Ohio v. Basf Wyandotte Corporation

No. C 72-350 (N.D. Ohio June 13, 1972)

In action against three chemical manufacturers to abate mercury pollution of Lake Erie and its tributaries, plaintiff's motion for remand from federal district court to state court granted since removal of the action was improper under 28 U.S.C. § 1441 (a). There was no basis for original federal district court jurisdiction on diversity grounds since a state is not a citizen for purposes of diversity jurisdiction; nor is there a basis in federal question, since purely state or non-federal actions for pollution abatement are still available and do not arise under the laws of the United States. Furthermore, one defendant did not join in removal and no exception exists here to the general rule that all defendants who may properly join in the removal petition must join.

Counsel for Plaintiff
William J. Brown Attorney General
C. Raymond Marvin
James A. Laurenson Assistant Attorneys General
State House Annex
Columbus, Ohio 43215

Counsel for BASF Wyandotte
Smith Warder
1144 Union Commerce Building
Cleveland, Ohio 44115

John M. Moelmann & Thomas J. Weithers
One N. LaSalle Street
Chicago, Illinois 60602

Milton F. Mallender & J. Donald McLeod
1022 Ford Building
Detroit, Michigan 48226

Counsel for Dow Chemical of Canada, LTD. and The Dow Chemical Company
Harley J. McNeal
McNeal, Schick, Archibald & Carlson
520 Williamson Building
Cleveland, Ohio 44114

[2 ELR 20338]

Lambros, J.

This is a cause of action by the State of Ohio charging the respective defendants, BASF Wyandotte Corporation ("Wyandotte"), Dow Chemical of Canada Ltd. ("Dow Canada") and The Dow Chemical Company ("Dow United States"), with the discharge of mercury and compounds thereof which have flowed into Lake Erie and the tributaries thereto. These discharges by the defendants allegedly are and will become injurious to the natural conditions existing in Lake Erie, to the fish and aquatic organisms therein, to the wildlife, to the vegetation and to the water of Lake Erie. The plaintiff also alleges that these discharges of mercury and its compounds are and will be potentially injurious and deleterious to the health and safety of the inhabitants of the State of Ohio. In light of these allegations, the first amended complaint, avers causes of action predicated upon negligence, trespass and public nuisance.

Initially the action was instituted in the United States Supreme Court but the Supreme Court declined to exercise its original jurisdiction. The plaintiff, thereafter, filed the case in the Common Pleas Court of Cuyahoga County. The case was removed to this District Court by defendants Dow Canada and Dow United States. The defendant Wyandotte did not join in the removal. The plaintiff has now moved to remand the case back to the state courts.

After due consideration of the motion of the plaintiff, the Court finds that the motion to remand is well taken. The removal was improper under 28 U.S.C. § 1441 (a) because there is no original jurisdiction over this complaint and because all of the defendants did not join in the removal.

First of all, there is no original jurisdiction predicated upon diversity of citizenship. It is well settled that a state is not a citizen for purposes of diversity of citizenship jurisdiction. See Illinois v. City of Milwaukee, 40 U.S.L.W. 4439, 4441 n.1 (April 24, 1972), citing Postal Telegraph Gable Co. v. Alabama, 155 U.S. 482, 487 (1894).

Secondly, there is no original jurisdiction under 28 U.S.C. § 1331 (federal question jurisdiction). The Court is mindful that interstate water pollution creates actions under "laws" of the United States within the meaning of § 1331.See Illinois v. City of Milwaukee, supra, at 4442. However, this still does not preclude purely state or non-federal actions for the abatement of pollution. The United States Supreme Court recognized this in the City of Milwaukee case. There the Court distinguished the City of Milwaukee from the present one by noting that the Wyandotte case was preoccupied with public nuisance under Ohio law whereas in the City of Milwaukee case the court was concerned with federal common law. See Illinois v. City of Milwaukee, supra, at 4443 n.3. Thus, there are still state court actions available to remedy pollution.

Thirdly, the removal is improper because the defendant Wyandotte did not join therein. The general rule is that "all defendants who may properly join in the removal petition must join." 1A Moore's Federal Practice par. 0.168 [3.-2], at 1171, citing among other things, Gableman v. Peoria, Decatur and Evansville Ry., 179 U.S. 335 (1900); see also P.P. Farmers' Elevator Co. v. Farmers Elev. Mut. Ins. Co., 395 F.2d 546, 547 (7th Cir. 1968). The exception to this rule that a formal or nominal party need not join is not applicable here. See Urban Renewal Authority of City of Trinidad v. Daugherty, 271 F. Supp. 729, 731 (D. Colo. 1967). Nor is the exception under 28 U.S.C. § 1441 (c) applicable. See P. P. Farmers' Elevator Co. v. Farmers Elev. Mut. Ins. Co., supra, at 548. The following language from the P.P. Farmers' Elevator Co., case indicates the reason for the inapplicability of the exception under 28 U.S.C. § 1441 (c):

"Defendants argue that Mutual could properly effect removal acting alone under 28 U.S.C. sec. 1441 (c) because plaintiff's cause of action on Mutual's bond is a 'separate and independent claim or cause of action, which would be removable if sued upon alone.' The argument must, however, fail because sec. 1441 (c) does not operate on such separate and independent claim unless 'joined with one or more otherwise non-removable claims or causes of action.' Here the cause of action on New Amsterdam's bond would be removable if sued on alone, and sec. 1441 (c) does not apply. 'But if there are two separate and independent claims and both such claims are removable, then all the defendants to both claims must seek removal.'" Id. at 548.

Accordingly, for the foregoing reasons, the Court grants the motion of the plaintiff. This cause is hereby remanded to the Common Pleas Court of Cuyahoga County, Ohio. The defendants Dow Canada and Dow United States shall bear the costs of this improper removal.

IT IS SO ORDERED.