Samples v. Conoco, Inc.

• Decision Date: 07 August 2001
• Docket Number: No. 3:01-CV-149/LAC.,3:01-CV-149/LAC.
• Citation: 165 F.Supp.2d 1303
• Parties: Bernice SAMPLES, et al., Plaintiffs, v. CONOCO, INC.; Agrico Chemical Company; and Escambia Treating Company, Inc., Defendants.
• Court: U.S. District Court — Northern District of Florida

165 F.Supp.2d 1303

Bernice SAMPLES, et al., Plaintiffs, v. CONOCO, INC.; Agrico Chemical Company; and Escambia Treating Company, Inc., Defendants.

No. 3:01-CV-149/LAC.

United States District Court, N.D. Florida.

August 7, 2001.

COPYRIGHT MATERIAL OMITTED

J. Michael Papantonio, Neil D. Overholtz, Levin, Papantonio, Thomas, Pensacola, FL, for plaintiffs.

Donald H. Partington, Jesse W. Rigby, Clark, Partington, Hart, Pensacola, FL, J.W. Frost, II, Frost & Saunders, Bartow, FL, for defendants.

ORDER GRANTING MOTION TO REMAND

COLLIER, District Judge.

THIS CAUSE comes before the Court on Plaintiffs' motion for remand and memorandum of law in support thereof (docs.19-20). Defendants timely filed a response (docs.24-25). For the reasons stated below, Plaintiffs' motion is GRANTED.

I. BACKGROUND

The history and events leading up to this lawsuit, well-publicized in the local media, need not be repeated here. Only minimal attention need be given to the factual background and procedural aspects of the case relevant to this Order.

On 15 February 1994, the United States, on behalf of the Environmental Protection Agency ("EPA"), filed a cost-recovery and cleanup action against Conoco, Inc. ("Conoco"), and Agrico Chemical Company ("Agrico") pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), Pub.L. No. 96-510, 94 Stat. 2767 (codified as amended at 42 U.S.C. § 9601 et seq.). See United States v. Agrico Chem. Co., No. 3:94-cv-30057/LAC, complaint (doc. 1) (N.D.Fla.). The Government filed suit to recover costs incurred by the EPA and the Department of Justice for response actions taken at the Agrico Chemical Company Superfund Site ("Agrico Chemical Site") located at the northwest corner of Fairfield Drive and Interstate 110 in Pensacola, Florida. The Government also sought to implement a remedial action for treatment of the contaminated soils located on the Agrico Chemical Site.

This Court entered a consent decree approving the EPA's selected remedial action on 3 May 1994.¹ See id. (consent decree (doc. 6)). In doing so, the Court retained jurisdiction over the lawsuit for the purpose of enabling any party to petition for any further relief necessary or appropriate for the construction or modification of the consent decree, to effectuate or enforce compliance with its terms, or to resolve disputes in accordance with the dispute resolution clause. The consent decree was amended on 10 March 1997. See id. (amendment to consent decree (doc. 26)). This amendment approved a second remedial action designed to monitor groundwater conditions as natural attenuation, flushing and dispersion of contaminants from the Agrico Chemical Site occur.²

The EPA has also investigated Escambia Treating Company ("Escambia Treating").³ As a result, the EPA initiated various enforcement, removal, and interim actions. In 1988, the United States, on behalf of the EPA, filed a complaint against Escambia Treating and nine additional parties seeking injunctive relief and penalties under the Resource Conservation and Recovery Act of 1976, Pub.L. No. 94-580, 90 Stat. 2795 (current version codified as amended in scattered sections of 42 U.S.C.). See United States v. Escambia Treating Co., No. 3:88-cv-30328/RV, 1990 EPA Consent LEXIS 300, at *1 (N.D.Fla. Dec. 20, 1990). District Judge Roger Vinson entered a consent decree approving a settlement in that case on 20 December 1990.

In addition, the EPA excavated approximately 220,000 cubic yards of contaminated soil between 1991 and 1992. The soil was piled up to form a large mound, which is known by many local residents as "Mount Dioxin." The mound is covered by a black tarp and held down with ropes and concrete weights. In 1994, the Escambia Treating Company Superfund Site ("Escambia Treating Site") was placed on the National Priorities List. See 40 C.F.R. pt. 300 app. B, at 210 (2000) (designated as "Escambia Wood-Pensacola"); National Priorities List for Uncontrolled Hazardous Waste Sites, 59 Fed.Reg. 65,206 (Dec. 16, 1994).

Between April and June 1995, the Agency for Toxic Substances and Disease Registry conducted a public health assessment. See Quarterly Public Health Assessments Completed, 60 Fed.Reg. 55,271 (Oct. 30, 1995). Due to concerns over potential health problems related to the Escambia Treating Site and Mount Dioxin, the EPA selected Escambia Treating as a pilot relocation site. See National Superfund Permanent Relocation Interim Policy, 64 Fed. Reg. 37,012 (July 8, 1999). This relocation pilot was used to provide guidance to EPA regional decision-makers on "when to consider permanent relocation of residents and businesses living near or on National Priorities List (NPL) sites as part of a Superfund remedial action." Id. "On February 12, 1997, a record of decision (ROD) was issued for the permanent relocation of 358 households. The [EPA] made a decision to relocate the residences and clean up the properties to levels that are protective for industrial use."⁴ Id. To date, the Government has not filed suit against any potentially responsible party to recover costs incurred by the EPA for response actions taken at the Escambia Treating Site.

On 23 March 2001, Plaintiffs filed this class-action lawsuit in state court against Conoco, Agrico, and Escambia Treating, alleging trespass (Count I), private nuisance (Count II), and strict liability (Count III).⁵ Plaintiffs seek to recover damages, including restoration costs, allegedly arising from environmental contamination associated with the industrial facilities owned and operated by each defendant. On 16 April 2001, Defendants filed a notice of removal pursuant to 28 U.S.C. § 1446(a). Plaintiffs now move to remand. They argue this case should be remanded back to state court because the Court lacks subject matter jurisdiction over their lawsuit. Consequently, the Court must examine one of the most fundamental principles of law.

II. DISCUSSION

A. Subject Matter Jurisdiction

Subject matter jurisdiction is the legal authority of a court to hear and decide a particular type of case. Federal courts have limited subject matter jurisdiction. They may exercise jurisdiction only if it is specifically authorized by Congress. For example, district courts of the United States have original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C.A. § 1331 (West 1993). This statutory authority is commonly referred to as federal question jurisdiction. District courts also have original jurisdiction over "all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between" citizens of different states. Id. § 1332(a)(1) (West 1993 & Supp.2001). This provision is frequently referred to as diversity jurisdiction.

A civil action filed in state court may be removed to federal court by the defendant, so long as the federal court has original jurisdiction over the subject matter. Id. § 1441(a) (West 1994). Thus, a defendant can remove any civil action filed in state court provided federal question or diversity jurisdiction exists. If federal question jurisdiction exists, an action "shall be removable without regard to the citizenship or residence of the parties." Id. § 1441(b). If diversity jurisdiction exists, an action "shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." Id. "[A] plaintiff cannot defeat removal merely by naming a non-diverse defendant; that defendant also has to be `properly joined and served' for removal to be barred." Gilberg v. Stepan Co., 24 F.Supp.2d 325, 330 (D.N.J.1998).

B. Analysis

Defendants maintain the Court can exercise jurisdiction over this case. First, they argue federal question jurisdiction exists because Plaintiffs' state-law claims arise under federal law. Second, they insist the Court should exercise removal powers under the All Writs Act, 28 U.S.C. § 1651. Third, the Defendants claim diversity jurisdiction exists because the Plaintiffs have fraudulently joined Escambia Treating as a non-diverse defendant. Finally, they contend removal is appropriate solely to determine whether or not the complaint states a cause of action under section 4 of the Price-Anderson Act, which is incorporated into the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq.

1. Federal Question Jurisdiction

The well-pleaded complaint rule guides the determination of whether an action arises under federal law. Under this rule, a case may be removed based on federal question jurisdiction "`only when the plaintiff's statement of his own cause of action shows that it is based' on federal law." Blab T.V. of Mobile, Inc. v. Comcast Cable Communications, Inc., 182 F.3d 851, 854 (11th Cir.1999) (quoting Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908)). "[A] case may not be removed to federal court on the basis of 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 Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 14, 103 S.Ct. 2841, 2848, 77 L.Ed.2d 420 (1983). "In short, the plaintiff is the `master of the claim' and may prevent removal by choosing not to plead an available federal claim." Blab T.V., 182 F.3d at 854 (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987)).

If state law creates the cause of action, the case "might still `arise under' the laws of the United States if a wellpleaded complaint established that [the] right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties." Franchise Tax Bd.,...