OPINION AND ORDER
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 enforcement of the statute and grants
jurisdiction over those claims to the federal court. Section 502
of ERISA, which closely tracks § 301 of the LMRA, states:
The district courts of the United States shall have
jurisdiction, without respect to the amount in
controversy or the citizenship of the parties, to
grant the relief provided for in subsection (a) of
this section in any action.
29 U.S.C. § 1132(f). FIFRA contains no such provisions.
Consequently, because the Supreme Court requires an explicit
statement from Congress in order for the courts to find complete
preemption, we are unable to conclude that FIFRA completely
preempts state law and creates federal question jurisdiction in
this Court. Metropolitan Life Ins. Co., 481 U.S. at 66, 107
LESCO's reliance on § 136v does not demonstrate that removal
was proper, but only that there may be a good federal preemption
defense insofar as the labeling and packaging of LESCO's product
comply with federal requirements.*fn3
Rodriguez, 818 F. Supp. at 1015. This section in no way shows a
"manifest intent" by Congress to make claims arising under FIFRA
removable, since it neither provides a private right of action
nor contains a specific grant of federal jurisdiction.
Metropolitan Life Ins. Co., 481 U.S. at 66, 107 S.Ct. 1542;
Aaron, 876 F.2d at 1163-65. Section 136v(b)'s prohibition on
any state's ability to impose requirements for labeling or
packaging may well prove to be an effective defense for LESCO
against some of plaintiffs' claims;*fn4 it does not, however,
contain the kind of clear language that the Supreme Court
requires to find that a mere preemption defense can actually
create federal question jurisdiction. Metropolitan Life Ins.
Co., 481 U.S. at 66, 107 S.Ct. 1542.
In fact, in finding that FIFRA does not preempt local
ordinances, the Supreme Court explicitly held: "FIFRA . . .
leaves substantial portions of the field vacant. . . . Whatever
else FIFRA may supplant, it does not occupy the field of
pesticide regulation in general. . . . Rather, it acts to ensure
that the States could continue to regulate use and sales even
where, such as with regard to the banning of mislabeled products,
a narrow pre-emptive overlap might occur."*fn5 Wisconsin Public
Intervenor v. Mortier, 501 U.S. 597, 613-14, 111 S.Ct. 2476, 115
L.Ed.2d 532 (1991) (emphasis added). Tellingly, it is precisely
this expression, "occupy the field," that courts have repeatedly
used to describe complete preemption, and it is exactly this
"occupying of the field" which the Supreme Court tells us does
not exist in FIFRA. See, e.g., Ceres Terminals, Inc. v. Indus.
Comm'n of Illinois, 53 F.3d 183, 185 (7th Cir. 1995); Deford v.
Soo Line R.R. Co., 867 F.2d 1080, 1084-85 (8th Cir. 1989); 16
MOORE'S FEDERAL PRACTICE § 107.14 (3d ed. 1997).
We recognize that LESCO has found two cases, both unreported in
the Federal Supplement, in which district courts have held that
FIFRA does completely preempt state common law actions. LaCoste
v. Stamps, No. 95-0779, 1995 WL 442070 (E.D.La. July 25, 1995);
Burge v. Jones, No. B-92-022, 1992 WL 415263 (S.D.Tex. Nov.18,
1992). However, subsequent decisions in the same districts have
expressly refuted this proposition. Martinez, 1996 WL 502461;
Rodriguez, 818 F. Supp. 1013. Moreover, in Burge, the court
found that diversity of citizenship provided an alternative
ground for exercising jurisdiction. 1992 WL 415263. Additionally,
we conclude (as have numerous other courts) that Burge and
LaCoste improperly conflate the difference between ordinary and
complete preemption. Thigpen, 992 F. Supp. at 869; Murray, 905
F. Supp. at 514. Burge and LaCoste simply cite the undisputed
proposition that FIFRA provides a preemptive defense to some
state common law claims, but fail to take the additional step of
determining whether FIFRA contains sufficient language, like §
301 of LMRA or § 502 of ERISA, to find complete preemption. As
explained above, we conclude that it does not.
Finally, even if LESCO were able to establish federal question
jurisdiction, remand would still be required because removal was
not effected with the unanimous consent of all defendants.
Although there is no express statutory requirement that all
defendants either join the petition for removal or consent to
such removal, there is wide-spread agreement among the district
courts, including those in the Second Circuit, that "all named
[defendants] over whom the state court acquired jurisdiction must
join in the removal petition for removal to be proper." Still v.
DeBuono, 927 F. Supp. 125, 129 (S.D.N.Y. 1996), aff'd on other
grounds, 101 F.3d 888 (2d Cir. 1996); see also Codapro Corp. v.
Wilson, 997 F. Supp. 322 (E.D.N.Y. 1998); Town of Moreau v.
State Dep't of Environmental Conservation, No. 96-983, 1997 WL
243258 (N.D.N.Y. May 5, 1997);
Rosendale v. Citibank, No. 94-8591, 1995 WL 329296 (S.D.N Y
June 1, 1995); Parisi v. Rochester Cardiothoracic Assoc., No.
91-6387T, 1992 WL 470521 (W.D.N.Y. June 29, 1992); Norman v.
Cuomo, 796 F. Supp. 654 (N.D.N.Y. 1992); see also Fletcher v.
Hamlet, 116 U.S. 408, 6 S.Ct. 426, 29 L.Ed. 679 (1886); Akin v.
Ashland Chemical Co., 156 F.3d 1030 (10th Cir. 1998); Roe v.
O'Donohue, 38 F.3d 298 (7th Cir. 1994); Shaw v. Dow Brands,
Inc., 994 F.2d 364 (7th Cir. 1993).
Exceptions to this general rule that all defendants must join
or consent to the petition for removal have been recognized
where: (1) the non-joining defendants have not been served with
service of process at the time the removal petition is filed; (2)
the non-joining defendants are merely nominal or formal parties;
and (3) the removed claim is a separate and independent claim as
defined by 28 U.S.C. § 1441(c). See, e.g., Courtney v.
Benedetto, 627 F. Supp. 523, 526 (M.D.La. 1986); 14C CHARLES A.
WRIGHT, ARTHUR P. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND
PROCEDURE § 3731. LESCO makes no argument that any of these
exceptions apply to the instant case. Since "unambiguous written
evidence of consent" by all defendants is required, the filing of
formal opposition papers to removal by defendants Nixon and
S.E.T. clearly shows that the "rule of unanimity" has not been
satisfied. Codapro, 997 F. Supp. at 325 (internal quotations
omitted). Finally, we find no support for LESCO's claim that this
rule only applies to cases in which the basis of federal
jurisdiction is diversity. See, e.g., Hewitt v. City of
Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986) (basis of removal
is federal question jurisdiction, but "rule of unanimity still
Defendant Nixon's motion for remand is granted for lack of
subject matter jurisdiction and this case is remanded to the
Supreme Court of the State of New York, County of Orange.
Defendant LESCO's motion for summary judgment is therefore not