The opinion of the court was delivered by: William C. Conner, Senior District Judge.
Defendant LESCO, Inc. ("LESCO") removed this action from
Supreme Court for the State of New York, County of Orange,
claiming federal question jurisdiction under 28 U.S.C. § 1331 as
the basis for removal. Pursuant to 28 U.S.C. § 1447(c), defendant
Glenn Nixon ("Nixon") has moved for remand of the action to the
state court. For the reasons stated herein, defendant Nixon's
motion is granted.
This action was originally instituted in the Orange County
Supreme Court on March 17, 1997. Plaintiffs Bobbie J. Ell and
Thomas McVeigh allege that they were residing in a single family
home located in Orange County on September 24, 1996 when
defendant Glenn Nixon and a co-worker, both employees of
defendant S.E.T. Landscape Design, Inc. ("S.E.T."), sprayed a
fertilizer on the premises. Plaintiffs claim that as a result of
the negligent and reckless spraying of poisonous chemicals, they
sustained permanent and disabling physical injuries. Only
defendants Nixon and S.E.T. were named in the original complaint.
On February 4, 1998, defendant Nixon impleaded LESCO, in a
third party complaint alleging that the product he used, which
allegedly injured plaintiffs, was manufactured by LESCO. He
asserted claims against LESCO for indemnification and
contribution, alleging negligence in manufacturing, designing,
distributing, and selling the product.
On July 30, 1998, the Supreme Court of New York granted a
motion by plaintiffs to amend their original complaint to assert
claims against LESCO as a direct defendant in the action. By
their amended complaint, plaintiffs allege causes of action
against LESCO for, inter alia, negligent design, failure to warn,
and breach of implied and express warranties. On August 19, 1998,
LESCO filed a Notice of Removal of the entire action from the
Supreme Court of the State of New York to the Southern District
of New York, asserting federal question jurisdiction under
28 U.S.C. § 1331 as the basis for removal. On September 16, 1998,
defendant Nixon filed a timely motion for remand. Plaintiffs and
defendant S.E.T. have subsequently joined in support of Nixon's
motion for remand. In opposing this motion for remand, defendant
LESCO has also moved, pursuant to Rule 56 of the Federal Rules of
Civil Procedure, for summary judgment as a matter of law.
A defendant may remove a state court action to federal court
only if the action could have originally been filed in federal
court. Caterpillar v. Williams, 482 U.S. 386, 391-92, 107 S.Ct.
2425, 96 L.Ed.2d 318 (1987); 28 U.S.C. § 1441(a). Thus, where
there is no diversity jurisdiction (and no such diversity
jurisdiction is alleged here), a federal question must be present
in order for removal to be proper. Caterpillar, 482 U.S. at
392, 107 S.Ct. 2425; 28 U.S.C. § 1331. In general, questions
concerning federal question jurisdiction are resolved by
examining the plaintiff's well-pleaded complaint. Louisville &
Nashville R.R. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed.
126 (1908). The well-pleaded-complaint rule provides that the
plaintiff's properly pleaded complaint governs the jurisdictional
determination, and if,
on its face, such a complaint raises no issue of federal law,
there is no federal question jurisdiction. Franchise Tax Bd. of
Cal. v. Laborers Vacation Trust for Southern Cal., 463 U.S. 1,
10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); Mottley,
211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126.
Because, on its face, all of plaintiffs' claims against each of
the three defendants are state claims, LESCO relies on an
exception to the well-pleaded-complaint rule in its effort to
defeat remand. In Avco Corp. v. Aero Lodge No. 735,
390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), the Supreme Court held
that federal law can so "completely preempt" a field of state law
that the plaintiff's complaint must be recharacterized as stating
a federal cause of action. Thus, if a plaintiff files suit in
state court based upon a state cause of action, and the defendant
removes the case on the basis of a valid complete preemption
defense, the federal district court will recharacterize the
plaintiff's state cause of action as a federal claim for relief,
making removal proper on the basis of federal question
jurisdiction. Here, LESCO alleges that the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. § 136 et seq. (hereafter
"FIFRA" or the "Act"), by expressly prohibiting states from
imposing any requirements for labeling or packaging different
from that required by the federal statute, creates such a
situation.*fn1 Relying on § 136v of the Act, LESCO argues that
all of the state common law claims against it, despite the
well-pleaded-complaint rule, are "really" federal claims, and
thus federal question jurisdiction exists. See, e.g., Franchise
Tax Bd. of Cal., 463 U.S. at 13, 103 S.Ct. 2841.
Because this exception: (1) "upset[s] the usual constitutional
balance of federal and state powers," Gregory v. Ashcroft,
501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991); (2)
overrides the well-pleaded-complaint rule; and (3) abridges the
notion that the party who brings a suit "is master to decide what
law he will rely upon," Fair v. Kohler Die and Specialty Co.,
228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716 (1913),*fn2 complete
preemption is extremely rare. Rodriguez v. Shell Oil Co.,
818 F. Supp. 1013 (S.D.Tex. 1993); 3 JAMES WM. MOORE ET AL., 16
MOORE'S FEDERAL PRACTICE § 107.14 (3d ed. 1997).
While many claims inevitably involve ordinary preemption in
which the state law claim will require the application of federal
substantive law, this is usually insufficient to establish
federal question jurisdiction. Metropolitan Life Ins. Co. v.
Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987);
Franchise Tax Bd. of Cal., 463 U.S. 1, 103 S.Ct. 2841, 77
L.Ed.2d 420. The mere fact that federal law might "apply," i.e.
that Congress intended to provide a federal defense to the
application of state law, is insufficient to establish federal
question jurisdiction. To find that a complaint alleging only
state claims still gives rise to federal question jurisdiction,
even if the federal statute is raised only by way of defense, the
court must find complete preemption. "In complete preemption a
federal court finds that Congress desired to control the
adjudication of the federal cause of action to such an extent
that it did not just provide a federal defense to the application
of state law; rather, it replaced the state law with federal law
and made it clear that the defendant has the ability to seek
adjudication of the federal claim in a federal forum." 14B
CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE § 3722.1 (3d ed. 1998). Thus, many state
law claims, although controlled by federal
law, generally are not treated as completely preempted, and
therefore cannot provide the basis for removal jurisdiction. In
short, an ordinary preemption defense is insufficient to
establish a federal question; the defendant must show that
Congress intended not merely to "preempt a state law to some
degree," but to totally substitute "a federal cause of action for
a state cause of action." Schmeling v. NORDAM, 97 F.3d 1336,
1341 (10th Cir. 1996).
Applying these principles to FIFRA, the vast majority of
district courts have concluded that the Act does not completely
preempt state law and thus a "FIFRA defense" is insufficient to
establish federal question jurisdiction. See Thigpen v.
Cheminova, 992 F. Supp. 864 (S.D.Miss. 1997); Martinez v. Dow
Chemical Co., Nos. 95-3212, 95-3214, 1996 WL 502461 (E.D.La.
Sept 4., 1996); Murray v. Commonwealth Edison, 905 F. Supp. 512
(N.D.Ill. 1995); DerGazarian v. Dow Chemical Co., 836 F. Supp. 1429
(W.D.Ark. 1993); Rodriguez, 818 F. Supp. 1013. The only
circuit court to address this issue has also found that FIFRA
does not completely preempt state law. Hurt v. Dow Chemical
Co., 963 F.2d 1142 (8th Cir. 1992).
Despite these holdings to the contrary, LESCO asserts that
because FIFRA preempts state law, it also provides federal
question jurisdiction. This assertion blurs the distinction
between ordinary and complete preemption. As explained above,
ordinary federal preemption of state law claims does not perforce
convert them into federal claims. Complete preemption only occurs
when the federal statute's preemptive force is "so powerful that
in addition to preempting state law causes of action, it also
provides federal question jurisdiction." Murray, 905 F. Supp. at
513 (internal citations omitted). LESCO argues that the language
in FIFRA forbidding states from "impos[ing] or continu[ing] in
effect any requirements for labeling or packaging" of pesticides
shows Congress's intent to preempt state authority completely in
the area of labeling, packaging, and warning. § 136v(b). We do
not agree that this section meets the Supreme Court's definition
of complete preemption. The Supreme Court has clearly held that
ordinary preemption is insufficient to support removal unless
"Congress has clearly manifested an intent to make causes of
action [under the statute] `removable to federal court.'"
Metropolitan Life Ins. Co., 481 U.S. at 66, 107 S.Ct. 1542. At
a minimum, the statute must provide a private right of action and
contain a specific grant of federal jurisdiction. Aaron v.
National Union Fire Ins. Co., 876 F.2d 1157, 1163-65 (5th Cir.
1989). Because FIFRA does not satisfy these requirements, FIFRA
preemption will not support removal in this case.
A comparison with the Employee Retirement Income Security Act
of 1974 (hereafter "ERISA"), 88 Stat. 829, 29 U.S.C. § 1001 et
seq., and the Labor Management Relations Act, 1947 (hereafter
"LMRA"), 61 Stat. 156, 29 U.S.C. § 141 et seq., two of the rare
federal statutes where the Supreme Court has found complete
preemption, illustrates this point. The crux of the finding of
federal question jurisdiction under LMRA and ERISA is that in
addition to the statutes' ordinary preemptive powers, each
contains a section (§ 301 and § 502 respectively) that explicitly
provides for civil ...