Free Motion to Remand - District Court of California - California

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Victor M. Sher, SBN 96197 [email protected] Todd E. Robins, SBN 191853 [email protected] Marnie E. Riddle, SBN 233732 [email protected] SHER LEFF LLP 450 Mission Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 348-8300 Facsimile: (415) 348-8333 Scott Summy, Admitted in Texas, SBN 19507500 [email protected] Cary McDougal, Admitted in Texas, SBN 13569600 [email protected] Carla Burke, Admitted in Texas, SBN 24012490 [email protected] Celeste Evangelisti, SBN 225232 [email protected] BARON & BUDD, P.C. 3102 Oak Lawn Avenue, Suite 1100 Dallas, TX 75219-4281 Telephone: (214) 523-6267 Facsimile: (214) 520-1181 Attorneys for Plaintiff CALIFORNIA WATER SERVICE COMPANY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA CALIFORNIA WATER SERVICE COMPANY, Plaintiff, vs. THE DOW CHEMICAL COMPANY; E.I. DUPONT DE NEMOURS AND COMPANY; PPG INDUSTRIES, INC.; VULCAN MATERIALS COMPANY; OCCIDENTAL CHEMICAL CORPORATION; VALERO ENERGY CORPORATION; STAUFFER CHEMICAL COMPANY; BOWE-PERMAC, INC., individually and d/b/a BOWE TEXTILE CLEANING, INC.; HOYT CORPORATION; CASE NO. CIV-08-03267 SI PLAINTIFF CALIFORNIA WATER SERVICE COMPANY 'S NOTICE OF MOTION AND MOTION FOR REMAND Hearing Date: October 31, 2008 Time: 9:00 a.m. Department: 10 Hon. Susan Y. Illston

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R.R. STREET & CO., INC.; MCGRAW EDISON COMPANY, individually and d/b/a AMERICAN LAUNDRY MACHINERY, INC., AMERICAN LAUNDRY MACHINERY, INC., individually and d/b/a AJAX MANUFACTURING DIVISION AND MARTIN EQUIPMENT, WHITE CONSOLIDATED INDUSTRIES, INC., individually and d/b/a WASHEX MACHINERY DIVISION, ELECTROLUX CORPORATION, LINDUS S.R.L., individually and d/b/a LINDUS WEST, COLUMBIA DRYCLEANING MACHINES, a/k/a COLUMBIA/ILSA MACHINES CORP., REALSTAR, INC., individually and d/b/a REALSTAR USA, UNION DRYCLEANING PRODUCTS USA, FIRBIMATIC, BERGPARMA OF AMERICA, LLC, AMA UNIVERSAL, FLUORMATIC MIDWEST LTD., FORENTA LP, WESTERN MULTITEX CORP., MARVEL MANUFACTURING, RENZACCI OF AMERICA, SAIL STAR USA, VIC MANUFACTURING CORPORATION, M.B.L., INC., GOSS-JEWETT CO. OF NORTHERN CALIFORNIA, MCGREGOR SUPPLY COMPANY, S.B. SUPPLY INC., WASHEX MACHINERY OF CALIFORNIA, INC., WORKROOM SUPPLY, INC., TAYLOR HOUSEMAN, INC., UNITED FABRICARE SUPPLY, INC., ECHCO SALES INC., MW EQUIPMENT, ARTHUR KAJIWARA EQUIPMENT CO., INC., KELLEHER EQUIPMENT SUPPLY, INC., US MACHINERY & ENGINEERING CO., INC., WYATT-BENNETT, CORBETT EQUIPMENT, FULLER SUPPLY COMPANY, SAV-ON MACHINERY COMPANY, INC. and DOES 1 through 750, INCLUSIVE, Defendants.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. C. D. I. II. III. IV.

TABLE OF CONTENTS INTRODUCTION .................................................................................................................... 2 BACKGROUND ...................................................................................................................... 4 STANDARD OF REVIEW ...................................................................................................... 5 ARGUMENT............................................................................................................................ 5 A. B. This Court Lacks Jurisdiction Because Removal Was Procedurally Defective ........... 5 This Court Lacks Subject Matter Jurisdiction Over This Case..................................... 8 1. 2. 3. CERCLA Does Not Completely Preempt Plaintiff's Eighth Cause of Action.............................................................................................................. 11 This Case Does Not Implicate a "Substantial Federal Question.".................. 15 Nothing In Plaintiff's Suit "Challenges" CERCLA's Remediation or Contribution Schemes..................................................................................... 18

This Court Should Remand All Causes of Action in this Case. ................................. 19 Plaintiff Requests An Award of Attorneys' Fees and Costs....................................... 20

CONCLUSION....................................................................................................................... 21

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 138 F.Supp.2d 1260 (C.D.Cal.2001) ...................................................................................... 11 19 20 21 22 23 24 25 26 27 28 Brennan v. Southwest Airlines Co., 134 F.3d 1405 (9th Cir. 1998). ............................................................................................... 15 Caldwell Trucking PRP Group v. Caldwell Trucking Co., Inc., 154 F.Supp.2d 870 (D.N.J. 2001) ........................................................................................... 12 Castle v. Laurel Creek Co., 848 F.Supp. 62 (S.D.W.Va.1994)............................................................................................. 7 Caterpillar Inc. v. Williams, 482 U.S. 386 (1987)............................................................................................................ 9, 16 Chicago, Rock Island & Pac. R.R. Co. v. Martin, 178 U.S. 245 (1900).................................................................................................................. 8 i
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TABLE OF AUTHORITIES FEDERAL CASES Agrico Chemical Co. v. The Williams Companies, Inc., 2005 WL 2044942 (N.D.Fla.)................................................................................................. 17 Anne Arundel County v. United Pac. Ins. Co., 905 F.Supp. 277 (D.Md.1995) ................................................................................................. 7 ARCO Environmental Remediation, L.L.C. v. Montana, 213 F.3d 1108 (9th Cir.2000) .......................................................................................... passim Avco v. Aero Lodge No. 735, 390 U.S. 557 (1968)................................................................................................................ 11 Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir. 1998).................................................................................................... 13 Bellone v. Roxbury Homes, Inc., 748 F.Supp. 434 (W.D.Va.1990) .............................................................................................. 7 Beneficial Nat'l Bank v. Anderson, 539 U.S. 1 (2003).................................................................................................................... 11 Braco v. MCI Worldcom Communications, Inc.,

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Duncan v. Stuetzle, 76 F.3d 1480 (9th Cir.1996) ................................................................................................... 16 Easton v. Crossland Mortgage Corp., 114 F.3d 979 (9th Cir.1997) ..................................................................................................... 9 Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677 (2006)................................................................................................................ 11 Emrich v. Touche Ross & Co, 846 F.2d 1190 (9th Cir. 1988) .................................................................................................. 6 Fort Ord Toxics Project, Inc. v. California Envtl., Protection Agency, 189 F.3d 828 (9th Cir.1999) ................................................................................................... 19 Franchise Tax Bd. of California v. Construction Laborers Vacation Trust for S. California, 463 U.S. 1 (1983).................................................................................................................... 13

12 Gully v. First National Bank, 299 U.S. 109 (1936); Karambelas v. Hughes Aircraft Co., 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii
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992 F.2d 971, 975 (9th Cir.1993) ............................................................................................. 9 Hall v. North American Van Lines, Inc., 476 F.3d 683 (9th Cir. 2007) .................................................................................................. 11 Harrell v. 20th Century Ins. Co., 934 F.2d 203 (9th Cir.1991) ............................................................................................. 19, 20 Henry v. Independent American Sav. Ass'n, 857 F.2d 995 (5th Cir. 1988) ..................................................................................................... 7 Hewitt v. City of Stanton, 798 F.2d 1230 (9th Cir. 1986) .................................................................................................. 6 Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002).................................................................................................................. 3 Hudson Ins. Co. v. American Elec. Corp., 957 F.2d 826 (11th Cir.1992) ................................................................................................. 12 In re California Retail Natural Gas and Electricity Antitrust Litigation, 170 F.Supp.2d 1052 (D. Nev. 2001)....................................................................................... 11

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In re Methyl Tertiary Butyl Ether ("MTBE'') Products Liability Litigation, 488 F.3d 112 (2d Cir. 2007)...................................................................................................... 7 In re Reading Co., 115 F.3d 1111 (3d Cir.1997)................................................................................................... 14 Lippitt v. Raymond James Financial Services, Inc., 340 F.3d 1033 (9th Cir. 2003) .......................................................................................... 10, 17 Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908).................................................................................................................. 5 Manor Care, Inc. v. Yaskin, 950 F.2d 122 (3d Cir.1991)..................................................................................................... 12 Marcus v. AT & T Corp., 138 F.3d 46 (2d Cir.1998)....................................................................................................... 12

12 Marriage of Nasca v. PeopleSoft, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii
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87 F.Supp.2d 967 (N.D. Cal. 1999) ........................................................................................ 14 Metropolitan Life Ins. Co v. Taylor, 481 U.S. 58 (1987)........................................................................................................... passim Moore v. Permanente Medical Group, Inc., 981 F.2d 443 (9th Cir.1992) ................................................................................................... 21 Morris v. Princess Cruises, Inc., 236 F.3d 1061 (9th Cir. 2001) ................................................................................................... 7 Morton Intern., Inc. v. A.E. Staley Mfg Co., 343 F.3d 669 .......................................................................................................................... 14 MSOF v. Exxon Corp., 295 F.3d 485 (5th Cir. 2002) .................................................................................................. 12 New Jersey Dept. of Environmental Protection v. Minnesota Min. & Mfg. Co., 2007 WL 2027916 (D.N.J. 2007) ........................................................................................... 12 New Mexico v. General Elec. Co., 467 F.3d 1223 (10th Cir. 2006) .............................................................................................. 12

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New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir.1985)................................................................................................... 13 Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261 (9th Cir. 1999), .............................................................................................. 6, 8 Production Stamping v. Maryland Casualty Co., 829 F.Supp. 1074 (E.D.Wis.1993)........................................................................................... 8 Railway Labor Executives Ass'n v. Pittsburgh & Lake Erie R.R. Co., 858 F.2d 936 (3d Cir.1988)..................................................................................................... 14 Rains v. Criterion Sys., Inc., 80 F.3d 339 (9th Cir.1996) .............................................................................................. passim Raytheon Constructors, Inc. v. Asarco Inc., 2000 U.S. Dist LEXIS 6069 at *85 (D.Colo. Mar. 31, 2000) ................................................ 14

12 Rivet v. Regions Bank of Louisiana, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 522 U.S. 470 (1998)................................................................................................................ 14 Roskind v. Morgan Stanley Dean Witter & Co., 165 F.Supp.2d 1059 (N.D.Cal.2001) ..................................................................................... 18 Salveson v. Western States Bankcard Ass'n , 731 F.2d 1423 (9th Cir. 1984) ............................................................................................. 7, 10 Scheall v. Ingram, 930 F.Supp. 1448 (D.Colo.1996).............................................................................................. 7 United Computer Sys., Inc. v. AT & T Corp., 298 F.3d 756 (9th Cir.2002) ..................................................................................................... 6 Valles v. Ivy Hill Corp., 410 F.3d 1071 (9th Cir. 2005) ................................................................................................ 11 Valley Mines, Inc. v. Hartford Acc. & Indem. Co., 644 F.2d 1310 (9th Cir. 1981) ................................................................................................... 7 STATE CASES American Motorcycle Assn. v. Superior Court, 20 Cal.3d 578 (1978) ....................................................................................................... passim iv
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City of Modesto Redevelopment Agency v. Superior Court, 119 Cal.App.4th 28 (2004) ....................................................................................................... 4 Evangelatos v. Superior Court, 44 Cal.3d 1188 (1988) ........................................................................................................... 10 Miller v. Ellis, 103 Cal.App.4th 373 (2002) ..................................................................................................... 9 Phoenix Ins. Co. v. United States Fire Ins. Co., 189 Cal.App.3d 1511 (1987) .................................................................................................. 15 Seamen's Bank v. Superior Court, 190 Cal.App.3d 1485 (1987) .................................................................................................. 15 Selma Pressure Treating Co. v. Osmose Wood Preserving Co., 221 Cal.App.3d 1601 (1990) ............................................................................................ 10, 15

12 Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v
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8 Cal.4th 100 (1994) ............................................................................................................... 10 FEDERAL STATUTES 28 U.S.C. § 1331................................................................................................................................... 9 28 U.S.C. § 1446(a) .............................................................................................................................. 6 28 USC § 1446(b) ................................................................................................................................. 8 28 U.S.C. § 1447(c) ..................................................................................................................... passim 42 U.S.C. § 9614(a) ............................................................................................................................ 12 42 U.S.C. § 9672................................................................................................................................. 12 42 U.S.C. §§ 9601 et seq.............................................................................................................. passim

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Please take notice that on October 31, at 9:00 a.m. or as soon thereafter as the matter may be heard, in the U.S. District Court for the Northern District of California, San Francisco Division, 450 Golden Gate Avenue, San Francisco, California, Courtroom 10, Plaintiff California Water Service

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 By: 23 24 25 26 27 28 1
Plaintiff's Notice of Motion and Motion for Remand ­ Case No. CIV-08-03267 SI

Company ("Plaintiff") will, and hereby does, move this Court for an order remanding the aboveentitled action to the California Superior Court, on the grounds that the notice of removal is procedurally defective because the removing defendant has failed to obtain consent or explain why consent is not required from each other defendant, and that this Court lacks jurisdiction over the action because Plaintiff has not asserted a federal claim. By this Motion, Plaintiff respectfully requests that the Court enter: (1) an Order remanding this case to the Superior Court of California, San Mateo County; (2) an Order awarding Plaintiff its costs, including reasonable attorney's fees, incurred in connection with the removal of this action to federal court pursuant to 28 U.S.C. § 1447(c); and (3) for all other relief that this Court deems just and proper. This motion is based on the accompanying memorandum of points and authorities in support thereof, the accompanying Declaration of Marnie E. Riddle, all pleadings on file in this case, and such other evidence as this Court deems proper. Dated: August 6, 2008 Respectfully submitted, SHER LEFF LLP

___/s/ Marnie E. Riddle__________ VICTOR M. SHER TODD E. ROBINS MARNIE E. RIDDLE 450 Mission Street, Suite 400 San Francisco, CA 94105 Phone: (415) 348-8300 Fax: (415) 348-8333 On behalf of plaintiff California Water Service Company

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR REMAND I. INTRODUCTION The Court should remand this action to the Superior Court of San Mateo County, California, where Plaintiff California Water Service Company ("Plaintiff") originally filed it, because the notice of removal is defective on its face and because no basis for federal subject matter jurisdiction exists. Plaintiff is a publicly regulated water utility whose drinking water wells are contaminated with the toxic chemical perchloroethylene ("PCE"). Plaintiff asserts eight purely state-law causes of action

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2. Plaintiff's choice to proceed under a state claim for equitable indemnity does not support 24 25 26 27
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against the chemical and equipment manufacturers and distributors responsible for the contamination, including a claim for common law equitable indemnity arising out of a consent decree entered into by Plaintiff and the California Department of Toxic Substances Control ("DTSC") following a CERCLA1 enforcement action brought by DTSC. Defendant PPG Industries, Inc. ("PPG") removed this case to federal court on the meritless grounds that Plaintiff's equitable indemnity claim was an artfully pleaded, exclusively federal cause of action. PPG's removal fails for at least the following reasons: 1. The removal is procedurally defective because it lacks consent of all defendants. The right of removal is shared among all defendants, and all defendants must join in or consent to removal (with few exceptions that do not apply here). Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986). Because PPG did not obtain the required consent or joinder from defendant MW Equipment, the removal fails.

federal jurisdiction because CERCLA does not completely preempt such state claims. PPG's assertion that Plaintiff's equitable indemnity claim is really a CERCLA contribution claim (PPG

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CERCLA is the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq. 2
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Notice of Removal ("Ntc.Rem.") at 5) ­ over which the federal courts would have exclusive original jurisdiction ­ misses the mark. Even if Plaintiff's equitable indemnity claim met all of the requirements of a CERCLA contribution claim, Plaintiff is "the master of the complaint" and may choose to plead an exclusively state-law-based cause of action unless a federal statute completely

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 order to ascertain Defendants' liability. Under state law, to state an equitable indemnity claim, 20 21 22 23 24 25 26 27 28 3
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preempts that state law claim. Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826, 831 (2002); ARCO Environmental Remediation, L.L.C. v. Montana, 213 F.3d 1108, 1114 (9th Cir.2000) ("ARCO") (no complete CERCLA preemption of state law). It is well-established, however, that CERCLA does not completely preempt state law indemnity claims, and to the extent such claims may conflict with CERCLA, Defendants may only raise conflict preemption as a defense ­ an invalid basis for removal. ARCO, 213 F.3d at 1114. 3. Plaintiff's equitable indemnity claim does not pose a "substantial federal question" so as to fall under this Court's jurisdiction. A claim cannot be removed as a "substantial federal question" claim if the claim can rest independently on state-law authority. Rains v. Criterion Sys., Inc., 80 F.3d 339, 344 (9th Cir.1996) (no federal jurisdiction where plaintiff brought a state law claim and cited a federal statute as an alternative basis for an element of the claim). Here, Plaintiff's equitable indemnity claim rests independently on California law and a court need not invoke CERCLA in

Plaintiff need only show that Defendant caused the harm for which Plaintiff paid damages ­ a factbased determination ­ not that Defendant violated CERCLA in so doing. American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 608 (equitable indemnity doctrine apportions liability among tortfeasors who in fact caused harm). 4. Plaintiff's equitable indemnity claim does not pose an impermissible "challenge" to any CERCLA cleanup, or to the schemes underlying CERCLA cleanups. Plaintiff does not seek to alter

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any CERCLA-established remediation measures or environmental standards. ARCO, supra, 213 F.3d at 1114-15. Thus, no basis for removal exists. Id. In short, the removal notice contains a fatal procedural defect and the Court lacks subject matter jurisdiction. Accordingly, the Court should remand the case back to California state courts.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 action pursued against Plaintiff by DTSC that arose out of PCE contamination of Plaintiff's wells in 20 21 22 23 24 25 26 27 28 4
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See 28 U.S.C. § 1447(c). II. BACKGROUND Cal Water commenced this action in San Mateo County Superior Court on May 22, 2008. Defendant PPG was served on June 6, 2008. (Notice of Removal of Action Under 28 U.S.C. § 1441(b) (Original Jurisdiction), filed July 7, 2008 ("Ntc.Rem.") at ¶ 2.) On July 7, 2008, PPG filed a Notice of Removal of Action Under 28 U.S.C. § 1441(b) (Original Jurisdiction). On July 8, 2008, Plaintiff's counsel received a Notice of Removal to Federal Court. Plaintiff timely filed this motion to remand based on both procedural defect and lack of jurisdiction under 28 U.S.C. § 1447(c). Plaintiff's Complaint raises eight state-law causes of action: (1) strict products liability (design defect), (2) strict products liability (failure to warn), (3) nuisance, (4) trespass, (5) negligence, (6) negligence per se, (7) Civil Code violations, and (8) equitable indemnity. The eighth cause of action, based on common-law principles of equitable indemnity, relates to an enforcement

Chico, California. Complaint at ¶ 159. Plaintiff's liability for damages pursuant to a settlement with DTSC, however, is due entirely to Defendants' negligent, tortious, and malicious conduct as set forth elsewhere in the Complaint (on Plaintiff's information and belief). Id. at ¶¶ 160, 161. The conduct giving rise to Plaintiff's right of indemnification focuses on the Defendants' roles in manufacturing, distributing, promoting and marketing PCE and equipment designed for use with PCE. Id. at ¶¶ 18, 42, 62. Cf. City of Modesto Redevelopment Agency v. Superior Court (2004), 119 Cal.App.4th 28

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(chemical and equipment manufacturers' liability under state law for nuisance and related claims arising out of PCE contamination). PPG's Notice of Removal states that removal was proper because Plaintiff's eighth cause of action, though labeled as a claim for equitable indemnity, in fact set forth a claim for contribution

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 The existence of federal jurisdiction on removal must be determined on the face of the 20 21 22 23 24 25 26 27 A. 28 5
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under CERCLA, over which federal courts have exclusive original jurisdiction. (Ntc.Rem. at 4-5.) This is incorrect and, as explained below, none of PPG's arguments in support of removal has merit. III. STANDARD OF REVIEW The party invoking removal bears the burden of establishing federal jurisdiction. Harris v. Provident Life and Acc. Ins. Co., 26 F.3d 930, 932 (9th Cir.1994). Courts apply "a strong presumption against removal jurisdiction." Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir.1988) (federal jurisdiction must be rejected if there is any doubt as to the right of removal); Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.1979); see also Acuna v. Brown & Root, 200 F.3d 335, 339 (5th Cir. 2000) ("doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction"); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994) ("where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand").

plaintiff's complaint. See Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908). A "cause of action arises under federal law only when the plaintiff's well pleaded complaint raises issues of federal law." Metropolitan Life Ins. Co v. Taylor, 481 U.S. 58, 63 (1987). Defendants not only removed this action with a procedurally deficient Notice, but have also failed to meet their burden of demonstrating that federal jurisdiction exists. IV. ARGUMENT This Court Lacks Jurisdiction Because Removal Was Procedurally Defective

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PPG filed its Notice of Removal without obtaining the consent or joinder of Defendant MW Equipment.2 Plaintiff served MW Equipment on June 11, 2008, well before PPG removed the case. See Proof of Service Summons (Jun. 17, 2008), attached as Exhibit 1 to the Declaration of Marnie E. Riddle filed concurrently herewith. Instead of either alleging that MW Equipment had not been

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 defendants in the notice for removal." Prize Frize, Inc. v. Matrix (U.S.) Inc.,167 F.3d 1261, 1266 20 21 22 23 24 25 26 27 28
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served or explaining why another exception should apply, PPG simply stated that MW Equipment had been "contacted" about joining in or consenting to this Notice, but failed to allege that MW Equipment ever in fact joined or consented. (Ntc.Rem. at 3.) PPG's failure to obtain MW Equipment's consent is fatal to the removal. Where there are several defendants in an action, the right to remove belongs to them jointly, and all defendants who may properly join in the removal notice must join. If any defendant does not join or consent to removal, the action cannot be removed. United Computer Sys., Inc. v. AT & T Corp., 298 F.3d 756, 762 (9th Cir.2002) ("the usual rule is that all defendants in an action in a state court must join in a petition for removal"); Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986) ("All defendants must join in a removal petition with the exception of nominal parties"); 28 U.S.C. § 1446(a). Therefore, "[w]here fewer than all the defendants have joined in a removal action, the removing party has the burden under section 1446(a) to explain affirmatively the absence of any co-

(9th Cir. 1999), superseded by statute on other grounds as stated in Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 681 (9th Cir. 2006)). The rule is clear that only limited circumstances may excuse the failure to join all codefendants in the notice. See, e.g., Emrich v. Touche Ross & Co, 846 F.2d 1190, 1193 (9th Cir. 1988) ("all defendants in a state action must join in the petition for removal, except for nominal, unknown or fraudulently joined parties"). In particular, removal requires unanimity unless:

The Complaint names MW Equipment in ¶¶ 53, 62. 6
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(a) the non-joined defendant had not been served by the removal date (Salveson v. Western States Bankcard Ass'n , 731 F.2d 1423, 1429 (9th Cir. 1984)); (b) the non-joined defendant is merely a nominal party or sham defendant (Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001));3 (c) the non-joined defendant is not a defendant to the removed claim, and the removed claim is separate and independent of nonremovable claims against that non-joined defendant (Henry v. Independent American Sav. Ass'n, 857 F.2d 995, 999 (5th Cir. 1988)); or (d) the removal is by the United States, a federal agency, or a federal officer sued for acts under color of office (Ely Valley Mines, Inc. v. Hartford Acc. & Indem. Co., 644 F.2d 1310, 1314 (9th Cir. 1981)). None of these circumstances exists in this case. In their absence, federal courts uniformly remand actions to state courts. See, e.g., Scheall v. Ingram, 930 F.Supp. 1448, 1449 (D.Colo.1996) (remanding case because removal petition failed to explain absence of co-defendants' consent); Anne Arundel County v. United Pac. Ins. Co., 905 F.Supp. 277, 278-79 (D.Md.1995) (movant's failure to explain why co-defendant had not joined the notice of removal required a remand); Castle v. Laurel Creek Co., 848 F.Supp. 62, 66 (S.D.W.Va.1994) (removing party failed to include allegation of fraudulent joinder to defeat diversity in notice of removal; case remanded because failure to include this allegation in notice of removal was a substantial and material defect ); Bellone v. Roxbury Homes, Inc., 748 F.Supp. 434, 437 n. 1 (W.D.Va.1990) (court refused attempt to amend notice of removal that failed to indicate consent of a co-defendant or explain its absence; amendment not

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"minor" amendment contemplated by the removal statute). The unanimous-joinder rule applies even where, as here, the notice of removal rests on an argument that federal law preempts plaintiff's cause of action or raises a substantial federal question. In re Methyl Tertiary Butyl Ether ("MTBE'') Products Liability Litigation, 488 F.3d 112, 134 (2d Cir. 2007) ("removal on the basis of preemption or a substantial federal question ­ unlike removal under the federal officer or bankruptcy removal statutes ­ requires the consent of all defendants") (citing 14C Charles Alan Wright, Arthur R. Miller,

PPG does not claim ­ and cannot claim ­ that MW Equipment is a nominal defendant. 7
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& Edward H. Cooper, Federal Practice and Procedure § 3731, at 258 (3d ed.1998); Chicago, Rock Island & Pac. R.R. Co. v. Martin, 178 U.S. 245, 247-48 (1900)). The removing party bears the burden to explain the absence of a properly served codefendant. Prize Frize, supra, 167 F.3d at 1266. PPG has not met this burden here. Instead, PPG

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 B. This Court Lacks Subject Matter Jurisdiction Over This Case. 21 22 23 24 25 26 27 28 8
Plaintiff's Notice of Motion and Motion for Remand ­ Case No. CIV-08-03267 SI

merely states that "Defendant MW Equipment was contacted about joining or consenting to this Notice," but instead of agreeing to join or consent, "Mr. Wee, who described himself as the owner of the company, declined to provide the name of MW Equipment's attorney . . . informed Defendants that he believed MW Equipment was improperly named . . . [and] stated that he did not want to be involved in the case" instead of consenting. (Ntc.Rem. at 3.) Indeed, even if MW Equipment were to consent eventually, the cure would be untimely because such consent would come more than 30 days after the removing defendants allege that this case became removable. See Prize Frize, supra, 167 F3d at 1266 (cure must be within 30-day statutory period under the removal statute, 28 USC § 1446(b)). In short, PPG fails to allege any facts that would support a permissible exception to the unanimous joinder requirement. MW Equipment's failure to join or consent to removal renders PPG's Notice of Removal procedurally defective, and the Court should remand this case to state court for this reason alone.4 28 U.S.C. § 1447(c).

Even if PPG's failure to obtain joinder from all defendants did not render its Notice fatally defective, the substantive jurisdictional arguments for removal set forth in the Notice lack merit. PPG rests its Notice of Removal on the erroneous argument that Plaintiff's eighth cause of action, on
4

PPG's failure to adhere to the unanimity rule is not merely a technicality, but is fatal to removal. As the district court in Production Stamping v. Maryland Casualty Co., 829 F.Supp. 1074 (E.D.Wis.1993) held, "the view that technical flaws in a removal petition can be swept away like so much dust seriously misunderstands the conditions under which the formidable power of the federal judiciary can--and should--be invoked. These considerations are certainly more substantive than the

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its face an equitable indemnity claim under state law, in fact sets forth an "artfully pleaded" federallaw claim under CERCLA. (Ntc.Rem. at 3.) But because Plaintiff's claims do not "arise under" any federal law, this case does not fall within the federal courts' federal question jurisdiction. Nor does CERCLA completely pre-empt Plaintiff's eighth cause of action; nor does the eighth cause of action

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 preempt state-law claims). Here, as PPG acknowledged by invoking the "artful pleading" doctrine, 20 21 22 23 24 25 26 27 28 simplistic notion that procedural flaws should be overlooked merely because they are procedural." Production Stamping, 829 F.Supp. at 1077-78. 5 Nor does Plaintiff's incorporation of DTSC's original complaint (resulting in the Consent Decree) by reference in its equitable indemnity claim does not render the eighth cause of action a CERCLA claim. See Easton v. Crossland Mortgage Corp., 114 F.3d 979, 982 (9th Cir.1997) (complaint that alleged state law claims and sought remedies exclusively under state law did not state claim arising under federal law for purposes of federal question jurisdiction, even though complaint included incidental references to federal law and the Federal Constitution); Rains v. Criterion Systems, Inc., 9
Plaintiff's Notice of Motion and Motion for Remand ­ Case No. CIV-08-03267 SI

pose a "challenge" to CERCLA's remediation and contribution scheme. As explained below, defendants have failed to establish any valid substantive ground for removal jurisdiction. "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 presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987); see also Gully v. First National Bank, 299 U.S. 109 (1936); Karambelas v. Hughes Aircraft Co., 992 F.2d 971, 975 (9th Cir.1993) (the "mere simulacrum of a possible unasserted ERISA claim was insufficient to form a basis for federal jurisdiction"). A "federal question" case is one "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A plaintiff's choice not to plead independent federal claims otherwise available to them defeats removal jurisdiction. ARCO, supra, 213 F.3d at 1113-14 (remand required where Montana law created the cause of action under which plaintiff sought relief and CERCLA did not

Plaintiff's complaint, on its face, does not state a claim that "arises under" federal law. Instead, California law creates the cause of action for indemnification under which Plaintiff has chosen to seek relief.5 Miller v. Ellis (2002) 103 Cal.App.4th 373, 379-80 ("[t]he doctrine of equitable

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indemnification allows liability to be apportioned between wrongdoers based on their relative culpability") (citing Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 114 (shifting liability to a negligent third party tortfeasor under doctrine of equitable indemnity)); see also Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1197-98 ("under the

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 supra, 213 F.3d at 1114, "[a] state-created cause of action can be deemed to arise under federal law 20 21 22 23 24 25 26 27 28 80 F.3d 339, 343 (9th Cir. 1996) (claim filed as wrongful termination claim, not Title VII claim, did not turn on construction of substantial, disputed federal question, and would not be recharacterized as a federal claim). 6 The Ninth Circuit in Lippitt subsequently lumped the last two categories together, calling them "substantial federal question cases," citing Franchise Tax Bd., 463 U.S. at 27-28. Lippitt, supra, 340 F.3d at 1041 ("Subsumed within [substantial federal question cases] are those cases where the claim is necessarily federal in character, or where the right to relief depends on the resolution of a substantial, disputed federal question.") (internal citations omitted); see also In re California Retail 10
Plaintiff's Notice of Motion and Motion for Remand ­ Case No. CIV-08-03267 SI

principles articulated in American Motorcycle [Assn. v. Superior Court (1978)] 20 Cal.3d 578 [], a defendant may pursue a comparative equitable indemnity claim against other tortfeasors . . . by filing a separate indemnity action after paying more than its proportionate share of the damages through the satisfaction of a judgment or through a payment in settlement"); Selma Pressure Treating Co. v. Osmose Wood Preserving Co. (1990) 221 Cal.App.3d 1601, 1624 (chemical manufacturers could bear liability supporting an equitable indemnity claim). Defendants may invoke the artful pleading doctrine "only in limited circumstances as it raises difficult issues of state and federal relationships and often yields unsatisfactory results." Lippitt v. Raymond James Financial Services, Inc., 340 F.3d 1033, 1041 (9th Cir. 2003) (quoting Salveson v. Western States Bankcard, 731 F.2d 1423, 1427 (9th Cir.1984) (reversing denial of plaintiff's motion to remand where artful pleading doctrine could not be properly invoked). None of these limited circumstances applies here. As the Ninth Circuit stated in ARCO Environmental,

(1) where federal law completely preempts state law[;] (2) where the claim is necessarily federal in character[; or] (3) where the right to relief depends on the resolution of a substantial, disputed federal question[.]" Id.(internal citations omitted).6 None of the potential bases for federal

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jurisdiction applies in this case. 1. CERCLA Does Not Completely Preempt Plaintiff's Eighth Cause of Action. Federal pre-emption is ordinarily a federal defense to a plaintiff's state-law suit and does not authorize removal to federal court. Hall v. North American Van Lines, Inc., 476 F.3d 683, 687 (9th

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Natural Gas and Electricity Antitrust Litigation, 170 F.Supp.2d 1052 (D. Nev. 2001) ("the latter two exceptions [to the well-pleaded complaint rule as described in ARCO] blend together in the case law."). 7 Complete preemption is rare. See Braco v. MCI Worldcom Communications, Inc., 138 F.Supp.2d 1260, 1265 (C.D.Cal.2001) (noting that at the time, only two areas of law had been imbued with complete preemptive force). In total, the Supreme Court has found only three types of claims to be completely preempted by federal statutes: (1) claims brought under § 301 of the Labor Management Relations Act (Avco v. Aero Lodge No. 735, 390 U.S. 557 (1968)); (2) claims brought under ERISA's civil enforcement provision (Metropolitan Life, supra, 481 U.S. 58); and (3) usury claims against national banks under the National Bank Act (Beneficial Nat'l Bank v. Anderson, 539 U.S. 1 (2003)). "If Congress intends a preemption instruction completely to displace ordinarily applicable state law, and to confer federal jurisdiction thereby, it may be expected to make that atypical intention clear." Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 680 (2006) 11
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Cir. 2007) (federal preemption defense insufficient to support federal jurisdiction); Valles v. Ivy Hill Corp., 410 F.3d 1071, 1075 (9th Cir. 2005) ("federal law defense to a state law claim does not confer jurisdiction on a federal court, even if the defense is that of federal preemption and is anticipated in the plaintiff's complaint"). However, "Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Metropolitan Life, 481 U.S. at 63-64. More recently, the Supreme Court in Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 9 (2003) articulated the "complete preemption" test by stating that "the proper inquiry focuses on whether Congress intended the federal cause of action to be exclusive rather than on whether Congress intended that the cause of action be removable." Thus, under Anderson, a state-law-based claim can only be removed either "when Congress expressly so provides, ... or when a federal statute wholly displaces the state-law cause of action through complete pre-emption." Anderson, 539 U.S. at 8. It is well established that CERCLA does not completely preempt state-law claims.7 As the

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Ninth Circuit expressly recognized in ARCO when it held that plaintiff's state law claims did not engender federal jurisdiction or arise under CERCLA, CERCLA does not completely occupy the field of environmental regulation. Congress expressly declared that it had no intent to do so. See 42 U.S.C. § 9614(a) ("Nothing in this chapter shall be construed or interpreted as preempting any State from imposing any additional liability or requirements with respect to the release of hazardous substances ..."); 42 U.S.C. § 9672 ("Nothing in this subchapter shall be construed to affect either the tort law or the law governing the interpretation of insurance contracts of any State."). ARCO, supra, 213 F.3d at 1114. Other Circuits have unanimously held that CERCLA does not completely preempt state law claims: See, e.g., New Mexico v. General Elec. Co., 467 F.3d 1223,

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 preempt plaintiffs' state law claims; no artful pleading found). 24 25 26 27 28 (finding federal jurisdiction lacking where insurance reimbursement claim was triggered by settlement of state-court personal-injury action); see also Marcus v. AT & T Corp., 138 F.3d 46, 55 (2d Cir.1998) ("After Metropolitan Life, there is no complete preemption without a statement to that effect from Congress.") 12
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1244 (10th Cir. 2006) ("[g]iven [CERCLA's] saving clauses, as well as the spirit of cooperative federalism running throughout CERCLA and its regulations, we may safely say Congress did not intend CERCLA to completely preempt state laws related to hazardous waste contamination"); MSOF v. Exxon Corp., 295 F.3d 485, 491 (5th Cir. 2002) ("CERCLA does not completely preempt the plaintiffs' claims under Louisiana state law"); Hudson Ins. Co. v. American Elec. Corp., 957 F.2d 826 (11th Cir.1992) (CERCLA does not completely preempt state insurance law); Manor Care, Inc. v. Yaskin, 950 F.2d 122, 125-27 (3d Cir.1991) (no conflict between CERCLA and cost recovery provisions of New Jersey Spill Compensation and Control Act). See also New Jersey Dept. of Environmental Protection v. Minnesota Min. & Mfg. Co., 2007 WL 2027916 (D.N.J. 2007) (CERCLA does not completely preempt state law claims so as to provide federal question jurisdiction; § 113(b) does not independently grant such jurisdiction); Caldwell Trucking PRP Group v. Caldwell Trucking Co., Inc., 154 F.Supp.2d 870 (D.N.J. 2001) (CERCLA does not completely

None of the cases cited by PPG for their proposition "that CERCLA preempts state

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restitution and indemnification claims; otherwise they would interfere with CERCLA's settlement scheme" (Ntc.Rem. at 5), in fact so holds. In addition to being distinguishable on their facts,8 these cases only identify potential conflict preemption of certain common-law claims by CERCLA ­ a potential defense, but not a ground for removal. At most, they stand for the proposition that double-

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 between federal and state law is a defense to a state law cause of action and, therefore, does not 20 21 22 23 24 25 26 27 28 In each of them, the plaintiff had filed suit initially in federal court, expressly relying on the provisions of CERCLA, so that the federal court's subject matter jurisdiction was never in doubt. 13
Plaintiff's Notice of Motion and Motion for Remand ­ Case No. CIV-08-03267 SI
8

recovery is barred. Since Plaintiff has chosen a state-law path to recovery and not a CERCLA-based path, instead of both at once, the double-recovery bar indicated by these cases cannot apply. In Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir. 1998), the court held only that plaintiff was not entitled to a double recovery under both CERCLA and state law; plaintiff could not utilize the "remedies of restitution and indemnification" where plaintiff already had obtained a remedy under CERCLA. Id. at 426. In so holding, the Second Circuit pointed out that CERCLA "does not expressly preempt state law, but simply prohibits states from `recovering compensation for the same removal costs or damages or claims under both CERCLA and state or other federal laws'." Id. at 426, quoting New York v. Shore Realty Corp., 759 F.2d 1032, 1041 (2d Cir.1985) (emphasis added). The conflict preemption between state law remedies and CERCLA described by some of these cases does not support removal. As the Ninth Circuit explained in ARCO Environmental, supra, 213 F.3d at 1114, unlike complete preemption, "preemption that stems from a conflict

confer federal jurisdiction over the case". Accord, e.g., Metropolitan Life, supra, 481 U.S. at 65. "[A] case may not be removed to federal court on the basis of a federal defense, . . . even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case." Franchise Tax Bd. of California v. Construction Laborers Vacation Trust for S. California, 463 U.S. 1, 14 (1983); accord, e.g., Rivet v. Regions Bank

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of Louisiana, 522 U.S. 470, 478 (1998). To the extent that CERCLA conflict preemption might serve as a defense ­ and Plaintiff does not admit that it does9 ­ "that issue must be left for determination by the state court on remand." Railway Labor Executives Ass'n v. Pittsburgh & Lake Erie R.R. Co., 858 F.2d 936, 939 (3d Cir.1988).

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 regarding preemption. It lacks power to do anything other than remand the issue to state court where 20 21 22 23 24 25 26 27 28 14
Plaintiff's Notice of Motion and Motion for Remand ­ Case No. CIV-08-03267 SI

In another case cited by PPG to support its preemption argument, In re Reading Co., 115 F.3d 1111, 1116 (3d Cir.1997), the Third Circuit "held that, in enacting CERCLA, Congress did not explicitly preempt all state law, nor did it create a comprehensive scheme of regulation leaving no room for supplementation . . .We must therefore consider the third basis for preemption, actual conflict." On that case's facts, as well as the facts in Morton Intern., Inc. v. A.E. Staley Mfg Co., 343 F.3d 669, 685 (in which plaintiffs stated claims under both CERCLA and state law), the Third Circuit held that only conflict preemption existed. This holding on conflict preemption is the only "consensus" identified in Raytheon Constructors, Inc. v. Asarco Inc., 2000 U.S. Dist LEXIS 6069 at *85 (D.Colo. Mar. 31, 2000) (the only other case cited by PPG on this point). This Court lacks jurisdiction over the question of whether conflict preemption exists here. "When the doctrine of complete preemption does not apply, but the plaintiff's state claim is arguably preempted . . . the district court, being without removal jurisdiction, cannot resolve the dispute

the preemption issue can be addressed and resolved." Marriage of Nasca v. PeopleSoft, 87 F.Supp.2d 967 (N.D. Cal. 1999), quoting Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 354 (3d Cir.1995). Because CERCLA does not completely preempt Plaintiff's state law claims so as to provide a basis for removal to federal court, PPG's removal was improper, and this case should be remanded. Indeed, given that the scope of potential liability provided by state tort law is much broader than CERCLA's arranger liability provisions, and Defendants do not concede that they fall under the
9

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2. This Case Does Not Implicate a "Substantial Federal Question." PPG's further assertion that federal question jurisdiction exists in this case also lacks merit, because Plaintiff's state law equitable indemnity claim raises no federal question. A state law claim raises a "substantial federal question" only when: (1) "a substantial, disputed question of federal law

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 among tortfeasors who in fact caused harm). Tortfeasors need not be parties to the original action 20 21 22 23 24 25 26 27 28 definition of "responsible parties" set forth in CERCLA (Ntc.Rem at 7, fn. 2), Plaintiff may lack any 15
Plaintiff's Notice of Motion and Motion for Remand ­ Case No. CIV-08-03267 SI

is a necessary element of ... the well-pleaded state claim," Rains, 80 F.3d at 345 (internal citation omitted) (emphasis in original) or the claim is an "inherently federal claim" articulated in state-law terms, Brennan v. Southwest Airlines Co., 134 F.3d 1405, 1409 (9th Cir. 1998); or (2) "the right to relief depends on the resolution of a substantial, disputed federal question," ARCO, 213 F.3d at 1114 (internal citation omitted). Federal law is not a necessary element of Plaintiff's equitable indemnity claim. Under California law, equitable indemnity "applies in cases in which one party pays a debt for which another is primarily liable and which in equity and good conscience should have been paid by the latter party." Phoenix Ins. Co. v. United States Fire Ins. Co. (1987) 189 Cal.App.3d 1511, 1526. To state a claim for equitable indemnity under California law, a defendant must allege that the harm for which he has been held liable is properly attributable ­ at least in part ­ to the cross-defendant. American Motorcycle, supra, 20 Cal.3d at 608 (equitable indemnity doctrine apportions liability

imposing liability (just as here, Defendants were not party to the Consent Decree between Plaintiff and DTSC). See Seamen's Bank v. Superior Court (1987) 190 Cal.App.3d 1485, 1492-1493 ("It is not necessary a person be a party to the action in order for the court to assess that person's proportion of fault"). In fact, in an analogous case ­ Selma Pressure Treating Co., supra ­ the original defendants to an environmental-contamination enforcement action brought by the State of California brought an equitable indemnity claim against the chemical manufacturers ultimately responsible for

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the harm. 221 Cal.App.3d at 1624. Most importantly, Plaintiff need not allege a violation of CERCLA, nor even a violation of the Consent Decree, in order to bring an equitable indemnity claim in California state court ­ all that is required is an allegation of causation. American Motorcycle, supra, 20 Cal.3d at 608. Plaintiff need merely allege that Defendants were in truth responsible for

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 the three causes of action in the complaint, then the exercise of removal jurisdiction was improper." 20 21 22 23 24 25 26 27 28 viable CERCLA claim at all ­ rendering the conflict question moot. 16
Plaintiff's Notice of Motion and Motion for Remand ­ Case No. CIV-08-03267 SI

the damages paid by Plaintiff, even though they were not sued directly by DTSC. This allegation and causation determination does not implicate CERCLA. In fact, Defendants' liability for causing the harm described in the eighth cause of action is coextensive with the liability Plaintiff seeks to establish in the previous seven exclusively state-law-based claims. In Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987), the Supreme Court concluded that a complaint should not be recharacterized to implicate a federal question merely because it could be; instead, recharacterization was improper so long as a state theory could also be pleaded. Id. at 39697. The Ninth Circuit applied this rule in Duncan v. Stuetzle, 76 F.3d 1480 (9th Cir.1996), in which the court held that in order to show that the plaintiff's claims required resolution of a substantial federal question, the defendant "must show that resolution of a federal trademark law question is essential to each of the alternative theories in support of any one of the three causes of action in the complaint. Stated another way, if a single state-law based theory of relief can be offered for each of

Id. at 1485 (emphasis in original). The Court concluded that removal of plaintiff's claims was improper because an alternative, fully independent state law theory of recovery existed for each claim. Id. at 1490-91. Even if a claim could be based on a federal law, but an alternative state law authority exists (which the plaintiff has in fact pled, under the well-pleaded complaint rule), the claim cannot be removed. As the Ninth Circuit held in Rains v. Criterion Sys., Inc., 80 F.3d 339, 344 (9th Cir.1996):

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[Plaintiff] brought a state law claim and cited a federal statute as an alternate basis for establishing one element of his claim. The claim was authorized by state law and no essential federal law was omitted. The artful pleading doctrine does not permit defendants to achieve what they are trying to accomplish here: to rewrite a plaintiff's properly pleaded claim in order to remove it to federal court." The rule is clear that even where "issues involving CERCLA" or another federal law may

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 the claim for damages asserted against it is, on Plaintiff's information and belief, solely due to 20 21 22 23 24 25 26 27 one of which is a state law theory and one of which is a federal law theory ­ federal question 28 17
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arise in the course of resolving the state-law based claims, such involvement does not render the facially state-law-based claims federal. Lippitt, supra, 340 F.3d at 1043-44 (where plaintiff did not have to rely on a violation of federal law to state a claim, and did not seek to enforce a federal statute or regulation, state claim did not "arise" under federal law); see also Agrico Chemical Co. v. The Williams Companies, Inc., 2005 WL 2044942 (N.D.Fla.) ("no federal question derives from [plaintiff's] efforts to be indemnified" for costs arising from property claims which "necessarily bear a factual connection to [defendant's] obligations under the CERCLA clean-up and remediation plan"). In short, Plaintiff's eighth cause of action would raise a substantial question of federal law only if its validity turned on the interpretation or application of federal law. But, as even a cursory review of the Complaint demonstrates, Plaintiff has grounded Defendants' liability entirely on violations of state law, not on violations of CERCLA. See ¶ 161 ("Plaintiff's liability or any part of

Defendants' negligent, tortious and malicious conduct as set forth above;" and "the acts of Defendants . . . were the direct and proximate cause of the PCE contamination that was the subject of DTSC's complaint and action against Plaintiff"). Plaintiff can so allege without resorting to CERCLA, and thus there is no basis for removal jurisdiction on this ground ­ even assuming arguendo that Plaintiff could also have alleged a claim for contribution under CERCLA § 113(f). See Rains, 80 F.3d at 346 (if plaintiff can support claim with "alternative and independent theories ­

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jurisdiction does not attach"); see also Roskind v. Morgan Stanley Dean Witter & Co., 165 F.Supp.2d 1059, 1067 (N.D.Cal.2001) (because the unlawful prong of plaintiff's Cal. Bus. & Prof. Code § 17200 claim could be satisfied by either state or federal law, remand was proper). This case, as in those cited, requires remand.

5 6 7 8 jurisdiction" by calling Plaintiff's suit a "challenge" to CERCLA's contribution and remediation 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 CERCLA cleanup simply because the action has an incidental effect on the progress of a CERCLA 24 25 26 27 28 18
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3.

Nothing In Plaintiff's Suit "Challenges" CERCLA's Remediation or Contribution Schemes

Defendants improperly invoke CERCLA Section 113(b)'s grant of "exclusive original

schemes. This is baseless. ARCO, supra. In ARCO, plaintiff brought an action in state court that contained claims based on state laws, including the Montana Constitution and Montana's open meeting and public access to records laws. 213 F.3d at 1113. Defendant removed the case to federal court, arguing that plaintiff's claims arose under CERCLA and that ARCO had artfully pleaded a federal claim as a state claim. Id. In reversing the district court's denial of plaintiff's motion to remand, the Court of Appeals held that a state law claim constitutes a "challenge to a CERCLA cleanup" only "if it is related to the goals of the cleanup." Id. at 1115 ("We have found actions to challenge CERCLA cleanups where the plaintiff seeks to dictate specific remedial actions[;] to postpone the cleanup[;] to impose additional reporting requirements on the cleanup[;] or to terminate the RI/FS and alter the method and order of cleanup"). A suit that does none of these things ­ as in ARCO, and as here ­ does not "challenge" CERCLA's goals, nor does it arise under CERCLA § 113(b). Id. The Ninth Circuit emphasized that "an action does not become a challenge to a

cleanup;" instead, there must be a direct effect for state claims to constitute a CERCLA "challenge."

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Id.10 PPG improperly conflates conflict preemption and "challenge" to a CERCLA cleanup, stating that "Plaintiff's equitable indemnity claim challenges the Chico Central Plume cleanup and the goals of CERCLA cleanups generally." (Ntc. Rem at 7.) PPG identifies no "direct effect" on

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 dismissed for lack of jurisdiction"). 20 21 22 23 24 25 26 27 28 Jurisdiction under § 113(b) is "more expansive than . . . those claims created by CERCLA," and "cover[s] any `challenge' to a CERCLA cleanup." Fort Ord Toxics Project, Inc. v. California Envtl., Protection Agency, 189 F.3d 828, 832 (9th Cir.1999). 19
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10

any CERCLA cleanup that would support its "challenge" argument under ARCO Environmental ­ nor could it. As for challenging "the goals of CERCLA cleanups generally," PPG has propounded an argument that is identical in character to its prior "conflict preemption" argument and cites the same cases. As discussed above, even if Plaintiff's equitable indemnity claim conflicted with the goals of CERCLA ­ and Plaintiff believes it does not, in any event ­ PPG's preemption defense would be a matter over which the state court, not this Court, properly has jurisdiction. C. This Court Should Remand All Causes of Action in this Case. PPG has asserted that all claims in this action are removable because this Court has supplemental jurisdiction over state-law claims that are related to a federal claim. Since this Court lacks jurisdiction over Plaintiff's eighth cause of action, as explained above, the other seven causes of action must be remanded as well. Harris v. Provident Life & Acc. Ins. Co. (9th Cir. 1994) 26 F.3d 930, 934 ("district court has no discretion to retain state law claims when the sole federal claim is

In the alternative, if the Court determines that it has jurisdiction over the eighth cause of action, the Court should exercise its discretion to sever and remand the remaining state-law based causes of action in this case. "It is generally within a district court's discretion [following final disposition of all federal claims] either to retain jurisdiction to adjudicate the pendent state claims or to remand them to state court." Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 (9th Cir.1991);

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see also 28 U.S.C. §§ 1367(c), 1447(c). It is well established that federal courts have discretion to decline jurisdiction over state law claims if, for instance, the state claims substantially predominate, the state claims involve novel or complex issues of state law, trial of the state and federal claims together is likely to result in jury confusion, or retention of the state claims requires the expenditure

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 claims are pure state law claims with no connection to federal law, comity dictates their remand, as 20 21 22 23 24 25 26 27 28 20
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of substantial additional judicial time and effort. United Mine Workers v. Gibbs, 383 U.S. 715, 726