Strong v. Republic Servs., Inc.

• Decision Date: 20 October 2017
• Docket Number: Case No. 4:17CV1645JCH
• Citation: 283 F.Supp.3d 759
• Parties: Don STRONG, et al., Plaintiffs, v. REPUBLIC SERVICES, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

283 F.Supp.3d 759

Don STRONG, et al., Plaintiffs,

v.REPUBLIC SERVICES, INC., et al., Defendants.

Case No. 4:17CV1645JCH

United States District Court, E.D. Missouri, Eastern Division.

Signed October 20, 2017

Jonathan M. Soper, Kenneth B. McClain, Humphrey and Farrington, Independence, MO, for Plaintiffs.

Allyson Elisabeth Cunningham, Robert G. Rooney, William Garland Beck, Lathrop and Gage, LLP, Kansas City, MO, Patricia L. Silva, Lathrop and Gage, LLP, Clayton, MO, for Defendants.

MEMORANDUM AND ORDER

Jean C. Hamilton, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Plaintiffs' Motion for Remand.¹ (ECF 21). The matter is fully briefed and ready for disposition.

FACTUAL BACKGROUND

On May 4, 2017, Plaintiffs filed their Complaint in the Circuit Court of St. Louis County, Missouri (State court). (ECF 10 (Complaint)). As relevant to the pending Motion to Remand, Plaintiffs' Complaint alleges the following: The individual Plaintiffs are all extended members of the Boenker family, and are owners of the Boenker family farm, which lies directly adjacent to the Westlake Landfill and the Bridgton Landfill (jointly, the Landfills); Defendant Republic Systems, Inc., is and has been responsible for operating the Landfills; Defendant Bridgeton Landfill, LLC, owns the Landfills; in 1988, Defendant Westlake Landfill, Inc., changed its name to Laidlaw Waste Systems, Inc., and, in 1998, merged into Defendant Bridgeton Landfill, LLC; Defendant Allied Services, LLC, is the sole member of Defendant Bridgeton Landfill, LLC, and oversees the operation and management of the Landfills; Defendant Rock Road Industries, Inc., owns and/or owned the West Lake Landfill; Defendants Jared Romaine and David Vasbinder worked at the Bridgeton Landfill; and Plaintiffs are all citizens of Missouri and at least one Defendant is a citizen of Missouri. (ECF 10, ¶¶ 1, 31–37).

Plaintiffs further allege that "Defendants own[ed] and operat[ed] [the Landfills] which accepted radioactive waste without a license to do so"; that the "radioactive waste [ ] spread to the Boenker family farm causing personal injury, property damage, and the need for medical monitoring"; and that "Defendants have also so mismanaged the Landfills that an underground fire now burns out of control and threatens the nuclear waste." (ECF 10, ¶ 1). Further, in their Complaint, Plaintiffs allege that 40,000 tons of radioactive waste was accepted by the Landfills in 1973; that the radioactive waste came from Cotter Corporation's Latty Avenue site; that Cotter was a "known possessor of radioactive material at the time"; and that neither the Landfills' owner nor operator sought a license from the Nuclear Regulatory Commission (NRC) prior to accepting and receiving the radioactive material.

Additionally, Plaintiffs allege that Defendants have previously declared to this court that the Price Anderson Act (PAA), 42 U.S.C. § 2011 et seq. , does not apply to them because the Landfills were not licensed to accept or receive radioactive materials.² Plaintiffs contend that, because Defendants "were not licensed to accept or receive radioactive materials and have not entered an indemnification agreement concerning their acceptance of radioactive materials," the PAA does not apply to Plaintiffs' claims, Plaintiffs' claims "are not public liability actions" under the PAA, 42 U.S.C. § 2210, and Plaintiffs, therefore, may proceed in State court. (ECF 10, ¶¶ 40–41, 43–47). Plaintiffs seek a judgment against Defendants for compensatory and punitive damages caused by Defendants' alleged "intentional, reckless, and/or negligent conduct in owning, operating, and/or managing the [L]andfills." They also seek "Medical Monitoring." (ECF 10, ¶¶ 2, 111–113).

As further relevant to Plaintiffs' Motion to Remand, Defendants have submitted a copy of a Source Material License (the License or 1969 Source Material License) for uranium, issued to Cotter by the Atomic Energy Commission (AEC), on December 3, 1969. The License states that the "[a]uthorized place of use" was Cotter's facility located at 9200 Latty Avenue, Hazelwood, Missouri; that the "[m]aximum quantity of source material which [Cotter] [could] possess at any one time under [the] license [was] unlimited"; and that the License was to expire on December 31, 1974. (ECF 32.1).³ The License authorized Cotter "to receive, possess and import the [designated] source material [ ], to use such material for the purpose(s) and at the place(s) designated [ ], and to deliver or transfer such material to persons authorized to receive it in accordance with the regulations" of Title 10 of the Code of Federal Regulations, Chapter 1, Part 40. (ECF 32.1).

Defendants removed this matter from State court to federal court, on June 9, 2017, pursuant to 28 U.S.C. § 1331, contending that this Court has subject-matter jurisdiction over Plaintiffs' cause of action because it "arises under" federal law, in particular, the PAA, 42 U.S.C. §§ 2011 et seq. (ECF 1). In the pending Motion to Remand, Plaintiffs contend that this Court does not have subject-matter jurisdiction and they reiterate the allegations of their Complaint regarding the PAA's inapplicability to this matter. (ECF 21).

REMOVAL and FEDERAL SUBJECT MATTER JURISDICTION

Except as otherwise expressly provided by Congress, civil actions for which the district courts of the United State have original jurisdiction may be removed from state court to federal district court. 28 U.S.C. §§ 1441(a), 1446. A party opposing removal may file a motion to remand to state court. 28 U.S.C. § 1447(c). The party removing and opposing remand has the burden of establishing federal subject matter jurisdiction. Iowa Lamb Corp. v. Kalene Indus., Inc., 871 F.Supp. 1149, 1154 (N.D. Iowa 1994) ; In re Business Men's Assur. Co. of America, 992 F.2d 181, 183 (8th Cir. 1993) (per curiam). Upon considering a motion to remand, a district court is "required to resolve all doubts about federal jurisdiction in favor of remand." Business Men's Assurance , 992 F.2d at 183 (citing Steel Valley Auth. v. Union Switch & Signal Div. , 809 F.2d 1006, 1010 (3d Cir. 1987) ).

"The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams , 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (quoting Gully v. First Nat'l Bank , 299 U.S. 109, 112–113, 57 S.Ct. 96, 81 L.Ed. 70 (1936) ). See also Gaming Corp. of America v. Dorsey & Whitney , 88 F.3d 536, 542 (8th Cir. 1996) ("The ‘well-pleaded complaint rule’ requires that a federal cause of action must be stated on the face of the complaint before the defendant may remove the action based on federal question jurisdiction.") (quoting Caterpillar , 482 U.S. at 392, 107 S.Ct. 2425 ). Because federal law provides that plaintiffs are the "masters" of their claims, plaintiffs "may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar , 482 U.S. at 392, 107 S.Ct. 2425.

Even in situations where a cause of action based on a federal statute does not appear on the face of the complaint, preemption based on a federal statutory scheme may apply in circumstances where "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." Caterpillar , 482 U.S. at 393, 107 S.Ct. 2425 (internal quotation and citation omitted). See, e.g. , Metro. Life Ins. Co. v. Taylor , 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) (where a former employee alleged breach of contract, retaliatory discharge, and wrongful termination of disability benefits in state court complaint, the court held that the former employee's claims were preempted by the Employee Retirement and Income Security Act (ERISA); plaintiff's claims were necessarily federal in character; and, therefore, removal under 28 U.S.C. § 1441(a) was proper). "Where a complaint raises issues to which federal law applies with complete preemptive force, the [c]ourt must look beyond the face of the complaint in determining whether remand is proper." Green v. Arizona Cardinals Football Club, LLC , 21 F.Supp.3d 1020, 1025 (E.D. Mo. 2014). As further explained by the Eighth Circuit, the exception to the well-pleaded complaint rule applies where a federal statute provides "an exclusive cause of action for the claim asserted and also set[s] forth procedures and remedies governing that cause of action." Johnson v. MFA Petroleum Co. , 701 F.3d 243, 248 (8th Cir. 2012). Thus, although a plaintiff has only filed state law claims, a court may conclude that the plaintiff has "simply brought a mislabeled federal claim, which may be asserted under some federal statute." Johnson , 701 F.3d at 247 (internal quotation marks and citation omitted).

LEGAL FRAMEWORK

The Atomic Energy Act of 1954 (AEA), as amended, 42 U.S.C. §§ 2011 – 2281, "grew out of Congress' determination that the national interest would be best served if the Government encouraged the private sector to become involved in the development of atomic energy for peaceful purposes under a program of federal regulation and licensing." Pacific Gas and Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n , 461 U.S. 190, 206–207, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983). "[AEA] implemented this policy decision by providing for licensing of private construction, ownership, and operation of commercial nuclear power reactors." Id. at 207, 103 S.Ct. 1713 (citing Duke Power Co. v. Carolina Envtl. Study Grp., Inc. , 438 U.S. 59, 63, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978) ). In 1957, after it " ‘became apparent that profits from the private exploitation of atomic energy were uncertain and the accompanying risks substantial,’ " Congress amended the AEA with the PAA, 42 U.S.C. § 2011 et seq. ,"which provided certain federal...