Herrington v. JR Pounds, Inc.

• Decision Date: 18 January 1995
• Docket Number: Civ. A. No. 3:94-cv-699WS.
• Citation: 874 F. Supp. 133
• Parties: William H. HERRINGTON and Audie Byrd Herrington, Plaintiffs, v. J.R. POUNDS, INC., Texaco, Inc., and J.R. Pounds, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

874 F. Supp. 133

William H. HERRINGTON and Audie Byrd Herrington, Plaintiffs, v. J.R. POUNDS, INC., Texaco, Inc., and J.R. Pounds, Defendants.

Civ. A. No. 3:94-cv-699WS.

United States District Court, S.D. Mississippi, Jackson Division.

January 18, 1995.

David T. Cobb, Jackson, MS, James R. Cox, New Orleans, LA, L. Arthur Hewitt, Hattiesburg, MS, for plaintiffs.

Richard M. Edmonson, Jackson, MS, Guy M. Walker, II, Richard O. Burson, Norman G. Hortman, Jr., Laurel, MS, for defendants.

ORDER

WINGATE, District Judge.

Before the court is plaintiffs' motion which asks this court to remand this lawsuit to state court, namely, the Circuit Court for the First Judicial District of Hinds County, Mississippi, where the case originated before defendants removed it under Title 28 U.S.C. §§ 1441¹ and 1446² to this court. Submitted pursuant to Title 28 U.S.C. § 1447(c),³ plaintiffs' motion disputes defendants' contention that plaintiffs' complaint urges a claim which is federal in nature. Instead, say plaintiffs, their lawsuit seeks redress only under claims predicated on state law. Plaintiffs additionally argue that defendants' Petition for Removal, which caused this case to be transferred here from state court, was untimely filed beyond the thirty-day period for such filing after the plaintiffs' complaint was served upon defendants. See 28 U.S.C. § 1446(b).⁴

Defendants take issue with plaintiffs' assertions. Defendants contend that plaintiffs' complaint and amended complaint assert a federal cause of action and, further, that plaintiffs disguised this fact until recently. According to defendants, plaintiffs' true purpose was discerned only after plaintiffs filed their motion for partial summary judgment in state court. Once informed of the true nature of plaintiffs' legal theory, defendants say they immediately effectuated removal of this lawsuit from state to federal court under 28 U.S.C. §§ 1441 and 1446 within thirty days of such knowledge. Thus, conclude defendants, this case was properly removed.

After briefing was complete, this court allowed oral argument on the points disputed. For the reasons which follow, this court is persuaded to grant the plaintiffs' motion.

The plaintiffs here are William H. Herrington and Audie Byrd Herrington, husband and wife. The defendants are J.R. Pounds, Inc.; Texaco, Inc.; and J.R. Pounds in his individual capacity. Plaintiffs, owners of real property located in Jones County, Mississippi, charge defendants with contaminating their land with radioactive scales, residues, and other materials harmful to human health and destructive to the market value of the land. In addition to other remedies, plaintiffs want defendants to be held responsible for all costs associated with clean-up and restoration of the property.

Plaintiffs filed their lawsuit in state court on September 29, 1993. On May 20, 1994, they amended their complaint. Plaintiffs' complaint, charging defendants with contaminating their property with radioactive substances, asserted counts based on theories of negligence, trespass, nuisance, and strict liability. The amended complaint sought a mandatory injunction to require the defendants to clean up and restore the property in question and to require the defendants to pay the costs associated with such. Then, on November 7, 1994, the plaintiffs entered a motion in state court for partial summary judgment on the issue of "response costs" associated with the investigation, monitoring and clean-up of the property. According to the defendants, the plaintiffs' motion for partial summary judgment for the first time revealed that the plaintiffs might be seeking relief that was available only under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA).⁵ Thereafter, on November 22, 1994, defendants removed this case to this court.

The issues raised by the parties' dispute herein are readily identified: whether plaintiffs' thrust for relief relies upon a federal cause of action and, if so, whether defendants timely filed their Notice of Removal. Settled case law dictates that removability is to be determined from the face of the complaint, following the "well-pleaded complaint rule." This rule prescribes that "federal courts have jurisdiction to hear, originally or by removal, only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action, or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 2856, 77 L.Ed.2d 420 (1983); Willy v. Coastal Corp., 855 F.2d 1160, 1168 (5th Cir.1988). Since removability is a federal question, this examination of the complaint under this rule, e.g., the character of the claims asserted and whether any claims are "separate and independent" under 28 U.S.C. § 1441(c), must be conducted pursuant to federal law. Kansas Public Employees Retirement System v. Reimer & Koger, 4 F.3d 614, 618 (8th Cir. 1993), citing Harrison v. St. Louis & San Francisco RR Co., 232 U.S. 318, 329, 34 S.Ct. 333, 335-36, 58 L.Ed. 621 (1914). Further, the courts examine the complaint as it existed at the time of removal; Nutro Products Corporation v. NCNB Texas National Bank, 35 F.3d 1021, 1023 (5th Cir.1993), citing Brown v. Southwestern Bell Telephone Company, 901 F.2d 1250, 1254 (5th Cir.1990); subsequent amendments after removal should not be considered. Id. at 1023. Removability does not attach simply because a federal question may arise during the course of a defense or counterclaim, Beers v. North American Lines, Inc., 836 F.2d 910 (5th Cir. 1988); nor is removability to be frustrated by plaintiff's artful or disguised pleading. Aaron v. National Union Fire Insurance Company, 876 F.2d 1157, 1161 (5th Cir.1989), reh. denied, 886 F.2d 1314, cert. denied sub nom. American Home Insurance Group v. Aaron, 493 U.S. 1074, 110 S.Ct. 1121, 107 L.Ed.2d 1028 (1989). The "artful pleading" circumstance occurs where plaintiff's sole claim is a federal one; it does not apply where plaintiff has a viable state law claim and a federal claim, but plaintiff simply opts to pursue the state claim. This latter circumstance falls outside of the "artful pleading" limitation and is one which would not support removal on federal question grounds. Willy v. Coastal Corp., 855 F.2d 1160 (5th Cir.1988).

The timeliness of removal is governed by 28 U.S.C. § 1446(b). In general, a defendant must file a notice of removal within thirty days after receipt of the first pleading in the state court action that sets forth a removable claim. Wilson v. Belin, 20 F.3d 644, 651 n. 8 (5th Cir.1994) (28 U.S.C. § 1446(b) requires a defendant to file notice of removal within thirty days of receipt of the "initial pleading" setting forth the claim for relief); Rivers v. International Matex Tank Terminal, 864 F.Supp. 556, 558 (E.D.La. 1994), citing York v. Horizon Federal Savings and Loan Association, 712 F.Supp. 85, 87 (E.D.La.1989); and Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir.1986) (the failure to file for removal within the thirty day period is fatal); Buchner v. FDIC, 981 F.2d 816 (5th Cir.1993) (Note 1: See 28 U.S.C. § 1446(b) generally requiring that a notice of removal be filed within 30 days of when the action becomes removable); Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir.1992) (the thirty-day time period in which a defendant must remove a case starts to run from defendant's receipt of the initial pleading, if the pleading reveals that the case is removable). This thirty-day period is statutory and cannot be extended by stipulation, Albonetti v. GAF Corporation-Chemical Group, 520 F.Supp. 825, 827 (S.D.Tex.1981), citing London v. United States Fire Ins. Co., 531 F.2d 257 (5th Cir.1976); however, tardy removal is a waivable defect which, if left unchallenged, will be insulated from later attack. Belser v. St. Paul Fire & Marine Insurance Company, 965 F.2d 5, 6 (5th Cir. 1992), citing Baris v. Sulpicio, 932 F.2d 1540, 1543-44 (5th Cir.), cert. denied, 502 U.S. 963, 112 S.Ct. 430, 116 L.Ed.2d 449 (1991). If somehow the plaintiff's complaint fails to reflect on its face a federal cause of action, defendant's removal clock starts to tick at the point when defendant is first put on notice that the case is removable. Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir.1994) (if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable ...); Barnes v. Westinghouse Electric Corporation, 962 F.2d 513, 515 n. 4 (5th Cir. 1992) (same); Burks v. Amerada Hess Corporation, 8 F.3d 301, 305 (5th Cir.1993) (a notice of removal must be filed within thirty days after receipt by the defendant of a document from which it may first be ascertained that the case is removable ...); Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir.1993) (§ 1446(b) expressly grants an additional thirty days from the time that a defendant discovers that the case has become or always has been removable); Chapman v. Powermatic, Inc., 969 F.2d 160, 164 (5th Cir.1992) (the second paragraph of § 1446(b) requires that the defendant remove the case, if at all, within 30 days after receipt of an "other paper" from which the defendant may first ascertain that the case is removable); and Rivers v. International Matex Tank Terminal, 864 F.Supp. 556 (E.D.La.1994) (if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant ... of a...