al.

Civ. A. Nos. 86-548-B, 86-550-B, 86-551-B, 86-694-B, 87-694-B, 87-695-B, 86-549-B, 86-627-B, 87-1055-B, 88-195-B and 88-480-B.

United States District Court, M.D. Louisiana.

August 11, 1988.

Raymond Charles Vinet, Robert Felton Monahan, Vinet & Monahan, Baton Rouge, La., Timothy G. Schafer, New Orleans, La., for Ernest Boone, et al., Susan Campo, et al., Jeremiah J. Naylor, et al., Thomas Boutwell, et al., Tom Self, et al.

Hobart O. Pardue, Jr., Springfield, La., for Glynn McCrory, et al.

Calvin F. Ayard, Jr., Denhan Springs, La., for Livingston Parish Police Jury, et al.

Richard P. Reina, Jeffrey P. LeBlanc, John B. King, Reina & LeBlanc, Denham Springs, La., for Milton E. Windham, Jr., et al., Joe C. Dean, et al.

Larry G. Starns, Denham Springs, La., for Charles R. Cressionnie, Sr., et al.

Glen M. Pilie, Adams & Reese, New Orleans, La., for Shell and Exxon.

Charles M. Steen, Robert E. Holden, Wm. Craig Wyman, Greg G. Guidry, Liskow & Lewis, New Orleans, La., for Avondale Shipyards, Inc. and Copolymer Rubber.

Paul O. Dicharry, Sam A. Le Blanc, III, Trial Atty., Glen M. Pilie, Adams & Reese, New Orleans, La., for Ciba-Geigy Corp., Reichhold Chemicals, Inc., BASF Wyandotte Corp., T.L. James & Co., Inc., Mobil Exploration and Producing Southeast, Inc., Shell Western E & P, Inc. and Louisiana Paving Co., Inc.

John R. Tharp, Trial Atty., James L. Ellis, Winston R. Day, Vicki M. Crochet, Taylor, Porter, Brooks & Phillips, Baton Rouge, La., for Borden Chemical Co., Ethyl Corp., GSU, Louisiana Paving Co., Inc., T.L. James & Co., LPC, Amoco Oil Co. and Gulf States Utilities Co.

Samuel O. Buckley, III, Michael A. Chernekoff, Trial Attys., F. Blair Batson, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for Browning Ferris, Chemical Services, Inc. and Browning Ferris Industries.

Charles S. McCowan, Jr., Leonard L. Kilgore, Trial Atty., Sandra L. Edwards, Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Baton Rouge, La., for Georgia-Pacific, Union Carbide, Uniroyal Chem., Copolymer Rubber.

Homer Ed Barousse, Jr., Crowley, La., for Hansbrough Energy Systems.

Michael J. Maginnis, Frederick Campbell, Lisa J. Miley, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, La., for Guzzetta Oil.

William H. Edwards, Metairie, La., for Evans Cooperage Co.

RULING ON MOTIONS TO REMAND

POLOZOLA, District Judge.

These consolidated suits¹ were originally filed in the Twenty-First Judicial District Court, Parish of Livingston, State of Louisiana against a number of defendants² alleging that the defendants either generated, transported or participated in the storage of toxic wastes at a waste site known as the "Combustion Inc." site. The plaintiffs seek damages as a result of the alleged escape of hazardous or toxic materials from the site.

Defendants timely removed the suits to this court³ asserting subject matter jurisdiction pursuant to 28 U.S.C. § 1331. After the suits were removed to federal court, the plaintiffs filed motions to remand⁴ the suits to state court. Defendants strongly oppose the remand of these cases to state court. They argue that there are four grounds upon which federal question jurisdiction exists:

1. The complaints state claims for relief pursuant to causes of action created by federal law;

2. The state law causes of action asserted by plaintiffs require the construction, interpretation and/or application of federal law;

3. The complaints seek recovery of costs which are defined as "response costs" under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq.;⁵

4. The court has federal question jurisdiction because the United States has been named as a third party defendant.

For reasons which follow, the court finds that these suits must be remanded to state court.

Article III of the United States Constitution gives the federal courts power to hear and determine cases "arising under" the Constitution and laws of the United States. However, this grant of power is not self-executing.⁶ While the constitutional meaning of "arising under" may extend to all cases in which a federal question is "an ingredient" of the action, Osborn v. Bank of the United States, 9 Wheat 738, 22 U.S. 738, 6 L.Ed. 204 (1824), the statutory grant of federal question jurisdiction has long been construed as conferring a more limited power. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 494-495, 103 S.Ct. 1962, 1971-1972, 76 L.Ed.2d 81 (1983).

When determining whether an action presents a federal question, the court must apply two tests. The court must first determine whether federal law creates the cause of action. If so, it is clear that federal question jurisdiction exists. However, if state law creates the cause of action, the court must determine whether the plaintiff's demand "necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. v. Const. Laborers Vacation Trust, 463 U.S. 1, 28 103 S.Ct. 2841, 2856, 77 L.Ed.2d 420 (1983).

In determining whether the complaint presents a federal question, the court must examine the complaint in accordance with the "well-pleaded complaint" rule. Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 3232, 92 L.Ed.2d 650 (1986). Under this rule, the court must determine whether a claim "arises under" federal law from what necessarily appears in the plaintiff's statement of claim set forth in the complaint. Franchise Tax Bd. v. Const. Laborers Vacation Trust, 463 U.S. at 9-10, 103 S.Ct. at 2846, 77 L.Ed.2d 420 (1983). "The party who brings the suit is master to decide what law he will rely on." The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913). A defense that raises a federal question is insufficient to confer federal jurisdiction on the court. Louisville & N.Ry. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908).

A defendant may remove a case from state court only if the claim could have originally been brought in federal court. 28 U.S.C. § 1441(b).

In Merrell Dow the United States Supreme Court stated that "there is no single, precise definition" of the phrase "arising under," rather it "masks a welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system." Id., 106 S.Ct. at 3232. However, the vast majority of cases that fall within "arising under" jurisdiction fit into the rule formulated by Justice Holmes that "a suit arises under the law that creates the cause of action." American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 60 L.Ed. 987 (1916). Thus, a case "arises under" federal law when a "right or immunity created by the Constitution or laws of the United States is an element, and an essential one, of the plaintiff's cause of action." Franchise Tax Bd., 463 U.S. at 10-11, 103 S.Ct. at 2846-2847.⁷ (quoting Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936)).

Defendants argue that a court determining removal jurisdiction is empowered under the "artful pleading" doctrine to look beyond a plaintiff's characterization of his claim to determine if the complaint states a claim arising under federal law. The defendants contend that the complaints necessarily allege claims under the federal environmental statutes. More specifically, defendants maintain that plaintiffs are asserting claims under CERCLA, 42 U.S.C. § 9601 et seq., for response costs incurred or to be incurred by them as a result of the alleged release or escape of hazardous substances into the environment from the Combustion Inc. site.⁸ Section 107(a)(4) of CERCLA, 42 U.S.C. § 9607, allows any person to recover from "responsible" persons any response costs incurred by them as a result of a release or escape of hazardous substances into the environment.

In Franchise Tax Bd., the United States Supreme Court held that federal jurisdiction is present even though the plaintiff bases his claim in state court on state law when: (1) it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded claims; or, (2) it appears that plaintiff's claim "is really" one of federal law. 463 U.S. at 13, 103 S.Ct. at 2848. Therefore, "it is an independent corollary of the well-pleaded complaint rule that a plaintiff may not defeat removal by omitting to plead a necessary federal question in a complaint." Franchise Tax Bd., 463 U.S. at 22, 103 S.Ct. at 2853. It follows that the federal courts will not allow a plaintiff to deny a defendant the right to proceed in a federal forum when the plaintiff's complaint contains a federal claim "artfully pled" as a state law claim. Eitmann v. New Orleans Pub. Serv., Inc., 730 F.2d 359, 365 (5th Cir.) cert. denied, 469 U.S. 1018, 105 S.Ct. 433, 83 L.Ed.2d 359 (1984).⁹

Applying the Supreme Court's reasoning in Franchise Tax Bd. to the facts of this case, the court finds these suits do not "arise under" any federal statute. The court does not have subject matter jurisdiction simply because the plaintiffs could have asserted claims under various federal laws. Nor does the court obtain subject matter jurisdiction because plaintiffs state law claims may be defeated by a defense raised under federal law or the possible preemptive effect of federal law. Beers v. North American Van...