Mulcahey v. Columbia Organic Chemicals Co., Inc., 92-1527

Citation29 F.3d 148
Decision Date11 July 1994
Docket NumberNo. 92-1527,92-1527
PartiesPatrick M. MULCAHEY; Anna Mulcahey; Albert Parsons; Ruth L. Parsons, Individually and as representatives of a class of persons similarly situated, Plaintiffs-Appellants, v. COLUMBIA ORGANIC CHEMICALS COMPANY, INCORPORATED; M.B. Kahn Construction Company, Incorporated; Charles T. Kwiakowski; Arthur Foster; Robert Wolfe; W.W. Wannamaker; Stephen S. Reichlyn; Max G. Gergel, Defendants-Appellees, and E.I. Dupont De Nemours, Defendant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Frederick Steven Longer, Levin, Fishbein, Sedran & Berman, Philadelphia, PA, for appellants. Timothy William Bouch, Young, Clement, Rivers & Tisdale, Charleston, SC, for appellees. ON BRIEF: Arnold Levin, Levin, Fishbein, Sedran & Berman, Philadelphia, PA; Richard J. Lippes, Charles M. Tebutt, Allen, Lippes & Shonn, Buffalo, NY; J. Lawrence Duffy, Jr., Morrison & Duffy, Charleston, SC, for Appellants.

Jonathan L. Yates, Young, Clement, Rivers & Tisdale, Charleston, SC, for appellees.

Before RUSSELL, WILKINS and HAMILTON, Circuit Judges.

Reversed and remanded with instructions by published opinion. Judge HAMILTON wrote the opinion, in which Judge RUSSELL and Judge WILKINS joined.


HAMILTON, Circuit Judge:

The plaintiffs-appellants, Patrick Mulcahey, Anna Mulcahey, Albert Parsons, and Ruth Parsons, individually and as representatives of an uncertified class of persons similarly situated (collectively referred to as "the Plaintiffs"), are residential and commercial landowners within a one and one-half mile radius of Columbia Organic Chemicals Company, Inc.'s (Columbia Organic) plant on Drake Street in Columbia, South Carolina. They appeal the district court's decision finding federal subject matter jurisdiction based on their reference to federal environmental statutes in their state law negligence per se claim. For the reasons stated herein, we reverse and remand with instructions that the case be remanded to the state court.


The Plaintiffs filed their complaint for damages and injunctive relief on July 24, 1991, in South Carolina state court alleging that the defendants 1 negligently operated the Drake Street chemical plant by releasing hazardous substances into the soil, air, and groundwater in the vicinity of their property, thus creating grave threats, both economic and physical, to the Plaintiffs. The four count complaint alleged South Carolina tort law claims: Count I--negligence; Count II--abnormally dangerous activities; Count III--private nuisance; and Count IV--injunction.

On August 23, 1991, DuPont (joined by the other defendants) removed the action from the state court to the United States District Court for the District of South Carolina. On August 26, 1991, DuPont amended its notice of removal to assert that, although Gergel had not yet been served, his counsel would consent to removal. 2 Following service upon Gergel, however, no formal consent was ever filed by him.

DuPont's amended removal petition asserted that the Plaintiffs' amended complaint raised federal questions sufficient to confer original jurisdiction on the court below pursuant to 28 U.S.C. Sec. 1331. In addition, Columbia Organic specifically asserted in joining the removal petition that the alternative negligence theory of negligence per se, for violations of various enumerated federal, state, and local laws, raised federal questions in Count I. The relevant allegations in Count I of the Plaintiffs' amended complaint alleged as follows:

THIRTY: The acts and omissions of Defendants violated applicable disposal and safety standards and notice provisions established by Federal, State and Local law, including, inter alia, the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Sec. 6901 et seq., Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Sec. 9601 et seq., Toxic Substances Control Act ("TSCA"), 15 U.S.C. Sec. 2601, et seq., Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. Sec. 1251, et seq., and the Clean Air Act ("CAA"), 42 U.S.C. Sec. 7401.

THIRTY-ONE: By reason of the foregoing, Defendants are guilty of negligence per se and are liable for the resulting injuries suffered by Plaintiffs.

(J.A. 34A-35A).

RCRA authorizes "any person" to bring a civil action against anyone who violates orders, permits, or other RCRA-based requirements, or against anyone "who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. Sec. 6972(a). CERCLA concerns response, cleanup, notification, and liability for releases of hazardous substances into the environment. Under CERCLA, a private party may bring an action to recover response costs from a responsible party. The FWPCA authorizes private rights of action against anyone violating an effluent standard or limitation established under the FWPCA or an order concerning such a standard of limitation. 33 U.S.C. Sec. 1365. The TSCA deals with the manufacture, processing, disposal, distribution, and treatment of PCBs. 15 U.S.C. Sec. 2619(a). Finally, the CAA authorizes "any person" to sue anyone who violates a CAA emissions standard or limitation or an order issued under such a standard or limitation and anyone who builds or plans to build a major emitting facility without the necessary permits. 42 U.S.C. Sec. 7604. 3

The Plaintiffs disputed removal jurisdiction by filing a motion to remand. On December 19, 1991, the United States Magistrate Judge filed his recommendation to the district court recommending that the case should be remanded because, "the mere citation by the plaintiffs of federal statutes which specify relief of far less than the total relief sought by the plaintiffs does not transform this case into one that must be tried in federal court...." (J.A. 149A).

Columbia Organic filed objections to the magistrate judge's recommendation to remand the case to state court. On February 13, 1992, the district court rejected the magistrate judge's recommendations, finding instead that, "[a]lthough the federal issues in this case are not essential to the plaintiffs' claims," the district court could retain jurisdiction over the case. (J.A. 186A). Admitting that the Supreme Court decisions on this issue are "muddled," (J.A. 181A), the district court found that the unmistakable implication of Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986), was that a private right of action under a federal statute was sufficient for a federal court to retain jurisdiction. (J.A. 185A). Noting that the environmental statutes at issue create private causes of action, the district court admitted, however, that the Plaintiffs could not proceed under any of the environmental statutes at issue "because [he had] failed to comply with the requirements of the statutes." (J.A. 185A). 4 Nevertheless, the district court rejected the magistrate judge's recommendation. 5

On February 28, 1992, the court below heard argument on whether an interlocutory appeal should be granted on its jurisdictional finding. The district court found that the criteria of 28 U.S.C. Sec. 1292(b) had been met and entered an order to that effect on March 2, 1992.

On March 12, 1992, the Plaintiffs petitioned this court to allow an interlocutory appeal from the district court's February 13, 1992 Order. We granted the Plaintiffs' petition on May 15, 1992.


Whether the instant action falls within federal subject matter jurisdiction is a pure question of law which we review de novo. See Mylan Laboratories, Inc. v. Akzo, 2 F.3d 56, 60 (4th Cir.1993); Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1667, 118 L.Ed.2d 388 (1992). The burden of establishing federal jurisdiction is placed upon the party seeking removal. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921). Because removal jurisdiction raises significant federalism concerns, we must strictly construe removal jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). If federal jurisdiction is doubtful, a remand is necessary. In re Business Men's Assur. Co. of America, 992 F.2d 181, 183 (8th Cir.1993); Cheshire v. Coca-Cola Bottling Affiliated, Inc., 758 F.Supp. 1098, 1102 (D.S.C.1990). The right to remove a case from state to federal court derives solely from 28 U.S.C. Sec. 1441, which provides in relevant part:

(a) ... any civil action brought in a state court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

In this case, there is no allegation of diversity of citizenship between the parties. Accordingly, the propriety of removal depends on whether the case falls within the provisions of 28 U.S.C Sec. 1331: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."

In determining whether an action presents a federal question under Sec. 1331, a court must first discern whether federal or state law creates the cause of action. Most of the cases brought under Sec. 1331 federal question jurisdiction "are those in which federal law creates the cause of action." Merrell Dow, 478 U.S. at 809, 106 S.Ct. at 3233. In cases where federal law creates the cause of action, the courts of the United States unquestionably have federal subject matter jurisdiction. Id. If, however, state law creates the cause of action, as in the instant case, we apply a different test. In...

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