New Mexico v. General Elec. Co.
| Decision Date | 27 March 2003 |
| Docket Number | No. CIV 99-1254 BSJ/ACT.,No. CIV 99-1118 BSJ/KBM.,CIV 99-1118 BSJ/KBM.,CIV 99-1254 BSJ/ACT. |
| Citation | 335 F.Supp.2d 1157 |
| Parties | State of NEW MEXICO, et al., Plaintiffs, v. GENERAL ELECTRIC COMPANY, et al., Defendants. |
| Court | U.S. District Court — District of New Mexico |
Brian K. Branch, Law Offices of Brian K Branch, Albuquerque, NM, Turner W. Branch, Harry E. Stowers, Jr., Brian P. Brack, Steven J. Leibel Branch Law Firm, Albuquerque, NM, Andrew Sher, The Sher Law Firm, Houston, TX, R. Thomas Seymour, C. Robert Burton, Seymour Law Firm, Tulsa, OK, Bruce S. Garber, Garber & Hallmark, Santa Fe, NM, Thomas V. Girardi, David R. Lira, Girardi & Keese, Los Angeles, CA, Walter Lack, Stephen R. Terrell, Engstrom, Lipscomb & Lack, LLP, Los Angeles, CA, Craig Lewis, Michael T. Gallagher, Gallagher, Lewis & Kim, Houston, TX, William G. Rosch, III, Rosch & Ross, Houston, TX, Glenn R Smith, NM Atty. General's Office, Santa Fe, NM, for Plaintiffs.
Bradford C. Berge, Holland & Hart, LLP, Santa Fe, NM, J.A. Tony Canales, Canales & Simonson, PC, Corpus Christi, TX, William J. Duffy, Robert W. Lawrence, Davis Graham & Stubbs LLP, Denver, CO, Donald P. Fowler, Spriggs & Hollingsworth, Washington, DC, William V. Killoran, General Electric Co., Environmental Affairs Counsel, Cincinnati, OH, Paul B. Galvani, Ropes & Gray, Boston, MA, Peter A. Modlin, Farella, Braun & Martel, LLP, San Francisco, CA, Tami Lyn Azorsky, Traci M. Vanek, McKenna Long & Aldridge, LLP, Washington, DC, Maria O'Brien, Lynn Slade, Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, NM, Gregory D. Huffaker, Jr., Ann Maloney Conway, Michael J. Moffett, Huffaker & Conway PC, Alburquerque, NM, Gerald F. George, Andrew L. Strong, Campbell, George & Strong, LLP, Oakland, CA, Robert E. Meadows, King & Spalding, Houston, TX, Robert E. Meadows, Carol M. Wood, Reginald R. Smith, Charles C. Correll, Jr., King & Spalding, Houston, TX, Richard L. Alvidrez, Mary M. Behm, Keleher & McLeod, Alburquerque, NM, for Defendants.
ORDER DENYING RENEWED MOTION FOR REMAND
On November 14, 2002, the plaintiffs State of New Mexico and State of New Mexico ex rel. Patricia A. Madrid filed a Renewed Motion for Remand and Request for Expedited Hearing (dkt. no. 888) ("Renewed Motion"). Plaintiffs' Renewed Motion sought to revive jurisdictional objections earlier raised by the State concerning the removal of its state law claims from state court to this court pursuant to notices of removal filed by General Electric Company and ACF Industries, Inc. in 1999 — remand motions that were withdrawn by the State of New Mexico before being heard by this court in May of 2000.1 The Renewed Motion was accompanied by a Motion for Leave to Amend Complaint to Dismiss CERCLA Claims Against Defendants and Request for Expedited Hearing (dkt. no. 887), seeking to dismiss all federal claims and federal defendants from this action. Read together, plaintiffs'2 motions asked this court to dismiss all federal agency defendants from this case, along with plaintiffs' federal claims against the remaining defendants,3 leaving plaintiffs' state law claims against General Electric, ACF Industries and the Chevron/Texaco Defendants4 to be remanded for further proceedings in state court.
On December 20, 2002, ACF Industries, General Electric and the Chevron/Texaco Defendants filed memoranda in opposition to the Renewed Motion for Remand, and on January 8, 2003, plaintiffs filed a consolidated reply memorandum, accompanied by an affidavit. By an Order entered December 23, 2002, the court set the Renewed Motion for hearing on January 16, 2003, along with other pending motions. (Order Setting Amended Pretrial Schedule, filed December 23, 2002 (dkt. no. 920).)
The plaintiffs' Renewed Motion for Remand was heard on January 16, 2003, and at that time the court, having reviewed the materials submitted by the parties and having heard and considered the arguments of counsel, denied the motion. (See Minute Entry, dated January 16-17, 2003 (dkt. no. 971).)
As this court explained at the January 16 hearing, the history of this case proves essential to an understanding of the issues underlying the Renewed Motion for Remand.
This action originated in two separate proceedings commenced by plaintiffs in this court and in state court. On October 1, 1999, plaintiffs filed a complaint in this court alleging claims under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et seq., against General Electric, ACF Industries, the Chevron/Texaco Defendants, three federal agencies and other defendants no longer present in this case, arising from groundwater contamination at the South Valley Site — a problem already the subject of ongoing CERCLA remediation activity undertaken by the U.S. Environmental Protection Agency (EPA), the State of New Mexico, and several of the named defendants. (State of New Mexico, et al. v. General Electric Company, et al., Civil No. CV 99-1118 (D.N.M. filed October 1, 1999).) On the same day, plaintiff State of New Mexico filed a complaint for damages against the same defendants (excluding the federal agencies) in the Second Judicial District Court of Bernalillo County, New Mexico, alleging a series of state law claims, including negligence, nuisance, trespass, "violation of public trust," strict liability for ultrahazardous activity, misrepresentation, and unjust enrichment, arising from the same groundwater contamination problem as was addressed in the plaintiffs' CERCLA complaint. (State of New Mexico, et al. v. General Electric Company, et al., Civil No. CV-99-09917 (2d Dist. Ct., N.M., filed October 1, 1999).) Paragraph 2 of the State of New Mexico's Original Complaint for Damages explained that:
2. This action is brought to redress the harm to the public welfare, health and environment of the State of New Mexico resulting from defendants' acts and omissions. The harm arises from the presence, migration and threat of further migration of hazardous chemical wastes and other substances from the operable units which comprise the South Valley Superfund Site (hereinafter referred to as the "Site") in Bernalillo County, New Mexico.
(Original Complaint for Damages, Civil No. CV-99-09917, at 2 ¶ 2.) Plaintiffs' original complaint filed in this court described itself in identical terms:
2. This action is brought to redress the harm to the public welfare, health and environment of the State of New Mexico resulting from defendants' acts and omissions. The harm arises from the presence, migration and threat of further migration of hazardous chemical wastes and other substances from the operable units which comprise the South Valley Superfund Site (hereinafter referred to as the "Site") in Bernalillo County, New Mexico.
(State of New Mexico's Original Complaint for Damages, Civil No. CV 99-1118 (dkt. no. 1), at 2 ¶ 2.)
On October 29, 1999, General Electric filed a notice of removal of the New Mexico state court proceeding to this court, commencing State of New Mexico, et al. v. General Electric Company, et al., Civil No. CV 99-1254 (D.N.M. filed October 29, 1999). A few weeks later, ACF Industries filed its own notice of removal of the same state proceeding, commencing State of New Mexico, et al. v. General Electric Company, et al., Civil No. CV 99-1470 (D.N.M., filed December 17, 1999). Both General Electric and ACF Industries relied upon (1) "federal officer" removal pursuant to 28 U.S.C. § 1442(a)(1); (2) "federal enclave" jurisdiction under 28 U.S.C. §§ 1331 and 1441(a); and (3) "complete preemption" of plaintiffs' state law claims, see, e.g., Schmeling v. NORDAM, 97 F.3d 1336 (10th Cir.1996).5 On February 4, 2000, ACF Industries moved to consolidate both removed cases, CV 99-1254 and CV 99-1470, for all purposes (dkt. no. 12 [99-1470]).
On March 15, 2000, plaintiffs filed a motion to remand and a supporting brief (dkt. no. 52) in CV 99-1254, asserting a lack of federal removal jurisdiction, and asking that their state law claims be remanded to state court. Defendants in turn filed a series of motions to dismiss plaintiffs' Original Complaint for Damages and to strike plaintiffs' claims for punitive damages and attorney's fees. Plaintiffs filed a similar remand motion in Civil No. CV 99-1470 (dkt. no. 31; filed April 6, 2000), preceded by a motion to strike ACF Industries' notice of removal (dkt. no. 27; filed January 18, 2000). The court calendared the motions for hearing on May 4, 2000.
On the eve of the May 4 hearing, plaintiffs filed a written Notice of Withdrawal (dkt. no. 83; filed May 3, 2000), stating that they were withdrawing several pending motions: (1) the State of New Mexico's motion for remand in Civil No. CV 99-1254; (2) the State of New Mexico's motion for remand in Civil No. CV 99-1470; and (3) the State of New Mexico's motion to strike ACF Industries' notice of removal in Civil No. CV 99-1470, as well as the State of New Mexico's memorandum in opposition to ACF Industries' motion to consolidate Civil Nos. CV 99-1254 and CV 99-1470.
Counsel for plaintiffs called the Notice of Withdrawal to this court's attention at the beginning of the May 4 hearing:
MR. BRANCH: Your Honor, with your indulgence, I would like to bring to the Court's attention some motions that have been withdrawn of recent origin, like yesterday, that probably have not caught up with the file.
* * * *
The plaintiffs are withdrawing the State of New Mexico motion for remand in opposition to ACF Industries, Inc. notice of removal and brief in support thereof. That was in the old 1470, which is 1254 now for your Honor.
Per your Honor's order, we are withdrawing the State of New Mexico's motion to strike and dismiss in the supporting brief, again, that was in 1470, which is now 1254, and the State of New Mexico's motion for remand and supporting brief in 1254, which is still...
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