MSOF Corp v. Exxon Corporation

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 01-30122

MSOF CORPORATION; JAY PAUL LEBLANC,

Plaintiffs-Appellants,

versus

EXXON CORPORATION; ET AL,

Defendants,

EXXON CORPORATION;
EXXON CHEMICAL CORPORATION;
USS CHEMICAL CO; COPOLYMER
RUBBER & CHEMICAL CORPORATION;
UNIROYAL CORPORATION; DOW
CHEMICAL COMPANY; ETHYL
CORPORATION; SHELL CHEMICAL CO;
AMERICAN HOECHST CORPORATION;
ALLIED CHEMICAL CORPORATION;
RUBICON CHEMICAL CO; PETRO
PROCESSORS OF LOUISIANA INC;
ROBERT BOLGER; J W STREET;
W L RAINEY; NPC SERVICES INC;
XYZ INSURANCE COMPANY,

Defendants-Appellees.

Appeal from the United States District Court
for the Middle District of Louisiana

June 20, 2002
Before GARWOOD, DAVIS, and MAGILL,1 Circuit Judges.

GARWOOD, Circuit Judge:

1
Circuit Judge of the Eighth Circuit, sitting by designation.
 In this removed case, plaintiffs-appellants MSOF Corporation

(MSOF) and Jay Paul LeBlanc (collectively, the plaintiffs) appeal

the district court’s judgment in favor of defendants-appellees

Exxon Corporation, Exxon Chemical Corporation, USS Chemical

Company, Copolymer Rubber & Chemical Corporation, Uniroyal

Corporation, Dow Chemical Company, Ethyl Corporation, Shell

Chemical Company, American Hoechst Corporation, Allied Chemical

Corporation, Rubicon Chemical Company, Petro Processors of

Louisiana, Inc. (PPI), Robert Bolger (Bolger), J.W. Street

(Street), W.L. Rainey (Rainey), NPC Services, Inc. (NPC), and XYZ

Insurance Company (collectively, the defendants). Appellants

contend, inter alia, that the district court erred in denying their

motion to remand. We agree with appellants, and accordingly vacate

the district court’s judgment and remand the case to the district

court with instructions to return the case to the state court from

which it was removed.

Facts and Proceedings Below

The plaintiffs own land in the Devil’s Swamp area in the

Parish of East Baton Rouge, Louisiana. On July 5, 1994, the

plaintiffs filed suit against the defendants in Louisiana state

court on behalf of themselves and all other similarly situated

landowners, alleging that the defendants were responsible for

contaminating their land with toxic chemicals. The defendants

removed the case to the United States District Court for the Middle

2
District of Louisiana. The plaintiffs filed a motion to remand,

asserting that the district court did not have subject matter

jurisdiction. After a hearing on the motion to remand, the motion

was denied. The defendants moved for summary judgment. The

district court granted their motion, holding that the plaintiffs

had not produced sufficient evidence to create a disputed issue of

material fact relating to an essential element of their claim, and

rendered judgment for defendants.

PPI, a Louisiana corporation, was the owner and operator of

two hazardous waste disposal facilities in the Devil’s Swamp

region, the Brooklawn Site and the Scenic Highway site. With the

exception of NPC, the other corporate defendants were industrial

generators of hazardous waste that made use of the PPI disposal

facilities. NPC , a Louisiana corporation, was formed by the

industrial generator defendants in 1984 to clean up or remediate

the PPI sites in accordance with a federal consent decree. Bolger

was president of NPC. Street and Rainey were executive officers of

NPC.

PPI operated its waste disposal facility, just north of

Devil’s Swamp, during the 1960's and 1970's. Plaintiffs’ property

is located approximately three miles south of the PPI facility. In

1980, the United States Department of Justice, on behalf of the

Environmental Protection Agency, sued PPI and several of the

industrial generators in the United States District Court for the

3
Middle District of Louisiana under the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §

9601 et seq. The State of Louisiana, the City of Baton Rouge, and

the Parish of East Baton Rouge intervened in that suit. On

February 16, 1984, a consent decree was entered in that case by the

United States District Court for the Middle District of Louisiana

under which certain companies, including the industrial generator

defendants in the present action, agreed to investigate and clean

up contamination from the former PPI facility. The consent decree

ordered, inter alia, that these sites be monitored for thirty years

after the completion of remediation under the continuing

supervision and jurisdiction of the district court. On August 28,

1989, the district court ordered that the consent decree be

supplemented with a Supplemental Remedial Action Plan prepared by

the defendants. In 1984, the industrial generator defendants

contracted with NPC to perform the remediation work, which has been

underway since 1984 under the supervision of Judge Polozola. None

of the plaintiffs in this case was ever a party to the consent

decree or the case in which it was entered.

The plaintiffs’ state court complaint alleged that toxic

chemicals emanating from the PPI facility had contaminated their

land in the southern half of Devil’s Swamp. In resisting the

plaintiffs’ motion to remand to state court, the defendants

asserted that the district court had original jurisdiction under

4
the All Writs Act, 28 U.S.C. § 1651, federal question jurisdiction

pursuant to 28 U.S.C. § 1331, and diversity jurisdiction pursuant

to 28 U.S.C. § 1332.2 The district court found that there was

federal question jurisdiction because the plaintiffs’ claims really

arose under CERCLA, or, alternatively, that the All Writs Act

conferred jurisdiction, because of the potential for interference

with the court’s earlier consent decree.

In granting the defendants’ motion for summary judgment, the

district court found that the plaintiffs had not produced

sufficient evidence to support a finding that any toxic substances

from the PPI site reached plaintiffs’ land approximately three

miles to the south. Because we hold that the district court lacked

jurisdiction, it is not necessary to discuss that court’s summary

judgment rulings in further detail.

Discussion

This court reviews a question of the district court’s

jurisdiction de novo. United States v. Jimenez-Martinez, 179

F.3d 980, 981 (5th Cir. 1999).

The district court found that there were at least two bases

2
On appeal, the defendants have abandoned their argument for
diversity jurisdiction. Plaintiffs are Louisiana citizens as are
some of the defendants. To establish diversity jurisdiction the
defendants would have the burden of showing that all the non-
diverse defendants were fraudulently joined. Wilson v. Republic
Iron & Steel Co., 42 S.Ct. 35, 37 (1921). Since the defendants
have not even attempted to carry this burden, diversity
jurisdiction was not established and we do not further consider it.

5
for exercising jurisdiction: federal question jurisdiction

pursuant to CERCLA and jurisdiction by means of the All Writs

Act. We hold that there is no basis for federal removal

jurisdiction in this case.

I. Federal Question Jurisdiction

Title 28 states the general principles governing removal

jurisdiction in non-diversity cases: “Any civil action of which

the district courts have original jurisdiction 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 residence of the parties.” 28 U.S.C. § 1441(b).

“The district courts shall have original jurisdiction of all

civil actions arising under the Constitution, laws, or treaties

of the United States.” 28 U.S.C. § 1331. CERCLA contains a

particularized jurisdictional statement, which provides that,

except as otherwise provided, “the United States district courts

shall have exclusive original jurisdiction over all controversies

arising under this chapter, without regard to the citizenship of

the parties or the amount in controversy.” 42 U.S.C. § 9613(b).

A federal court only has original or removal jurisdiction if

the federal question appears on the face of the plaintiff’s well-

pleaded complaint and there is generally no federal jurisdiction

if the plaintiff properly pleads only a state law cause of

action. E.g., Franchise Tax Bd. v. Construction Laborers

6
Vacation Trust, 103 S.Ct. 2841, 2846 - 47 (1983). A case may

“arise under” federal law “where the vindication of a right under

state law necessarily turn[s] on some construction of federal

law.” Id. at 2846. But “this statement must be read with

caution.” Merrell Dow Pharmaceuticals, Inc. v. Thompson, 106

S.Ct. 3229, 3232 (1986). A defense that raises a federal

question is insufficient. Id. Even if a plaintiff has a federal

cause of action, he “may avoid federal jurisdiction by exclusive

reliance on state law.” Caterpillar, Inc. v. Williams, 107 S.

Ct. 2425, 2429 (1987). The “artful pleading” doctrine is an

“independent corollary” to the well-pleaded complaint rule.

Rivet v. Regions Bank, 118 S.Ct. 921, 925 (1998). Under this

principle, removal is not defeated by a plaintiff’s omission to

plead necessary federal questions. Id. “The artful pleading

doctrine allows removal where federal law completely preempts a

plaintiff's state-law claim.” Id.

The plaintiffs’ complaint alleges negligent and strict

liability torts under Louisiana law. Its only reference to

federal law is an allegation that the PPI facility was maintained

in violation of federal regulations as well as in violation of

state and local regulations. That, however, does not suffice to

render the action one arising under federal law. Willy v.

Coastal Corp., 855 F.2d 1160, 1169-71 (5th Cir. 1988). The

defendants argue that the plaintiffs’ complaint, though

7
purporting to seek relief under Louisiana law, actually seeks

relief under CERCLA. The defendants note that the plaintiffs’

petition demanded compensatory damages in an amount commensurate

with the cost of restoring and remediating the plaintiffs’

property and that CERCLA creates a cause of action for such

costs. See 42 U.S.C. § 9607(a). However, Louisiana law also

provides a cause of action under which these plaintiffs can

attempt to prove that these defendants tortiously caused damage

to the plaintiffs’ land and can demand the very relief they seek.

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

1988); La. Civ. Code arts. 2315(A), 2317, 667. 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. The general saving clause, 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 such activities.”

42 U.S.C. § 9607(j), in the section of the Act that creates

liability for response costs, provides, in pertinent part:

8
 “Recovery by any person . . . for response costs or
damages resulting from a federally permitted release
shall 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.”

This court and other courts have construed the CERCLA saving

clauses in accordance with their plain meanings and have held

that they preserve parties’ rights arising under state law. See,

e.g., Aviall Servs. v. Cooper Indus., 263 F.3d 134, 140 (5th Cir.

2001) (42 U.S.C. § 9613(f) preserves the right of toxic tort

defendants to seek contribution under state law); 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 or state law”);

see also Cropwell Leasing Co. v. NMS, Inc., 5 F.3d 899, 901 (5th

Cir. 1993) (per curiam) (42 U.S.C. § 9652(d) preserves right of

action under general maritime law). CERCLA does not completely

preempt the plaintiffs’ claims under Louisiana state law.

Therefore, the “artful pleading” doctrine is inapplicable, see

Rivet, 118 S.Ct. at 925, and the plaintiffs are entitled to rely

exclusively on state law causes of action, Caterpillar, 107 S.Ct.

at 2429. There is no federal question jurisdiction arising from

preemption or application of the artful pleading doctrine.

9
 The defendants argue, however, that, even if the plaintiffs’

complaint does not de facto state a CERCLA claim, plaintiffs’

“right to relief depends upon the construction or application of”

federal law. Smith v. Kansas City Title & Trust Co., 41 S.Ct.

243, 245 (1921); see also Franchise Tax Board, 103 S.Ct. at 2846.

The defendants assert that CERCLA and the consent decree create a

“legal servitude” that imposes a limitation upon the ownership

and use of the plaintiffs’ property.3 Therefore, the defendants

argue, the plaintiffs’ right to relief depends on construction of

this servitude, which arises under federal law.

The Supreme Court, in Merrell Dow Pharmaceuticals, Inc. v.

Thompson, 106 S.Ct. 3229 (1986), explained that the doctrine

described in Smith and Franchise Tax Board must be treated with

caution. Id. at 3232. “[T]he mere presence of a federal issue

in a state cause of action does not automatically confer federal-

3
The plaintiffs’ state law nuisance claims are grounded in La.
Civ. Code Art. 667, which provides:
“Although a proprietor may do with his estate whatever he
pleases, still he can not 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.”
La. Civ. Code Art. 669 provides:
“If the works or material for any manufactory or other
operation, cause an inconvenience to those in the same or
in the neighboring houses, by diffusing smoke or nauseous
smell, and there be no servitude established by which
they are regulated, their sufferance must be determined
by the rules of the police, or the customs of the place.”
La. Civ. Code Art. 659 explains: “Legal servitudes are limitations on
ownership established by law for the benefit of the general public or
for the benefit of particular persons.”

10
question jurisdiction.” Id. at 3234. The vindication of these

plaintiffs’ rights does not turn on resolution of a federal

question. The question whether CERCLA or the consent decree

could even constitute a “servitude” under Louisiana law is

initially a state law question. The defendants do not cite any

Louisiana cases purporting to answer this question and our

research discloses no such case.4

We hold that neither CERCLA nor the mere existence of the

federal consent decree creates federal “arising under”

jurisdiction in this case. Therefore, we must consider whether

the All Writs Act standing alone supports removal jurisdiction.

II. Removal Jurisdiction Under the All Writs Act

The All Writs Act, 28 U.S.C. § 1651(a), provides:

“The 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.”

The Supreme Court has held that the All Writs Act may authorize a

federal court to issue orders “as may be necessary or appropriate

to effectuate and prevent the frustration of orders it has

4
The defendants also contend that the plaintiffs’ negligence
claims arise under federal law because the scope of what is
authorized under CERCLA and the consent decree may limit the
defendants’ obligations to the plaintiffs. Franchise Tax Board
easily disposes of this argument. See Franchise Tax Board, 103
S.Ct. at 2848 (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”).

11
previously issued in its exercise of jurisdiction otherwise

obtained.” United States v. New York Telephone, 98 S.Ct. 364,

372 (1977). The Act is not an independent grant of jurisdiction.

In re McBride, 117 F.3d 208, 220 (5th Cir. 1997); see also

Clinton v. Goldsmith, 119 S.Ct. 1538, 1542 (1999) (All Writs Act

does not enlarge jurisdiction). However, some circuits have read

the All Writs Act to permit “removal”5 to the federal court of at

least some state court actions that were otherwise non-removable.

See, e.g., NAACP v. Metropolitan Council, 144 F.3d 1168, 1170-71

(8th Cir. 1998); Davis v. Glanton, 107 F.3d 1044, 1047 n.4 (3d

Cir. 1997); Sable v. General Motors Corp., 90 F.3d 171, 175 (6th

Cir. 1996); In re VMS Securities Litigation, 103 F.3d 1317, 1323

(7th Cir. 1996); In re Agent Orange Prod. Liab. Litig., 996 F.2d

1425, 1431 (2d Cir. 1993). At least two circuits have held that

the All Writs Act can never facilitate removal of an otherwise

non-removable action. Henson 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); Hillman v. Webley,

115 F.3d 1461, 1469 (10th Cir. 1997); see also Nichols v. Harbor

Venture, Inc., 284 F.3d 857, 863 (8th Cir. 2002).

Our prior jurisprudence forecloses the possibility of

5
“Removal” is here used in a general sense because, technically,
removal is properly accomplished under 28 U.S.C. § 1441. Texas v. Real
Parties in Interest, 259 F.3d 387, 390 n.7 (5th Cir. 2001).

12
removal under the All Writs Act except under “extraordinary

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

395 (5th Cir. 2001) (“In the absence of such extraordinary

circumstances . . . that indisputably demand such a course of

action as absolutely necessary to vouchsafe the central integrity

of the federal court judgment, we hold that the All Writs Act

cannot be employed as a vehicle for removal.”), cert. denied sub

nom Umphrey v. Texas, 122 S.Ct. 924 (2002). In Real Parties, we

declined to decide whether extraordinary circumstances could ever

permit removal under the All Writs Act because, even if such

removal was permissible, the circumstances of that case were not

sufficiently extraordinary to warrant it. Id. at 394 - 95. We

expressed our doubt that All Writs Act removal was proper even in

the face of extraordinary circumstances. See id. at 394

(describing this possibility as a “remote proposition”). We held

above that federal “arising under” jurisdiction does not exist in

the instant case. So we must now consider whether this case

presents extraordinary circumstances that might possibly warrant

All Writs Act removal. Only if this case presented such

circumstances would we be required to answer the question that

the Real Parties court left undecided.6

6
We recognize that the Supreme Court has granted certiorari on the
question whether the All Writs Act can ever serve as the sole basis for
removal jurisdiction. See Syngenta, 122 S.Ct. 1062. Because the
instant case does not require us to go beyond our holding in Real
Parties, we proceed to decide it rather than await Syngenta.

13
 The circumstances of this case do not “indisputably demand”

that removal is “absolutely necessary to vouchsafe the central

integrity” of the consent decree. Real Parties, 259 F.3d at 395.

On the face of their pleadings, the plaintiffs seek compensatory

damages under state tort law for alleged injuries to their land.

They do not either claim violations of the consent decree or

allege that the actions complained of are in conformity with the

consent decree; nor do they seek any changes to the consent

decree, although, as noted above, the defendants might

conceivably attempt to assert compliance with the consent decree

as a defense to the plaintiffs’ negligence claims. However, the

consent decree certainly does not expressly purport to authorize

any contamination of plaintiffs’ land or anything else plaintiffs

complain of. The stated objectives of the consent decree are “to

protect public health and the environment from releases of

hazardous wastes, solid wastes, hazardous substances and

pollutants and contaminants” from the PPI facility. If anything,

the plaintiffs’ suit is consistent with these objectives, not at

odds with them. Pursuant to the consent decree, the governmental

entities who were plaintiffs in the underlying suit covenanted

not to sue the defendants. But the plaintiffs in this case were

not parties to that suit or to the consent decree. The consent

decree specifically provides that “[i]t is not the purpose of

this agreement nor the intention of the parties to release any

14
other persons or entities not parties to this Consent Decree from

any claims or liabilities, the right to pursue which is expressly

reserved.”

In Real Parties, the State of Texas had instituted a pre-

suit discovery proceeding in state court to investigate claims of

fraud and breach of fiduciary duty against private attorneys in

the course of their representation of the state in the federal

court tobacco litigation. The private attorneys removed the

proceeding to federal district court, arguing that it threatened

to interfere with a settlement agreement regarding attorneys’

fees that had previously been approved by the district court. We

found that it was entirely speculative that the investigative

proceeding might somehow interfere with the settlement agreement

and that the Texas courts were the proper forum for the

proceeding, at least “unless and until” it posed an actual threat

to the settlement agreement. Real Parties, 259 F.3d at 394 - 95.

In the instant case, any threat to the consent decree is now

similarly speculative. It is premature to conclude that the

plaintiffs’ demands for compensatory damages will affect the

integrity of the consent decree. Cf. Nichols, 284 F.3d at 862

(“[A]llowing federal jurisdiction over [the plaintiff’s] state-

law claims under the auspices of the All Writs Act, when the

federal consent decree will not be directly affected for good or

ill by the outcome of the case, would result in a corruption of

15
the Act.”) Should an actual threat to the consent decree arise

as the case proceeds in state court, circumstances may permit the

federal district court to enjoin the state proceedings. See Real

Parties, 259 F.3d at 395. But this case now presents no

circumstances that could permit removal jurisdiction under the

All Writs Act, if, indeed, such removal jurisdiction is ever

permitted. See id.

Conclusion

Because we hold that the district court lacked jurisdiction,

we REVERSE the denial of the plaintiffs’ motion to remand, VACATE

the judgment of the district court, and REMAND the case to the

district court with directions that it be returned to the state

court from which it was removed.

VACATED and REMANDED with directions.

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