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January 25, 1999


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 ...

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