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
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
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 ...