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United States District Court, S.D. New York

July 13, 2004.


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


This case is one of dozens of cases in a multi-district litigation ("MDL"), in which numerous plaintiffs are seeking relief from contamination or threatened contamination of groundwater from various defendants' use of the gasoline additive methyl tertiary butyl ether ("MTBE").*fn1 This opinion relates only to County of Suffolk, et al. v. Amerada Hess Corp., et al., No. 04 Civ. 5425.

On May 6, 2002, plaintiffs County of Suffolk and Suffolk County Water Authority (collectively "Suffolk") filed a complaint in the United States District Court for the Eastern District of New York against many energy companies, not including Amerada Hess Corporation, alleging that defendants were liable for adding MTBE to their gasoline, knowing it would contaminate and create an enhanced risk to groundwater.*fn2 On August 19, 2002, Suffolk filed a separate action against Amerada Hess in state court, alleging the same claims. Thereafter, Suffolk withdrew its complaint from the Eastern District and amended its state court complaint to add essentially the same defendants from the federal action.*fn3

  The state court case proceeded for a year and a half when, on March 22, 2004, defendant Lyondell Chemical Corporation ("Lyondell") filed a third-party complaint against Marathon Ashland Petroleum LLC ("Marathon") for indemnification and contribution should Suffolk succeed on its claims. In response, Marathon removed this case to federal court based on section 1442(a) of Title 28 of the United States Code, the federal officer removal statute. In its Notice of Removal, Marathon cited my March 16, 2004 Opinion and Order, holding that this Court has federal agent jurisdiction over the consolidated MTBE cases.*fn4 The Judicial Panel on Multidistrict Litigation transferred the instant action to me as a related case.

  Suffolk now moves to remand, arguing that: (1) Marathon should be barred from removing the case as a third-party defendant; (2) Marathon is not a federal officer for purposes of the federal officer removal statute; and (3) the Court should abstain from exercising its jurisdiction. For the reasons that follow, Suffolk's motion to remand is denied.


  A. The Allegations*fn5

  MTBE is a chemical compound added to gasoline to increase the gasoline's oxygen content and make it cleaner burning. MTBE does not occur naturally but is a byproduct of the gasoline refining process. It is highly soluble in water and does not readily biodegrade. Because of its high solubility, MTBE races through underground water reservoirs, quickly reaching the water table and wells whenever gasoline leaks, spills, or is released into the environment. It is known to be carcinogenic in animals and is potentially cancer-causing in humans, as well. Even small quantities of MTBE impart a turpentine-like taste and odor to water, rendering it unfit for human consumption. MTBE has been detected in approximately thirteen percent of Suffolk County's water wells, which draw from the county's "sole source" aquifiers and numerous streams.*fn6 Suffolk views the contamination as a significant health risk to the people who depend on the aquifier system for drinking water.*fn7

  Sometime after 1979, defendants started adding MTBE to gasoline in concentrations of approximately two to four percent in order to boost the octane level in higher grades of gasoline. Since the early 1990s, defendants have added MTBE in much higher concentrations, typically eleven to fifteen percent, in all grades of gasoline. MTBE was not the only viable option to achieve octane enhancement. Rather, its use reflected a choice and preference of defendants to profit from a gasoline refining waste byproduct. Suffolk contends that defendants added MTBE to their gasoline, knowing that it would contaminate groundwater, and also that defendants conspired to market MTBE as a gasoline additive in order to maximize their own profits.*fn8

  Based on these allegations, Suffolk asserts claims for (1) public nuisance; (2) strict liability for design defect; (3) strict liability for failure to warn; (4) negligence; (5) private nuisance; (6) violation of New York's General Business Law; and (7) violation of New York's Navigation Law.*fn9

  B. Grounds for Removal

  Marathon removed this action to federal court, asserting federal agent jurisdiction pursuant to section 1442(a). Marathon's allegations in support of removal are essentially identical to those I considered in denying remand in the consolidated cases.

  Marathon asserts that in 1977, Congress amended the Clear Air Act to federalize fuel content requirements.*fn10 Pursuant to the amendment, the United States Environmental Protection Agency ("EPA") has express and exclusive authority to decide what fuels and fuel additives are sold nationwide.*fn11 By Federal Regulations issued in 1979 and 1988, EPA allows MTBE to be added to gasoline in amounts of up to fifteen percent by weight.*fn12

  In 1990, Congress again amended the Clean Air Act. Among other things, the amendments created two programs requiring petroleum refiners to blend oxygenates into gasoline sold throughout much of the country. These programs — the Oxy-Fuel Program ("OFP") and the Reformulated Gasoline ("RFG") Program — were designed to reduce the emission of air pollutants. According to Marathon, Congress was aware when it enacted the amendments that only a small number of oxygenates could be blended with gasoline to meet the requirements, and that MTBE would have to be used in the vast majority of oxygenated gasoline sold in the United States.*fn13 Moreover, Congress drafted the amendments to ensure MTBE could be used because "Congress intended that petroleum refiners use MTBE in gasoline."*fn14 In 1991, pursuant to the 1990 amendments to the Clean Air Act, the EPA approved the use of seven compounds to achieve the requirements set forth in the OFP: (1) MTBE; (2) ethanol; (3) methanol; (4) tertiary amyl methyl ether ("TAME"); (5) ethyl tertiary butyl ether ("ETBE"); (6) tertiary butyl alcohol ("TBA"); and (7) diisopropyl ether ("DIPE").*fn15 According to Marathon, "[l]ike Congress, the EPA understood that MTBE would be `the most common oxygenating compound' used by refiners to comply with the CAA's new air emissions standards."*fn16 The EPA subsequently approved MTBE as an acceptable oxygenate for the RFG program, and the RFG requirements went into effect on January 1, 1995.*fn17

  Finally, Marathon claims that when the EPA approved MTBE for use with the RFG Program, it knew of MTBE's potential to contaminate groundwater, and further knew that there was not a sufficient supply of ethanol or an infrastructure needed to manufacture ethanol to satisfy the program requirements.*fn18 Accordingly, the EPA knew that the only way refining companies could meet the requirements promulgated in the OFP and RFG Programs, and thereby comply with the Clean Air Act, was to use MTBE as a gasoline additive. Congress and the EPA therefore effectively directed Marathon to use, manufacture, and/or sell gasoline that contains MTBE.*fn19


  A. Removal and Remand

  Under section 1447(c) of Title 28, a case removed from state court shall be remanded "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." When a party files a motion to remand challenging the removal of an action from state court, "the burden falls squarely upon the removing party to establish its right to a federal forum by `competent proof.'"*fn20 "Out of respect for the independence of state courts, and in order to control the federal docket, `federal courts construe the removal statute narrowly, resolving any doubts against removability.'"*fn21 If the removing party cannot demonstrate federal jurisdiction by "competent proof," the removal was in error and the district court must remand the case to the court in which it was filed.*fn22


It is well-established that [t]o determine whether the claim arises under federal law, [courts] examine the "well pleaded" allegations of the complaint and ignore potential defenses: "a suit arises under the Constitution and laws of the United States only when the plaintiff's statement of [its] own cause of action shows that it is based upon those laws or that Constitution." As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim.
There are, however, two exceptions to the general rule. First, a state law claim may be removed to federal court when the claim is completely preempted by federal law. When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law. This claim is then removable under 28 U.S.C. § 1441(b), which authorizes any claim that "arises under" federal law to be removed to federal court. . . . Second, an action may be removed to federal court where Congress so provides. Thus, where a statute specifically gives federal courts jurisdiction over a particular subject matter, and states that actions involving that subject matter may be removed to federal court despite the absence of federal claims, removal is proper even where the "well-pleaded complaint" rule is not satisfied.*fn23
  The federal officer removal statute falls within the second exception because Congress expressly provided that actions against persons acting under color of a federal officer or agency may be removed to federal court, despite the absence of any federal claims.*fn24 Under section 1442(a), a private party may remove a state court action if (1) the party acted under the direction of a federal agency or officer; (2) the party has a colorable federal defense; and (3) there is a causal connection between the federal direction and the conduct in question.*fn25


  A. Removal by Third-Party Defendant

  Suffolk contends that the Court should remand this case because third-party defendants are not generally permitted to remove cases to federal court. Although section 1442(a) specifically permits third-party removal by a federal officer, Suffolk urges the Court not to expand removal jurisdiction to private corporations not in contractual privity with the United States, because the policy concerns underlying the removal statute are attenuated as applied to these corporations. This argument is meritless.

  Marathon is not barred from removing this case to federal court by virtue of its third-party defendant status. Although third parties may not generally remove under section 1441, which permits removal by original defendants only, removal is proper under section 1442. Section 1442(a)(1) provides: "A civil action . . . commenced in a State court against any of the following may be removed by them to the district court of the United States[]: . . . any officer or person acting under that officer of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office . . ." (emphasis added). The statute unambiguously confers removal rights on any defendant claiming it acted at the direction of the federal government.*fn26 Furthermore, policy considerations support such a removal right. "Section 1442 is intended to protect federal interests by providing federal officials a federal tribunal in which to litigate matters concerning acts committed in their federal capacity. Unlike § 1441, § 1442 is a jurisdictional grant in itself giving the federal court subject matter jurisdiction over the entire case."*fn27 Courts treat third-party removal under section 1442 differently because it rests upon "far stronger considerations of policy" than removal under section 1441.*fn28 Therefore, Marathon's third-party defendant status does not preclude removal to this Court.

  B. Federal Agent Jurisdiction

  On March 16, 2004, based on complaints pleading nearly identical factual allegations, I held that this Court has federal agent jurisdiction over the consolidated cases because the defendants alleged that they (1) acted at the express direction of the federal government; (2) have a colorable federal defense of preemption; and (3) there is a causal connection between plaintiffs' claims and the defendants' acts taken at the direction of the EPA.*fn29 I found that the defendants in those cases had sufficiently alleged that they added MTBE to gasoline at the direction of a federal agency when they alleged that Congress and the EPA were aware that defendants would have to use MTBE to comply with the Clean Air Act's requirements.*fn30

  While vigorously disputing the conclusion reached by the Court in its March 16 Opinion and Order, Suffolk argues that Marathon cannot remove this case pursuant to section 1442(a) because Marathon does not sell gasoline in New York.*fn31 According to Suffolk, the EPA requires only that gasoline sold in all or part of seventeen states include an oxygenate.*fn32 While New York is one of these states, Marathon cannot claim federal officer status because of its complete absence from the New York gasoline markets. In fact, in its answer to Lyondell's third-party complaint, Marathon denies having a retail presence in New York.*fn33

  Marathon responds with two arguments. First, Marathon argues that Suffolk's counsel and co-counsel have conceded Marathon's presence in New York by suing Marathon in almost twenty New York cases, including some alleging contamination in Long Island*fn34 After this case was removed, Suffolk's counsel dropped Marathon from each of its New York complaints, but co-counsel continues to prosecute seven other MTBE cases against Marathon in New York.*fn35 Second, Marathon asserts that although it alleged in its answer to Lyondell's complaint that it did not refine or sell reformulated gasoline in New York, it took no position on whether any of its MTBE-containing gasoline ended up in New York through exchange agreements or other mechanisms.*fn36 In fact, upon further investigation, Marathon now reports that it indirectly sells or markets gasoline in New York. That is, Marathon sells or markets gasoline to non-affiliated jobbers who then sell or distribute the product to third parties for further distribution in New York.*fn37 Marathon also ships gasoline to and through the adjacent states of New Jersey and Pennsylvania.*fn38

  Marathon has sufficiently alleged that it added MTBE to gasoline for sale in New York at the direction of a federal agent. Although Marathon does not directly sell or market gasoline in New York, it indirectly participates in the New York market through independent jobbers. Marathon knew that some of its gasoline would be delivered to New York because some jobbers specified New York as a destination state for the gasoline purchased from Marathon.*fn39 Moreover, Marathon ships gasoline to and through New Jersey and Pennsylvania, both of which include RFG areas. Because these states are adjacent to New York, it is possible that some New Jersey- or Pennsylvania — bound gasoline has been sold in New York as a result of spillover sales.*fn40 Therefore, as a matter of law, Marathon is not barred from asserting it acted under the direction of the EPA and from removing this case pursuant to section 1442(a). To the extent factual disputes exist concerning whether gasoline reaching New York was actually RFG, these disputes are appropriately resolved in federal court.

  C. Abstention

  Suffolk next contends that the Court should abstain from exercising its jurisdiction because (i) this case presents "difficult questions of state law bearing on problems of substantial public import whose importance transcends the results of the case at bar" and (ii) "exceptional circumstances" call for abstention. Specifically, Suffolk argues that the market share theory of liability involves matters of first impression that should be left for New York courts to decide, and that the "reactive nature" of Lyondell's third-party complaint and considerations of comity weigh in favor of the Court exercising restraint.

  Plaintiffs further argue that Lyondell impleaded Marathon for the sole reason of coming to federal court after the defendants suffered serious defeats in state court — namely, losing their motion to dismiss and being ordered to complete discovery on an expedited basis. Suffolk suggests that defendants and Marathon colluded to remove the case, citing (1) Marathon's failure to comply with the state court's discovery schedule, (2) Marathon's filing of its notice of removal within a week of being served with the third-party complaint, and (3) the fact that Marathon's attorneys also represent Lyondell in a corporate transaction. In addition, Suffolk claims that because it is a sovereign authority, the concern for federal-state relations, comity, federalism, and efficient judicial administration justifies abstention from the exercise of jurisdiction.

  Abstention from the exercise of federal jurisdiction is an "extraordinary and narrow" exception, not the rule.*fn41 A district court may abstain from hearing a case in four circumstances: (1) where the resolution of a federal constitutional question may be rendered unnecessary by a state-court interpretation of an ambiguous statute (Pullman abstention);*fn42 (2) to avoid interference with essential state functions, such as state criminal proceedings (Younger abstention);*fn43 (3) where the case involves difficult state-law questions involving local regulation or important matters of local public policy (Burford abstention);*fn44 or (4) in "exceptional circumstances" where concurrent state-court litigation could result in comprehensive disposition of the litigation (Colorado River abstention).*fn45 "Because we are considering an exception to a court's normal duty to adjudicate a controversy properly before it, the district court's discretion must be exercised within the narrow and specific limits prescribed by the particular abstention doctrine involved."*fn46 The latter two abstention categories are the only ones that might be applicable here. However, Suffolk has failed to show that this case falls within the narrow and specific limits of either the Burford or Colorado River abstention doctrines.

  This case does not involve difficult questions of state law that implicate important matters of local public policy. New York's highest court has already adopted the market share theory of liability when the product at issue is fungible, incapable of identification by manufacturer, and each of the manufacturers created the same degree of risk to consumers.*fn47 Because the state court has spoken authoritatively on the collective liability issue, all that remains is for this Court to apply the state's law. Suffolk asserts that even though the state court has ruled on this question of law, the Court should abstain because the issues are nevertheless difficult. As evidence, plaintiffs cite the fact that one federal district court has interpreted New York's rule on market share liability incorrectly.*fn48 However, the potential difficulty of a decision is not a ground for abstention.*fn49

  "In the absence of some recognized public policy or defined principle guiding the exercise of jurisdiction conferred . . . it has from the first been deemed to be the duty of the federal courts, if their jurisdiction is properly involved, to decide questions of state law whenever necessary to the rendition of judgment."*fn50 This is a products liability case. While the state surely has an interest in seeing all claimants fully compensated and all tortfeasors paying their fair share, Suffolk cannot point to any special policy or state regulatory system that would be affected by this Court's exercise of jurisdiction.*fn51

  Furthermore, there is no basis for this Court to consider "exceptional circumstances" for abstaining because there is no pending concurrent state court litigation. The Second Circuit has held that "[t]he principles of Colorado River are to be applied only in situations involving the contemporaneous exercise of concurrent jurisdiction. Therefore, a finding that the concurrent proceedings are `paralell' is a necessary prerequisite to abstention under Colorado River."*fn52 This case was removed from state court to federal court. As a result, the case will be heard in only one forum. Because a precondition to abstention is lacking, the Court need not address the "exceptional circumstances" Suffolk raises. IV. CONCLUSION

  Marathon has met its burden of establishing the appropriateness of removal pursuant to section 1442(a), and there is no reason for the Court to abstain from the exercise of jurisdiction. Accordingly, Suffolk's motion to remand is denied. The Clerk of the Court is directed to close this motion.


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