In re Pfohl Bros. Landfill Litigation

No. 95-CV-0020A (W.D.N.Y. September 22, 1999)

ELR Digest

The district court remands to state court two state-law toxic tort claims brought against a landfill's owners and those who contributed to its waste by individuals who alleged that hazardous and toxic substances from the landfill caused injury or death. The court first holds that one landfill contributor's failure to timely join a motion to remove the case to federal court does not justify removal. The contributor's filing of an attorney affidavit in support of removal constituted timely joinder in the removal petition. The court, however, holds that the case is remanded for lack of subject matter jurisdiction because the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) neither preempts the state toxic tort actions nor creates a federal cause of action for such relief. Additionally, no essential element of the individuals' claims depends on resolution of a federal law. Moreover, individuals' assertion of the potential relevance of CERCLA § 309 is, at most, a possible defense to a defense and, as such, cannot provide federal question jurisdiction. There is no merit to the landfill contributors' argument that the applicability of CERCLA § 309 to the individuals' claims presents a novel question requiring construction in federal court. The court declined to award attorneys fees to the individuals.

[A prior decision in this litigation is published at 29 ELR 20460. A related decision is published at 30 ELR 20150.]

The full text of this decision is available from ELR (9 pp., ELR Order No. L-105).

Counsel for Plaintiffs
Frederick M. Baron
Baron & Budd
3102 Oak Lawn Ave., Ste. 1100, Dallas TX 75219
(214) 521-3605

Counsel for Defendants
Laurie S. Bloom
Nixon, Hargrave, Devans & Doyle
1600 Main PI. Tower, Buffalo NY 14202
(716) 853-8100

[30 ELR 20151]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]