May v. Apache Corp., CIVIL ACTION NO. C-12-64

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Writing for the CourtNELVA GONZALES RAMOS
PartiesLEONARD MAY, et al, Plaintiffs, v. APACHE CORPORATION, et al, Defendants.
Docket NumberCIVIL ACTION NO. C-12-64
Decision Date01 May 2012

LEONARD MAY, et al, Plaintiffs,
APACHE CORPORATION, et al, Defendants.



Dated: May 1, 2012


This case is before the Court on the Plaintiff's Motion to Remand (D.E. 11). Both Defendants have filed responses and additional replies have been filed on the matter (D.E. 14, 15, 16, 17, 21, 22, 24). For the reasons set out below, the motion is GRANTED IN PART with respect to the state law claims and DENIED IN PART with respect to the CERCLA claim.


Plaintiffs originally filed this case in the County Court at Law No. 1 in Nueces County, Texas on December 21, 2007. They alleged state law causes of action related to damage to their realty and other claims arising from the Defendants' oil and gas operations. Specific complaints included: the Defendants' failure to maintain roads, failure to comply with drill location and restoration requirements, and failure to remove debris and other junk from the property. There was also an allegation of contamination of the surface and subsurface estate. The state law causes of action that Plaintiffs set out

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included: breach of contract, violations of the Deceptive Trade Practices Act, misrepresentation, and trespass. No federal cause of action was pled.

On March 3, 2011, the Plaintiffs added factual allegations of failure to operate a saltwater disposal pit pursuant to agreement and abandonment of equipment on the property. The causes of action were expanded to include negligence, intentional trespass, negligent misrepresentation, and nuisance. Plaintiffs also added bases for exemplary or additional damages. At that time, they dropped their factual allegations of contamination. Thereafter, in December, 2011, the Plaintiffs' environmental testing allegedly revealed contamination, including contamination of ground water.

On February 13, 2012, the Plaintiffs amended their state petition to include an alternative pleading of contamination and release of hazardous substances under state and federal law, specifically citing to CERCLA and the Texas Water Code. They included claims for remediation of the property, with contractual contribution and common law contribution. Trial was scheduled for April 16, 2012.

Defendants removed the case to this Court on February 23, 2012, on the basis that the Plaintiffs are now making a claim under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601 et seq., thus posing a federal question under 28 U.S.C. § 1331. Defendants assert that this Court maintains jurisdiction over the state law claims by way of "supplemental jurisdiction" under 28 U.S.C. § 1367(a).

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A. Removal Jurisdiction is to Be Narrowly Construed.

The burden of proving that the Court has subject matter jurisdiction in a removed case is on the party seeking removal. E.g., Manguno v. Prudential Property & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002); Sid Richardson Carbon & Gasoline Co. v. Interenergy Resources, Ltd., 99 F.3d 746 (5th Cir. 1996). Removal statutes are to be strictly construed and doubts resolved in favor of remand. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Acuna v. Brown & Root, 200 F.3d 335, 339 (5th Cir. 200); Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988).

B. Plaintiffs Made a Federal Claim Under CERCLA.

Plaintiffs invoked rights under federal law, CERCLA, on page 4 of their Third Amended Petition. D.E. 1-3. Defendant, Apache Corporation (Apache), with the consent of Defendant Duke Energy Field Services LP n/k/a DCP Midstream, LP (DCP), removed the case in recognition of the Plaintiffs' CERCLA allegations. D.E. 1, p. 2; D.E. 2.

Plaintiffs allege in their Motion to Remand that the CERCLA claims are not actually ripe. D.E. 11, pp. 15-16. However, they have made no effort to withdraw them or amend their complaint. Neither have they briefed any authorities for finding such claims lack ripeness. Because declaratory relief is available in advance for the recovery of future response costs, it would appear that a CERCLA claim is ripe at any time after some response costs are incurred. 42 U.S.C. § 9613(g)(2); Licciardi v. Murphy Oil

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U.S.A., Inc., 111 F.3d 396, 398 (5th Cir. 1997) (one of the four elements that must be proven in a CERCLA claim is that response costs have been incurred).

While Plaintiffs contend that they have not incurred any clean up costs (D.E. 11, p. 20), they have represented that contamination of the subject property was confirmed by environmental testing conducted in December of 2011 and January of 2012. D.E. 11, p. 11 n.2. Cleanup costs recoverable under CERCLA include not only the direct cost of removal, but of site testing, studies, and similar "response costs," direct and indirect. United States v. R.W. Meyer, Inc., 889 F.2d 1497, 1500-02 (6th Cir. 1989), cert. denied, 494 U.S. 1057, 110 S.Ct. 1527, 108 L.Ed.2d 767 (1990).

On the face of the Plaintiff's state court petition, a CERCLA claim is ripe, has been alleged, and has not been withdrawn. While the Court defers the question as it applies to the merits of whether the testing costs will ultimately be recoverable, the allegations to date are sufficient to establish a case or controversy. Thus the CERCLA claim must be considered in the Court's analysis of its removal jurisdiction.

C. Federal Court Jurisdiction to Adjudicate CERCLA
Claims is Exclusive. Thus the Court Cannot Remand
the Entire Case.

Citing commentary to 28 U.S.C. § 1441(c), Plaintiffs ask this Court to exercise its "discretion"1 to remand the entire case as involving state claims that predominate over the federal claims. This argument fails for two reasons. First, jurisdiction over CERCLA

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claims lies exclusively in the federal courts.2 42 U.S.C. § 9613(b). Where federal courts maintain exclusive jurisdiction, the claims are not subject to remand. See e.g., Hand v. Cargill Fertilizer, Inc., 157 Fed. Appx. 230, 234, 2005 WL 3293823, 3 (11th Cir. December 6, 2005). Such a remand would be futile in that the state court would have to dismiss the CERCLA claims for lack of jurisdiction.

None of the cases that the Plaintiffs cited for remanding the federal CERCLA claim involved claims that were within the exclusive jurisdiction of the federal courts:

• Huntsman Corp. v. International Risk Ins. Co., No. H-08-1542, 2008 WL 4453170 (S.D. Tex. Sept. 26, 2008) (declaratory judgment action regarding insurance coverage with federal question jurisdiction based on commercial arbitration conventions);
• Morales v. Meat Cutters Local 539, 778 F.Supp. 368, 371 n.7 (E.D. Mich. 1991) (action for breach of the federal collective bargaining act, which the court expressly found to be a matter of concurrent jurisdiction);
• Miller v. John Sexton Sand & Gravel Corp., No. 4:96CV315-B-B, 1996 WL 909594 (N.D. Miss. Nov. 15, 1996) (allegation that conduct violated the U.S. Constitution's commerce clause and burdened interstate commerce);
• Preston v. Tenet Healthsystem Mem'l Med. Ctr., 463 F.Supp.2d 583, 595 (E.D. La. 2006) (removal predicated on Federal Officer Removal Statute

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(held inapplicable), Emergency Medical Treatment and Active Labor Act (federal claims held to be wholly unsubstantial or frivolous), Multiparty, Multiforum Trial Jurisdiction Act (held inapplicable), Class Action Fairness Act of 2005 (held to be a local controversy triggering discretionary remand for exercise of concurrent jurisdiction)).

Second, section 1441(c) simply does not apply. That section provides for the severance and remand of claims within the definition provided by section 1441(c)(1)(B): "a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute . . . ." Because the CERCLA claims are within the original jurisdiction of this Court, they are not subject to remand under section 1441(c).

The Fifth Circuit has clearly held that only state law claims are subject to remand under...

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