Morrison v. Drummond Co., Case No. 2:14-CV-0406-SLB

• Decision Date: 23 March 2015
• Docket Number: Case No. 2:14-CV-0406-SLB
• Parties: JOEL THOMAS MORRISON, IV, Plaintiff, v. DRUMMOND COMPANY, INC., individually and as successor in interest to Alabama By-Products Corp., Defendant.
• Court: U.S. District Court — Northern District of Alabama

JOEL THOMAS MORRISON, IV, Plaintiff, v. DRUMMOND COMPANY, INC., individually and as successorin interest to Alabama By-Products Corp., Defendant.

Case No. 2:14-CV-0406-SLB

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

March 23, 2015

MEMORANDUM OPINION

This case is presently pending before the court on plaintiff's Motion to Remand. (Doc. 4.)¹ Plaintiff Joel Thomas Morrison, IV, sued defendant Drummond Company in the Circuit Court of Jefferson County alleging that defendant's operation of a coke plant injured him. Defendant removed this action to federal court on the basis of federal question jurisdiction. Plaintiff has moved to remand this case. Upon consideration of the record, the submissions of the parties, the arguments of counsel, and the relevant law, the court is of the opinion that plaintiff's Motion to Remand, (doc. 4), is due to be granted.

Plaintiff filed this case in the Circuit Court of Jefferson County, Alabama against defendant on December 19, 2013. (Doc. 1-1 at 3.) He alleged that defendant owned and operated coke ovens in North Birmingham and Tarrant, Alabama. (Id. at 10.) According tothe Complaint, these coke oven operations produced toxic chemicals, including benzene, that were released into the air. (Id. at 10-11.) Plaintiff worked as a mail carrier in the area surrounding the coke ovens and "was exposed to toxicologically significant levels of toxic and harmful chemicals emitted from [defendant's] facilities in North Birmingham while performing his ordinary postal duties which included walking from house to house in the City of Tarrant delivering mail." (Id. at 5-6.) Plaintiff was diagnosed with acute myelogenous leukemia; he contends "[e]xposure to benzene emissions and benzene containing materials has been directly linked to the diagnosis of Acute Myelogenous Leukemia . . . ." (Id. at 5, 11.)

The Complaint alleges Alabama common law causes of action based on negligence, negligence per se, wantonness, fraud, and conspiracy. (Id. at 15-21.)

Defendant removed this action from the Alabama Circuit Court on March 7, 2014. (Doc. 1.) In its Notice of Removal, defendant stated:

10. Plaintiffs' state common law negligence, wantonness, fraud and conspiracy claims, to the extent they arise from complaints about air quality and emissions arising from Defendant['s] coke facilities, are completely preempted by the federal Clean Air Act. See Am. Elec. Power Co., Inc. v. Conn., 131 S. Ct. 2527 (2011); N.C. ex rel. Cooper v. Tenn. Valley Auth., 615 F.3d 291 (4th Cir. 2010); Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849 (S.D. Miss. 2012), aff'd, 718 F.3d 460 (5th Cir. 2013); Native Vill. of Kivalina v. Exxon Mobil Corp., 696 F.3d 849, 856 (9th Cir. 2012); But see Bell v. Cheswick Generating Station, 734 F.3d 188 (3d Cir. 2013), petition for cert. filed (U.S. Feb. 20, 2014)(failing to apply federal preemption defense withoutreference to AEP or Comer);²Cerny v. Marathon Oil Corp., No. SA- 13-CA-562-XR, 2013 WL 5560483 (W.D. Tex. Oct. 7, 2013) (applying district court case that pre-dates AEP and Comer to reject complete preemption argument).

11. In AEP, the Supreme Court held that federal common law claims for public nuisance are completely preempted by the federal Clean Air Act. 131 S. Ct. at 2537-38. In Comer, which was affirmed by the Fifth Circuit in May 2013, a group of plaintiffs filed nuisance, trespass and negligence claims against several oil companies and other entities, alleging that they produced emissions that led to global warming, which caused the conditions that formed Hurricane Katrina, which damaged their property. 839 F. Supp. 2d at 853-54. The court relied heavily on the AEP decision and held that "the plaintiffs' entire lawsuit is displaced by the Clean Air Act" because "the state law causes of actions asserted by the plaintiffs hinge on a determination that the defendants' emissions are unreasonable." Id. at 865.

12. Complete preemption establishes federal question jurisdiction for purposes of authorizing removal under 28 U.S.C. § 1441(a). See Blab T.V. of Mobile, Inc. v. Comcast Cablevision Corp., 182 F.3d 851, 854 (11th Cir. 1999) ("[c]omplete preemption occurs when 'the pre-emptive force of a statute is so 'extraordinary' that it converts an ordinary state common-law complaint into one stating a federal claim.'" (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987))).

13. As a result, Plaintiff['s] state common law negligence, wantonness, fraud and conspiracy claims, to the extent they arise from complaints about air quality and emissions arising from Defendant['s] coke facilities, arise under the federal Clean Air Act for jurisdictional purposes and are therefore removable to this Court under 28 U.S.C. § 1441(a).

(Doc. 1 ¶¶ 10, 12-13 [original footnote omitted; footnote added].)

Federal courts are courts of limited jurisdiction. Therefore, this court may only hear cases that the Constitution or Congress has authorized. A federal court has subject-matterjurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A defendant seeking to remove a case from state court to federal court has the burden of proving the existence of federal jurisdiction. Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997). Because federal jurisdiction is limited, the Eleventh Circuit has held that cases removed from state court are to be remanded "where federal jurisdiction is not absolutely clear." See Lowe's OK'd Used Cars, Inc. v. Acceptance Insurance Co., 995 F. Supp. 1388, 1389 (M.D. Ala. 1998)(citing Burns v. Windsor Insurance Co., 31 F.3d 1092, 1095 (11th Cir. 1994))(emphasis added). To this end, removal statutes are strictly construed, with all doubts resolved in favor of remand. Id. (citing Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996), cert. denied 520 U.S. 1162 (1997)). Moreover, all facts alleged in the Complaint are construed in favor of plaintiffs, and all "uncertainties" regarding the substantive state law are resolved in favor of plaintiffs. Crowe, 113 F.3d at 1538 (11th Cir. 1997).

"The test ordinarily applied for determining whether a claim arises under federal law is whether a federal question appears on the face of the plaintiff's well-pleaded complaint." Connecticut State Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1343 (11th Cir. 2009)(citing Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908)). "[T]he plaintiff is the master of the complaint, free to avoid federal jurisdiction by pleading only state claims even where a federal claim is also available." Hill v. BellSouth Telecommunications, Inc., 364 F.3d 1308, 1304 (11th Cir. 2004)(quoting Marcus v. AT&TCorp., 138 F.3d 46, 52 (2d Cir. 1998)). Therefore, a complaint that alleges only state law claims does not create federal-question jurisdiction under the well-pleaded complaint rule. Connecticut State Dental Ass'n, 591 F.3d at 1343; see also Kemp v. Int'l Bus. Mach. Corp., 109 F.3d 708, 712 (11th Cir. 1997)("If the plaintiff elects to bring only state law causes of action in state court, no federal question will appear in the complaint that could satisfy the well-pleaded complaint rule, and the case may not be removed to federal court.").

Defendant removed this case on the basis that plaintiff's state law claims are completely preempted by the Clean Air Act. (Doc. 1 ¶ 10.) "Complete preemption is a narrow exception to the well-pleaded complaint rule and exists where the preemptive force of a federal statute is so extraordinary that it converts an ordinary state law claim into a statutory federal claim." Connecticut State Dental Ass'n, 591 F.3d at 1343 (citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987); Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1212 (11th Cir. 1999)(quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987))). Regarding complete preemption, the Eleventh Circuit has held:

If a federal question does not appear on the face of the complaint, then the plaintiff's claim arises under federal law only if it "falls within the special category of federal question jurisdiction created by the doctrine of complete preemption." Cotton v. Mass. Mut. Life Ins. Co., 402 F.3d 1267, 1281 (11th Cir. 2005).³ This doctrine applies where Congress has "preempt[ed] an area of law so completely that any complaint raising claims in that area is necessarily federal in character and therefore necessarily presents a basis for federal court jurisdiction." Id. (quotation omitted).

Complete preemption is "a rare doctrine," Cmty. State Bank, 651 F.3d at 1261 n.16, and "[t]he Supreme Court has applied [it] to only three federal statutes: § 301 of the [Labor-Management Relations Act], the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132, and §§ 85 and 86 of the National Bank Act." Atwater v. Nat'l Football League Players Ass'n, 626 F.3d 1170, 1176 n.7 (11th Cir. 2010). Moreover, "[t]he Supreme Court has cautioned that complete preemption can be found only in statutes with 'extraordinary' preemptive force." Geddes v. Am. Airlines, Inc., 321 F.3d 1349, 1353 (11th Cir. 2003).

Ammedie v. Sallie Mae, Inc., 485 F. Appx. 399, 401 (11th Cir. 2012)(footnote added).⁴

"Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987). However, the Supreme Court has limited such extraordinary preemption to three instances - none of which concern any of the federal anti-pollution statutes at issue in this case.

In enacting the Clean Air Act, Congress made a specific finding "that air pollution prevention (that is, the reduction or elimination, through any measures, of the amount of pollutants produced or created at the source) and air pollution control at its source is the primary responsibility of States and local governments." 42...