City of Brunswick v. Honeywell Int'l

1

CITY OF BRUNSWICK, by and through its MAYOR AND BOARD OF COMMISSIONERS, Plaintiff, v. HONEYWELL INTERNATIONAL, INC., formerly known as ALLIED CHEMICAL CORPORATION, and as ALLIEDSIGNAL, INC., and THE GEORGIA POWER COMPANY, Defendants.

No. CV 222-132

United States District Court, S.D. Georgia, Brunswick Division

September 1, 2023

ORDER

J RANDAL HALL, UNITED STATES DISTRICT COURT CHIEF JUDGE

Presently before the Court is Plaintiff City of Brunswick's (the "City") motion to remand (Doc. 21) and Defendants Honeywell International, Inc. f/k/a Allied Chemical Corporation and as AlliedSignal, Inc. ("Honeywell") and Georgia Power Company's ("Georgia Power") request for hearing (Doc. 26). For the following reasons, the City's motion to remand is GRANTED, and Defendants' request for hearing is DENIED.

I. BACKGROUND

On October 20, 2022, the City filed suit in the Superior Court of Glynn County, Georgia, alleging claims of continuing trespass and continuing nuisance against Defendants. (Doc. 1-1, at 158-162.) According to the City, the conduct underlying its claims is that Defendants polluted the waters and marshlands on and abutting the City's property when Honeywell released mercury and Aroclor 1268 poly-chlorinated byphenals ("PCBs") and Georgia Power released mercury.^[1] (Id. at 154-55.) Based upon this, the City seeks punitive damages and litigation costs. (Id. at 162.)

On November 18, 2022, Defendants filed their notice of removal pursuant to 28 U.S.C. §§ 1331, 1332, 1441, 1442(a), and 1446. (Doc. 1, at 1.) On December 19, 2022, the City filed the present motion asking the Court to remand the action because Georgia Power was not fraudulently joined, and there is no federal officer or federal question jurisdiction. (Doc. 21; Doc. 21-1, at 1.) The motion was timely filed within thirty days of removal pursuant to 28 U.S.C. § 1447. Defendants filed responses in opposition to the City's motion (Docs. 24, 25),^[2] the City filed a reply in further support (Doc. 32), Defendants filed sur-replies in opposition (Docs. 35, 36), and the City filed a reply to Georgia Power's sur-reply (Doc. 38) . Defendants also filed a motion for oral argument on the motion pursuant to Local Rule 7.2. (Doc. 26.) Accordingly, the motions are properly before the Court.

II. DISCUSSION

The Court addresses each motion below.

A. Motion to Remand

The City moves to remand this case back to the Superior Court of Glynn County. (Doc. 21, at 1.) "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). As such, a defendant may only remove an action from state court if the federal court would possess original jurisdiction over the subject matter. 28 U.S.C. § 1441(a).

Federal district courts have jurisdiction over all civil actions: (1) "arising under the Constitution, laws, or treaties of the United States"; and (2) "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States." 28 U.S.C. §§ 1331, 1332. Further, district courts have jurisdiction over an action "against or directed to . . . [t]he United States or any -agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office . . . ." 28 U.S.C. § 1442(a)(1).

On a motion to remand, the removing party bears the burden of establishing federal jurisdiction. Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001). It is well established that removal jurisdiction is construed narrowly with all doubts; resolved in favor of remand. Mann v. Unum Life Ins. Co. of Am., 505 Fed.Appx. 854, 856 (11th Cir. 2013) ("[W]e strictly construe removal statutes, resolving all doubts in favor of remand."). In evaluating a motion to remand, the Court makes its "determinations based on the plaintiff's pleadings at the time of removal; but[,] the court may consider affidavits and deposition transcripts submitted by the parties." Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (citation omitted).

Defendants rely on three grounds for removal and contend each ground provides an independent basis for federal subject matter jurisdiction over the case: (1) federal officer removal jurisdiction under 28 U.S.C. § 1442, (2) federal question jurisdiction under 28 U.S.C. § 1331, or (3) diversity jurisdiction I under 28 U.S.C. § 1332(a). (Doc. 1, at 8-9.) The City argues remand is proper because none of these grounds provide a basis for i federal subject matter jurisdiction. (Doc. 21, at 1.) The Court addresses each ground below.

1. Federal Officer Removal Jurisdiction (28 U.S.C. § 1442)

First, Defendants rely on the federal officer removal statute as a ground for removal. (Doc. 1, at 8-18.) Specifically, they argue there is federal officer removal jurisdiction because "the City's claims are 'connected or associated with' Defendants' decades-long investigation and remediation of environmental contamination . . . under the direction and oversight of [the United States Environmental Protection Agency ('EPA')]." (Id. at: 8.) In its motion for remand, the City argues there is no federal officer removal jurisdiction. (Doc. 21-1, at 14.) Specifically, the City argues Defendants are not "de facto Federal Officer[s]" because "[t]he toxic releases from the industrial plants of [Defendants] all occurred before there were any [Comprehensive Environmental Response, Compensation, and Liability Act ('CERCLA')] enforcement actions by the [EPA, and n]either Defendant was a government contractor, manufacturing a product for ! the government according to government specifications." (Id.)

Removal pursuant to the federal officer removal statute, 28 U.S.C. § 1442, establishes an independent basis for the exercise of federal jurisdiction. Magnin v. Teledyne Cont' 1 Motors, 91 F.3d 1424, 1427 (11th Cir. 1996) (citing Willingham v. Morgan, 395 U.S. 402, 406 (1969)). In other words, the subject matter jurisdiction established by 28 U.S.C. § 1442 "is an incident of federal supremacy and is designed to provide federal officials with a federal forum in which to raise defenses arising from their official duties." Caver v. Cent. Ala. Elec. Coop., 845 F.3d 1135, 1142 (11th Cir. 2017) (quotation and citation omitted).

Because Defendants are not federal officers or agencies, they must satisfy a three-pronged test to rely on 28 U.S.C. § 1442 for subject matter jurisdiction. Id. First, Defendants must show they are "person [s] within the meaning of the statute who acted under a federal officer." Id. (citation omitted). Second, they "must show that [they] performed the actions for which [they are] being sued under color of federal office." Id. (citation omitted). Stated differently, they "must show a causal connection between what [they have] done under asserted official authority and the action against [them]." Id. (citation omitted). Third, they "must raise a colorable federal defense." Id. (citation omitted). Defendants argue they satisfy the three-prong test, and the City disagrees. (Doc. 1, at 10-18; Doc. 21-1, at 14-25; Doc. 25, at 12 n.4.).

First, the Court looks at whether Defendants were persons "acting under" a federal officer when they polluted "the waters and marshlands on and abutting property of [the City]." (See Doc. 1-1, at 155.) The City does not argue that Defendants are not persons within the meaning of the statute, but instead, it argues "Defendants have not shown that they 'acted under' a federal officer when they released their contamination to the environment on and about the City's property." (Doc. 21-1, at 20.) Specifically, the City argues Defendants "fail[] to demonstrate that either Defendant ever manufactured products using. PCBs and mercury (1) under a direct contract with the United States government, (2) under any particular government specification for PCBs, or (3) under 'direction' from any federal officer." (Id.) According to Defendants, they "'acted under' federal officers, because the federal government exerted extensive 'subjection, guidance, or control' over Defendants' remediation of the [Linden Chemicals and Plastics Corp. ('LCP Chemicals')] Superfund Site^[3] and because Defendants engaged in 'an effort to assist, or to help carry out, the duties or tasks of the federal superior." (Doc. 1, at 10-11 (emphasis and citation omitted, footnote added).) Defendants contend their remedial efforts were not mere compliance with EPA regulations but rose to the level of assisting the federal government because if they did not perform the investigation and remediation the EPA "at least arguably" would have had to do it under CERCLA. (Id. at 11-12; Doc. 24, at 8.) Defendants argue "federal appellate courts have concluded that private corporations j act under federal authority when they perform EPA-directed cleanups" by relying on two unpublished opinions. (Doc. 1, at 12 (citing Greene v. Citigroup, Inc., No. 99-1030, 2000 WL 647190, at *1-2 (10th Cir. May 19, 2000); California v. H & H Ship Serv. Co., No. 94-10182, 1995 WL 619293, at *2 (9th Cir. Oct. 17, 1995)) (quotation marks omitted and alterations adopted).) Specifically, Defendants contend the City's claims are similar to those in Greene where the Tenth Circuit "held that the private corporation acted under the direction of a federal officer by implementing a remedy^!selected by the EPA, a federal agency, pursuant to CERCLA." (Id. (quoting Greene, 2000 WL 647190, at *1-2 (quotation marks omitted i and alterations adopted)).)

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