Earth Island Inst. v. Crystal Geyser Water Co.

Decision Date23 February 2021
Docket NumberCase No. 20-cv-02212-HSG
Citation521 F.Supp.3d 863
CourtU.S. District Court — Northern District of California

521 F.Supp.3d 863


Case No. 20-cv-02212-HSG

United States District Court, N.D. California.

Signed February 23, 2021

521 F.Supp.3d 866

Mark Cotton Molumphy, Eric James Buescher, Joseph W. Cotchett, Tyson Carl Redenbarger, Noorjahan Rahman, Tamarah P. Prevost, Cotchett, Pitre & McCarthy LLP, Burlingame, CA, for Plaintiff.

Rene Pierre Tatro, Juliet Arlene Markowitz, Tatro Tekosky Sadwick LLP, Los Angeles, CA, for Defendant Crystal Geyser Water Company.

Mary Rose Alexander, Latham & Watkins LLP, Chicago, IL, Margaret Tough, Shannon Danielle Lankenau, Latham & Watkins LLP, San Francisco, CA, Robert Mont Howard, Latham and Watkins LLP, San Diego, CA, for Defendant The Clorox Company.

Gary T. Lafayette, Lafayette & Kumagai LLP, Oakland, CA, Jane Marie Metcalf, Pro Hac Vice, Steven A. Zalesin, Pro Hac Vice, Brandon Trice, Pro Hac Vice, Patterson Belknap Webb and Tyler LLP, New York, NY, for Defendant The Coca-Cola Company.

Andrew Santo Tulumello, Arianna M. Scavetti, Pro Hac Vice, Gibson Dunn & Crutcher LLP, Washington, DC, Timothy William Loose, Gibson, Dunn & Crutcher LLP, Los Angeles, CA, for Defendant PepsiCo, Inc.

Bradley Joseph Hamburger, Perlette Michele Jura, Theodore J. Boutrous, Jr., Gibson, Dunn and Crutcher LLP, Los Angeles, CA, for Defendant Nestle USA, Inc.

Stephen David Raber, David Michael Horniak, Williams & Connolly LLP, Washington, DC, for Defendant Mars, Incorporated.

Angela Christine Agrusa, DLA Piper LLP, Los Angeles, CA, Allexanderia V. Bingham, DLA Piper LLP, San Diego, CA, George J. Gigounas, DLA Piper LLP, San Francisco, CA, Gregory George Sperla, DLA Piper LLP, Sacramento, CA, for Defendant Danone North America.

Mark Craig Goodman, Baker & McKenzie LLP, San Francisco, CA, Anne Kelts Assayag, Baker McKenzie, Palo Alto, CA, for Defendant Mondelez International, Inc.

Richard Blair Goetz, Dawn Sestito, O'Melveny & Myers LLP, Los Angeles, CA, for Defendant Colgate-Palmolive Company.

David Craig Kiernan, Jones Day, San Francisco, CA, for Defendant The Procter & Gamble Company.


Re: Dkt. No. 69

HAYWOOD S. GILLIAM, JR., United States District Judge

521 F.Supp.3d 867

Pending before the Court is Plaintiff Earth Island Institute's ("Plaintiff" or "EII") motion to remand ("Motion to Remand") this action to San Mateo County Superior Court. Dkt. No. 69. Briefing on the Motion to Remand is complete. Dkt. Nos. 77 ("Opp."); 92 ("Reply"). On July 16, 2020, the Court held a hearing on the Motion to Remand. Dkt. No. 93. For the reasons set forth below, the Court GRANTS the motion.


On February 26, 2020, Plaintiff filed this action against several food, beverage, and consumer goods companies (collectively, "Defendants") in the San Mateo Superior Court seeking compensatory and equitable relief associated with alleged injuries sustained as a result of plastic pollution in California coasts and waterways. See Dkt. No. 2-2 ("Compl.") ¶¶ 19-21, 161-226. Plaintiff alleges that the plastic pollution was created by Defendants’ products ("Products"), and bases its claims on Defendants’ dissemination of those Products in the California

521 F.Supp.3d 868

marketplace without sufficient warning of known dangers and Defendants’ statements to the public regarding those dangers. Id. ¶¶ 18, 93-152.

Among other allegations, Plaintiff alleges that by putting the recycling symbol on Defendants’ Products, Defendants misinformed consumers about what happens to those Products once they are deposited in a recycling bin. Id. ¶¶ 10-15, 134-152. Further, according to Plaintiff, consumers are not aware that the vast majority of those Products will either be burned or shipped to a developing country and dumped in waterways. Id. ¶¶ 11-15, 93-111, 132.

As a result, EII seeks contribution from Defendants for costs associated with the alleged pollution by seeking relief under California laws for public nuisance, strict product liability (failure to warn and design defect), negligence, breach of express warranty, and unlawful practices under the California Consumer Legal Remedies Act ("CLRA"). Id. ¶¶ 161-226.

On April 1, 2020, Defendants removed the action to this Court, asserting several bases for federal jurisdiction. Dkt. No. 2.


"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" to federal court. 28 U.S.C. § 1441(a). District courts "shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. For removal to be proper, the federal question must be "presented on the face of the plaintiff's properly pleaded complaint." See Hunter v. Philip Morris USA , 582 F.3d 1039, 1042 (9th Cir. 2009) ; see also Oklahoma Tax Comm'n v. Graham , 489 U.S. 838, 840–41, 109 S.Ct. 1519, 103 L.Ed.2d 924 (1989).

There is a "presumption against removal jurisdiction, under which [federal courts] ‘strictly construe the removal statute,’ and reject federal jurisdiction ‘if there is any doubt as to the right of removal in the first instance.’ " Grancare, LLC v. Thrower by & through Mills , 889 F.3d 543, 550 (9th Cir. 2018) (quoting Gaus v. Miles, Inc. , 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)); see also 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."). "The ‘strong presumption’ against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." See Gaus , 980 F.2d at 566.


Defendants contend that the Court has jurisdiction over Plaintiff's Complaint on four independent grounds: (1) Plaintiff's claims, and in particular the public nuisance claim, necessarily arise under federal common law; (2) Plaintiff's claims, even if properly brought under state law, depend on the resolution of substantial and disputed federal issues; (3) Plaintiff's claims arose in federal enclaves; and (4) Plaintiff alleges tort claims relating to maritime activity and occurring on navigable waters.

A. Federal Question Jurisdiction

Defendants contend that federal jurisdiction exists because Plaintiff's causes of action necessarily turn on federal common law, such that federal common law must govern interstate pollution or public nuisance cases. Defendants insist that the complaint is not well-pleaded, and that if it were, it would raise a federal question

521 F.Supp.3d 869

mandating the exercise of federal jurisdiction.

On its face, Plaintiff's Complaint pleads only state law claims, and Plaintiff does not seek any relief under federal law, or premise its state law claims on any violations of federal law. "The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams , 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). As a general matter, even if both federal and state law provide a remedy, Plaintiff can avoid federal jurisdiction by pleading only state law claims, if it is willing to forgo federal remedies. See id. (as master of the claim, plaintiff "may avoid federal jurisdiction by exclusive reliance on state law"). That said, while "[j]urisdiction may not be sustained on a theory that the plaintiff has not advanced," Merrell Dow Pharm. Inc. v. Thompson , 478 U.S. 804, 809 n.6, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986), it is clear that "a plaintiff may not defeat removal by omitting to plead necessary federal questions in a complaint." Lippitt v. Raymond James Fin. Servs., Inc. , 340 F.3d 1033, 1041 (9th Cir. 2003).

Defendants contend that Plaintiff's claims, and in particular its public nuisance claim, arise under federal common law, making jurisdiction proper under the "necessarily federal in character" exception to the well-pleaded complaint rule. ARCO Envtl. Remediation, L.L.C. v. Dep't of Health & Envtl. Quality of Montana , 213 F.3d 1108, 1114 (9th Cir. 2000) ; Wayne v. DHL Worldwide Express , 294 F.3d 1179, 1183 (9th Cir. 2002).

Defendants’ federal jurisdiction theory relies on two core premises: (1) federal common law must be the actual basis for Plaintiff's claims, notwithstanding the state law nuisance label they carry; and (2) these claims may only be pursued as a matter of federal common law, which displaces all state law bases for pursuing the relief Plaintiff seeks. See Opp. at 5-9. Because the Court finds that the second premise is incorrect as a matter of law, it need not conclusively decide the correctness of the first. But because both premises rely on the existence of...

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