Hurt v. Dow Chemical Co.

• Decision Date: 02 July 1992
• Docket Number: No. 91-2821,91-2821
• Citation: 963 F.2d 1142
• Parties: 22 Envtl. L. Rep. 21,460 Irene HURT, Appellant, v. DOW CHEMICAL COMPANY; Rose Exterminator Company, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1142

963 F.2d 1142

22 Envtl. L. Rep. 21,460

Irene HURT, Appellant, v. DOW CHEMICAL COMPANY; Rose Exterminator Company, Appellees.

No. 91-2821.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 8, 1992.

Decided May 12, 1992.

Rehearing and Rehearing En Banc

Denied July 2, 1992.

Mary E. Coffey, St. Louis, Mo., argued, for appellant.

Paul N. Venker, St. Louis, Mo., argued (Frank N. Gundlach and Mary C. Kickham, on the brief, for appellee Dow Chemical Co.

Gary E. Wiseman, St. Louis, Mo., argued (John D. Warner, Jr., on the brief), for appellee Rose Exterminator Co.

Before ARNOLD, Chief Judge, McMILLIAN and HANSEN, Circuit Judges.

ARNOLD, Chief Judge.

This case presents two questions: whether this lawsuit brought by the plaintiff Irene Hurt in a Missouri circuit court was properly removed to federal court; and if so, whether the District Court erred in holding that certain of plaintiff's claims were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. Since we hold that removal was improper here, neither the District Court nor we have jurisdiction to reach the second question. We reverse and remand to the District Court with directions to remand the case to the state court.

In March of 1990, Irene Hurt filed suit in a state circuit court against Dow Chemical Co. and Rose Exterminator Co. for personal injuries allegedly resulting from exposure to the pesticide Dursban. Dow manufactured Dursban, and Rose applied it at the federal courthouse in St. Louis, where the plaintiff worked. The plaintiff claimed that Dow and Rose failed to warn her of the dangers of the pesticide, and that Rose failed to use ordinary care in applying it.

In April 1990, Dow, with Rose's consent, filed a petition to remove the case to federal court on the basis of federal-question removal jurisdiction. See 28 U.S.C. § 1441. The federal question asserted was that plaintiff's claims were pre-empted by FIFRA. After removal, Dow filed a motion to dismiss plaintiff's failure-to-warn claim on the ground that it was pre-empted by FIFRA. The District Court granted the motion on September 28, 1990, but specifically stated that any other state-law claims which plaintiff might have were not pre-empted. Plaintiff then filed a motion for leave to file an amended complaint, which was granted on March 8, 1991. Shortly thereafter, she filed an amended complaint, consisting of five counts, including the failure-to-warn claim. A week later, she moved to remand the case to state court asserting that the case had been improperly removed on federal-question grounds. The District Court denied the motion, holding that removal on federal-question grounds was proper at the time of removal, Hurt "waived any non-jurisdictional objection to the impropriety of removal," Hurt v. Dow Chemical Company, No. 90-0783-C(3), slip op. 3 (E.D.Mo. May 22, 1991), and that diversity jurisdiction existed even if federal-question jurisdiction did not. Hurt then voluntarily dismissed her remaining claims and appealed to this Court.

The sole question we address here is, was removal proper? The defendants argue that it was proper because the FIFRA pre-emption defense gave the District Court federal-question jurisdiction, and, in the alternative, because the Court had original diversity jurisdiction (or would have had it if plaintiff had originally filed her action in the District Court). If the defendants are wrong, and we believe that they are, the District Court erred in failing to grant plaintiff's motion to remand.

What is required to invoke federal-court jurisdiction depends on whether it is the plaintiff or the defendant who wants to invoke it. A plaintiff may bring suit in federal court if her claim "arises under" federal law. See 28 U.S.C. § 1331. Even if it does not, she may bring a state cause of action in federal court if she is suing a citizen of a state different from her own. See 28 U.S.C. § 1332. In both of these situations, the court has original jurisdiction. While a defendant, of necessity, cannot invoke the federal court's original jurisdiction, it may, in some situations, invoke the court's removal jurisdiction. Because the requirements to invoke the court's removal jurisdiction are often identical to those for invoking its original jurisdiction, confusion in this area of the law is common. The requirements for both relate to the same end, that is, federal jurisdiction. They are not, however, alternative means for a defendant to reach that end. Defendants must come within the court's removal jurisdiction. The concept of original jurisdiction has no meaning with respect to a defendant.

We first address the defendants' initial ground for removal, federal-question removal jurisdiction. Title 28 U.S.C. § 1441(a) allows a case to be removed if "the district courts of the United States have original jurisdiction." Defendants rely first on 28 U.S.C. § 1331, granting jurisdiction "of all civil actions arising under" federal law. The defendants argue that the federal defense of pre-emption of plaintiff's claims by FIFRA causes the case to "arise under" federal law. We note, as do the parties, that there is a longstanding limitation on this jurisdictional ground called the well-pleaded complaint rule. Under this doctrine, an action "arises under" federal law only if the federal question appears on the face of a properly pleaded complaint. In other words, "a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case," Franchise Tax Board of California v. Construction Laborers Vacation Trust, 463 U.S. 1, 14, 103 S.Ct. 2841, 2848, 77 L.Ed.2d 420 (1983), does not cause the plaintiff's claim to arise under federal law.

The defendants claim, however, that this case fits into an exception known as the "complete pre-emption doctrine." The Supreme Court has held on rare occasions that federal law is so dominant in a particular area, the pre-emptive force of a federal statute so "extraordinary," that it "converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 1547, 95 L.Ed.2d 55 (1987) (holding that section 502(a)(1)(B) of ERISA completely pre-empts the field). In such a situation, the federal law so occupies the field that any complaint alleging facts that come within the statute's scope necessarily "arises under" federal law, even if the plaintiff pleads a state-law claim only. It is not just that a pre-emption defense is present: the claim is completely federal from the beginning.

In the present case, however, this is not true. No one claims that plaintiff would have a FIFRA-created cause of action for the facts she alleges. Defendants argue that the language in FIFRA forbidding states from "impos[ing] or continu[ing]in effect any requirements for labelling or packaging" of pesticides shows Congress's intent to pre-empt state authority completely in the area of labelling, packaging, and warning. See 7 U.S.C. § 136v(b). Even if the defendants are correct, this does not mean that removal was proper. It means only that there may be a good federal preemption defense. We do not agree that this section standing alone meets the Supreme Court's definition of "complete pre-emption." Furthermore, we see no other indication that Congress intended to dominate the field of pesticide regulation so completely that a complaint like plaintiff's necessarily states a federal cause of action. In fact, the Supreme Court has recently held that FIFRA has not pre-empted the field of pesticide regulation. Wisconsin Public Intervenor v. Mortier, --- U.S. ----, ----, 111 S.Ct. 2476, 2487, 115 L.Ed.2d 532 (1991).

Defendants next argue that even if removal based on federal-question jurisdiction was improper, the fact that the District Court would have had diversity jurisdiction if the case had been filed there initially...