The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on Plaintiffs's Motion to Remand (Doc. 21). Defendant Cerro Flow Products, Inc. has responded (Doc. 26), as have Defendants Pharmacia Corporation, Solutia, Inc., Pfizer, Inc., and Monsanto AG Products, LLC (Doc. 27), and Defendant Diane L. Hackett, executor of the estate of Paul Sauget (Doc. 28). Plaintiffs have replied (Docs. 33 and 34). Also before the Court is Plaintiffs's Motion for Oral Argument on the Motion to Remand (Doc. 35) to which Defendants have responded (Doc. 36). The Court finds that oral argument on this matter is unnecessary, and DENIES the Motion for Oral Argument. For the Following reasons, the Court GRANTS the Motion for Remand.
Plaintiffs filed this putative class action in the Circuit Court of St. Clair County, Illinois, alleging that Defendants released hazardous substances from release sites in St. Clair County into the environment in and around the Village of Sauget, Illinois. Plaintiffs seek relief in the form of medical monitoring for themselves and "tens of thousands" of class members. Plaintiffs also seek injunctive relief and a monetary judgment in an amount necessary to cover investigation, assessment, remediation and removal of all traces of hazardous substances released into the environment. Defendants removed the action to this Court asserting federal jurisdiction based on the Class Action Fairness Act of 2005 (CAFA), Pub. L. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.). Alternatively, Defendants assert the Court has jurisdiction under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), because they are being sued for actions they took while acting under color of federal office. Plaintiffs now move to remand, arguing that this case fits within the "local controversy" exception to CAFA. Plaintiffs also argue that Defendants are not entitled to assert federal officer removal.
I. Citizenship of the Parties
The named Plaintiffs are all Illinois citizens. In addition, the classes that the named Plaintiffs purport to represent are comprised entirely of Illinois citizens. For purposes of this motion, Defendant Diane L. Hackett, as executor of the estate of Paul Sauget, who was the sole shareholder of the now-dissolved Sauget & Co. (the Sauget Defendants) is an Illinois citizen. Defendant Cerro Flow Products, Inc. (Cerro) is also a citizen of the state of Illinois for purposes of this motion.Finally, for purposes of this motion, all other Defendants (the Monsanto Defendants)*fn1 are citizens of states other than Illinois.
II. Factual Allegations in Complaint
The releases of hazardous substances that form the basis of the Complaint took place at three release sites. The first is a 90-acre landfill operated by Sauget & Co. (Sauget Landfill). The second is the 314-acre W.G. Krummrich Plant, located at 500 Monsanto Avenue in Sauget, Illinois, operated by one or more of the Monsanto Defendants (Monsanto Facility). The third release site is the property abutting the Monsanto Facility, located at 3000 Mississippi in Sauget, Illinois owned by Cerro Flow Products, Inc. (Cerro Facility).
Beginning in 1935, Defendants caused polychlorinated biphenyls (PCBs), dioxins, furans, and other hazardous substances to invade the ground, surface water, wastewater and atmosphere in and around the release sites. Cerro scrapped PCB transformers at the Cerro facility, drained manufacturing wastewater and PCB oil into Dead Creek Segment A located on the Cerro Facility, and landfilled hazardous substances on the Cerro Facility.
The Monsanto Defendants caused releases of hazardous substances via fugitive emissions from its manufacturing and packaging processes. Additionally, the Monsanto Defendants spilled hazardous substances onto the ground at the Monsanto Facility. The Monsanto Defendants also used, cleaned and stored leaking PCB transformers. They incompletely incinerated PCBs and improperly burned other hazardous substances. The Monsanto Defendants discharged hazardous substances into surface waters and wastewater systems. Finally, the Monsanto Defendants improperly disposed of hazardous substances in landfills, including those located on the Cerro Facility and the Sauget Landfill.
The Sauget Defendants engaged in, permitted, and even encouraged the disposal of millions of tons of hazardous substances into the Sauget Landfill.
The proposed Medical Monitoring Class is:
Current Illinois citizens who reside or have resided within a two-mile radius of the Sauget Landfill, the Monsanto Facility or the Cerro Facility at any time since January 1, 1935.
The proposed Remediation Class is:
Current Illinois citizens who own real property within a two-mile radius of the Sauget Landfill, the Monsanto Facility or the Cerro Facility.
IV. Factual Allegations in Notice of Removal
A. Production History of Monsanto Defendants
From 1935 until 1977 the Monsanto Defendants produced PCBs at the W.G. Krummrich plant in Sauget, Illinois. In 1940, the Chemical Warfare Service (CWS), a part of the War Department (now the Defense Department), contracted with the Monsanto Defendants to build a chemical plant on land immediately to the north of the W.G. Krummrich plant. The new plant was to produce the chemical CC-2, also called "Impregnate II," a specialty chemical essential to the war effort. Within the next three years, the CWS contracted with Monsanto to build two more chemical plants, one to produce CC-2 and the other to produce dichloramine-T, also called DAT. The CWS directly controlled the three plants, but contracted out operation of the plants to the Monsanto Defendants. The Monsanto Defendants dumped the waste material from the CWS plants into dumpsters, which it then hauled to the Sauget Landfill. During the same time frame, the Monsanto Defendants also dumped waste from the W.G. Krummrich plant into the Sauget Landfill.
During the Vietnam War, between the years 1965 and 1968 or 1969, the Monsanto Defendants produced the herbicide known as Agent Orange at the direction of and for use by the Defense Department. As directed by the Defense Department, one component of Agent Orange was 2,4,5-T, a compound containing the hazardous chemical known as dioxin. 2,4,5-T was produced in West Virginia, but combined with the other ingredients of Agent Orange at the W.G. Krummrich plant in Sauget.
In the early 1970s, the Monsanto Defendants phased out production of PCBs for all but enclosed electrical uses. The Monsanto Defendants considered phasing out the production of PCBs entirely, but representatives of the federal government urged the Monsanto Defendants to continue the production and sale of PCBs for use in electrical transformers and capacitors, issuing a report that warned that discontinuing the production and use of PCBs could cripple the nation's power grid. Accordingly, the Monsanto Defendants continued to produce PCBs at the Krummrich plant until 1977.
B. Other Civil Actions Against the Monsanto Defendants
The Monsanto Defendants have been sued in Alabama, Florida and New York for damages arising from alleged spills of hazardous substances in those states. Additionally, on March 13, 2007, a class action, styled Corlew v. General Electric Co., was filed against the Monsanto Defendants. The plaintiffs in Corlew alleged that the Monsato Defendants manufactured and provided General Electric (GE) with inherently dangerous products containing PCBs. The Corlew plaintiffs also alleged that the Monsanto Defendants failed to properly warn GE as to the dangers of PCBs, and failed to properly instruct GE as to the safe use and disposal of products containing PCBs. GE then allegedly improperly used, maintained and disposed of the PCB-containing products, resulting in the contamination of plaintiffs's property.
A defendant may remove to federal court a case filed in state court if there is original federal jurisdiction over the case. 28 U.S.C. § 1441(a); Chase v. Shop 'N Save Warehouse Foods, 110 F.3d 424, 427 (7th Cir. 1997). In its § 1441 notice of removal the defendants assert that the Court has original federal jurisdiction over this matter pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d). In the alternative, Defendants contend that the Court has jurisdiction and the case is removable pursuant to 28 U.S.C. 1442(a)(1), because a removing defendant is being sued for actions taken at the direction of a federal official.
I. Class Action Fairness Act Jurisdiction
Pursuant to the Class Action Fairness Act (CAFA), federal courts have jurisdiction over class actions in which there is minimal diversity of citizenship and the amount in controversy in the aggregate exceeds five million dollars. 28 U.S.C. § 1332(d). Removal of such class actions can be had at the election of any defendant to the class action with or without the consent of the other defendants. 28 U.S.C. § 1453. The proponent of federal jurisdiction bears the burden of ...