Thigpen v. Cheminova, Inc.

• Decision Date: 28 August 1997
• Docket Number: No. Civ.A. 1:97CV50GR.,Civ.A. 1:97CV50GR.
• Citation: 992 F.Supp. 864
• Parties: Sylvia R. THIGPEN and d/b/a Merry-Go-Round Kindergarten and Nursery, Plaintiff, v. CHEMINOVA, INC., A Delaware Corporation, and Cheminova-Agro S/A, Dock Eatman and Paul Walls, Defendant.
• Court: U.S. District Court — Southern District of Mississippi

992 F.Supp. 864

Sylvia R. THIGPEN and d/b/a Merry-Go-Round Kindergarten and Nursery, Plaintiff, v. CHEMINOVA, INC., A Delaware Corporation, and Cheminova-Agro S/A, Dock Eatman and Paul Walls, Defendant.

No. Civ.A. 1:97CV50GR.

United States District Court, S.D. Mississippi, Southern Division.

August 28, 1997.

COPYRIGHT MATERIAL OMITTED

Elmer Louis Fondren, Jr., Fondren & Fondren, Pascagoula, MS, Judy M. Guice, Law Offices of Judy M. Guice, Biloxi, MS, for Plaintiff.

Jackson H. Ables, III, J. Price Coleman, David Malcolm McMullan, Jr., James Bassett Hurley, Jr., Daniel, Coker, Horton & Bell, Jackson, MS, for Defendants.

MEMORANDUM OPINION

GEX, District Judge.

This cause is before on the plaintiffs' amended motion to remand this case to state court [24-1]. After due consideration of the evidence of record, the briefs of counsel, the applicable law, and otherwise being fully advised in the premises, the Court finds, as set forth below, that the plaintiffs' motion should be granted.

Legal Analysis

The defendants invoke the subject matter jurisdiction of this Court pursuant to 28 U.S.C. §§ 1331, 1332 and 1441(b), the provisions for federal question, diversity, and removal jurisdiction.¹ "Federal courts are courts of limited jurisdiction having subject matter jurisdiction only over those matters specifically designated by the Constitution or Congress." Aetna Cas. & Sur. Co. v. Hillman, 796 F.2d 770, 773 (5th Cir.1986) (citation omitted). When an action is removed by a defendant to federal court, Congress has mandated that, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." See 28 U.S.C. § 1447(c). "When the plaintiff moves to remand for lack of jurisdiction, the burden of establishing original federal jurisdiction rests upon the defendant." Kidd v. Southwest Airlines, 891 F.2d 540, 543 (5th Cir.1990).

I. Federal Question Jurisdiction

Federal question jurisdiction arises when the allegations of the complaint are "founded on a claim or right arising under the Constitution, treaties or laws of the United States." See 28 U.S.C. §§ 1441(b), 1331 (emphasis added). Although there exists no set formulation that encompasses all factors relevant to determining whether an action "arises under" federal law, the test applied by the courts is the "well-pleaded complaint" rule. Kidd, 891 F.2d at 542.

Essentially, the well-pleaded complaint rule directs the court's jurisdictional inquiry to "what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose." Oklahoma Tax Comm'n v. Graham, 489 U.S. 838, 841, 109 S.Ct. 1519, 103 L.Ed.2d 924 (1989) (citations omitted). The cause of action set forth in the original complaint arises under federal law if (1) "some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims" or (2) "one of the claims is effectively one of federal law." Self-Insurance Inst. of Am., Inc. v. Korioth, 993 F.2d 479, 483 n. 6 (5th Cir.1993) (citation and internal quotation omitted; emphasis added).

A. Federal Insecticide, Fungicide, and Rodenticide Act [FIFRA]

In their complaint, the plaintiffs allege, inter alia, as follows:

11. The Defendants, and each of them, are guilty of the following acts of negligence, each of which was separate act of negligence and a proximate cause of the loss, damage, injury and suffering of the Plaintiff as hereinafter set forth.

a. Failure to advise the Plaintiff of the toxic and dangerous characteristics of the insecticide product containing methyl parathion;

b. Failing and omitting to place any warnings or sufficient warnings on their containers to warn Plaintiff and others of the dangers to health in coming in contact with said products containing methyl parathion;

c. Failing and omitting to take reasonable precautions or to exercise reasonable care to publish, adopt, and enforce a safety plan concerning exposure to said insecticide products;

d. Inadequately warning; if in fact they warned at all, Plaintiff and others of the dangers to her health in coming in contact with and breathing said products;

e. Failing to test and inspect said insecticide product containing methyl parathion in order to ascertain the dangers involved in their use;

f. Failing to remove the insecticide product from the market and/or develop alternative products for use as an insecticide upon ascertaining that the product was unreasonably dangerous and toxic and would cause permanent disease and injury to the body;

g. Failing to warn Plaintiff and others of the foreseeable danger of inhaling and being otherwise exposed to the insecticide product containing methyl parathion;

h. Failing to warn and provide a safe environment for the use of said insecticide product containing methyl parathion, if in fact, such a safe environment can be devised;

i. Failing to package the product in such a way that would restrict its use to outside applications;

j. Failing to include an odorant and/or dye that would restrict its use to outside applications;

k. Other acts of negligence to be shown at trial.

(Compl., ¶ 11(a-k).) The defendants contend that the instant controversy is completely preempted by the Federal Insecticide, Fungicide, and Rodenticide Act, § 24(b) [FIFRA], as amended, 7 U.S.C.A. § 136v(b), so that the plaintiffs' claims are removable pursuant to federal question jurisdiction, 28 U.S.C. § 1331. "[T]he complete preemption doctrine, when properly invoked, renders subject matter jurisdiction possible even where the federal question is raised as a defense and does not appear on the face of the complaint." Hyzer v. Cigna Property Cas. Ins. Co., 884 F.Supp. 1146, 1149 (E.D.Mich.1995). The Court finds, however that this is not a case where the doctrine of complete preemption has been properly invoked. The mere fact that the defendants raise federal preemption under FIFRA as an affirmative defense does not, standing alone, trigger federal question jurisdiction for purposes of removal. See 905 F.Supp. 512, 513; Martinez v. Dow Chemical Co., 1996 WL 502461, *2 (E.D.La., Sep.4, 1996); see also Hurt v. Dow Chemical Co., 963 F.2d 1142, 1145 (8th Cir.1992) (good federal preemption defense under FIFRA does not necessarily establish "complete preemption" sufficient to support removal jurisdiction).

The Court finds that the defendants' complete preemption argument actually "blurs the distinction between preemption and the creation of federal question jurisdiction." Murray v. Commonwealth Edison, 905 F.Supp. 512, 513 (N.D.Ill.1995) (distinguishing preemption of FIFRA claims and federal question jurisdiction based on well-pleaded complaint rule). The defendants quote extensively from Worm v. American Cyanamid Co., 5 F.3d 744 (4th Cir.1993). (Defs.' Resp. Br., pp. 15-18.) The lawsuit in Worm, however, was removed to federal court based on diversity jurisdiction, not federal question jurisdiction. See Worm v. American Cyanamid Co., 970 F.2d 1301, 1304 (4th Cir.1992). The analysis in Worm is therefore limited to the issue of preemption, not the separate issue arising in this case, i.e., whether federal question jurisdiction can be invoked by the defendants as a basis for removal. See Murray, 905 F.Supp. at 514. It follows that the defendants' reliance on MacDonald v. Monsanto Co., 27 F.3d 1021 (5th Cir.1994),² and King v. E.I. Dupont De Nemours and Co., 996 F.2d 1346 (1st Cir.1993), both preemption cases pursuant to federal diversity jurisdiction, is misplaced. See Defs.' Resp. Br., pp. 14-15, 18.³

The defendants further cite Hart, et al. v. Bayer Corporation, et al., 3:96cv414WS (S.D.Miss. October 28, 1996) (unpublished), for the proposition that the Court has federal question jurisdiction to support removal. The defendants in Hart, as in this case, contended that the FIFRA "completely preempts all of plaintiffs' claims, making this action removable to federal court ..." (Defs.' Resp. Br., Exh. B (Joint Notice of Removal), at p. 2.) The Hart defendants cited, and the district court relied in part on, Burge v. Jones, 1992 WL 415263, 61 USLW 2348 (S.D.Tex., Nov.18, 1992). See Defs.' Resp. Br., Exh. B (Joint Notice of Removal), at p. 2; (Conclusions of Law issued October 28, 1996), ¶ 2. As set forth below, the Court finds that Hart is not dispositive on the law of the Fifth Circuit with regard to whether claims preempted by FIFRA are removable on the basis of federal question jurisdiction.

As noted by the plaintiffs, the Southern District of Texas subsequently issued Rodriguez v. Shell Oil Co., 818 F.Supp. 1013 (S.D.Tex.1993), which takes a contrary position than the analysis in Hart.⁴ The Burge and Rodriguez decisions were rendered by different U.S. district judges. Unless the doctrine of res judicata or collateral estoppel applies, district judges are not bound by the decisions of other district judges. See TMF Tool Co., Inc. v. Muller, 913 F.2d 1185, 1191 (7th Cir.1990); see also Starbuck v. San Francisco, 556 F.2d 450, 457 n. 13 (9th Cir. 1977); Forward v. Cotton Petroleum Corp., 540 F.Supp. 122 (D.Colo.1982); Mueller v. Allen, 514 F.Supp. 998, 1001 (D.Minn.1981), aff'd, 676 F.2d 1195 (8th Cir.1982), aff'd, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983). It is the federal appellate courts, not federal district courts, that are charged with the responsibility for maintaining the uniformity of the law. TMF Tool, 913 F.2d at 1191.

After surveying Fifth Circuit case law, the Rodriguez court followed the analysis in Aaron v. National Union Fire Ins. Co. of Pittsburg, Pa., 876 F.2d 1157 (5th Cir.1989), cert. denied, 493 U.S. 1074, 110 S.Ct. 1121, 107 L.Ed.2d 1028 (1990), where a Fifth Circuit panel held that the Longshore and Harbor Workers' Compensation Act [LHWCA] did not completely preempt state law...