United States District Court, D. Colorado
BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY; BOARD OF COUNTY COMMISSIONERS OF SAN MIGUEL COUNTY; and CITY OF BOULDER, Plaintiffs,
SUNCOR ENERGY (U.S.A.) INC.; SUNCOR ENERGY SALES INC.; SUNCOR ENERGY INC.; and EXXON MOBIL CORPORATION, Defendants.
William J. Martínez, United States District Judge
brought Colorado common law and statutory claims in Boulder
County, Colorado District Court for injuries occurring to
their property and citizens of their jurisdictions, allegedly
resulting from the effects of climate change. Plaintiffs sue
Defendants in the Amended Complaint (“Complaint”)
“for the substantial role they played and continue to
play in causing, contributing to and exacerbating climate
change.” (ECF No. 7 ¶ 2.) Defendants filed a
Notice of Removal (ECF No. 1) on June 29, 2018. Plaintiffs
filed a Motion to Remand (ECF No. 34) on July 30, 2018.
reasons explained below, the Court grants Plaintiffs'
Motion to Remand. Defendants' Motion to Reschedule Oral
Argument on Plaintiffs' Motion to Remand (ECF No. 67), is
denied as the Court finds that a hearing is not necessary.
assert six state law claims: public nuisance, private
nuisance, trespass, unjust enrichment, violation of the
Colorado Consumer Protection Act, and civil conspiracy. The
Complaint alleges that Plaintiffs face substantial and rising
costs to protect people and property within their
jurisdictions from the dangers of climate alteration. (ECF
No. 7 ¶¶ 1-4, 11, 221-320.) Plaintiffs allege that
Defendants substantially contributed to the harm through
selling fossil fuels and promoting their unchecked use while
concealing and misrepresenting their dangers. (Id.
¶¶ 2, 5, 13-18, 321-435.) The fossil fuel
activities have raised the emission and concentration of
greenhouse gases (“GHGs”) in the atmosphere.
(Id. ¶¶ 7, 15, 123-138, 321-38.)
result of the climate alterations caused and contributed to
by Defendants' fossil fuel activities, Plaintiffs allege
that they are experiencing and will continue to experience
rising average temperatures and harmful changes in
precipitation patterns and water availability, with extreme
weather events and increased floods, drought, and wild fires.
(ECF No. 7 ¶¶ 145-179.) These changes pose a threat
to health, property, infrastructure, and agriculture.
(Id. ¶¶ 1-4, 180-196.) Plaintiffs allege
that they are sustaining damage because of services they must
provide and costs they must incur to mitigate or abate those
impacts. (Id. ¶¶ 1, 4-5, 221-320.)
Plaintiffs seek monetary damages from Defendants, requiring
them to pay their pro rata share of the costs of
abating the impacts on climate change they have allegedly
caused through their tortious conduct. (Id. at
¶ 6.) Plaintiffs do not ask the Court to stop or
regulate Defendants' emissions of fossil fuels
(id. at ¶¶ 6, 542), and do not seek
Notice of Removal asserts the following: (1) federal question
jurisdiction- that Plaintiffs' claims arise under federal
common law, and that this action necessarily and unavoidably
raises disputed and substantial federal issues that give rise
to jurisdiction under Grable & Sons Metal Products,
Inc. v. Darue Eng'g & Mfg., 545 U.S. 308 (2005)
(“Grable”); (2) complete preemption; (3)
federal enclave jurisdiction; (4) jurisdiction because the
allegations arise from action taken at the direction of
federal officers; (5) jurisdiction under the Outer
Continental Shelf Lands Act, 43 U.S.C. § 1349(b); and
(6) jurisdiction under 28 U.S.C. § 1452(a) because the
claim s are related to bankruptcy proceedings.
there are no dispositive cases from the Supreme Court, the
United States Court of Appeals for the Tenth Circuit, or
other United States Courts of Appeal, United States District
Court cases throughout the country are divided on whether
federal courts have jurisdiction over state law claims
related to climate change, such as raised in this case.
Compare California v. BP p.l.c. (“CA
I”), 2018 WL 1064293 (N.D. Cal. Feb. 27, 2018);
City of Oakland v. BP p.l.c. (“CA II), 325
F.Supp.3d 1017 (N.D. Cal. June 25, 2018); City of New
York v. BP p.l.c., 325 F.Supp.3d 466 (S.D.N.Y. July 19,
2018) with State of Rhode Island v. Chevron Corp.,
2019 WL 3282007 (D. R.I. July 22, 2019); Mayor and City
Council of Baltimore v. BP P.L.C.
(“Baltimore”), 2019 WL 2436848 (D. Md.
June 10, 2019), appeal docketed, No. 19-1644 (4th
Cir. June 18, 2019); and Cnty. of San Mateo v. Chevron
Corp., 294 F.Supp.3d 934 (N.D. Cal. 2018), appeal
docketed, No. 18-15499 (9th Cir. May 27, 2018).
Motion to Remand is brought pursuant to 28 U.S.C. §
1447(c). The Motion to Remand asserts that the Court lacks
subject matter jurisdiction over the claims in this case,
which Plaintiffs contend are state law claims governed by
courts are courts of limited jurisdiction, “possessing
‘only that power authorized by Congress and
statute.'” Gunn v. Minton, 568 U.S. 251,
256 (2013) (citation omitted). Thus, “[f]ederal subject
matter jurisdiction is elemental.” Firstenberg v.
City of Santa Fe, 696 F.3d 1018, 1022 (10th Cir. 2012).
“It cannot be consented to or waived, and its presence
must be established” in every case in federal court.
Defendants predicate removal on the ground that the federal
court has original jurisdiction over the claims. 28 U.S.C.
§ 1441(a). Diversity jurisdiction has not been invoked.
Removal is appropriate “if, but only if, ‘federal
subject-matter jurisdiction would exist over the
claim.”' Firstenberg, 696 F.3d at 1023
(citation omitted). If a court finds that it lacks subject
matter jurisdiction at any time before final judgment is
entered, it must remand the case to state court. 28 U.S.C.
burden of establishing subject matter jurisdiction is on the
party seeking removal to federal court, and there is a
presumption against its existence. Salzer v. SSM Health
Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir.
2014). “Removal statutes are to be strictly construed,
. . . and all doubts are to be resolved against
removal.” Fajen v. Found. Reserve Ins. Co.,
683 F.2d 331, 333 (10th Cir. 1982). The party seeking removal
must show that jurisdiction exists by a preponderance of the
evidence. Dutcher v. Matheson, 840 F.3d 1183, 1189
(10th Cir. 2016).
Federal Question Jurisdiction
first argue that federal question jurisdiction exists.
Federal question jurisdiction exists for “all civil
actions arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. In
determining whether such jurisdiction exists, a court must
“look to the ‘face of the complaint'”
and ask whether it is “‘drawn so as to claim a
right to recover under the Constitution and laws of the
United States'[.]” Firstenberg, 696 F.3d
at 1023 (quoting Bell v. Hood, 327 U.S. 678, 681
presence or absence of federal-question jurisdiction is
governed by the ‘well-pleaded complaint rule',
which provides that federal jurisdiction exists only when a
federal question is presented on the face of the
plaintiff's properly pleaded complaint.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987) (citation omitted). Under this rule, a case arises
under federal law ‘only when the plaintiff's
statement of his own cause of action shows that it is
based' on federal law.” Devon Energy Prod. Co.,
L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195,
1202 (10th Cir. 2012) (citation omitted). The court need only
examine “the well-pleaded allegations of the complaint
and ignore potential defenses. . . .'” Id.
well-pleaded complaint rule makes “the plaintiff the
master of the claim; he or she may avoid federal jurisdiction
by exclusive reliance on state law.”
Caterpillar, 482 U.S. at 392; see also Devon
Energy, 693 F.3d at 1202 (“By omitting federal
claims from a complaint, a plaintiff can generally guarantee
an action will be heard in state court.”) (internal
quotation marks omitted). While the plaintiff may not
circumvent federal jurisdiction by artfully drafting the
complaint to omit federal claims that are essential to the
claim, Caterpillar, 482 U.S. at 392, the plaintiff
“can elect the judicial forum-state of federal”
depending on how the plaintiff drafts the complaint.
Firstenberg, 696 F.3d at 1023. “Neither the
plaintiff's anticipation of a federal defense nor the
defendant's assertion of a federal defense is sufficient
to make the case arise under federal law.” Id.
(internal quotation marks omitted).
plaintiff's well-pleaded complaint to establish that the
claims arise under federal law within the meaning of §
1331, it “must establish one of two things:
‘either that federal law creates the cause of action or
that the plaintiff's right to relief necessarily depends
on a resolution of a substantial question of federal
law.'” Firstenberg, 696 F.3d at 1023
(citation omitted). The “creation' test” in
the first prong accounts for the majority of suits that raise
under federal law.” See Gunn, 568 U.S. at 257.
However, where a claim finds its origins in state law, the
Supreme Court has identified a “‘special and
small category' of cases” in which jurisdiction
lies under the substantial question prong as they
“implicate significant federal interests.”
Id. at 258; see also Grable, 545 U.S. at
argue that both prongs of federal question jurisdiction are
met. The Court will address each of these arguments in turn.
Whether Federal Law Creates the Cause of Action
first assert that federal question jurisdiction exists
because Plaintiffs' claims arise under federal law;
namely, federal common law, such that federal law creates the
cause of action. The Supreme Court has “held that a few
areas, involving ‘uniquely federal interests,' . .
. are so committed by the Constitution and laws of the United
States to federal control that state law is pre-empted and
replaced, where necessary, by federal law of a content
prescribed (absent explicit statutory directive) by the
courts-so-called ‘federal common law.'”
Boyle v. United Technologies Corp., 487 U.S. 500,
504 (1988) (citations omitted); see also Nat'l
Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471
U.S. 845, 850 (1985). The issue must involve “an area
of uniquely federal interest”, and federal common law
will displace state law only where “a
‘significant conflict' exists between an
identifiable ‘federal policy or interest and the
[operation] of state law,' . . or the application of
state law would ‘frustrate specific objectives' of
federal legislation.” Boyle, 487 U.S. at 507
assert that this case belongs in federal court because it
threatens to interfere with longstanding federal policies
over matters of uniquely national importance, including
energy policy, environmental protection, and foreign affairs.
They note that two courts have held that claims akin to those
brought by Plaintiffs are governed by federal common law,
citing the decisions in CA I, CA II, and
City of New York.
Relevant Case Law
state over the past century that the federal government has
recognized that a stable energy supply is critical for the
preservation of our economy and national security, taken
steps to promote fossil fuel production, and worked to
decrease reliance on foreign oil. The government has also
worked with other nations to craft a workable international
framework for responding to global warming. This suit
purportedly challenges those decisions by requiring the court
to delve into the thicket of the “worldwide problem of
global warming”- the solutions to which Defendants
assert for “sound reasons” should be
“determined by our political branches, not by our
judiciary.” See CA II, 2018 WL 3109726, at *9.
thus target global warming, and the transnational
conduct that term entails. (ECF No. 7 ¶¶ 125-38.)
Defendants contend that the claims unavoidably require
adjudication of whether the benefits of fossil fuel use
outweigh its costs-not just in Plaintiffs' jurisdictions,
or even in Colorado, but on a global scale. They argue that
these claims do not arise out of state common law. Defendants
further assert that this is why similar lawsuits have been
brought in federal court, under federal law, and why, when
those claims were dismissed, the plaintiffs made no effort to
pursue their claims in state courts. See, e.g.,
Am. Elec. Power Co., Inc. v. Connecticut
(“AEP”), 564 U.S. 410 (2011);
Kivalina v. ExxonMobil Corp.
(“Kivalina”), 696 F.3d 849 (9th Cir.
2012). Defendants thus contend that the court has federal
question jurisdiction because federal law creates the cause
Court first addresses the cases relied on by Defendants that
address similar claims involving injury from global warming,
beginning its analysis with the Supreme Court's decision
in AEP. The AEP plaintiffs brought suit in
federal court against five domestic emitters of carbon
dioxide, alleging that by contributing to global warming,
they had violated the federal common law of interstate
nuisance, or, in the alternative, state tort law. 564 U.S. at
418 (citation omitted). They brought both federal and state
claims, and asked for “a decree setting carbon-dioxide
emission for each defendant.” Id. The
plaintiffs did not seek damages.
Court in AEP stated what while there is no federal
general common law, there is an “emergence of a federal
decisional law in areas of national concern”, the
“new” federal common law. 564 U.S. at 421
(internal quotation marks omitted). This law “addresses
‘subjects within national legislative power where
Congress has so directed' or where the basic scheme of
the Constitution so demands.” Id. (citation
omitted). The Court found that environmental protection is
“undoubtedly an area within national legislative power,
one in which federal courts may fill in statutory
interstices, and, if necessary, even fashion federal
law.” Id. (internal quotation marks omitted).
It further stated that when the court “deal[s] with air
and water in their ambient or interstate aspects, there is
federal common law.'” Id. (quoting
Illinois v. City of Milwaukee, 406 US. 91, 103 (1972)).
also found that when Congress addresses a question previously
governed by federal common law, “‘the need for
such an unusual exercise of law-making by federal courts
disappears.'” 564 U.S. at 423 (citation omitted).
The test for whether congressional legislation excludes the
declaration of federal common law is “whether the
statute ‘speak[s] directly to [the] questions at
issue.” Id. at 424 (citation omitted). The
Court concluded that “the Clean Air Act and the EPA
actions it authorizes displace any federal common law right
to seek abatement of carbon-dioxide emissions from
fossil-fuel fired power plants, ” i.e., the
Clean Air Act spoke directly “to emissions of carbon
dioxide from the defendants' plants.” Id.
Since it found that federal common law was displaced,
AEP did not decide the scope of federal common law,
or whether the plaintiffs had stated a claim under it.
Id. at 423 (describing the question as
“academic”). It also did not address the state
law claims. Id. at 429.
Kivalina, the plaintiffs alleged that massive
greenhouse gas emissions by the defendants resulted in global
warming which, in turn, severely eroded the land where the
City of Kivalina sat and threatened it with imminent
destruction. 696 F.3d at 853. Relying on AEP, the
Ninth Circuit found that the Clean Air Act displaced federal
common law nuisance claims for damages caused by global
warming. Id. at 856. It recognized that
“federal common law includes the general subject of
environmental law and specifically includes ambient or
interstate air and water pollution.” Id. at
855 (citing City of Milwaukee, 406 US. at 103).
Thus, Kivalina stated that “federal common law
can apply to transboundary pollution suits, ” and noted
that most often such suits are, as in that case, founded on a
theory of public nuisance. Id. The Kivalina
court found that the case was governed by AEP and
the finding that Congress had “directly addressed the
issue of greenhouse gas commissions from stationary sources,
” thereby displacing federal common law. Id.
at 856. The fact that the plaintiffs sought damages rather
than an abatement of emissions did not impact the analysis,
according to Kivalina, because “the type of
remedy asserted is not relevant to the applicability of the
doctrine of displacement.” Id. at 857. The
Kivalina court affirmed the district court's
dismissal of plaintiffs' claims. Id. at 858.
AEP and Kivalina were brought in federal
court and asserted federal law claims. They did not address
the viability of state claims involving climate change that
were removed to federal court, as is the case here. This
issue was addressed by the United States District Court for
the Northern District of California in CA I and
CA II. In the CA cases, the Cities of
Oakland and San Francisco asserted a state law public
nuisance claim against ExxonMobil and a number of other
worldwide producers of fossil fuels, asserting that the
combustion of fossil fuels produced by the defendants had
increased atmospheric levels of carbon dioxide, causing a
rise in sea levels with resultant flooding in the cities.
CA I, 2018 WL 1064293, at *1. Like the instant case,
the plaintiffs did not seek to impose liability for direct
emissions of carbon dioxide. Instead, they alleged
“that-despite long-knowing that their products posed
severe risks to the global climate-defendants produced fossil
fuels while simultaneously engaging in large scale
advertising and public relations campaigns to discredit
scientific research on global warming, to downplay the risks
of global warming, and to portray fossil fuels as
environmentally responsible and essential to human
well-being.” Id. The plaintiffs sought an
abatement fund to pay for infrastructure necessary to address
rising sea levels. Id.
I found that the plaintiffs' state law
“nuisance claims-which address the national and
international geophysical phenomenon of global warming-are
necessarily governed by federal common law, ” citing
AEP, City of Milwaukee, and
Kivalina. CA I, 2018 WL 1064293, at *2-3.
It stated that, as in those cases, “a unif orm standard
of decision is necessary to deal with the issues, ”
If ever a problem cried out for a uniform and comprehensive
solution, it is the geophysical problem described by the
complaints, a problem centuries in the making (and studying)
with causes [including] the combustion of fossil fuels. The
range of consequences is likewise universal-warmer weather in
some places that may benefit agriculture but worse weather in
others, . . . and-as here specifically alleged-the melting of
the ice caps, the rising of the oceans, and the inevitable
flooding of coastal lands. . . . [T]he scope of the worldwide
predicament demands the most comprehensive view available,
which in our American court system means our federal courts
and our federal common law. A patchwork of fifty different
answers to the same fundamental global issue would be
Id. at *3.
CA I court also found that federal common law
applied despite the fact that “plaintiffs assert a
novel theory of liability, ” i.e., against the
sellers of a product rather than direct
dischargers of interstate pollutants. CA I,
2018 WL 1064293, at *3 (emphasis in original). Again, that is
the situation in this case. The CA I court stated
that “the transboundary problem of global warming
raises exactly the sort of federal interests that necessitate
a uniform solution, ” which is no “ less true
because plaintiffs' theory mirrors the sort of state-law
claims that are traditionally applied to products made in
other states and sold nationally.” Id. The
court found, however, that federal common law was not
displaced by the Clean Air Act and the EPA as in AEP
and Kivalina because the plaintiffs there sought
only to reach domestic conduct, whereas the plaintiffs'
claims in CA I “attack behavior
worldwide.” Id. at 4. It stated that those
“foreign emissions are outside of the EPA and Clean Air
Acts' reach.” Id. Nonetheless, as the
claims were based in federal law, the court found that
federal jurisdiction existed and denied the plaintiffs'
motions to remand. Id. at 5.
CA II, the court granted the defendants' motion
to dismiss. 325 F.Supp.3d at 1019. It reaffirmed that the
plaintiffs' nuisance claims “must stand or fall
under federal common law, ” including the state law
claims. CA II, 325 F.Supp.3d at 1024. It then held
that the claims must be dismissed because they ran counter to
the presumption against extraterritoriality and were
“foreclosed by the need for federal courts to defer to
the legislative and executive branches when it comes to such
international problems.” Id. at 1024-25. The
CA II court concluded that “[i]t may seem
peculiar that an earlier order refused to remand this action
to state court on the ground that plaintiffs' claims were
necessarily governed by federal law, while the current order
concludes that federal common law should not be extended to
provide relief.” Id. at 1028. But it found
“no inconsistency, ” as “[i]t remains
proper for the scope of plaintiffs' claims to be decided
under federal law, given the international reach” of
the claims. Id. at 1028-29.
City of New York case followed the rationale of
CA I and CA II, and dismissed New York
City's claims of public and private nuisance and trespass
against multinational oil and gas companies related to the
sale and production of fossil fuels. 325 F.Supp.3d at 471-76.
On a motion to dismiss, the court found that the City's
claims were governed by federal common law, not state tort
law, because they were “based on the
‘transboundary' emission of greenhouse gases”
which “require a uniform standard of decision.”
Id. at 472 (citing CA I, 2018 WL 10649293,
at *3). It also found that to the extent the claims involved
domestic greenhouse emissions, the Clean Air Act displaced
the federal common law claims pursuant to AEP. Id.
To the extent the claims implicated foreign greenhouse
emissions, they were “barred by the presumption against
extraterritoriality and the need for judicial caution in the
face of ‘serious foreign policy
consequences.'” Id. at 475 (citation
omitted). The court in City of New York did not
address federal jurisdiction or removal jurisdiction.
summary, the above cases suggest that claims related to the
emission or sale, production, or manufacture of fossil fuels
are governed by federal common law, even if they are asserted
under state law, but may displaced by the Clean Air Act and
the EPA. At first blush these cases appear to support
Defendants' assertion that Plaintiffs' claims arise
under federal law and should be adjudicated in federal court,
particularly given the international scope of global warming
that is at issue.
the Court finds that AEP and Kivalina are
not dispositive. Moreover, while the CA I decision
has a certain logic, the Court ultimately finds that it is
not persuasive. Instead, the Court finds that federal
jurisdiction does not exist under the creation prong of
federal question jurisdiction, consistent with San
Mateo and the two most recent cases that have addressed
the applicable issues, as explained below.
Court first notes that in AEP and Kivalina,
the plaintiffs expressly invoked federal claims, and removal
was neither implicated nor discussed. Moreover, both cases
addressed interstate emissions, which are not at issue here.
Finally, the cases did not address whether the state law
claims were governed by federal common law. The AEP
Court explained that “the availability vel non
of a state lawsuit depend[ed], inter alia, on the
preemptive effect of the federal Act, ” and left the
matter open for consideration on remand. 564 U.S. at 429.
Thus, “[f]ar from holding (as the defendants bravely
assert) that state claims related to global warming are
superseded by federal common law, the Supreme Court [in
AIG] noted that the question of whether such state
law claims survived would depend on whether they are
preempted by the federal statute that had displaced federal
common law (a question the Court did not resolve).”
San Mateo, 294 F.Supp.3d at 937.
while AEP found that federal common law governs
suits brought by a state to enjoin emitters of pollution in
another state, it noted that the Court had nev er decided
whether federal common law governs similar claims to abate
out-of-state pollution brought by “political
subdivisions” of a State, such as in this case. 564
U.S. at 421-22. Thus, AEP does not address whether
state law claims, such as those asserted in this case and
brought by political subdivisions of a state, arise under
federal law for purposes of removal jurisdiction. The Ninth
Circuit in Kivalina also did not address this issue.
Court disagrees with the finding in CA I that
removal jurisdiction is proper because the case arises under
federal common law. CA I found that the well-pleaded
complaint rule did not apply and that federal jurisdiction
exists “if the claims necessarily arise under federal
common law. 2018 WL 1064293, at *5. It based this finding on
a citation to a single Ninth Circuit case, Wayne v. DHL
Worldwide Express, 294 F.3d 1179, 1184-85 (9th Cir.
2002). Id. Wayne, however, recognized the
well-pleaded complaint rule, and did not address whether a
claim that arises under federal common law is an exception to
the rule. 294 F.3d at 1183-85. Moreover, Wayne cited
City of Milwaukee in support of its finding that
federal jurisdiction would exist if the claims arose under
federal law. City of Milwaukee was, however, filed
in federal court and invoked federal jurisdiction such that
the well-pleaded complaint rule was not at issue.
CA I failed to discuss or note the significance of
the difference between removal jurisdiction, which implicates
the well pleaded complaint rule, and federal jurisdiction
that is invoked at the outset such as in AEP and
Kivalina. This distinction was recognized by the
recent decision in Baltimore, which involved similar
state law claims as to climate change that were removed to
federal court. 2019 WL 2436848, at *1. Baltimore
found CA I was “well stated and presents an
appealing logic, ” but disagreed with it because the
court looked beyond the face of the plaintiffs' well
pleaded complaint. Id. at *7-8. It also noted that
CA I “did not find that the plaintiffs'
state law claims fell within either of the carefully
delineated exceptions to the well-pleaded complaint
rule-i.e., that they were completely preempted by
federal law or necessarily raised substantial, disputed
issues of federal law.” Id. at *8.
Baltimore found that the well-pleaded complaint rule
was plainly not satisfied in that case because the City did
not plead any claims under federal law. Id. at *6.
The Well-Pleaded Complaint Rule as Applied to
case that is removed to federal court, the presence or
absence of federal-question jurisdiction is governed by the
well-pleaded complaint rule, which gives rise to federal
jurisdiction only when a federal question is presented on the
face of the complaint. Caterpillar, 482 U.S. at 392.
The Tenth Circuit has held that to support removal
jurisdiction, “the required federal right or immunity
must be an essential element of the plaintiff's cause of
action, and . . . the federal controversy must be disclosed
upon the face of the complaint, unaided by the answer or by
the petition for removal.” Fajen, 683 F.2d at
333 (citation and internal quotation marks omitted).
case, the Complaint on its face pleads only state law claims
and issues, and no federal law or issue is raised in the
allegations. While Defendants argue that the Complaint raises
inherently federal questions about energy, the environment,
and national security, removal is not appropriate under the
well-pleaded complaint rule because these federal issues are
not raised or at issue in Plaintiffs' claims. A defendant
cannot transform the action into one arising under federal
law, thereby selecting the forum in which the claim will be
litigated, as to do so would contradict the well-pleaded
complaint rule. Caterpillar, 489 U.S. at 399.
Defendants, “in essence, want the Court to peek beneath
the purported state-law facade of the State's public
nuisance claim, see the claim for what it would need to be to
have a chance at viability, and convert it to that (i.e.,
into a claim based on federal common law) for purposes of the
present jurisdiction analysis.” State of Rhode
Island, 2019 WL 3282007, at *2. That court found nothing
in the artful-pleading doctrine which sanctioned the
defendants' desired outcome. Id.
cite no controlling authority for the proposition that
removal may be based on the existence of an unplead federal
common law claim-much less based on one that is questionable
and not settled under controlling law. Defendants rely on the
Supreme Court's holding that the statutory grant of
jurisdiction over cases arising under the laws of the United
States “will support claims founded upon federal common
law.” Nat'l l Farmers Union Ins. Cos., 471
U.S. at 850-53. However, the plaintiffs invoked federal
jurisdiction in that case. The same is true in other cases
cited by Defendants, including City of Milwaukee and
Boyle, both of which were filed by plaintiffs in
federal court and invoked federal jurisdiction. See,
e.g., State of Rhode Island, 2019 WL 3282007,
at *2 n. 2 (Boyle “does not help
Defendants” as it “was not a removal case, but
rather one brought in diversity”); Arnold by and
Through Arnold v. Blue Cross &Blue Shield,
973 F.Supp. 726, 737 (S.D. Tex. 1997) (Boyle did not
address removal jurisdiction, nor did it modify the
Caterpillar rule that federal preemption of state
law, even when asserted as an inevitable ...