JOHN T. CURTIN, District Judge.
In this action, plaintiff Lisa Pierini, a resident of the City of Niagara Falls, New York who lives in the vicinity of the Love Canal Landfill (the "Landfill"), has brought suit on behalf of herself ant her two infant children against several municipal and corporate entities for damages and equitable relief based on personal injury and property damage allegedly caused by releases of toxic chemicals from the Landfill. See Item 1-1 (Complaint). The case was originally filed in New York State Supreme Court, Niagara County, on April 18, 2013, and was removed to this court on May 10, 2013, pursuant to 28 U.S.C. §§ 1331 and 1441, upon entry of a Notice of Removal consented to by all defendants, on the basis of original federal jurisdiction under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. Item 1. Plaintiffs then moved pursuant to 28 U.S.C. § 1447(c) to remand the case to state court for lack of subject matter jurisdiction, and for an award of attorneys' fees incurred as a result of improper removal. Item 46.
For the reasons that follow, plaintiffs' motion for remand is granted. The request for attorneys' fees is denied.
The complaint in this action, consisting of 37 pages and 198 numbered paragraphs, sets forth nine causes of action encompassing claims against the Occidental Chemical Corporation ("OCC"), Miller Springs Remediation Management, Inc. ("MSRM"), Glenn Springs Holdings, Inc. ("GSH") (OCC, MSRM, and GSH are referred to collectively as the "Occidental Defendants"),  Conestoga-Rovers & Associates, Inc. ("CRA"),  Sevenson Environmental Services, Inc. ("Sevenson"), and CECOS International, Inc. ("CECOS") for negligent design, implementation, operation and maintenance of the remediation and containment system at the Landfill ( see Item 1-1, ¶¶ 64-100); claims against the City of Niagara Falls ("City"), the Niagara Falls Water Board ("NFWB"), Op-Tech Environmental Services, Inc. ("Op-Tech"), Scott Lawn Yard, Inc. ("Scott Lawn"), Roy's Plumbing, Inc. ("Roy's Plumbing"), Gross PHC, Inc. ("Gross"), and Kandey Company, Inc. ("Kandey"), for negligent performance of a "Sewer Remediation Program" which allegedly caused a discharge of hazardous substances into the sewers and surrounding neighborhood near plaintiffs' home on January 11, 2011 ( see id. at ¶¶ 101-120); and seeking compensatory damages, punitive damages, and "equitable relief in the form of complete remediation of the contamination within, around, and under [plaintiffs'] properties...." Id. at ¶ 5.
Defendants removed the case to this court on the ground that the claims as pleaded present controversies arising under CERCLA, over which federal courts have "exclusive original jurisdiction." 42 U.S.C. § 9613(b). According to defendants, by demanding equitable relief in the form of an "abatement order" as a remedy for nuisance and trespass ( see Item 1-1, ¶¶ 160, 164, 184, 188), plaintiffs have directly challenged the sufficiency and effectiveness of the remediation at the Landfill that was implemented - and continues to be operated, maintained and monitored - pursuant to a series of Consent Decrees/Judgments entered between OCC, the United States Environmental Protection Agency ("USEPA") and the New York State Department of Environmental Conservation ("NYSDEC"), approved by this court as a component of the prior litigation in U.S. v. Hooker Chemicals & Plastics Corp., No. 79-CV-990C.
The history of the Hooker litigation is well known, and will not be recounted in great detail here. Suffice it to say for present purposes that the Hooker case was brought in this court in December 1979 by the United States (on behalf of USEPA), joined later by the State of New York (on behalf of NYSDEC), against Hooker Chemicals & Plastics Corp. (corporate predecessor to OCC) and other defendants under several federal statutes, seeking injunctive relief and reimbursement of cleanup costs relating to the remediation of the Landfill, which had been utilized by Hooker for several years as a disposal site for toxic chemical wastes. In 1953, Hooker covered the Landfill with soil and deeded it to the City of Niagara Falls Board of Education, and the City soon built an elementary school on the property. In the years following, the surrounding area was extensively developed and populated, and problems with odors and residues in basements and backyards became commonplace, prompting investigations of the soils and groundwater in the area. In August 1978, both the state and federal governments issued health emergency declarations, and in 1980 the federal government issued a further emergency declaration, eventually resulting in the evacuation and relocation of approximately 950 families. See generally U.S. v. Hooker Chemicals & Plastics Corp., 850 F.Supp. 993 (W.D.N.Y. 1994); U.S. v. Hooker Chemicals & Plastics Corp., 680 F.Supp. 546 (W.D.N.Y. 1988); see also Item 94-5 (Hogan Aff., Exh. D (September 2008 USEPA Five-Year Review Report, Love Canal Superfund Site)).
Remediation of the Landfill was begun by NYSDEC in 1978, and-following the enactment of CERCLA in 1980 - was conducted jointly by USEPA and NYSDEC pursuant to a cooperative agreement entered in 1982. The components of the remedy, selected by means of a series of administrative determinations and regulatory decisions, consisted primarily of a 40-acre, high-density polyethylene cap covered by 18 inches of clean soil and seeded for grass; a deep drain tile perimeter trench for leachate collection; a leachate pump and treatment system; soil and sediment excavation from various properties, creeks, and sewers surrounding the landfill; land use restrictions imposed on certain other areas; provisions for ongoing operation, maintenance, and monitoring ("OM&M") of the remedial components; and, long-term studies of the environmental conditions in the surrounding neighborhoods and the health of current and former residents. See Item 94-1 (Hogan Aff.), ¶ 14. These remedial components were implemented in several stages over the course of many years, pursuant to the Consent Decrees/Judgments approved by this court and entered on the record in the Hooker litigation. See Items 1-2 (1996 Consent Decree); 1-3 (1994 Consent Judgment); 1-5 (1989 Partial Consent Decree); see also 69 Fed. Reg. 12609-11.
On February 23, 1988, this court found OCC jointly and severally liable under section 107(a) of CERCLA, 42 U.S.C. § 9607(a), for the costs incurred by the state and federal governments in responding to the emergency. See 680 F.Supp. at 556-59. In March 1994, following a lengthy trial, the court found that OCC could not be held liable for an award of punitive damages under the laws in force at the time of the conduct alleged. See 850 F.Supp. at 1069. The remaining claims and cross-claims for response costs were eventually resolved by settlement,  and the case was closed upon entry of final judgment in May 1998. See Case No. 79-CV-990, Items 1520-24.
In September 1999, USEPA issued a Preliminary Close-Out Report, followed by a Final Close-Out Report in March 2004, reflecting its determination that the remedy at the Love Canal Landfill Site was complete and was protective of human health and the environment, as required by CERCLA. See Item 94-5 (Five-Year Report); 69 Fed. Reg. 12609. Later in 2004, USEPA removed the Site from the NPL, based on its determination that no further remedial actions were required, the remedy was protective of human health and the environment, and the OM&M would continue to confirm that the remedy was protective of human health and the environment. 69 Fed. Reg. 58322-23; Item 94-7.
Meanwhile, in 1988, NYSDOH issued a "Love Canal Emergency Declaration Area ("EDA") Habitability Decision, " finding certain specific areas of the EDA habitable for residential use, with certain other areas deemed suitable only for commercial and/or light industrial use. Since that time, largely as a result of the efforts of the Love Canal Area Revitalization Agency ("LCARA"), more than 260 formerly abandoned homes in the EDA have been rehabilitated and sold to new residents, repopulating the neighborhood under the new name "Black Creek Village." Item 1-1, ¶¶ 91-97; see also www.health.ny.gov/environmental/investigations/love_canal/lcdec88.
As related above, plaintiffs brought the current action in state court alleging personal injury, property damage, and loss of companionship caused by exposure to "certain signature' Love Canal contaminants" (Item 1-1, ¶ 111) released onto their property and into their home as a result of, inter alia, negligent performance of the remedial program and OM&M obligations at the Landfill, as well as the sewer line remediation work in the vicinity of the EDA in January 2011. Plaintiffs seek money damages (including punitive damages) and "equitable relief in the form of complete remediation of the contamination within, around, and under their propert[y] as well as the establishment of a medical monitoring trust fund on [their] behalf..." ( id. at ¶ 6), relying entirely on state and common law theories of negligence, abnormally dangerous activities, private nuisance, and trespass.
Following defendants' removal of the case to this court on the basis of original federal jurisdiction under CERCLA, plaintiffs moved to remand the case back to state court on the ground that this court lacks subject matter jurisdiction over the claims alleged in the "well-pleaded" Complaint. See Item 46. For the reasons that follow, the remand motion is granted.
I. Removal and Remand
The federal removal statute allows a defendant to remove an action that was originally filed in state court to federal district court "only if the case originally could have been filed in federal court." Marcus v. AT&T Corp., 138 F.3d 46, 52 (2d Cir. 1998) (citing 28 U.S.C. § 1441(a) ("[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending."); see 28 U.S.C. § 1331 (district courts "have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). The statute provides further that, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded" to the state court. 28 U.S.C. § 1447(c). The remand order "may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." Id.
When the plaintiff challenges the court's subject matter jurisdiction on a motion to remand, the defendant "bears the burden of showing that federal jurisdiction is proper." Montefiore Medical Ctr. v. Teamsters Local 272, 642 F.3d 321, 327 (2d Cir. 2011); Scipar Inc. v. Chubb Corp., 2010 WL 3894982, at *2 (W.D.N.Y. Sept. 30, 2010); see also Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994) ("Federal courts are courts of limited jurisdiction.... It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction."). In deciding the remand motion, the court "must construe all disputed questions of fact and controlling substantive law in favor of the plaintiff..., " Weinrauch v. New York Life Ins. Co., 2013 WL 165018, at *3 (S.D.N.Y. Jan. 16, 2013), and, "out of respect for the limited jurisdiction of the federal courts and the rights of states, ... must resolve any doubts against removability." In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007) (internal quotation marks, alterations, and citation omitted); D.A. Elia Const. Corp. v. Damon Morey LLP, 2013 WL 1337194, at *9 (W.D.N.Y. Mar. 29, 2013).
II. The Well-Pleaded Complaint Rule
The 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 present on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (citing Gully v. First Nat'l Bank, 299 U.S. 109, 112-13 (1936)). "The well-pleaded complaint rule' is the basic principle marking the boundaries of the federal question jurisdiction of the federal district courts." Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987), quoted in New York v. Shinnecock Indian Nation, 686 F.3d 133, 138 (2d Cir. 2012). Under this rule, "federal question jurisdiction exists only when the plaintiff's own cause of action is based on federal law, and only when plaintiff's well-pleaded complaint raises issues of federal law." Marcus, 138 F.3d at 52 (citations omitted); see also DeLuca v. Tonawanda Coke Corp., 2011 WL 3799985, at *3 (W.D.N.Y. Aug. 26, 2011). "The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance ...