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Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc.

United States District Court, D. Colorado

September 5, 2019

BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY; BOARD OF COUNTY COMMISSIONERS OF SAN MIGUEL COUNTY; and CITY OF BOULDER, Plaintiffs,
v.
SUNCOR ENERGY (U.S.A.) INC.; SUNCOR ENERGY SALES INC.; SUNCOR ENERGY INC.; and EXXON MOBIL CORPORATION, Defendants.

          ORDER

          William J. Martínez, United States District Judge

         Plaintiffs 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.

         For the 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.

         I. BACKGROUND

         Plaintiffs 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.)

         As a 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 injunctive relief.

         Defendants' 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.

         While 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).

         II. LEGAL STANDARD

         Plaintiffs' 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 state law.

         Federal 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. Id.

         Here, 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. § 1447(c).

         The 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).

         III. ANALYSIS

         A. Federal Question Jurisdiction

         Defendants 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 (1946)).

         “[T]he 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. (citation omitted).

         The 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).

         For a 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 312.

         Defendants argue that both prongs of federal question jurisdiction are met. The Court will address each of these arguments in turn.

         1. Whether Federal Law Creates the Cause of Action

         Defendants 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 (citations omitted).

         Defendants 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.[1]

         a. Relevant Case Law

         Defendants 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.

         Plaintiffs 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 of action.

         The 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.

         The 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)).

         AEP 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.

         In 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.

         Both 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.

         CA 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, ” explaining:

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 unworkable.

Id. at *3.

         The 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.

         In 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.

         The 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.

         In 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.

         However, 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.

         The 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.

         Moreover, 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.

         The 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.

         Thus, 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.

         b. The Well-Pleaded Complaint Rule as Applied to Plaintiffs' Claims

         In a 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).

         In this 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.

         Defendants 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 ...


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