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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 1046

## Text

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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15

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0474%3A2. Public record. Not legal advice.