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May 7, 2001


The opinion of the court was delivered by: Cavanaugh, District Judge.


This matter comes before the Court upon a motion by Plaintiffs to remand this matter. Pursuant to Federal Rule of Civil Procedure 78, no oral argument was heard. This Court has carefully reviewed the submissions of the parties and the record before it. For the reasons expressed below, it is the finding of this Court that Plaintiffs' motion to remand is granted.


The facts relevant to Plaintiffs' motion to remand are as follows. On or about April 6, 2000, Plaintiffs filed a motion to amend its complaint against the O'Connor Defendants in the PRP contribution claim. See Caldwell Trucking PRP Group v. ADT Automotive, et al., Civ. No. 95-1690(DMC). On or about September 15, 2000, this Court denied the Plaintiffs' motion to amend the complaint.

On or about October 3, 2000, Plaintiffs Caldwell Trucking PRP ("Plaintiffs") filed a complaint and jury demand instituting an action against Defendants Caldwell Trucking Company, Inc., George J. O'Connor, Ruth Ann O'Connor and Okon Corp., ("Defendants") in the Superior Court New Jersey, Law Division, Essex County. Plaintiffs' complaint seeks contribution from the O'Connor Defendants for its costs of settling government claims and remediating the Site. In its complaint, Plaintiffs allege: (1) contribution pursuant to N.J.S.A. 58:10-23.11fa(2); (2) declaratory judgment; (3) common law restitution*fn1; (4) contribution pursuant to the New Jersey Joint Tortfeasors Contribution Act, N.J.S.A. 2A:53A-1. et seq.; (5) common law indemnification; (6) public nuisance; and (7) common law strict liability. See Complaint.

On or about November 3, 2000, the O'Connor Defendants filed a notice of removal pursuant to 28 U.S.C. § 1441 and 1446 effectuating removal of the state court complaint to the United States District Court for the District of New Jersey. On or about November 11, 2000, the O'Connor Defendants filed answers and affirmative defenses to the removed complaint. Presently before this Court is a motion by Plaintiffs to remand this matter to the Superior Court New Jersey, Law Division, Essex County.

Plaintiffs argue that: (1) removal by Defendants was improper because the federal court does not have jurisdiction to adjudicate Plaintiffs' state law claims; (2) removal by Defendants was improper since there is no separate and independent action under 28 U.S.C. § 1441(c); (3) the "artful pleading" doctrine alleged by Defendants does not apply because Plaintiffs' claims are grounded and limited to state law theories of recovery; and (4) removal by Defendants was improper because federal law does not completely preempt state law. See Plaintiffs' Brief in Support of its Motion to Remand at 7-18.

On the other hand, Defendants argue that Plaintiffs' complaint asserts claims arising under the laws of the United States over which this Court has original federal question jurisdiction under 28 U.S.C. § 1331. Essentially, Defendants maintain that count III of Plaintiffs' complaint asserts a CERCLA claim over which this Court has exclusive jurisdiction. Further, based upon this CERCLA claim, Defendants argue that this Court has supplemental jurisdiction over Plaintiffs' state law claims. See Defendants' Brief in Opposition to Plaintiffs' Motion to Remand at 5-40.


A defendant may remove a claim from a state court to a federal district court pursuant to 28 U.S.C. § 1441*fn2 and 28 U.S.C. § 1446.*fn3 To qualify for removal, the cause of action must be a claim "of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). See also Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). Since it is undisputed that the parties are non-diverse and removal jurisdiction is predicated on the existence of original federal jurisdiction, the first question that must be addressed is whether the complaint pleads a federal cause of action under the well-pleaded complaint rule. See Louisville & Nashville Railroad v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908).

One category of cases over which the district courts have original jurisdiction is "federal question" cases; that is, those cases "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. It is well-settled law that a cause of action arises under federal law only when the plaintiffs well-pleaded complaint raises issues of federal law. See id.; Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936). The "well-pleaded complaint rule" is the basic principal marking the boundaries of the federal question jurisdiction of the federal district courts. See Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 9-12, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law. See The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716 (1913) ("[o]f course, the party who brings a suit is master to decide what law he will rely upon") (Holmes, J.); see also Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 809, n. 6, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986) ("[j]urisdiction may not be sustained on a theory that the plaintiff has not advanced"); Great North. R. Co. v. Alexander, 246 U.S. 276, 282, 38 S.Ct. 237, 62 L.Ed. 713 (1918) ("the plaintiff may by the allegations of his complaint determine the status with respect to removability of a case").

When confronted with a motion to remand, the removing party has the burden of establishing the propriety of removal. See Batoff v. State Farm Insurance Co., 977 F.2d 848 (3d Cir. 1992) (removing party carries a "heavy burden of persuasion").

Count III of Plaintiffs' state complaint sets forth a claim for common law restitution. See Complaint, count III. Plaintiffs' restitution count states:

46. Plaintiffs repeat and reallege the allegations contained in Paragraphs 1 through 45 as if ...

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