Opposition Brief — NPC Services, Inc. v. MSOF Corp.

No. 02-478

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Supreme Court of the United States

NPC SERVICES, INC., EXXON MOBIL CORPORATION, UNITED

STATES STEEL CORPORATION, DSM COPOLYMER, INC.,

SHELL CHEMICAL LP, CROMPTON MANUFACTURING

COMPANY, INC., THE DOW CHEMICAL COMPANY, ETHYL

CORPORATION, CELENESE AMERICAS CORPORATION,

HONEYWELL INTERNATIONAL, INC., ROBERT G. BOLGER,

J. W. STREET, and W. L. RAINEY, =

Petitioners,

v.

MSOF CORPORATION and JAY PAUL LeBLANC,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

J. Burton LEBLaAnc, IV PATRICK W. PENDLEY

Counsel of Record PaTRICK W. PENDLEY, APLC

CHARLES S. LAMBERT, JR. 24110 Eden Street

J. Burton LEBLANC, JR. P.O. Drawer 71

LEBLANC & WADDELL Plaquemine LA 70765-0071

5353 Essen Lane, Suite 420 (225) 687-6396

Baton Rouge, LA 70809

(225) 768-7222

Attorneys for Respondents

176985 cel

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

QUESTIONS PRESENTED

A. Can respondents’ action filed in state court solely under

state law causes of action be removed under the

All Writs Act based on a consent decree previously issued

by a federal district court to which respondents were not

a party, does not addresses respondents’ claims, and to

which respondents’ state action does not pose a threat?

B. Does federal question jurisdiction under CERCLA exist

over an action filed by-respondents in state court against

some non-diverse parties where respondents can obtain

complete relief under state law causes of action of

trespass, negligence and nuisance for the toxic and/or

chemical contamination to respondents’ property?

il

STATEMENT PURSUANT TO RULE 29.6

Respondent, MSOF, Inc., has no parent corporation and

no publicly held company owns 10% or more of its stock.

iil

TABLE OF CONTENTS

Ee ae

Statement Pursuant to Rule 29.6 ...............

Ee eee eee ee ee eee

Pebee OF Cited AUtMOrities ... cece cee eeee

en See eee

Reasons for Denying the Petition ...............

A. The Fifth Circuit Properly Held That

Removal Of This Action From State Court

Was Not Warranted Under The All Writs Act

1. The All Writs Act is not an independent

source of federal court jurisdiction ...

2. The MSOF action does not conflict with

the Consent Decree ................

3. The MSOF property is not within the

CERCLA cleanup area delineated in the

BE NONE oo coh sc daGdscusnes

4. MSOF was not party to the Consent

Cis Sans 8 vik tyne bes

Page

iv

Contents

Page

B. MSOF’s Action Does Not Raise A Federal

RENE giv bok dan kbc ebedes Caron 10

1. MSOF may obtain complete relief under

Louisiana state law causes of action and

federal question jurisdiction does not exist

it Vetlvunee ne REAR EC EEN EGRCS Se 11

2. CERCLA does not preempt state tort law

relating to toxic contamination ....... 15

3. MSOF’s action is not a challenge to a

ee eer ee 17

I is oes NE as eo ei es 19

Appendix — Excerpts From Consent Decree, Dated

February 6, 1984 Issued In United States v. Petro-

Processors Of Louisiana, Inc., et al., Civil Action

No. 80-358-B, United States District Court, Middle

eg Be ee eee ee la

TABLE OF CITED AUTHORITIES

Page

Cases:

ARCO Environmental Remediation, L.L.C. v.

Department of Health and Environmental Quality

of Montana, 213 F.3d 1108 (9th Cir. 2000)

| er eer ee Srey err ers ae ry eye eee 16

Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S. Ct.

2423; 96 1... BA. BO SIR CIGS) ova vivceevsvacn 12, 14

Clinton v. Goldsmith, 526 U.S. 529, 119 S. Ct. 1538,

E243 b.. BG. De Tae RIGO) kc cwccastavcdanses 4

Franchise Tax Board v. Construction Laborers

Vacation Trust, 463 U.S. 1, 103 S. Ct. 2841, 77 L.

DE PRES sch ceo se ane eee eee 3-4, 10, 18

Gray v. Murphy Oil USA, Inc., 874 F. Supp. 748

CBD. DR RD 5 cba ee baie SERNA es 14

Henson v. Ciba-Geigy Corp., 261 F.3d 1065 (11th Cir.

2001), cert. granted sub nom. Syngenta Crop

Protection v. Henson, 122 S. Ct. 1062 (2002)

vi

Cited Authorities

Page

Howery v. Allstate Ins. Co., 243 F.3d 912 (Sth Cir.

UE. 68 kan 046s 62004680 14

Kerr v. United States District Court, 426 U.S. 394,

96 S. Ct. 2119, 48 L. Ed. 2d 725 (1976) ....... 8-9

Manor Care, Inc. v. Yaskin, 950 F.2d 122 (3d Cir.

ROPES. évivn dultedvacastakeeaeees ane 17

McCastle v. Rollins Environmental Services,

514 F. Supp. 936 (M.D. La. 1981) ............ 12, 13

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

804, 106 S. Ct. 3229, 92 L. Ed. 2d 650 (1986) ... 3,14

Mouton v. State, 525 So.2d 1136 (La. App. Ist Cir.

1988), writ denied, 526 So. 2d 1112 (La. 1988)... 13

PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610

CPR GOR: SO 86 sh oe ek cc eee - 17

Sable v. General Motors Corp., 90 F.3d 171 (6th Cir.

EOOE Kicceeeaccestesstneeeses eer 7

Shamrock Oil & Gas Corp v. Sheets, 313 U.S. 100,

61 S. Ct. 868, 85 L. Ed. 1214 (1941) .......... 4

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

118 S. Ct. 921, 139 L. Ed. 2d 912 (1998) ...... 18

vil

Cited Authorities

Page

Texas v. Real Parties in Interest, 259 F.3d 387

(Sth Cir. 2001), cert. denied sub nom Umphrey v.

PUNE, TAS Ge GE FOO EROOED cv iccccccccsecens 5

United States v. City of New York, 972 F.2d 464

SG COE Niet nie sh 6040 Ge en bckvoseceds 7

United States v. New York Telephone Co., 434 U.S.

159, 98 S. Ct. 364, 54 L. Ed. 2d 376 (1977) .... 4

Westinghouse Elec. Corp. v. Newman & Holtzinger,

F.C... Fee Fees Fae Cree CU, BFGS) oc ccccccccns 4

Xiong v. Minnesota, 195 F.3d 424 (8th Cir. 1999)

MF PE Se PRES PE ON NE DEEL a) toe OU 7

Yonkers Racing Corp. v. City of Yonkers, 858 F.2d

855 (2d Cir. 1988), cert. denied, 489 U.S. 1077,

109 S. Ct. 1527, 103 L. Ed. 2d 833 (1989) ..... 7

Statutes:

Sh Ss SLI avon cess ceeeiu bebeeueres 11, 13

Eh Rs NE 0 bd 0 be U aU s res ceeeeb ens 11, 13

Ss Ge GP EEE 5 Geb isicceservieeesees 11, 13

vill

Cited Authorities

Page

BP Re: Oh ORE 55. 0s cient dd ene wevavensadons 10

ge ae | ee ee eee 3

Be se I, 064.0 6000 NWN Kien) osensan’ 3

ee eae OE. bo 6044s VA eee ed es endveeaKes 1,4

Be Sa eI hb hee ein ea dee eedsaeeees 4

42 UBL. BPR OU GOG. nn eis civcvcccccscsun l

ee i ie ES ohio os beak SR oun ve bon ens 15

Ce ee © WERE. ane ceretedeseusencees id, 13, 37

42 U.S.C. § 9614(a) ........ ‘ies Ue cetuetaedes 16

Oe Re EE: Cao ci Seek dnes da aeneede 15, 17

ee TE 4044s ba0606ads be eceuaueeuess 16

Other Authorities:

Lonny S. Hoffman, Removal Jurisdiction and the

All Writs Act, 148 U. Pa. L. Rev. 401 (1999) Pe

J. Moore & G. Pratt, 19 Moore’s Federal Practice

SD ET CD, SEED 06.00 bb bc dccbesusens 4

ix

Cited Authorities

Page

Joan Steinman, The Newest Frontier of Judicial

Activism: Removal Under the All Writs Act,

Pas hi BT. PTR GIONED iv ccwecewcecenes 5,6

Charles Alan Wright, Arthur R. Miller, & Edward

H. Cooper, 16 Fed. Prac. & Proc. Juris. 2D § 3932,

SUE tia oats Cck ANU eR Neha te hawen 4

Charles Alan Wright, Arthur R. Miller, & Edward

H. Cooper 14B Fed. Prac. & Proc. Juris. 3D § 3721

1

SUMMARY OF ARGUMENT

This case concerns the principle of federalism, which

serves to ensure that the limited jurisdiction of federal courts

does not improperly invade the jurisdiction of state courts.

Respondents, MSOF and Jay Paul LeBlanc (collectively

“MSOF”), filed this action in state court seeking damages

for the contamination of its property from the toxic chemicals

stored and released from the waste disposal sites located

upstream from MSOF’s property. MSOF sought relief and

asserted causes of action solely under Louisiana state law.

Petitioners (collectively “the NPC Defendants”) removed the

action from state court asserting that the federal court

had jurisdiction over the matter under the All Writs Act,

28 U.S.C. § 1651, and that federal question jurisdiction was

present under 42 U.S.C. § 9613(b) of the Comprehensive

Environmental Response Compensation and Liability Act of

1980 (“CERCLA”), 42 U.S.C. § 9601, et seg.

The NPC Defendants contend that the federal court had

jurisdiction over this matter under the All Writs Act because

the MSOF action conflicted with a consent decree previously

issued in United States v. Petro-Processors of Louisiana,

Inc., et al., Civil Action No. 80-358-B, United States District

Court, Middle District of Louisiana (“PPI Litigation”).

Petitioners’ Brief, p. 7. In the PPI Litigation, the United States

and other governmental parties filed suit in response to the

release of toxic chemicals generated by many of the NPC

Defendants, which were stored at waste sites (“PPI waste

sites”) operated by Petro-Processors uf Louisiana, Inc.

(“PPI”). On February 16, 1984, the parties to the PPI

Litigation entered into a consent decree (“Consent Decree’”’)

to resolve the PPI Litigation. See Consent Decree, Petitioners’

2

Appendix, 23a-27a. The Consent Decree set forth a plan to

contain and remediate the tons of volatile chemicals stored

at PPI waste sites. Consent Decree, Paragraphs 5-6,

Petitioners’ Appendix, 24a-25a.

Some federal courts have held that the All Writs Act is

not an independent source of removal jurisdiction, while

others have interpreted the All Writs Act to permit the

removal of a state court action when the state action presents

a threat to a previously issued federal consent decree. If the

All Writs Act is not an independent source of removal

jurisdiction, removal of the MSOF action was improper. Even

if the All Writs Act can support removal under extraordinary

circumstances, the All Writs Act does not support removal

of the MSOF action because MSOF’s request for monetary

damages does not conflict with the CERCLA cleanup of the

PPI sites prescribed by the Consent Decree. Further, MSOF

was not a party to the Consent Decree, the Consent Decree

did not address the claims brought by MSOF in the state

court action, and the Consent Decree did not concern the

contamination of the MSOF property.

The NPC Defendants assert that MSOF’s claims

arise under CERCLA, thereby invoking the exclusive

jurisdiction of the federal court under 42 U.S.C. § 9613(b).

Petitioners’ Brief, p. 9. However, MSOF may obtain complete

relief under Louisiana state law actions of negligence,

nuisance and trespass. MSOF’s right to relief does not

necessarily turn on the interpretation or application of any

federal law. In addition, the MSOF action does not challenge

the CERCLA cleanup of the PPI waste sites as MSOF only

seeks monetary damages for the toxic contamination of its

property and does not seek to alter the CERCLA cleanup.

Therefore, federal question jurisdiction is lacking.

3

The Fifth Circuit held that the MSOF action filed in state

court was improperly removed and that the federal district court

did not have original jurisdiction under the All Writs Act or

CERCLA. Petitioners’ Appendix, 1a-12a. This holding is well-

grounded in law and the present petition for writ of certiorari

should be denied.

REASONS FOR DENYING THE PETITION

A. THE FIFTH CIRCUIT PROPERLY HELD THAT

REMOVAL OF THIS ACTION FROM STATE

COURT WAS NOT WARRANTED UNDER THE ALL

WRITS ACT

1. The All Writs Act is not an independent source of

federal court jurisdiction

Under 28 U.S.C. § 1441', an action may be removed

only where the federal district court would have had original

jurisdiction over that action. Removal jurisdiction raises significant

federalism concerns, see Merrell Dow Pharmaceuticals, Inc.

v. Thompson, 478 U.S. 804, 809, 106 S. Ct. 3229, 3233, 92

L. Ed. 2d 650 (1986); Franchise Tax Board v. Construction

Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S. Ct. 2841,

1. 28 U.S.C. § 1441(b) states:

Any civi. action of which the district courts have original

jurisdicton founded on a claim or right arising under

the Constitution, treaties or laws of the United States

shall be removable without regard to the citizenship or

residenc2 of the parties. Any other such action shall be

removable only if none of the parties in interest properly

joined aad served as defendants is a citizen of the State

in which such action is brought.

4

2846, 77 L. Ed. 2d 420 (1983), and federal courts must

therefore strictly construe removal jurisdiction. Shamrock Oil

& Gas Corp. v. Sheets, 313 U.S. 100, 107, 61 S. Ct. 868,

872, 85 L. Ed. 1214 (1941); Charles Alan Wright, Arthur R.

Miller, & Edward H. Cooper 14B Fed. Prac. & Proc. Juris.

3D § 3721 at 351-52 (2002).

The All Writs Act provides, in part, that, “(t]he Supreme

Court and all courts established by Act of Congress may issue

all writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles

of law.” 28 U.S.C. § 1651. The plain and unambiguous

language of 28 U.S.C. § 1651(a) does not confer original

jurisdiction on the district courts. The All Writs Act merely

allows federal courts “to effectuate and prevent the frustration

of orders it has previously issued in its exercise of jurisdiction

otherwise obtained.” United States v. New York Telephone

Co., 434 U.S. 159, 172, 98 S .Ct. 364, 372, 54 L. Ed. 2d 376

(1977) (emphasis added). As such, the All Writs Act does

not enlarge jurisdiction. Clinton v. Goldsmith, 526 U.S. 529,

535, 119S. Ct. 1538, 1542, 1143 L. Ed. 2d 720 (1999) citing

Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper,

16 Fed. Prac. & Proc. Juris. 2D § 3932, p. 470 (2d ed. 1996)

(“The All Writs Act ... is not an independent grant of

appellate jurisdiction”) and 19 J. Moore & G. Pratt, Moore’s

Federal Practice § 204.02[4] (3d ed. 1998) (“The All Writs

Act cannot enlarge a court’s jurisdiction’).

The Ninth, Tenth, and Eleventh Circuits hold that the

All Writs Act does not create an independent source of

subject-matter jurisdiction that would expand removal

jurisdiction. Westinghouse Elec. Corp. v. Newman &

Holtzinger, P.C., 992 F.2d 932, 937 (9th Cir. 1993); Hillman

v. Webley, 115 F.3d 1461, 1469 (10th Cir. 1997); and Henson

5

v. Ciba-Geigy Corp., 261 F.3d 1065, 1070 (11th Cir. 2001),

cert. granted sub nom. Syngenta Crop Protection v. Henson,

122 S. Ct. 1062 (2002). The Fifth Circuit has also expressed

doubt “that All Writs Act removal [is] proper even in the

face of extraordinary circumstances.” Texas v. Real Parties

in Interest, 259 F.3d 387, 394 (Sth Cir. 2001), cert. denied

sub nom Umphrey v. Texas, 122 S. Ct. 924 (2002). These

concerns are well-placed.

The use of the removal jurisdiction under the All Writs

Act has recently received scholarly review and criticism.

See, e.g., Lonny S. Hoffman, Removal Jurisdiction and the

All Writs Act, 148 U. Pa. L. Rev. 401 (1999); Joan Steinman,

The Newest Frontier of Judicial Activism: Removal Under

the All Writs Act, 80 B.U. L. Rev. 773 (2000). These scholars

have questioned the efficacy of the recent discovery and use

of removal jurisdiction under the All Writs Act, passed in

1789.

As Professor Hoffman noted: “From 1789 to 1987, no

court had ever ruled by reported decision that the All Writs

Act could serve as an independent basis for removal.”

Hoffman, 148 U. Pa. L. Rev., p. 413. Professor Hoffman

further states:

Federal courts are courts of limited jurisdiction

because they cannot assume jurisdiction over a

particular controversy unless it comes within

Article Il of the Constitution and a specific statute

permits them to exercise jurisdiction. However,

Congress has never authorized such an expansive

grant of jurisdiction to the federal courts through

the All Wnits Act. Consequently, broadening removal

jurisdiction in this fashion expands district court

6

original jurisdiction beyond the maximum limits

currently authorized by Congress.

Hoffman, 148 U. Pa. L. Rev. 401, pp. 404-405. These

observations were echoed by Professor Steinman:

[C]onsiderations of comity, requiring courts of one

jurisdiction to forbear from interfering with courts

of another jurisdiction, and of federalism,

premised on the notion that federal courts must

respect the independent sovereignty of state

courts, dictate that the federal courts should not

loosely interpret the All Writs Act to permit

removal of actions from state court. ‘Proceedings

in state courts should normally be allowed to

continue unimpaired by intervention of the lower

federal courts,’ unless their injunction is warranted

under the [Anti-Injunction Act] and, in that

circumstance, injunction rather than removal

usually, if not always, should be ordered.

Steinman, 80 B.U. L. Rev. 773, 815-816 [citations omitted].

The plain language and historical use of the All Writs Act

support the Eleventh Circuit’s position that the All Writs Act

is not “jurisdictional caulk” that can fill gaps in federal court

authority. Henson, 261 F.3d at 1070. To interpret the All Writs

Act to confer original jurisdiction on the federal courts would

impermissibly expand the subject matter jurisdiction beyond

the maximum limits authorized by Congress.

The All Writs Act is not an independent source of federal

court jurisdiction and the state court action filed by MSOF

against non-diverse defendants under Louisiana state law

causes of action is not removable under the All Writs Act.

7

2. The MSOF action does not conflict with the Consent

Decree

The NPC Defendants argue that the All Writs Act provides

authority to remove MSOF’s state court action to protect the

Consent Decree issued in the prior PPI litigation and, in support,

cite to cases rendered by the Second, Seventh and Eighth

Circuits. Petitioners’ Brief, p. 8. However, these courts have

relied upon the All Writs Act for removal jurisdiction only in

exceptional circumstances, to wit: Relitigation of issues by the

same parties to previous federal cases, e.g. Sable v. General

Motors Corp., 90 F.3d 171, 174 (6th Cir. 1996)? and Xiong v.

Minnesota, 195 F.3d 424, 427 (8th Cir. 1999); the subsequent

litigation affects constitutional rights of parties to existing suits,

e.g. Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855, 863

(2d Cir. 1988), cert. denied, 489 U.S. 1077, 109 S. Ct. 1527,

103 L. Ed. 2d 833 (1989); and where issues raised in state court

could not be separated from relief ordered in consent decree,

e.g. United States v. City of New York, 972 F.2d 464, 469 (2d

Cir. 1992). None of these circumstances are present here, which

distinguishes these cases from the case sub judice.

The NPC Defendants removed the MSOF action under the

All Writs Act contending that the MSOF action “would (or at

least possibly could) conflict” with the Consent Decree.

Petitioners’ Brief, p. 9. To the contrary, MSOF desires the

attainment of the explicit objective of the Consent Decree—

the protection of the public, including MSOF and its property,

from the release of the toxic substances from the PPI waste

2. In Sable, the Sixth Circuit decided that federal jurisdiction

existed over plaintiff’s state law tort action because an element of

the tort claim was defendants’ breach of a duty created by federal

law. See Sable, 90 F.3d at 174. No element of MSOF’s state law

claims is created by federal law.

8

sites “by the investigation, development, design and

implementation of remedial and long-term monitoring

programs for both [the PPI waste] sites . . .” Consent Decree,

Paragraph 5, Appendix, 4a. A release of the toxic chemicals

stored at the PPI waste sites onto MSOF’s property located

downstream would constitute a violation of the stated goal

of the Consent Decree. The Fifth Circuit agreed stating: “If

anything, the plaintiffs’ suit is consistent with these objectives

[of the Consent Decree], not at odds with them.” Petitioners’

Appendix, 11a.

In its state court action, MSOF seeks “compensatory

damages in an amount to be proven at trial commensurate

with the costs of restoration and remediation of [MSOF]’s

property” and “exemplary damages.” MSOF Petition, Prayer

for Relief, Petitioners’ Appendix, 33a. The award of even

complete relief under Louisiana tort law as sought by MSOF

would not frustrate the Consent Decree, as the award of

monetary damages to MSOF would not impact or effect the

implementation of the remediation plan called for in the

Consent Decree. As the Fifth Circuit noted below, “the

consent decree certainly does not expressly purport to

authorize any contamination of plaintiffs’ land or anything

else plaintiffs complain of.” Petitioners’ Appendix, 11a.

Therefore, the relief sought by MSOF does not affect, much

less threaten, the integrity of the Consent Decree.

Even under the expansive interpretation of the All Writs

Act approved in the Second, Seventh and Eighth Circuits,

removal of the MSOF action under the All Writs Act is

improper in this case because the MSOF action does not pose

a threat to the integrity of the Consent Decree. Further, writs

are “drastic” remedies which a court should invoke only in

“extraordinary situations.” Kerr v. United States District Court,

9

426 U.S. 394, 402, 96 S. Ct. 2119, 2123, 48 L. Ed. 2d 725

(1976). Therefore, the Fifth Circuit properly held, removal

jurisdiction over this case is not appropriate under the All

Writs Act. Petitioners’ Appendix, 12a.

3. The MSOF property is not within the CERCLA

cleanup area delineated in the Consent Decree

Under the terms of the Consent Decree, the defendant

parties to the PPI Litigation agreed to remediate the PPI waste

sites (the Brooklawn and Airline Highway sites), which

are delineated in the Consent Decree. Consent Decree,

Paragraphs 3 and 4, Appendix 3a. MSOF’s property is not

within the PPI waste sites defined in the Consent Decree.

Therefore, the continuing jurisdiction of the district court

over the PPI waste sites as set forth in the Consent Decree is

limited to the PPI waste sites and does not include the MSOF

property. Consent Decree, Paragraph 35, Petitioners’

Appendix, 27a. The exercise of removal jurisdiction over

the MSOF action under the All Writs Act would improperly

extend the limited jurisdiction of the federal court through

the Consent Decree to cover the MSOF property, an area

outside the PPI waste sites. The Fifth Circuit was right not

to countenance such an extension of jurisdiction.

4. MSOF was not party to the Consent Decree

The Consent Decree settled the PPI Litigation as to the

parties to that litigation. Claims of non-parties to the Consent

Decree concerning the release of the toxic substances stored

at the PPI waste sites were expressly preserved and not

released by the Consent Decree, which provides: “[i]t is not

the purpose of this agreement nor the intention of the parties

to release any other persons or entities not parties to this

10

Consent Decree from any claims or liabilities, the right

to pursue which is expressly reserved.” Consent Decree,

Paragraph 29, Appendix 4a. MSOF was not party to the PPI

Litigation or the Consent Decree and MSOF’s right to bring

these state law claims against the NPC Defendants was not

limited or extinguished thereunder, nor are MSOF’s claims

subject to the federal court’s jurisdiction under the Consent

Decree.

B. MSOF’S ACTION DOES NOT RAISE A FEDERAL

QUESTION

Absent diversity of citizenship, as in this case, federal-

question jurisdiction is required, i.e. “civil actions arising

under the Constitution, laws, or treaties of the United States.”

28 U.S.C. § 1331. The presence or absence of federal-

question jurisdiction is governed by the “well-pleaded

complaint rule,” which provides that federal courts have

jurisdiction to hear, originally or by removal, only those cases

in which a well-pleaded complaint establishes either that

federal law creates the cause of action, or that the plaintiff’s

right to relief necessarily depends on resolution of a

substantial question of federal law. Franchise Tax Board v.

Construction Laborers Vacation Trust, 463 U.S. 1, 27-28,

103 S. Ct. 2841, 2856, 77 L. Ed. 2d 420 (1983). MSOF does

not seek relief under any federal law nor does MSOF’s right

to relief under state law necessarily depend on a substantial

question of federal law. Therefore, federal question

jurisdiction is lacking over the MSOF action.

11

1. MSOF may obtain complete relief under

Louisiana state law causes of action and federal

question jurisdiction does not exist

MSOF’s state court petition alleged that toxic chemicals

from the PPI waste sites contaminated its land and sought

relief solely under negligent and strict liability torts pursuant

to Louisiana state law—La. Civ. Code arts. 2315°, 2317%,

and 667°, which encompass the doctrines of negligence,

trespass and nuisance. MSOF Petition, Paragraph 23,

Petitioners’ Appendix, page 31a. In its prayer for relief,

MSOF seek “compensatory damages in an amount to be

proven at trial commensurate with the costs of restoration

and remediation of [MSOF]’s property” and “exemplary

damages” from the NPC Defendants for their mishandling

of hazardous substances. MSOF Petition, Prayer for Relief,

Petitioners’ Appendix, Page 33a.

It is well settled where a plaintiff has available both a

state and a federal cause of action, the plaintiff “may avoid

federal jurisdiction by exclusive reliance on state law,” as

3. La. Civ. Code art. 2315 provides: “Every act whatever of

man that causes damage to another obliges him by whose fault it

happened to repair it.”

4. La. Civ. Code art. 2317, in pertinent part, provides: “We are

responsible, not only for the damage occasioned by our own act, but

for that which is caused by the act of persons for whom we are

answerable, or of the things which we have in our custody.”

5. La. Civ. Code art. 667, in pertinent part, provides: “Although

a proprietor may do with his estate whatever he pleases, still he cannot

make any work on it, which may deprive his neighbor of the liberty

of enjoying his own, or which may be the cause of any damage to

him.”

12

MSOF has done in this case. Caterpillar, Inc. v. Williams,

482 U.S. 386, 392, 107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318

(1987). MSOF has not sought relief under any federal statute

or law and has elected to proceed exclusively pursuant to

state law.

In McCastle v. Rollins Environmental Services, 514

F. Supp. 936 (M.D. La. 1981), plaintiffs brought a class action

in state court against a hazardous waste disposal facility

claiming that defendant had released chemical fumes and

odors, which constituted a nuisance under Louisiana state

law. The plaintiffs prayed for monetary damages and

for injunctive relief, including closure of the facility.

The defendant claimed that plaintiffs alleged a cause of action

under the Resource Conservation and Recovery Act (RCRA)

and, therefore, was founded upon a claim “arising under the

Constitution, treaties or laws of the United States” which

permitted removal of the action to federal court.

The court found no basis for removal jurisdiction of the

plaintiffs’ action brought under Louisiana state law, stating:

Louisiana has an existing comprehensive and

sophisticated body of law relating to actions which

result in injury or damage to one’s neighbors.

The Louisiana Civil Code provides a complete set

of rules governing liability for actions between

neighbors. Plaintiffs and defendant may obtain

complete relief under state law in state court.

There is thus a forum available for resolution of

this dispute other than federal common law,

applied by a federal district court.

13

As to overriding federal concern, the fact that the

Comprehensive Environmental Response,

Compensation and Liability Act of 1980 saves to

plaintiffs their state law remedies for injury or

damage caused by air pollution is an indication

that the Congress has not concluded that there is

an overriding federal concern in this area.

McCastle, 514 F. Supp. at 941.

Here, as in McCastle, MSOF has not sought relief under

CERCLA, RCRA, or any other federal law. Under Louisiana

state law, “[t]he cost of cleanup or removal of offending

substances is an element of damages and, thus, part of the

relief that may be obtained if the cause of action is proved.”

Mouton v. State, 525 So. 2d 1136, 1143 (La. App. 1st Cir.

1988), writ denied, 526 So. 2d 1112 (La. 1988) (emphasis

original).As the Mouton court makes clear, MSOF is entitled

to the cost of cleanup and/or remediation as an element of

monetary damages if MSOF establishes the causes of action

under La. Civ. Code arts. 2315, 2317, and 667. Therefore,

no essential element of the MSOF’s causes of action arises

under federal law. The Fifth Circuit followed the clear holding

of Mouton and held that MSOF can obtain complete relief

from the NPC Defendants under the Louisiana causes of

action pled in its complaint. Petitioners’ Appendix, 6a, citing

Mouton, 525 So. 2d at 1143; La. Civ. Code arts. 2315, 2317,

and 667.

As the Fifth Circuit properly noted, the only reference

to federal law in the MSOF petition is an allegation that the

PPI facility was maintained in violation of federal regulations

as well as in violation of state and local regulations.

Petitioners’ Appendix, 6a. MSOF’s allegation that the NPC

id

Sd

Defendants violated unenumerated federal regulations

statutes does not constitute a request fora CERCLA remedy

to provide basis for federal question jurisdiction, e.g. Gray

v. Murphy Oil USA, Inc., 874 F. Supp. 748, 755 (S.D. Miss.

1994); Howery v. Allstate Ins. Co., 243 F.3d 912, 918 (Sth

Cir. 2001). “[T]he mere presence of a federal issue in a state

cause of action does not automatically confer federal-question

jurisdiction.” Merrell Dow Pharm., Inc. v. Thompson, 478

U.S. 804, 813, 106 S. Ct. 3229, 3234, 92 L. Ed. 2d 650

(1986). Therefore, the Fifth Circuit properly held that

MSOF’s claims do not necessarily turn on an application or

interpretation of CERCLA and that federal question

jurisdiction does not exist over this matter. Petitioners’

Appendix, 9a.

To support their plea of federal question jurisdiction, the

NPC Defendants have simply recharacterized MSOF’s state

law claims to be CERCLA claims. However, the “artful

pleading” doctrine cannot be invoked by party attempting to

justify removal on the basis of facts not alleged in the

complaint. Caterpillar, Inc. v. Williams, 482 U.S. 386, 397,

107 S. Ct. 2425, 2432, 96 L. Ed. 2d 318 (1987). To hold

otherwise would convert all state law causes of action

concerning environmental or toxic torts into CERCLA claims

despite the explicit terms and policy of CERCLA to the

contrary.

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2. CERCLA does not preempt state tort law relating

to toxic contamination

The NPC Defendants argue that MSOF’s claims arise under

CERCLA and are subject to the exclusive jurisdiction of

CERCLA under 42 U.S.C. § 9613(b)°*. Petitioners’ Brief, p. 9.

This argument was properly rejected by the Fifth Circuit based

upon the general savings clauses of CERCLA itself: “In enacting

CERCLA, Congress expressly disclaimed an intent to preempt

state tort liability for the release of hazardous substances.

CERCLA contains a general saving clause and several section-

specific saving clauses.” Petitioners’ Appendix, 6a-7a, citing to

42 U.S.C. § 9652(d)’ and 42 U.S.C. § 9607(j)®. In addition,

6. 42 U.S.C. § 9613(b) provides: “the United States district

courts shall have exclusive original jurisdiction over all controversies

- arising under [CERCLA], without regard to the citizenship of the

parties or the amount in controversy.”

7. 42 U.S.C. § 9652(d) provides:

Nothing in this chapter shall affect or modify in any way

the obligations or liabilities of any person under other

Federal or State law, including common law, with respect

to releases of hazardous substances or other pollutants

or contaminants. The provisions of this chapter shall not

be considered, interpreted, or construed in any way as

reflecting a determination, in part or whole, of policy

regarding the inapplicability of strict liability, or strict

liability doctrines, to activities relating to hazardous

substances, pollutants, or contaminants or other suc

activities. :

8. 42 U.S.C. § 9607(j) provides:

Recovery by any person ... for response costs or

damages resulting from a federally permitted release shall

(Cont'd)

16

liability under state law’ and state tort law'® concerning the

release of hazardous substances are not affected by CERCLA.

Therefore, Congress has expressed the clear intent that state

law causes of action concerning toxic torts shall remain in

effect.

Several circuit courts have held that Congress has made

no attempt to pre-empt the field in areas of CERCLA liability,

e.g. ARCO Environmental Remediation, L.L.C. v. Department

of Health and Environmental Quality of Montana, 213 F.3d

1108, 1114-1115 (9th Cir. 2000) (“CERCLA does not

completely occupy the field of environmental regulation.

Congress expressly declared that it had no intent to do so. ...

At best, CERCLA may provide a conflict preemption defense

to [plaintiff’s] state law claims.”); Bedford Affiliates v. Sills,

156 F.3d 416, 426-427 (2d Cir. 1998) (“We conclude it was

not part of the legislative purpose that CERCLA be a

(Cont'd)

be pursuant to existing law in lieu of this section. Nothing

in this paragraph shall affect or modify in any way the

obligations or liability of any person under any other

provision of State or Federal law, including common law,

for damages, injury, or loss resulting from a release of

any hazardous substance or for removal or remedial

action or the costs of removal or remedial action of such

hazardous substance.

9. 42 U.S.C. § 9614(a) provides: “Nothing in this Act shall be

construed or interpreted as preempting, any state from imposing any

additional liability or requirement with respect to the release of

hazardous substances within each state.”

10. 42 U.S.C. § 9672 provides: “Nothing in this subchapter shall

be construed to affect either the tort law or the law governing the

interpretation of insurance contracts of any State.”

17

comprehensive regulatory scheme occupying the entire field of

hazardous wastes, nor does CERCLA prevent the states from

enacting laws to supplement federal measures relating to the

cleanup of such wastes.”); PMC, Inc. v. Sherwin-Williams Co.,

151 F.3d 610, 617 (7th Cir. 1998) (purpose of 42 U.S.C.

§ 9652(d) “is to preserve to victims of toxic wastes the other

remedies they may have under federal and state law”) and Manor

Care, Inc. v. Yaskin, 950 F.2d 122, 125-26 (3d Cir. 1991)

(In enacting CERCLA, Congress did not explicitly preempt all

state law, nor did it create a comprehensive scheme of regulation

leaving no room for supplementation.). Accordingly, CERCLA

does not preempt MSOF’s claims under Louisiana state law.

3. MSOF’s action is not a challenge to a CERCLA

cleanup

The NPC Defendants assert that MSOF has challenged the

CERCLA cleanup of the PPI sites prescribed in the Consent

Decree and, thus, is subject to the exclusive jurisdiction of the

federal court under 42 U.S.C. § 9613(b). Petitioners’ Brief,

p. 10. In support, the NPC Defendants cite to a line of Ninth

Circuit caselaw. Jd. However, the Ninth Circuit has “found

actions to challenge CERCLA cleanups where the plaintiff seeks

to dictate specific remedial actions, to postpone the cleanup, to

impose additional reporting requirements on the cleanup, or to

alter the method and order of cleanup. ARCO Environmental

Remediation, 213 F.3d at 1115 [citations omitted]. MSOF does

not seek to alter cleanup requirements or environmental

standards, nor does MSOF seek to terminate or delay the cleanup

of the PPI sites. Therefore, the MSOF action does not constitute

a “challenge” to the CERCLA cleanup of the PPI sites, even

under analysis of ARCO and the line of Ninth Circuit cases cited

by the NPC Defendants. As the Fifth Circuit found: “If anything,

the plaintiffs’ suit is consistent with these objectives [of the

Consent Decree], not at odds with them.” Petitioners’ Appendix,

lla.

18

The NPC Defendants contend that MSOF’s claims arise

under federal law because the scope of what is authorized

under CERCLA and the Consent Decree may limit the

defendants’ obligations to MSOF. It is well established there

is no federal question jurisdiction when “federal law becomes

relevant only by way of a defense to an obligation created

entirely by state law, and then only if [the plaintiff] has made

out a valid claim for relief under state law.” Franchise Tax

Board, 103 S. Ct. at 2848. The federal question on which

jurisdiction is based must be invoked as part of the plaintiff’s

claim rather than in anticipation of a defense. Rivet v. Regions

Bank of Louisiana, 522 U.S. 470, 475, 118 S. Ct. 921, 925,

139 L. Ed. 2d 912 (1998). Therefore, the “artful pleading”

doctrine is inapplicable to MSOF’s state court action.

The Fifth Circuit properly held below “that neither

CERCLA nor the mere existence of the federal consent decree

creates federal ‘arising under’ jurisdiction in this case.”

Petitioners’ Appendix, 9a.

19

CONCLUSION

For the foregoing reasons, this Court should deny the |

petition for writ of certiorari filed by the NPC Defendants. |

Respectfully submitted,

J. Burton LEBLanc, IV

Counsel of Record

CHARLES S. LAMBERT, JR.

J. BURTON LEBLANC, JR.

LEBLANC & WADDELL

5353 Essen Lane, Suite 420

Baton Rouge, LA 70809

(225) 768-7222

PATRICK W. PENDLEY

PaTRICK W. PENDLEY, APLC

24110 Eden Street |

P.O. Drawer 71

Plaquemine LA 70765-0071 |

(225) 687-6396

Attorneys for Respondents

—

APPENDIX

la

APPENDIX — EXCERPTS FROM CONSENT DECREE,

DATED FEBRUARY 6, 1984 ISSUED IN UNITEP STATES

v. PETRO-PROCESSORS OF LOUISIANA, INC., et al.,

CIVIL ACTION NO. 80-358-B, UNITED STATES

DISTRICT COURT, MIDDLE DISTRICT

OF LOUISIANA

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

CIVIL ACTION NO. 80-358-B

UNITED STATES OF AMERICA,

Plaintiff

VERSUS

PETRO PROCESSORS OF LOUISIANA, INC.; UNITED

STATES STEEL CORP.; COPOLYMER RUBBER AND

CHEMICAL CORP.; UNIROYAL, INC.; ETHYL CORP.;

DOW CHEMICAL CO.; SHELL OIL COMPANY;

AMERICAN HOECHST CORP.; EXXON CORP.; EXXON

CHEMICAL CO.; ALLIED CHEMICAL CORP.; RUBICON

CHEMICALS CORP.

Defendants

AND

STATE OF LOUISIANA

CITY OF BATON ROUGE, AND

PARISH OF EAST BATON ROUGE,

Intervenors

2a

Appendix

CONSENT DECREE

Plaintiffs, United States of America (United States),

on behalf of the Administrator of the United States

Environmental Protection Agency (EPA), Intervenor

Plaintiffs, State of Louisiana (Louisiana) and the City of

Baton Rouge (Baton Rouge), hereafter collectively referred

to as “Plaintiffs,” and certain of the Defendants, United States

Steel Corporation, Copolymer Rubber and Chemical

Corporation, Uniroyal, Inc., The Dow Chemical Co., Ethyl

Corp., Shell Oil Company, American Hoechst Corp., Exxon

Corporation, Allied Corporation, and Rubicon Chemicals,

Inc., (collectively “Industry Defendants”) have each agreed

to the making and entry of this Consent Decree (“Decree”)

prior to completion of trial and without any admission of

liability or fault as to any allegation or matter arising out of

the pleadings of any party.

Each undersigned representative of the parties to this

Consent Decree certifies that he or she is fully authorized to

enter into the terms and conditions of this Decree and to

execute and legally bind such party to this document.

NOW, THEREFORE, it is hereby ORDERED,

ADJUDGED AND DECREED:

*

* *

3a

Appendix

3.

The Brooklawn site is located just south of Brooklawn

Road, about 5 miles north of Baton Rouge, and about 2 miles

west of Highway 61, between Brooklawn Road and Bayou

Baton Rouge, in East Baton Rouge Parish, Louisiana.

The Brooklawn site consists of four generally identifiable

areas of waste disposal and contamination: the Bluff Area,

in the north-northeast portion of the site; the Cypress Swamp

and Bayou Area and that area in the west-southwest portion

of the site which includes contaminated sediments and soils

in Bayou Baton Rouge and other property described in

Attachment “A”; the Upper and Lower Lagoons Area in the

south-central area of the site; and the Batture Area in the

east portion of the site. The Brooklawn site, as used herein,

shall also include any property used for construction of a

landfill for solidified wastes pursuant to Paragraph 6 of this

Decree.

4.

The Scenic Highway site is located about 5 miles from

Baton Rouge, just west of Highway 61 and the Louisiana

and Arkansas Railway right of way, about one mile north of

the intersection of Highway 61 with Brooklawn Road, in East

Baton Rouge Parish, Louisiana. The Scenic Highway site

-consists of two generally identifiable areas of waste disposal

and contamination: the Bluff Area, the primary area of

disposal; and the Batture Area, a relatively small area of waste

burial to the west of the Bluff Area. The Scenic Highway

site, as used herein, shall also include any property used for

construction of a landfill for solidified waste pursuant to

Paragraph 6 of this Decree.

4a

Appendix

5.

The objectives of the parties, through entry of this

Decree, are to protect public health and the environment from

releases of hazardous wastes, solid wastes, hazardous

substances and pollutants and contaminants (hereinafter

collectively “wastes”) from the Brooklawn and Scenic

Highway sites, by the investigation, development, design and

implementation of remedial and long-term monitoring

programs for both sites by the Industry Defendants. The

remedial programs shall employ sound scientific, engineering

and construction practices.

29.

It is not the purpose of this agreement nor the intention

of the parties to release any other persons or entities not

parties to this Consent Decree from any claims or liabilities,

the right to pursue which is expressly reserved. Industry

Defendants reserve any rights they may have to intervene in

any action brought by the Plaintiffs to recover funds expended

by Industry Defendants for closure pursuant to this Decree.

* * *

Dated and entered this 16 day of February, 1984.

/s/ Frank J. Polozola

UNITED STATES DISTRICT JUDGE