Respondents Brief — Chevron Corporation, et al., Petitioners v. City of Hoboken, New Jersey, et al.

Supreme Court briefMar 31, 2023

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No. 22-821

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------CHEVRON CORPORATION, ET AL.,

Petitioners,

v.

CITY OF HOBOKEN, NEW JERSEY, ET AL.,

Respondents.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

---------------------------------♦--------------------------------RESPONDENT CITY OF HOBOKEN’S

BRIEF IN OPPOSITION

---------------------------------♦--------------------------------GERALD KROVATIN

HELEN A. NAU

KROVATIN NAU LLC

60 Park Place, Suite 1100

Newark, NJ 07102

(973) 424-9777

MATTHEW D. BRINCKERHOFF

Counsel of Record

JONATHAN S. ABADY

VIVAKE PRASAD

MAX SELVER

EMERY CELLI BRINCKERHOFF

ABADY WARD & MAAZEL LLP

600 Fifth Avenue, 10th Floor

New York, NY 10020

(212) 763-5000

mbrinckerhoff@ecbawm.com

Counsel for Respondent

City of Hoboken, New Jersey

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether Respondent’s suit, pleading only statelaw claims, may be removed to federal court on the

basis of an ordinary preemption defense, notwithstanding the well-pleaded complaint rule.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

TABLE OF AUTHORITIES .................................

iii

BRIEF IN OPPOSITION .....................................

1

STATEMENT OF THE CASE..............................

5

REASONS FOR DENYING THE PETITION ...... 10

I.

There Is No Circuit Conflict On the Question of Whether Respondent’s Well-Pleaded

State-Law Claims Are Removable .............. 11

A. There Is No Circuit Split Over When a

State-Law Claim “Arises Under” Federal Law For Removal Purposes .......... 12

B. There Is No Conflict With City of New

York v. Chevron Corp. .......................... 19

II.

The Question Presented Does Not Warrant

Review ........................................................ 23

III.

The Decision Below Is Correct .................. 25

CONCLUSION .......................................................

37

iii

TABLE OF AUTHORITIES

Page

CASES

American Electric Power Co. v. Connecticut, 564

U.S. 410 (2011) .................................................. 30, 34

Atl. Richfield Co. v. Christian, 140 S. Ct. 1335

(2020) ................................................................... 3, 32

Banco Nacional de Cuba v. Sabbatino, 376 U.S.

398 (1964) ................................................................29

Bd. of Cnty. Commissioners of Boulder Cnty. v.

Suncor Energy (U.S.A.) Inc., 25 F.4th 1238

(10th Cir. 2022), petition for cert. filed, No. 211550 (2022) .......................................... 4, 5, 21, 22, 25

Bender v. Williamsport Area Sch. Dist., 475 U.S.

534 (1986) ..................................................................1

Beneficial Nat’l Bank v. Anderson, 539 U.S. 1

(2003) ..................................................................... 7, 8

Bernhard v. Whitney Nat’l Bank, 523 F.3d 546

(5th Cir. 2008)..........................................................14

BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) .......30

Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor

Energy (U.S.A.) Inc., 405 F. Supp. 3d 947 (D.

Col. 2019) .................................................................16

California v. BP P.L.C., Nos. C 17-06011, C 1706012, 2018 WL 1064293 (N.D. Cal. Feb. 27,

2018) ........................................................................10

Caterpillar Inc. v. Williams,

482 U.S. 386 (1987) ........ 1, 2, 7, 21, 23, 26, 30, 31, 33

iv

TABLE OF AUTHORITIES—Continued

Page

Charles Dowd Box Co., Inc. v. Courtney, 368 U.S.

502 (1962) ................................................................21

City of Hoboken v. Chevron Corp., 45 F.4th 699

(3d Cir. 2022) ..................................................... 10, 19

City of Hoboken v. Exxon Mobil Corp., 558

F. Supp. 3d 191 (D.N.J. 2021) ............................ 10, 19

City of Milwaukee v. Illinois & Michigan, 451

U.S. 304 (1981) ........................................................30

City of New York v. Chevron Corp., 993 F.3d 81

(2d Cir. 2021) ..................................................8, 19-23

City of Oakland v. BP PLC, 969 F.3d 895

(9th Cir. 2020), reh’g denied, No. 18-16663

(Aug. 12, 2020), cert. denied, 141 S. Ct. 2776

(2021) ........................................................ 4, 10-12, 24

Connecticut v. Exxon Mobil Corp., No. 3:20 Civ.

1555, 2021 WL 2389739 (D. Conn. June 2,

2021) .................................................................. 11, 20

County of San Mateo v. Chevron Corp., 294

F. Supp. 3d 934 (N.D. Cal. 2018), aff’d, 960

F.3d 586 (9th Cir. 2020), vacated, 141 S. Ct.

2666 (2021) ..............................................................11

County of San Mateo v. Chevron Corp., 32 F.4th

733 (9th Cir. 2022), reh’g denied, Nos. 1815499, 18-15502, 18-15503, 18-16376 (June

27, 2022) ..................................................................10

Delaware ex rel. Jennings v. BP Am. Inc., 578

F. Supp. 3d 618 (D. Del. Jan. 5, 2022) .....................10

v

TABLE OF AUTHORITIES—Continued

Page

Empire HealthChoice Assur., Inc. v. McVeigh,

396 F.3d 136 (2d Cir. 2005), aff’d, 547 U.S. 677

(2006) ........................................................... 21, 32, 33

Federated Dep’t Stores, Inc. v. Moitie, 452 U.S.

394 (1981) ................................................................29

Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1 (1983) ............... 2, 26

Grable & Sons Metal Prods., Inc. v. Darue Eng’g

& Mfg., 545 U.S. 308 (2005) ............. 3, 4, 7, 9, 12, 13,

.............................................. 15-19, 23, 24, 27, 31, 32

Great Lakes Gas Transmission Ltd. P’ship v. Essar Steel Minn. LLC, 843 F.3d 325 (8th Cir.

2016) ........................................................................18

Greer v. Fed. Express, 66 F. Supp. 2d 870 (W.D.

Ky. 1999) ..................................................................16

Gunn v. Minton, 568 U.S. 251 (2013) .... 9, 12, 27, 31-33

Holmes Grp., Inc. v. Vornado Air Circulation

Sys., Inc., 535 U.S. 826 (2002) .................................26

Home Depot U. S. A., Inc. v. Jackson, 139 S. Ct.

1743 (2019) ........................................................ 26, 31

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) .......29

In re Otter Tail Power Co., 116 F.3d 1207 (8th

Cir. 1997) ........................................................... 16-19

Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987) .........29

Kansas v. Colorado, 206 U.S. 46 (1907) ......................29

Keeton v. Hustler Mag., Inc., 465 U.S. 770 (1984) ......35

vi

TABLE OF AUTHORITIES—Continued

Page

Louisville & Nashville R.R. Co. v. Mottley, 211

U.S. 149 (1908) ................................................ 2, 3, 33

Massachusetts v. Exxon Mobil Corp., 462

F. Supp. 3d 31 (D. Mass. 2020) ................................11

Mayor & City Council of Balt. v. BP P.L.C., 31

F.4th 178 (4th Cir. 2022), reh’g denied, No. 191644 (May 17, 2022) ................................................10

Mayor & City Council of Balt. v. BP P.L.C., 388

F. Supp. 3d 538 (D. Md. 2019), aff’d, 31 F.4th

178 ..................................................................... 10, 22

Merrell Dow Pharm. Inc. v. Thompson, 478 U.S.

804 (1986) .......................................................... 31, 35

Merrill Lynch, Pierce, Fenner & Smith Inc. v.

Manning, 578 U.S. 374 (2016)..... 3, 27, 32, 34, 35, 36

Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 (1987) ........26

Minnesota v. Am. Petroleum Inst., No. 20 Civ.

1636, 2021 WL 1215656 (D. Minn. Mar. 31,

2021), aff’d, No. 21-1752, 2023 WL 2607545

(8th Cir. Mar. 23, 2023) ........................ 10, 11, 17, 18

Mitchell v. Bailey, 982 F.3d 937 (5th Cir. 2020) .........13

National Farmers Union Insurance Cos. v. Crow

Tribe of Indians, 471 U.S. 845 (1985) .....................28

New SD, Inc. v. Rockwell Int’l Corp., 79 F.3d 953

(9th Cir. 1996)............................................................8

Newton v. Capital Assurance Co., Inc., 245 F.3d

1306 (11th Cir. 2001) ...............................................18

vii

TABLE OF AUTHORITIES—Continued

Page

Republic of Philippines v. Marcos, 806 F.2d 344

(2d Cir. 1986) ...........................................................19

Rhode Island v. Chevron Corp., 393 F. Supp. 3d

142 (D.R.I. 2019), aff’d, 979 F.3d 50 (1st Cir.

2020) ........................................................................10

Rhode Island v. Shell Oil Prods. Co., 35 F.4th 44

(1st Cir. 2022), reh’g denied, No. 19-1818 (July

7, 2022) .............................................................. 10, 22

Rivet v. Regions Bank of Louisiana, 522 U.S. 470

(1998) ........................................................... 27, 29, 33

Sam L. Majors Jewelers v. ABX, Inc.,

117 F.3d 922 (5th Cir. 1997) ...........................8, 13-16

Shell Oil Prods. Co. v. Rhode Island, 141 S. Ct.

2666 (2021) ..............................................................11

Synfuel Techs., Inc. v. DHL Express (USA), Inc.,

463 F.3d 646 (7th Cir. 2006) ....................................16

Tafflin v. Levitt, 493 U.S. 455 (1990) .................... 21, 35

Texas Indus., Inc. v. Radcliff Materials, Inc., 451

U.S. 630 (1981) .................................................... 8, 30

Torres v. Southern Peru Copper Corp., 113 F.3d

540 (5th Cir. 1997)....................................... 15, 16, 19

United States v. Pink, 315 U.S. 203 (1942) .................29

Vaden v. Discover Bank, 556 U.S. 49 (2009) ........... 2, 33

Venable v. La. Workers’ Comp. Corp., 740 F.3d

937 (5th Cir. 2013) ...................................................13

viii

TABLE OF AUTHORITIES—Continued

Page

STATUTES

28 U.S.C. § 1331 ...................................................... 6, 28

28 U.S.C. § 1332(d) ........................................................6

28 U.S.C. § 1441 ..........................................................26

28 U.S.C. § 1442 ............................................................6

43 U.S.C. § 1349(b) ........................................................6

Class Action Fairness Act of 2005, Pub. L. No.

109-2, § 5, 119 Stat. 4 ..............................................36

OTHER AUTHORITIES

15A Charles Alan Wright & Arthur R. Miller,

Federal Practice & Procedure § 3914.11.1 (2d

ed. 2021) ..................................................................36

Answering Br. for Defendants-Appellees, Native

Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d

849 (9th Cir. 2012) (No. 09-17490) ..........................27

Brief for the United States as Amicus Curiae,

Suncor Energy (U.S.A.) Inc., et al., v. Bd. of Cty.

Comm’rs of Boulder Cty., et al., No. 21-1550

(Mar. 16, 2023) .........................................................25

1

BRIEF IN OPPOSITION

“Federal courts are not courts of general jurisdiction.” Bender v. Williamsport Area Sch. Dist., 475 U.S.

534, 541-42 (1986). Yet Petitioners seek the Court’s intervention to remove this case to the federal courts, so

that they can avoid the ordinary fate of appearing in

New Jersey state court to answer to exclusively New

Jersey state-law claims, arising from a course of conduct spearheaded by a New Jersey corporation, resulting in damages suffered in New Jersey by a New

Jersey plaintiff. Petitioners’ only proffered basis for removal is the hollow allegation that Respondent’s statelaw claims—brought under New Jersey tort law and a

New Jersey consumer fraud statute—are really “artfully pleaded” federal claims in disguise. Because Petitioners fail to identify a federal statute providing for

complete preemption or a substantial federal issue

that must be resolved for Respondent to prove the

elements of its state-law claims, the petition should be

denied.

Petitioners’ theory is itself an “artfully pleaded”

ordinary preemption defense in disguise. It cannot provide a basis for federal jurisdiction. Ordinary preemption is a defense available when incompatible federal

and state laws regulate the same actions. A defendant

may raise it to attempt to defeat a state-law claim in

state court, but not to remove that state-law claim to

federal court.

This is because Respondent, the City of Hoboken,

is the master of its complaint. See Caterpillar Inc. v.

2

Williams, 482 U.S. 386, 392 (1987). Hoboken has the

right to bring New Jersey state-law claims in New Jersey state court, including against a New Jersey company—Exxon Mobil. That right is not extinguished by

Petitioners’ assertion of an ordinary federal preemption defense. “[S]ince 1887 it has been settled law that

a case may not be removed to federal court on the basis

of a federal defense, including the defense of preemption, 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

Tr. for S. Cal., 463 U.S. 1, 14 (1983).

Petitioners do not articulate any legitimate constitutional or statutory basis for the removal of Respondent’s state-law claims. Under the well-pleaded

complaint rule, the question of whether a state-law

claim is preempted by federal law belongs in state

court. “A suit ‘arises under’ federal law ‘only when the

plaintiff ’s statement of his own cause of action shows

that it is based upon federal law.’ ” Vaden v. Discover

Bank, 556 U.S. 49, 60 (2009) (quoting Louisville &

Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908))

(cleaned up).

The complete preemption doctrine establishes the

test to determine whether a state-law claim may be

treated, for removal purposes, as a federal claim despite the requirements of the well-pleaded complaint

rule. See Caterpillar, 482 U.S. at 393. Petitioners do

not challenge the Third Circuit’s holding that Respondent’s claims are not completely preempted by a

3

federal statute, an argument they waived in the lower

courts. And they do not even attempt to cite a single

federal law that would be so much as implicated by Respondent’s state-law claims.

Nor do Petitioners identify a substantial federal

question that must be resolved for Respondent to prove

the elements of its state-law claims, under the doctrine

established by Grable & Sons Metal Products, Inc. v.

Darue Engineering & Manufacturing, 545 U.S. 308

(2005). The Grable test cannot be satisfied because no

issue of federal common law appears in Respondent’s

own “statement” of its claims, as Grable and the wellpleaded complaint rule require. Mottley, 211 U.S. at

152; see Grable, 545 U.S. at 314-15. None of Respondent’s state-law claims “rises or falls on [Respondent’s]

ability to prove the violation of a federal duty.” Merrill

Lynch, Pierce, Fenner & Smith Inc. v. Manning, 578

U.S. 374, 383 (2016). And a defense, even one that requires construction of federal law, is not sufficient for

Grable removal. See Atl. Richfield Co. v. Christian, 140

S. Ct. 1335, 1350 n.4 (2020) (“federal jurisdiction” under Grable “cannot be predicated on an actual or anticipated defense”) (cleaned up).

Left without any basis for removal under the doctrines of complete preemption or Grable, Petitioners

ask this Court to hold that Respondent’s state-law

claims are removable on the spurious ground that

those claims are “necessarily and exclusively” governed by federal law because they are “interstate and

international.” This new category of claims is a fiction

concocted by Petitioners to pass off ordinary

4

preemption under another name. Outside of complete

preemption and Grable, there is no “necessary and exclusively federal” exception to the well-pleaded complaint rule. Petitioners ask the Court to create an

entirely new doctrine of original and exclusive federal

jurisdiction over all claims asserted against corporations with “interstate or international” operations,

even when they engage in conduct actionable only under state law.

Were Petitioners to succeed, whole swaths of laws

of all fifty states will be nullified, and state courts will

be stripped of their historical co-equal jurisdiction,

only because Petitioners do not want to answer in state

courts for their state-law violations.

With the law clearly settled against Petitioners, it

should not surprise this Court that, contrary to their

manufactured claims of a circuit split, Petitioners’ argument has been rejected by every court of appeals to

consider it. This Court recently denied certiorari in another case seeking review of the same theory. See Chevron Corp. v. City of Oakland, No. 20-1089.

Unable to identify any reason for a different result here, Petitioners point out that this Court recently invited the Solicitor General to express the

views of the United States in Suncor Energy (U.S.A.)

Inc. v. Bd. of Cnty. Comm’rs of Boulder Cnty., No. 211550, a case they concede “presents the same issues”

as their petition in this case.1 On March 16, 2023,

On the grounds that both petitions concern “the same issues,” Petitioners requested their petition to be held pending the

1

5

the Solicitor General filed the United States’ brief in

Suncor, rejecting the same arguments Petitioners

make here. The United States expressed its view that

the Suncor petition should be denied, because, in that

case, “[t]he court of appeals . . . correctly declined to

recharacterize respondents’ state-law claims, and its

decision does not conflict with any decision of another

court of appeals.” That conclusion applies with equal

force here.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

1. Respondent City of Hoboken, a New Jersey

municipality, filed this suit, seeking monetary relief for

injuries it has sustained as a result of Petitioners’ decades-long campaign of deception about the impact of

fossil fuels on the climate, in New Jersey state court,

asserting exclusively state-law claims. Petitioners

have known about and studied the potential harms

from fossil fuel usage since the 1950s. Pet. App. 39a;

JA. 79-93. Decades later, Petitioners—led by a New

Jersey corporation, Exxon—created front groups with

neutral names to promote climate science denial and

disinformation campaigns, as part of an effort to actively suppress evidence of the effects of fossil fuel

emissions. Pet. App. 39a; JA. 93-112.

disposition of Suncor. Curiously, Petitioners state their petition

should be granted even if the Suncor petition is denied. Petitioners fail to explain why they should have it both ways. If the petition in Suncor is denied, this petition should be denied as well.

6

Despite knowing their products caused substantial harm, Petitioners misled consumers for decades

about the risks of continued dependence on their

products. Pet. App. 39a; JA. 93-112. While Petitioners

were engaged in their disinformation campaign, they

were actively making business plans that accounted

for rising sea levels and warming temperatures due to

climate change. Pet. App. 39a; JA. 112-115.

Petitioners’ deception has caused lasting harm to

Hoboken. Pet. App. 40a; JA. 132-133. This damage includes an increased frequency of flooding in the city,

which requires large-scale and long-term remediation

efforts. JA. 133-134. Hoboken has already been forced

to expend hundreds of millions of dollars after damage

caused by extreme rainfall events, including Hurricane

Irene and Superstorm Sandy, but a fully comprehensive solution is beyond its means. Id. Petitioners’ deceptions are the cause of Respondent’s need to invest

in its substantial, yet incomplete, remediation plans.

Id.

Petitioners removed the case to federal court. In a

168-page notice of removal, Petitioners asserted several grounds for removal, including federal question,

28 U.S.C. § 1331; jurisdiction under the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1349(b);

federal officer removal, 28 U.S.C. § 1442; and the Class

Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). Pet.

8; Pet. App. 41a. Petitioners argued that the case was

removable because the suit, although pleading only

state-law claims, fell within the district court’s federal

7

question jurisdiction because it was, in their view, really a federal common law claim. Pet. App. 47a.

The district court held that none of the grounds for

removal was valid and remanded the case to state

court.

2.

The Third Circuit affirmed.

a. The court explained that a case pleading only

state-law claims can be removed to federal court only

if the Petitioners “show either that these state claims

are completely preempted by federal law or that some

substantial federal issue must be resolved.” Pet. App.

22a-23a (citing Caterpillar, 482 U.S. at 393; Grable,

545 U.S. at 313–14).

The Third Circuit took note of the rule that “[i]f

plaintiffs say their claims are state-law claims, we almost always credit that . . . because plaintiffs are ‘the

master[s] of the[ir] claim[s].’ ” Pet. App. 23a (quoting

Caterpillar, 482 U.S. at 392). A plaintiff can avoid

federal jurisdiction by exclusive reliance on state

law, because plaintiffs “choose to sue, so they choose

why.” Id.

The Third Circuit noted an exception to this rule

under the “complete preemption” doctrine, a rarelyapplied principle that has been recognized by this

Court only three times. Pet. App. 23a-24a (citing Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6–8, 10–11

(2003)). Complete preemption is “a potent jurisdictional fiction” that “lets courts recast a state-law

claim as a federal one” for removal to federal court. Id.

8

A state-law claim is completely preempted “only

when there is (1) a federal statute that (2) authorizes

federal claims ‘vindicating the same interest as the

state claim.’ ” Id. (citation omitted). Respondent’s

claims were not completely preempted, because

“[u]nsurprisingly,” Petitioners “cannot cite an applicable statute that passes this test.” Id.

b. Applying these principles, the Third Circuit

held that Petitioners’ attempt at removal was meritless.

The court rejected Petitioners’ argument seeking

“a new form of complete preemption, one that relies not

on statutes but federal common law.” Id. In doing so, it

noted the “fatal flaw” exposing Petitioners’ commonlaw preemption gambit: their reliance on a garden-variety preemption case instead of a complete preemption

case they would need to justify removal. Id. (citing Tex.

Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641

(1981)). The court found that Petitioners’ other authorities were inapposite, including a case concerning “another ordinary preemption defense to a case first filed

in federal court” (City of New York v. Chevron Corp.,

993 F.3d 81, 90–94 (2d Cir. 2021)); and cases that relabeled state common law claims as federal, but are no

longer good law (Sam L. Majors Jewelers v. ABX, Inc.,

117 F.3d 922, 924, 926–29 (5th Cir. 1997); New SD, Inc.

v. Rockwell Int’l Corp., 79 F.3d 953, 955 (9th Cir.

1996)). Pet. App. 24a-25a. As a result, Petitioners could

not overcome “the only basis for recharacterizing a

state-law claim as a federal claim” for removal—“because the oil companies have no statute, they have no

9

removal jurisdiction either.” Id. In other words, the current petition fails to identify a statute that would justify complete preemption.

The court also held that removal was not justified

on the grounds of a substantial federal question, since

Respondent has not pleaded a state-law claim which

requires resolving any substantial federal issue. Id. at

26a (citing Grable, 545 U.S. at 313–14; Gunn v. Minton,

568 U.S. 251, 258 (2013)). Because the only “federal issue that the oil companies identify is whether federal

common law governs these claims,” the court found

that their Grable argument was simply a rehash of

their common-law preemption argument—“the same

wolf in a different sheep’s clothing.” Id. Since ordinary

preemption is a defense, and “[d]efenses are not the

kinds of substantial federal questions that support federal jurisdiction,” an ordinary preemption argument

could not support Grable removal. Id. Besides, the

court concluded, Grable could not be satisfied because

it requires that to “prove some element of a state-law

claim, the plaintiff had to win on an issue of federal

law,” and there was no such circumstance here. Id.

3. Petitioners sought rehearing en banc, which

was denied. Id. at 109a-111a.

---------------------------------♦---------------------------------

10

REASONS FOR DENYING THE PETITION

Petitioners insist that Respondent’s state-law

claims arise under federal law, even though they fail to

invoke any federal common law doctrine currently in

force, any statute that completely preempts Respondent’s state-law claims, or a substantial federal question

that Respondent must prevail on to prove the elements

of its state-law claims. As Petitioners acknowledge, no

circuit has accepted their argument. Every circuit that

has considered it has now rejected it.2 The more than

twenty judges who have now passed on Petitioners’

theory have been nearly unanimous; only one judge

has accepted it, and that district court ruling was

unanimously overturned on appeal.3

See Minnesota v. Am. Petroleum Inst., No. 21 Civ. 1752, 2023

WL 2607545 (8th Cir. Mar. 23, 2023); Rhode Island v. Shell Oil

Prods. Co., 35 F.4th 44, 53-56 (1st Cir. 2022), reh’g denied, No. 191818 (July 7, 2022); Cnty. of San Mateo v. Chevron Corp., 32 F.4th

733, 746-48 (9th Cir. 2022), reh’g denied, Nos. 18-15499, 18-15502,

18-15503, 18-16376 (June 27, 2022); Mayor & City Council of Balt.

v. BP P.L.C., 31 F.4th 178, 199-208 (4th Cir. 2022), reh’g denied,

No. 19-1644 (May 17, 2022); City of Oakland v. BP PLC, 969 F.3d

895, 906-07 (9th Cir. 2020), reh’g denied, No. 18-16663 (Aug. 12,

2020), cert. denied, 141 S. Ct. 2776 (2021).

3

See California v. BP P.L.C., Nos. C 17-06011, C 17-06012,

2018 WL 1064293 (N.D. Cal. Feb. 27, 2018), rev’d, City of Oakland

v. BP PLC, 969 F.3d 895. For judges rejecting the theory see supra

n.2; Pet. App. 47a-51a, City of Hoboken v. Exxon Mobil Corp., 558

F. Supp. 3d 191, 201-03 (D.N.J. 2021), aff ’d, City of Hoboken v.

Chevron Corp., 45 F.4th 699 (3d Cir. 2022); Delaware ex rel. Jennings v. BP Am. Inc., 578 F. Supp. 3d 618, 627-34 (D. Del. Jan. 5,

2022), aff ’d, City of Hoboken v. Chevron Corp., 45 F.4th 699 (3d

Cir. 2022); Mayor & City Council of Balt. v. BP P.L.C., 388 F. Supp.

3d 538, 553-58 (D. Md. 2019), aff ’d, 31 F.4th 178; Rhode Island v.

Chevron Corp., 393 F. Supp. 3d 142, 148-50 (D.R.I. 2019), aff ’d,

2

11

Because Petitioners’ question presented defies an

area of settled Supreme Court law, and the courts of

appeals are unified in rejecting it, this Court should

follow its recent decision in Oakland, where it was presented with this same theory, and deny the petition.

See Chevron Corp. v. City of Oakland, No. 20-1089.

I.

There Is No Circuit Conflict On the Question of Whether Respondent’s Well-Pleaded

State-Law Claims Are Removable.

Unable to claim a circuit split on the straightforward question of whether state-law claims over their

deceptions are removable, Petitioners attempt to manufacture two subsidiary splits that might justify certiorari. Both, however, are a mirage because no circuit

agrees with Petitioners on the only question that matters for the outcome of their petition—whether Respondent’s state-law claims are removable.

979 F.3d 50 (1st Cir. 2020), vacated, Shell Oil Prods. Co. v. Rhode

Island, 141 S. Ct. 2666 (2021); County of San Mateo v. Chevron

Corp., 294 F. Supp. 3d 934, 937-38 (N.D. Cal. 2018), aff ’d, 960 F.3d

586 (9th Cir. 2020), vacated, 141 S. Ct. 2666 (2021); Minnesota v.

Am. Petroleum Inst., No. 20 Civ. 1636, 2021 WL 1215656, at *5-6

(D. Minn. Mar. 31, 2021), aff ’d, No. 21-1752, 2023 WL 2607545

(8th Cir. Mar. 23, 2023); Connecticut v. Exxon Mobil Corp., No. 3:20

Civ. 1555, 2021 WL 2389739, at *4-7 (D. Conn. June 2, 2021); Massachusetts v. Exxon Mobil Corp., 462 F. Supp. 3d 31, 41-44 (D.

Mass. 2020).

12

A. There Is No Circuit Split Over When a

State-Law Claim “Arises Under” Federal Law For Removal Purposes.

Petitioners allege a “widespread conflict of federal

law among the courts of appeals” on the recognition of

“federal jurisdiction over claims necessarily and exclusively governed by federal law but labeled as arising

under state law.” Pet. 17. The Petitioners in Oakland

asked this Court to decide the same “artful pleading”

question, asserting the same circuit split. See Oakland

Pet. 5, 24-25. Petitioners’ regurgitation of the very

same arguments this Court has already rejected must

fail.

1. Armed with no statute by which they can

claim complete preemption, Petitioners focus on circumventing the Grable doctrine. Petitioners attempt to

manufacture an illusory circuit split by casting preGrable cases applying a “Grable-type” analysis as diametrically opposed to the Third Circuit’s decision in

this case, which—unlike those cases—came after Grable in time and had the opportunity to faithfully apply

its rule. Comparing cases from before a uniform rule

was determined to a case later applying that uniform

rule, in an effort to establish a circuit split, is a disingenuous ruse. The rules in the pre-Grable cases are

not “irreconcilable” with the Third Circuit’s view, as

Petitioners claim. Pet. 13. They were reconciled by

this Court in Grable once and for all, into a uniform

rule which the Third Circuit then faithfully applied.

See Gunn, 568 U.S. at 258 (explaining that preGrable, substantial federal question removal doctrine

13

resembled a “canvas . . . that Jackson Pollock got to”

and that Grable was intended to “bring some order to

this unruly doctrine”). All Petitioners’ brief reveals is

that some pre-Grable cases may no longer be good law;

it does not establish an active circuit split over the

rules of preemption.

Crucially, none of the cases Petitioners cite would

allow removal here, because they all required a showing that a substantial federal question needed to be resolved to prove the elements of the plaintiff ’s state-law

claims. Since there is no federal question that must be

resolved for Hoboken to prevail on its state-law claims,

none of the cases Petitioners cite would establish a circuit split on the removal question or justify removal in

this case.

2. Petitioners claim that the Fifth Circuit allows

removal “over claims artfully pleaded under state law

but necessarily governed by federal law.” Pet. 12. But

they cite only one outdated, pre-Grable decision for

that proposition, Sam L. Majors Jewelers v. ABX, Inc.,

117 F.3d 922 (5th Cir. 1997). Id. The passage in Majors

that Petitioners rely on cites no authority. See Majors,

117 F.3d at 929 (quoted at Pet. 12). No court has ever

cited Majors as establishing Petitioners’ claimed rule

in the quarter-century since it was decided. See Pet. 1217 (citing no such examples). Since Majors, the Fifth

Circuit has consistently applied the law of federal removal without citing Majors or justifying the removal

of state-law claims on the ground that they were “governed by federal law.” See, e.g., Mitchell v. Bailey, 982

F.3d 937, 940 (5th Cir. 2020); Venable v. La. Workers’

14

Comp. Corp., 740 F.3d 937, 941 (5th Cir. 2013); Bernhard v. Whitney Nat’l Bank, 523 F.3d 546, 551 (5th Cir.

2008).

Majors also arose under a different set of facts that

is inapplicable here. That case concerned “the historical availability of [a pre-existing federal] common law

remedy” for lost property claims in interstate shipping,

where federal statutes “preserv[ed]” that remedy. 117

F.3d at 929 n.16. The Fifth Circuit did not address the

master of the complaint rule and held its own holding

was “necessarily limited” to these specific circumstances, id., which are not present here.

Because the common law had already been preserved by a federal statute, describing Majors as permitting removal based on federal common law is

misleading. The relevant federal common law had developed after Congress “totally preempted state regulation of the liability of common carriers,” id. at 926,

and had then been expressly ratified by statute, id. at

926-29. In reaching its decision, the Fifth Circuit

stressed that “[b]ecause we rely upon the historical

availability of this common law remedy, and the statutory preservation of the remedy, our holding today is

necessarily limited.” Id. at 929 n.16 (emphasis added).

The remedy for the dispute in Majors may have had

some roots in federal common law, but the key point is

that it was statutorily codified long before the dispute.

That is why the court described its holding as “necessarily limited.”

15

Majors did not establish a broad new exception to

the well-pleaded complaint rule. It upheld removal

based on pre-Grable removal law—without citing or

analyzing any authority—on the ground that the existence of a substantial federal question in the case

(such as the explicit preservation of the plaintiff ’s

claims in the Airline Deregulation Act) supported removal of the state-law claims before it. Petitioners

themselves suggest as much by citing a pre-Grable

Fifth Circuit case, Torres v. Southern Peru Copper

Corp., 113 F.3d 540 (5th Cir. 1997), as applying the

same rule as Majors, and describe that rule as “affirming the removal of ‘state-law tort claims’ against a foreign company” because the case “raise[d] substantial

questions of federal common law by implicating important foreign policy concerns.” Pet. 13-14 (quoting

Torres, 113 F.3d at 542-43). In Torres, “foreign policy

issues” were implicated because the government of

Peru had “participated substantially” in the conduct at

issue, “vigorous[ly]” “oppos[ed] the action,” and “maintain[ed] that the litigation implicate[d] some of its

most vital interests and, hence, will affect its relations

with the United States.” 113 F.3d at 542–43 (emphasis

added). No such unique facts exist here.

Because a precursor to the Grable doctrine provided the rationale for the Fifth Circuit’s rulings in

Majors and Torres under very different sets of facts,

those decisions have nothing to do with Petitioners’

theory of common law removal in this case, which is

not premised on a complex interplay between state law

and federal statutes, statutorily-preserved common

16

law, or the vital interests of a foreign state. Majors and

Torres do not conflict with the Third Circuit’s decision

in this case.

Other courts, including in climate deception cases,

have explained that Majors does not announce a general exception to the well-pleaded complaint rule. See,

e.g., Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463

F.3d 646, 650–51 (7th Cir. 2006); Bd. of Cnty. Comm’rs

of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., 405

F. Supp. 3d 947, 963 (D. Col. 2019); Greer v. Fed. Express, 66 F. Supp. 2d 870, 874 (W.D. Ky. 1999). And Majors is no longer considered good law after Grable. See

Pet. App. 85 n.9 (collecting cases criticizing the reasoning of Majors).

3. In re Otter Tail Power Co., 116 F.3d 1207 (8th

Cir. 1997), also fails to establish a circuit split with the

Third Circuit’s holding in this case. Otter Tail applied

the same “substantial federal question” theory this

Court adopted and synthesized in Grable eight years

later.

The plaintiff in Otter Tail sued in state court to

enforce a prior federal court order delimiting the

boundary between tribal and state regulatory authority with respect to electric utilities serving tribal lands.

116 F.3d at 1213. The Eighth Circuit explained that,

the case could be removed to federal court if the “wellpleaded complaint establishe[d] either that [1] federal

law creates the cause of action or [2] that the plaintiff ’s

right to relief necessarily depends on resolution of a

17

substantial question of federal law.” Id. (citation omitted).4

The Eighth Circuit held that removal was proper

under the second prong because the state-law claim “is

specifically premised on th[e] alleged deviation by [the

defendant] from the terms of the district court’s previous order,” which had interpreted the scope of tribal

authority under federal treaties and statutes. Id. at

1213. In other words, removal in Otter Tail was proper

not because the complaint raised “important questions

of federal law,” Pet. 12-13, but because the plaintiff

could not prevail without finding a violation of the

prior district court order and federal treaties. See also

Minnesota, 2021 WL 1215656, at *6 (holding, in a climate change case, that Otter Tail was inapposite because, there, “plaintiffs’ precise claims were explicitly

connected to or relied upon interpretations of a discrete area of federal law”). Thus, the Eighth Circuit did

not hold that federal jurisdiction was present because

the plaintiff was bringing claims that were “governed

by federal common law.” Pet. 13. Instead, the court permitted removal because it found, under its pre-Grable

standard, that adjudicating the elements of the statelaw claims required a “resolution of a substantial question of federal law.” In re Otter Tail, 116 F.3d at 1213

(citation omitted).

Although no one contested jurisdiction or removal, the

Eighth Circuit considered the question sua sponte. See 116 F.3d

at 1214 & n.6. The court also identified two other likely sources of

federal question jurisdiction. Id. at 1214 n.6

4

18

Otter Tail thus provides no basis for a circuit split

with the Third Circuit, since the Third Circuit applied

the substantially same legal test here in its Grable

analysis, and the Eighth Circuit has dutifully applied

the same Grable test in more recent, post-Grable cases.

See Great Lakes Gas Transmission Ltd. P’ship v. Essar

Steel Minn. LLC, 843 F.3d 325, 329, 331 (8th Cir. 2016)

(reciting same “substantial question of federal law”

standard, then applying the Grable test). Moreover, the

Eighth Circuit recently rejected Petitioners’ jurisdictional arguments, “join[ing]” the other circuits and

therefore disavowing any circuit split. Minnesota, 2023

WL 2607545, at *1.

4. Finally, two other pre-Grable cases cited by

Petitioners fail to support removal or the existence of

a circuit split, for similar reasons. In Newton v. Capital

Assurance Co., Inc., 245 F.3d 1306 (11th Cir. 2001), the

plaintiff ’s state-law claims first required the determination of a discrete federal legal question before they

could be resolved—in that case, the question of

whether a federally subsidized insurance contract had

been breached.5 Because the particular type of federally subsidized contracts at issue “are interpreted using principles of federal common law rather than state

contract law,” a complaint alleging a breach of the contract “rais[es] a substantial federal question on its

face.” Id. at 1309. This unique scenario has no analog

in Respondent’s case.

Neither party challenged the subject-matter jurisdiction of

the federal courts over the suit, and the court considered the question sua sponte. Id. at 1308.

5

19

Republic of Philippines v. Marcos, 806 F.2d 344 (2d

Cir. 1986), was a case brought by a sovereign state. No

foreign state has intervened as a party here, so this

case is inapposite. In Marcos, proving the elements of

plaintiff ’s claims also required the resolution of a federal question, because those claims “rais[ed], as a necessary element, the [federal common law] question

whether to honor the request of a foreign government.”

Id. at 354 (emphasis added).

In both of these cases—like Torres and Otter Tail,

and quite unlike Hoboken—the elements of plaintiff ’s

prima facie case presented a question of federal law. In

any event, each case predates Grable and today would

be resolved under that uniform standard.

In the end, none of Petitioners’ cases support their

efforts to expand federal jurisdiction or their quest for

a circuit split. Petitioners’ arguments could mean, at

most, that federal common law ordinarily preempts

Hoboken’s state-law right to relief, which does not create jurisdiction under the well-pleaded complaint rule.

None of Petitioners’ cases hold that federal common

law creates a free-floating basis for jurisdiction that would

justify the removal of Hoboken’s state-law claims.

B. There Is No Conflict With City of New

York v. Chevron Corp.

The second purported circuit conflict Petitioners

assert is based on the Second Circuit’s decision in City

of New York v. Chevron Corp., 993 F.3d 81 (2d Cir.

2021). See Pet. 17.

20

Petitioners do not assert that the Second Circuit

reached a conflicting conclusion on the actual removal

question at issue in this case. The Second Circuit did

not hold that federal common law creates federal removal jurisdiction where plaintiffs have pleaded only

state-law claims in state court because there was no

removal question in City of New York at all. The “City

filed suit in federal court in the first instance.” 993 F.3d

at 94. City of New York’s holding cannot conflict with

any holding concerning the removal of state-law

claims.

The portion of the Second Circuit decision Petitioners rely on decided a different question entirely,

namely the merits of an ordinary preemption defense

in a case filed in federal court. See id. The Second Circuit explained that its holding provided no guidance

regarding removal, warning that its preemption analysis might not satisfy the “heightened standard unique

to the removability inquiry.” Id. at 93-94. As the Third

Circuit observed, City of New York “did not even try to

check the boxes needed for complete preemption. Nor

did it suggest another way to get there.” Pet. App. 24a.

The Second Circuit expressly clarified that its holding

“does not conflict” with the dozen courts to have held

there is no removal jurisdiction in similar cases—decisions Petitioners continue to ignore.6 City of New York,

The District of Connecticut, in the Second Circuit, subsequently remanded an analogous case to Hoboken’s, distinguishing

City of New York on exactly these grounds. Connecticut v. Exxon

Mobil Corp., No. 20 Civ. 1555 (JCH), 2021 WL 2389739, at *1 (D.

Conn. June 2, 2021).

6

21

993 F.3d at 94 (noting that “even if this fleet of cases is

correct that federal preemption does not give rise to a

federal question for purposes of removal, their reasoning does not conflict with our holding” on ordinary

preemption).

The Third Circuit never addressed the ordinary

preemption question at issue in City of New York because it held it lacked subject matter jurisdiction over

the entire case, and ordinary preemption is not a basis

for removal. Pet. App. 23a (citing Caterpillar, 482 U.S.

at 392–93). Whether City of New York poses a challenge to Hoboken’s substantive claims on the basis of

ordinary preemption is a matter for New Jersey state

courts to decide. See Empire HealthChoice Assur., Inc.

v. McVeigh, 396 F.3d 136, 142 (2d Cir. 2005), aff ’d, 547

U.S. 677 (2006) (a court cannot “conflate[ ] the [ordinary] preemption and jurisdiction analyses” as that

“giv[es] short shrift to the well-pleaded complaint rule”

and ignores state courts’ authority to resolve federal

common law preemption).7 The First, Fourth, and

Tenth Circuits, reaching the same decision in similar

climate deception cases, each took note that the wellpleaded complaint rule was not at issue in City of New

York, which the plaintiff itself initiated in federal

court. Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor

In Charles Dowd Box Co., Inc. v. Courtney, 368 U.S. 502, 507

(1962), the Court rejected the argument that the “task of formulating federal common law in this area of labor management relations must be entrusted exclusively to the federal courts.” See

also Tafflin v. Levitt, 493 U.S. 455, 464-65 (1990) (abstract concerns about incompatible decisions are not sufficient to wrest jurisdiction over interpreting federal law away from state courts).

7

22

Energy (U.S.A.) Inc., 25 F.4th 1238, 1262 (10th Cir.

2022); see also Baltimore, 31 F.4th at 203; Rhode Island, 35 F.4th at 55.

Despite the Second Circuit’s clear admonition that

its own case does not create a circuit split, Petitioners

claim there is a certworthy conflict because of the reasoning the different circuits have employed to reach

compatible holdings on entirely separate legal questions. Pet. 21. Specifically, Petitioners assert that the

First, Fourth, and Tenth Circuits concluded that climate-change claims are no longer governed by federal

common law because of displacement by the Clean Air

Act (“CAA”), while the Second Circuit believed that the

CAA’s displacement of any remedy under federal common law “does not displace the entire source of the law

altogether.” Pet. 19 (citing City of New York, 993 F.3d

at 95 & n.7).

Even if that dictum were true, it would provide no

basis for certiorari. Regardless of the Petitioners’ interpretation of the courts’ rationales, their holdings are

not in conflict on the removal question presented in

this petition. Petitioners can prevail only if they can

prove not only that some unnamed federal common

law doctrine somehow “governs” Respondent’s statelaw claims, but also that this common law converts

those state-law claims into removable federal claims,

despite the well-pleaded complaint rule. No court of

appeals has accepted that proposition—one that would

defy the well-pleaded complaint rule—and, hence,

there is no need for this Court to decide that question

either.

23

Despite Petitioners’ protestations, there is no

meaningful conflict in the rationales employed by the

courts of appeals either. Even though City of New York

held federal common law used to govern claims like Respondent’s, see 993 F.3d at 90-95, Petitioners insist

that there is a conflict over whether “federal law necessarily governs the claims at issue.” Pet. 21. This reveals once again that what Petitioners are really

seeking from this Court is permission to remove on the

basis of an ordinary preemption defense. That is a

proposition to which no circuit—including the Second,

after City of New York—would agree, and would require the Court to: (1) contradict consistent Supreme

Court authority that creates only two exceptions to the

well-pleaded complaint rule (complete preemption and

Grable); (2) necessarily overrule its own precedents in

Caterpillar and Grable, among other cases; (3) split

with every court to have considered this same question; and (4) throw open federal removal jurisdiction to

an unbounded number of state-law-state court cases,

stripping the state courts’ historical co-equal jurisdiction along the way.

II.

The Question Presented Does Not Warrant

Review.

This case presents an exceedingly narrow question on a settled area of law: whether defendants can

remove state-law claims where they cannot satisfy the

requirements for complete preemption or Grable,

wielding only an ordinary preemption defense.

24

This question implicates only settled and uncontroversial Supreme Court law regarding the wellpleaded complaint rule. To the extent the courts of appeals employed different approaches to determining

when there is a substantial federal question embedded

in state law that requires removal before Grable, this

Court already synthesized those approaches into a uniform standard in Grable. Accordingly, there is not—nor

is there ever likely to be—a circuit split warranting

certiorari.

This case is also a poor vehicle to adjudicate this

question, since: (1) it concerns an area of law where a

federal statute, the CAA, has already displaced any

federal common law that could have applied to Respondent’s claims; and (2) there are no substantial federal issues that must be resolved for Respondent to

prove any of the elements of its state-law claims anyway.

Petitioners say the specter of state-law litigation

concerning “interstate” and “transboundary” emissions warrants review. That is a question this Court already confronted in Oakland, another state-law case

against fossil fuel companies concerning damages

caused by deceptions related to climate change. It denied certiorari then and should do so again here. Since

Oakland, no split has emerged and Petitioners identify

no other reason why the question is more important

now than it was just two years ago.

Since the petition was filed in this case, the United

States filed a brief at the invitation of this Court in

25

Suncor, rejecting the “same issues” Petitioners raise

here. Relevant to Petitioners’ claim that federal law

“necessarily and exclusively” governs Respondent’s

claims, the United States explained that “far from

providing the exclusive remedy for claims concerning

climate change or greenhouse-gas emissions, any relevant federal common law has been displaced by the

Clean Air Act” and “even if the Act preempts particular

state-law cause of action in this sphere, such preemption would simply be a federal defense that provides no

basis for removal.” Suncor Energy (U.S.A.) Inc., et al.,

v. Bd. of Cnty. Comm’rs of Boulder Cnty., et al., No. 211550, at 11; id. at 12 (“[T]he Clean Air Act’s displacement of any relevant federal common law . . . forecloses petitioners’ current theory [ ] that federal

common law ‘necessarily and exclusively’ govern[s] respondents’ claims.”). Noting that Petitioners have no

claim for complete preemption based on the CAA, the

United States went on to conclude: “If the applicable

federal law in this area does not completely preempt

respondents’ claims, superseded federal law cannot

plausibly be thought to have that effect.” Id. at 16 (emphasis in original).

III. The Decision Below Is Correct.

1. Certiorari is further unwarranted because the

uniform conclusion of the courts of appeals is correct.

Petitioners argue that removal is proper because Hoboken’s claims are “inherently federal in nature” and

are thus removable as arising under federal common

law, “however they are pleaded.” Pet. 14, 22. This turns

26

the well-pleaded complaint rule on to its head. There

is no “federal common law” or “necessarily and exclusively federal” or “inherently federal” exception to the

well-pleaded complaint rule, no matter how many banal euphemisms for “ordinary preemption defense” Petitioners can muster. See, e.g., Franchise Tax Bd., 463

U.S. at 12. No circuit has recognized such an exception,

each circuit to reach the question has ruled that Petitioners’ argument fails, and accepting such an exception would swallow the rule itself. Contrary to

Petitioners’ claims, the Third Circuit correctly decided

the removal question in this case, and no circuit disagrees.

“The ‘well-pleaded complaint rule’ is the basic

principle marking the boundaries of the federal question jurisdiction of the federal district courts.” Metro.

Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). “[F]ederal

jurisdiction exists only when a federal question is presented on the face of the plaintiff ’s properly pleaded

complaint.” Caterpillar, 482 U.S. at 391–92; see also

Home Depot U. S. A., Inc. v. Jackson, 139 S. Ct. 1743,

1748 (2019) (“[T]he ‘civil action of which the district

court’ must have ‘original jurisdiction’ ” for removal

purposes “is the action as defined by the plaintiff ’s

complaint.”) (quoting 28 U.S.C § 1441) (cleaned up).

This rule makes the plaintiff the master of its complaint and “serves as a ‘quick rule of thumb’ for resolving jurisdictional conflicts,” without having to dive

deep into parties’ contentions at the removal stage.

Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc.,

535 U.S. 826, 832 (2002).

27

This Court has recognized only two exceptions to

the well-pleaded complaint rule: (1) Grable removal, or

when it appears that some substantial, disputed question of federal law is a necessary element of one of the

well-pleaded state claims; or (2) complete preemption.

See, e.g., Gunn, 568 U.S. at 257–58. This second category is also sometimes referred to as the “artful pleading” doctrine. Rivet v. Regions Bank of Louisiana, 522

U.S. 470, 475 (1998).

Petitioners waived their complete preemption removal argument in the district court and have not resurrected it here. Pet. App. 46a n.6. Petitioners also fail

to make out a justification for removal under Grable.

They claim removal under Grable is warranted because Hoboken’s state-law claims “sound in” federal

law. Pet. 27. But again, Petitioners do not identify any

such law, and even if they did, that would not be sufficient. Grable removal is only available where the statelaw claims “rise[ ] or fall[ ] on the [Respondent’s] ability

to prove the violation of a federal duty” and Petitioners

identify none here. Manning, 578 U.S. at 383. The spurious and unsupported notion that Hoboken’s claims

“sound in” federal law does not explain which federal

law or right Hoboken must vindicate to prevail on each

of its claims.8

Notably, at least one Petitioner, Exxon, has insisted elsewhere that claims like Respondent’s would fall outside the scope

of the federal common law of transboundary air pollution. See Answering Br. for Defendants-Appellees at 56-61, Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012) (No. 0917490).

8

28

Hoboken, as is its right, seeks relief under

longstanding New Jersey common law and statutory

causes of action. Defendants do not—and cannot—cite

to a single federal law Plaintiff is seeking relief under.

Removal is thus improper. The well-pleaded complaint

rule is incompatible with Petitioners’ concept of removing state-law claims solely on the basis of some supposedly “inherently federal” properties.

While it is true federal courts have subject matter

jurisdiction over complaints that, on their face and expressly, allege violations of federal common law under

28 U.S.C. § 1331, Hoboken did not claim a violation of

federal common law in the complaint. Petitioners argue, nevertheless, that Hoboken’s claims are “inherently federal” and only “nominally” pleaded under

state law because they are related to “interstate and

international emissions,” even though Petitioners cannot identify which federal law governing “interstate

and international emissions” supposedly preempts Hoboken’s claims.

The cases Petitioners cite do not support their argument. They cite National Farmers Union Insurance

Cos. v. Crow Tribe of Indians for the proposition that

jurisdiction under 28 U.S.C. § 1331 supports claims

“founded upon” federal common law. Pet. 24. Petitioners fail to disclose that in National Farmers Union, the

Petitioners themselves filed their complaint in federal

court, arguing that their claims arose under the

federal common law. 471 U.S. 845, 847 (1985). Thus, the

National Farmers well-pleaded complaint pleaded

29

federal claims, whereas Hoboken’s Complaint does

not.

Where the complaint only pleads state-law claims,

it is not true that a federal court must sometimes “determine whether the real nature of the claim is federal,

regardless of plaintiff ’s characterization.” Pet. at 25

(quoting Federated Dep’t Stores, Inc. v. Moitie, 452 U.S.

394, 397 n.2 (1981)). The Supreme Court limited that

very footnote to the facts of Moitie in Rivet v. Regions

Bank of Louisiana. See 522 at 478 (“[W]e . . . clarify

today that Moitie did not create a preclusion exception

to the rule, fundamental under currently governing

legislation, that a defendant cannot remove on the basis of a federal defense.”).

Every single other case Petitioners cite on the supposed broad scope of federal common law removal is (1)

an ordinary preemption or displacement case, and

(2) jurisdiction was based either on diversity or because a federal common law claim was pleaded on the

face of the complaint. See Kansas v. Colorado, 206 U.S.

46 (1907) (inter-state suit regarding water-sharing,

brought under original jurisdiction of the Court);

United States v. Pink, 315 U.S. 203 (1942) (suit by the

United States regarding foreign bank; certiorari from

opinion of the New York Court of Appeals); Banco

Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964)

(scope of the act of state doctrine presents a question

of federal law; diversity case filed in federal court); Int’l

Paper Co. v. Ouellette, 479 U.S. 481 (1987) (Clean Water

Act ordinary preemption of Vermont common law, removed to federal court for diversity); Illinois v. City of

30

Milwaukee, 406 U.S. 91, 100 (1972) (“Milwaukee I”)

(claim by state against city in neighboring state, claiming the Court’s original jurisdiction; remanded to district court on general federal question jurisdiction

based on federal cause of action); City of Milwaukee v.

Illinois & Michigan, 451 U.S. 304 (1981) (“Milwaukee

II”) (displacement of federal common law by federal

statute; federal common law cause of action pleaded in

federal district court); BMW of N. Am., Inc. v. Gore, 517

U.S. 559 (1996) (reversing Alabama Supreme Court affirmation of state court punitive damages award on

federal due process grounds); Am. Elec. Power Co. v.

Connecticut, 564 U.S. 410 (2011) (federal common law

displaced by CAA; federal common law cause of action

pleaded in federal district court); Texas Indus., Inc. v.

Radcliff Materials, Inc., 451 U.S. 630 (1981) (claimed

violation of the Sherman Act, filed in federal court).

This Court has already rejected a similar argument in Caterpillar Inc. v. Williams. See 482 U.S. at

392. In that case, the defendant removed California

state-law employment contract disputes to federal

court, arguing the contracts were governed by and

could only be interpreted via the federal Labor Relations Act. Id. at 390. The Supreme Court ordered remand to state court and explained that the

defendant—by arguing no state-law claim survived a

federal statutory regime—was claiming ordinary federal preemption, which is an affirmative defense. Id. at

393. The Court noted that Congress had amended the

removal statute in 1887 to authorize federal courts to

only hear cases where the plaintiff affirmatively pleads

31

a federal cause of action, making the plaintiff the master of its own complaint. Id.; see also Merrell Dow

Pharm. Inc. v. Thompson, 478 U.S. 804, 807 (1986)

(“statutory grant of federal-question jurisdiction” is

“more limited” than “the constitutional meaning of

‘arising under’ ”); Home Depot, 139 S. Ct. at 1749

(“[T]he limits Congress has imposed on removal show

that it did not intend to allow all defendants an unqualified right to remove.”). That meant federal defenses could not be grounds for removal. Caterpillar,

482 U.S. at 392–93.

The Court rejected Caterpillar’s suggestion—the

same suggestion made by Petitioners here—that the

plaintiffs could have and should have somehow

brought a federal claim, and thus removal could be

premised on “different facts [plaintiffs] might have alleged that would have constituted a federal claim.”

Caterpillar, 482 U.S. at 397. “If a defendant could [so

remove], the plaintiff would be master of nothing.” Id.

at 399. Since Hoboken is the master of its Complaint,

and since the Complaint pleaded no federal claim, removal is improper, and the Third Circuit reached the

correct decision.

2. The Third Circuit also correctly rejected Petitioners argument for removal on the basis of Grable

jurisdiction. Grable jurisdiction involves a “special and

small category of cases in which arising under jurisdiction still lies,” Gunn, 568 U.S. at 258 (cleaned up), if

they “really and substantially involve a dispute or controversy respecting the validity, construction or effect

of federal law,” Grable, 545 U.S. at 313 (cleaned up).

32

The federal law issue must be: “(1) necessarily raised

[by the plaintiff ’s state-law cause of action], (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federalstate balance approved by Congress.” Gunn, 568 U.S.

at 258. Grable removal is only available where the

state-law claims “rise[ ] or fall[ ] on [Respondent’s] ability to prove the violation of a federal duty” and Petitioners identify none here. Manning, 578 U.S. at 383. A

defense, like ordinary preemption, is not grounds for

removal under Grable. See Atl. Richfield Co., 140 S. Ct.

at 1350 n.4 (“federal jurisdiction” under Grable “cannot be predicated on an actual or anticipated defense”)

(cleaned up).

Petitioners’ vague and unsupported argument

that Hoboken’s claims belong in federal court because

they supposedly “sound in” federal law, see Pet. 27, does

not satisfy Grable’s requirement for an issue of federal

law that must be determined first before to the plaintiff can vindicate each of its state-law claims. Petitioners have the burden of proof to identify such an issue,

and they have not bothered to try. McVeigh, 547 U.S.

at 699. Petitioners have no plausible argument demonstrating an issue of federal law required to adjudicate

Hoboken’s claims under the New Jersey Consumer

Fraud Act, for example, and have not attempted to

make one.

By insisting on a right to removal without complete preemption and without naming a federal law

upon which Hoboken’s state-law claims depend, Petitioners seek a new exception to the well-pleaded

33

complaint rule. Such an exception would be as powerful as complete preemption, but without that doctrine’s

requirements and limitations. This argument runs

counter to more than a century of this Court’s precedents that strictly adhere to the well-pleaded complaint rule,9 and recognize only narrow, well-defined

exceptions to it, see, e.g., McVeigh, 547 U.S. at 699; Caterpillar, 482 U.S. at 393-94, to bring “order” to an “unruly doctrine,” Gunn, 568 U.S. at 258.

Petitioners’ proposed explosion of the confined exceptions to the well-pleaded complaint rule would, at

minimum, include every instance in which federal

common law preempts state law, based solely on vague

allusions to “constitutional structure” and “uniform

rules on issues relating to removal.” Pet. at 22-23, 29

(citation omitted). But Petitioners’ proposed rule would

frustrate the very policy concerns they invoke. It would

upend uniform rules of decision related to removal by

reversing settled law that a federal preemption defense is not a basis to remove well-pleaded state-law

claims to federal court. “There is nothing inappropriate

or exceptional . . . about a state court’s entertaining,

and applying federal law to, completely preempted

claims or counterclaims.” Vaden, 556 U.S. at 61

n.12.10 The New Jersey state court can do so in this

9

152).

See, e.g., Rivet, 522 U.S. at 475 (citing Mottley, 211 U.S. at

Petitioners’ feigned alarm that adhering to the wellpleaded complaint rule would result in scenarios such as one

where “Illinois could sue the City of Milwaukee in state court under Illinois law . . . and Milwaukee would be denied a federal forum” borders on the farcical. See Pet. 26. Removal based on

10

34

case if it concludes that the federal common law

preempts Plaintiff ’s state-law claims.

Petitioners’ reliance on this Court’s decision in

American Electric Power Co. v. Connecticut, 564 U.S.

410 (2011) (“AEP”) demonstrates the baselessness of

their claim that the “constitutional structure” justifies

removal of Hoboken’s claims on the grounds that they

are “necessarily and exclusively governed by federal

law.” Pet. at 22-24. The plaintiffs in AEP brought federal common law claims in federal court concerning the

“curtailment of greenhouse gas emissions.” Id. at 423.

The Court held that the CAA displaced federal common law in this area. Id. But AEP made perfectly clear

that after the Court’s “holding that the Clean Air Act

displaces federal common law, the availability vel non

of a state lawsuit depends . . . on the preemptive effect

of the federal Act.” Id. at 429. In other words, Petitioners’ argument that federal law “necessarily and exclusively” governs Hoboken’s claims is a question of

ordinary federal preemption—one that state courts

can and do decide all the time. See Manning, 578 U.S.

at 392 (“[I]t is less troubling for a state court to consider such an issue than to lose all ability to adjudicate

a suit raising only state-law causes of action.”).

3. Petitioners complain that without a right to

remove, defendants may be subject to a “patchwork of

conflicting state laws and state lawsuits” that could

“undermine” their oil and gas operations. Pet. 29. That

diversity jurisdiction or other established grounds would almost

certainly apply in such a case.

35

is not reason enough to undermine the jurisdiction

of the state courts. See Tafflin, 493 U.S. at 464-65

(abstract concerns about incompatible decisions are not

sufficient to wrest jurisdiction over interpreting

federal law away from state courts); Manning, 578 U.S.

at 391. It also is not true here as a factual matter. Hoboken sued only for “compensation to help it pay for

damage that has already occurred and for remediation

efforts to prevent further damage,” and does not seek

to “regulate the production and sale of oil and gas[.]”

Pet. App. 50a. State courts routinely adjudicate cases

where a company’s deceptive marketing and sales of a

dangerous product have caused harm within the state,

and award compensation to the injured party. That is

what Hoboken seeks here. See Keeton v. Hustler Mag.,

Inc., 465 U.S. 770, 776 (1984) (“A state has a special

interest in exercising judicial jurisdiction over those

who commit torts within its territory.”).

Regardless, the prospect of conflicting lawsuits is

an argument in favor of federal preemption, not an argument about which court should decide the preemption question. See Merrell Dow Pharms., 478 U.S. at

816 (1986) (“[T]o the extent that petitioner is arguing

that state use and interpretation of [federal law]

pose[s] a threat to the order and stability of the [federal] regime, petitioner should be arguing, not that federal courts should be able to review and enforce [such]

causes of action as an aspect of federal-question jurisdiction, but that the [federal law] pre-empts statecourt jurisdiction over the issue in dispute.”). And

whether the preemption defenses are litigated in state

36

or federal court, this Court will retain jurisdiction to

ensure that the federal preemption rules are properly

applied. See id.; Manning, 578 U.S at 391 (“[T]his

Court’s ability to review state court decisions of federal

questions [ ] sufficiently protect[s] federal interests.”).

If more is needed, Congress stands ready to adjust removal rules as appropriate. See, e.g., Class Action Fairness Act of 2005, Pub. L. No. 109-2, § 5, 119 Stat. 4, 1213 (expanding removal rights in certain mass litigation cases).

4. Petitioners’ objection that “[u]nder the Third

Circuit’s logic, even in a case where federal law necessarily and exclusively governs the issues pleaded on

the face of the complaint, a district court is bound by

the labels the plaintiff applies to the claims in the complaint” is meritless. Pet. 15. Whether “federal law necessarily and exclusively governs the issues pleaded on

the face of the complaint” is decided according to the

well-settled exceptions to the well-pleaded complaint

rule. Where—as here—none of those exceptions apply,

the case must remain in state court, where it belongs.

After all, “trial in state court is not a horrible fate.”

15A Charles Alan Wright & Arthur R. Miller, Federal

Practice & Procedure § 3914.11.1 (2d ed. 2021).

---------------------------------♦---------------------------------

37

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

MATTHEW D. BRINCKERHOFF

Counsel of Record

JONATHAN S. ABADY

VIVAKE PRASAD

MAX SELVER

EMERY CELLI BRINCKERHOFF

ABADY WARD & MAAZEL LLP

600 Fifth Avenue, 10th Floor

New York, NY 10020

(212) 763-5000

mbrinckerhoff@ecbawm.com

GERALD KROVATIN

HELEN A. NAU

KROVATIN NAU LLC

60 Park Place, Suite 1100

Newark, NJ 07102

(973) 424-9777

Counsel for Respondent

City of Hoboken, New Jersey

March 31, 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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