United States District Court, E.D. Missouri, Eastern Division
JOHN C. KITCHIN, JR., NORTH WEST AUTO BODY COMPANY, and MARY MENKE, on behalf of themselves and all others similarly situated, Plaintiffs,
BRIDGETON LANDFILL, LLC, et al., Defendants.
MEMORANDUM AND ORDER OF REMAND
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
John C. Kitchin, Jr., North West Auto Body Company, and Mary
Menke are property owners seeking damages and injunctive
relief for radioactive contamination of their respective
properties allegedly caused by neighboring West Lake
Landfill, located in North St. Louis County, Missouri.
Plaintiffs assert that their property has been damaged by
soil, dust, and air contamination from improper generation,
handling, storage, and disposal of radioactive materials by
four corporate defendants who are landfill owners and
originally filed this suit in St. Louis County Circuit Court
on behalf of themselves and all other others similarly
situated, pleading various state-law tort theories.
Defendants removed the action to this Court arguing that the
allegations arise under federal law - specifically the
Price-Anderson Act (PAA) as amended in 1988, 42 U.S.C.
§§ 2011, et seq., which provides a federal
compensation regime for damages resulting from a nuclear
incident; and the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), 42 U.S.C.
§§ 9601, et seq., which established a
federal “Superfund” to clean up uncontrolled or
abandoned hazardous-waste sites, and provides for liability
of persons responsible for releases of hazardous waste at
these sites. In their removal petition, defendants also
invoked the Class Action Fairness Act (CAFA), 28 U.S.C.
§§ 1332(d), 1453, which permits federal courts to
preside over certain class actions in diversity jurisdiction
where the aggregate amount in controversy exceeds $5 million;
where the class comprises at least 100 plaintiffs; and where
there is at least “minimal diversity” between the
parties, i.e., at least one plaintiff class member
is diverse from at least one defendant.
move to remand this case to state court. I will grant the
1942 to 1957, uranium ore was processed into various uranium
compounds at a facility located in downtown St. Louis,
Missouri, as part of the Manhattan Project - a United States
research project designed to develop the first nuclear
weapons. In the late 1940's, the Manhattan Project
acquired an additional tract of land near Lambert Airport -
the St. Louis Airport Site (“SLAPS”) - for
storage of radioactive wastes from the uranium processing
occurring at the downtown site. Contaminated scrap was also
stored at the SLAPS site.
1960's, some of the radioactive wastes were moved from
SLAPS to a storage site on Latty Avenue in Hazelwood,
Missouri (“Latty Site”). In 1973, the defendant
landfill owners and operators accepted over 46, 000 tons of
these radioactive wastes mixed with contaminated soil and
used this mixture as daily cover for the West Lake Landfill
located in Bridgeton, Missouri
(“Landfill”). The Landfill is not a licensed nuclear
facility. According to the plaintiffs, despite knowing that
the Landfill was not permitted to accept radioactive material
and was never an adequate storage or disposal site for
radioactive wastes, the defendants nevertheless dumped the
wastes into the Landfill and spread them over a large area.
Plaintiffs claim that about 15 acres of the Landfill are
filled with radioactive wastes at a depth of up to 20 feet.
Plaintiffs contend that because of defendants' spread and
improper storage of these wastes, radioactive material has
contaminated soil, water, and air, resulting in the
contamination of surrounding communities where their
properties are located.
subsurface fire currently exists at the Landfill and emits
noxious and offensive odors. Plaintiffs claim that defendants
are permitting the fire to spread uncontrolled, which could
affect the radioactively-contaminated areas of the Landfill
and cause increased risk of radioactive exposure to persons
in the surrounding area.
December 31, 2004, the Landfill stopped accepting waste and
is now used only as a transfer station. The Landfill is
currently a Superfund site under the regulation of the
Environmental Protection Agency (EPA) pursuant to CERCLA.
the defendants have entered into indemnification agreements
with the United States government with respect to the
1995, plaintiff Kitchin purchased real property in Bridgeton,
Missouri, adjacent to the Landfill. His
family-owned-and-operated business, North West Auto Body
Company, is located on the property. Kitchin first learned in
2017 that the property and the building housing the business
were contaminated with radioactive material. Kitchin and his
company contend that the auto body shop has lost significant
business, revenue, and customers as a result of the
contamination, and will lose future business and incur
Menke owns real property in Bridgeton, Missouri. She learned
in 2018 that her property and the structure on it were
contaminated with radioactive material.
frequently experience offensive odors emanating from the
Landfill. Samples taken on and around plaintiffs'
properties confirm a highly-elevated presence of radioactive
particles matching the fingerprint of the radioactive wastes
dumped at the Landfill. Trees in the vicinity of the North
West Auto Body property contain radiological and organic
contamination. Plaintiffs claim that the radioactive
contamination of their property migrated from the Landfill
and was caused by defendants' improper handling, storage,
and disposal of radioactive materials. They claim that such
contamination and offensive odors render their properties
unfit for normal use and enjoyment, and have destroyed the
fair market value of the properties.
filed their original petition in state court on February 20,
2018, and an amended petition on April 2, 2018. The case was
removed to this Court on April 27, 2018. The amended petition
remains the operative petition in this action.
as defendants in the amended petition are the owners of the
Landfill - Bridgeton Landfill, LLC and Rock Road Industries,
Inc.; and the operators of the Landfill - Republic Services,
Inc. and Allied Services, LLC. Defendant Bridgeton Landfill
removed the action from state court with the consent of
defendants Republic Services and Allied Services. In the
notice of removal, Bridgeton Landfill averred that named
defendant Rock Road Industries merged into Bridgeton Landfill
on April 9, 2018, after the amended petition was filed.
their amended petition, plaintiffs assert the following
state-law claims against all defendants: (1) trespass, (2)
permanent nuisance, (3) temporary nuisance, (4) negligence,
(5) negligence per se, (6) strict liability/absolute
liability, (7) injunctive relief seeking scientific and
medical monitoring, (8) civil conspiracy, and (9) punitive
damages. As relief, plaintiffs seek damages resulting from
the loss of use and enjoyment of their property, for
annoyance and discomfort, for damage to personal property,
and for diminution in the market value of their property.
Plaintiffs also seek recovery of costs and expenses incurred
as a result of their exposure to radioactive emissions,
including the cost of remediation and relocation. They also
seek statutory damages under Missouri law, punitive and
exemplary damages, costs and attorneys' fees, and
interest on all of the requested monetary relief. Finally,
plaintiffs seek injunctive relief enjoining defendants from
continuing in the unlawful conduct, directing defendants to
identify members of the class for compensation, and
compelling defendants to clean up all contamination and to
provide medical monitoring.
following reasons, I do not have jurisdiction over
plaintiffs' claims or over this action. I will therefore
remand this case to state court.
courts are courts of limited jurisdiction. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
“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.”
Id. (citations omitted).
federal district court may exercise removal jurisdiction only
where the court would have had original subject-matter
jurisdiction had the action initially been filed there.
Krispin v. May Dep 't Stores Co., 218 F.3d 919,
922 (8th Cir. 2000) (citing 28 U.S.C. § 1441(b)). The
party seeking removal and opposing remand carries the burden
of establishing federal subject-matter jurisdiction by a
preponderance of the evidence. Kokkonen, 511 U.S. at
377; In re Prempro Prods. Liab. Litig., 591 F.3d
613, 620 (8th Cir. 2010). Generally, a court must resolve all
doubts about federal jurisdiction in favor of remand to state
court. In re Prempro, 591 F.3d at 620.
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 plaintiffs
properly pleaded complaint.” Bowler v. Alliedbarton
Sec. Servs., LLC, 123 F.Supp.3d 1152, 1155 (E.D. Mo.
2015) (quoting Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987)). See also Gaming Corp. of Am. v.
Dorsey & Whitney, 88 F.3d 536, 542 (8th Cir. 1996)
(“The ‘well-pleaded complaint rule' requires
that a federal cause of action must be stated on the face of
the complaint before the defendant may remove the action
based on federal question jurisdiction.”) (quoting
Caterpillar, 482 U.S. at 392). Because federal law
provides that plaintiffs are the “masters” of
their claims, plaintiffs “may avoid federal
jurisdiction by exclusive reliance on state law.”
Caterpillar, 482 U.S. at 392.
cases where a cause of action based on a federal statute does
not appear on the face of the complaint, preemption based on
a federal statutory scheme may nevertheless apply in
circumstances where “the pre-emptive force of a statute
is so extraordinary that it converts an ordinary state
common-law complaint into one stating a federal claim.”
Caterpillar, 482 U.S. at 393. See, e.g., Metro.
Life Ins. Co. v. Taylor, 481 U.S. 58 (1987) (former
employee's claims alleging breach of contract,
retaliatory discharge, and wrongful termination of disability
benefits in state-court complaint were preempted by ERISA and
necessarily federal in character; removal under 28 U.S.C.
§ 1441(a) was therefore proper). “Where a
complaint raises issues to which federal law applies with
complete preemptive force, the Court must look beyond the
face of the complaint in determining whether remand is
proper.” Green v. Arizona Cardinals Football Club,
LLC, 21 F.Supp.3d 1020, 1025 (E.D. Mo. 2014). See
also Strong v. Republic Servs., Inc., 283 F.Supp.3d 759,
763 (E.D. Mo. 2017). If upon such examination I find that a
federal statute provides “an exclusive cause of action
for the claim asserted and also set[s] forth procedures and
remedies governing that cause of action, ” I may
conclude that plaintiffs have “simply brought a
mislabeled federal claim” that could be asserted under
some federal statute. Johnson v. MFA Petroleum Co.,
701 F.3d 243, 247-48 (8th Cir. 2012) (internal quotation
marks and citations omitted).
addition, federal-question jurisdiction exists where state
law claims implicate significant federal issues. Grable
& Sons Metal Prods., Inc. v. Darue Eng'g &
Mfg., 545 U.S. 308, 312 (2005). “The doctrine
captures the commonsense notion that a federal court ought to
be able to hear claims recognized under state law that
nonetheless turn on substantial questions of federal
law[.]” Id. While there is no single test for
jurisdiction over federal issues rooted in state-law claims
between non-diverse parties, the relevant question is
“does a state-law claim necessarily raise a stated
federal issue, actually disputed and substantial, which a
federal forum may entertain without disturbing any
congressionally approved balance of federal and state
judicial responsibilities.” Id. at 314;
see also Baker v. Martin Marietta Materials, Inc.,
745 F.3d 919, 924 (8th Cir. 2014).
this backdrop, I turn to defendants' contention that the
claims raised in plaintiffs' amended petition, although
couched in terms of state-law violations, are completely
preempted by the PAA and, further, raise claims and/or
significant federal issues under CERCLA.