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Custer v. Cerro Flow Products

December 15, 2009


The opinion of the court was delivered by: David R Her|do| Chief Judge United States District Court


HERNDON, Chief Judge

I. Introduction

This matter comes before the Court on Plaintiffs' Motion to Remand (Doc. 25). Defendants Pharmacia Corporation ("Pharmacia"), Solutia Inc. ("Solutia"), Monsanto AG Products, LLC ("Monsanto AG"), and Pfizer Inc. (collectively referred to as "the Pharmacia Defendants") filed a response (Doc. 32). Plaintiffs have filed a reply (Doc. 38). Plaintiffs have also filed a motion to strike supplement to notice of removal (Doc. 34). Defendants have filed a response to that motion (Doc. 40). Defendants have also filed a motion for oral argument (Doc. 33) to which Plaintiffs have responded (Doc. 36). However, the Court finds that the parties have fully briefed their positions and that an oral argument on this matter is unnecessary. Therefore, the Court DENIES the motion for oral argument (Doc. 33). For the following reasons, the Court GRANTS Plaintiffs' motion to remand (Doc. 25).

II. Background

Plaintiffs' complaint focuses on the release of hazardous substances at three sites. The first site is an approximately ninety (90) acre landfill operated by Sauget & Co. (the "Sauget Landfill"). The second site is an approximately three-hundred fourteen acre site known as the W.G. Krummrich Plant located in Sauget and operated by one or more of the Defendants, and the third site is property abutting the Monsanto Facility and owned by Defendant Cerro Flow Products, Inc. (Doc. 2, Ex. A ¶2). Plaintiffs allege that beginning in 1935, Defendants have released into the environment various hazardous substances, including polychlorinated biphenyls ("PCBs"), dioxins, furans, and other substances other than Agent Orange*fn1 , into the environment which Plaintiffs allege has created a serious health risk to those residents living within the contaminated areas (Id. at ¶¶ 3-5). All the Plaintiffs are Illinois citizens who have either suffered serious life-threatening illnesses, including cancer, which was allegedly caused by their exposure to the hazardous substances, or have suffered property damage as a result of the exposure to the substances.

Plaintiffs allege that one or more Monsanto Defendants, over the course of the relevant years, have stored or disposed PCBs at either the Monsanto Facility or the Sauget Landfill (Id. at ¶ 23). Specifically, Defendant Cerro was engaged in copper recycling operations and through the course of their operations, scrapped PCB transformers, drained manfacturing wastewater and PCB oil into Dead Creek Segment A, or landfilled substances on the Cerro Facility which allegedly caused the release of substances into the affected area. Further, the Monsanto Defendants released substances through various methods. First, Plaintiffs allege that substances were released from fugitive emissions from manufacturing and packaging processes (Id. at ¶ 26). Substances were also released through spillage, the use, cleaning, and storage of leaking PCB transformers, as well as incomplete incineration of PCBs at the Monsanto Facility (Id.). Plaintiffs also allege that substances were released through improper burning of waster, discharge into surface waters, discharge into wastewater systems, and improper disposal of waste into landfills (Id.).

On July 9, 2009, Defendants Pharmacia Corporation ("Old Monsanto"), Solutia Inc., and Monsanto AG Products filed a notice of removal arguing that removal was proper based on 28 U.S.C. § 1442(a)(1), commonly known as Federal Officer Removal. Beginning in 1935 and continuing through 1977, Old Monsanto manufactured PCBs at the W.G. Krummrich Plaint in the Village of Sauget, Illinois. In 1940, the Chemical Warfare Service (CWS), a part of the War Department (now the Defense Department) contracted with Old Monsanto to build a chemical plant on land immediately north of Old Monsanto's W.G. Krummrich Plant to manufacture certain chemicals for the war effort (Id. at ¶¶ 16-17). Specifically, Old Monsanto produced CC-2, otherwise known as Impregnate II. Over the next three years, Old Monsanto built two more plants for CWS, one to produce CC-2 and another to produce dichloramine-T, otherwise referred to as DAT. The CWS directly controlled the plant, but contracted with Old Monsanto to operate the three plants (Id. at ¶ 18, 27). CWS also contracted with Old Monsanto to dump the waste materials generated from the plants into dumpsters and then haul those dumpsters to the Sauget dump in the Village of Sauget (Id. at ¶¶ 27-28).

During the Vietnam War, the Department of Defense contracted with Old Monsanto to manufacture Agent Orange, a herbicide used to strip foliage in Vietnam (Id. at ¶ 19). Between 1965 and 1969, Old Monsanto manufactured Agent Orange according to specifications from the Department of Defense. While Old Monsanto manufactured part of the chemical, 2,4,5-T at a plant in West Virginia, the other half of the chemical mixture, 2,4-D, was manufactured at the W.G. Krummrich Plant. The two chemicals were also combined at the W.G. Krummrich Plant according to Department of Defense specifications and then prevailing environmental standards (Id. at ¶¶ 19-20, 32).

In 1970, Old Monsanto ceased production of PCBs for all uses except for uses in electrical transformers and capacitors. The federal government as well as electrical industry representatives urged Old Monsanto to continue its production of PCBs, as ceasing production completely could "cripple the nation's power grid" (Id. at ¶ 21). Also, in 1972, five federal agencies issued a joint report finding that PCBs were necessary in capacitors and transformers (Id. at ¶ 22). Old Monsanto continued to make PCB until 1977 at the urging of the federal government and in accordance with then-prevailing environmental standards (Id. at ¶33).

III. Analysis

A defendant may remove a case only if a federal district court would have original jurisdiction over the action. See 28 U.S.C. § 1441; Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Statutes providing for removal are construed narrowly, and doubts about removal are resolved in favor of remand. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). The burden of establishing jurisdiction in the federal courts falls on the party seeking removal. Id. In its notice of removal, the Defendants assert that this 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.Defendants have also filed a supplement to their notice asserting an entirely new basis for jurisdiction, specifically, diversity of citizenship pursuant to 28 U.S.C. § 1332, as amended by the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.).

A. Motion to Strike Supplement to Notice of Removal

Plaintiffs have filed a motion to strike Defendants' supplement to notice of removal, arguing that it is untimely (Doc. 34). Defendants have filed a response arguing that their supplement is timely."A notice of removal may be amended more than thirty days after the time to remove [set out in 28 U.S.C. § 1446(b)] has expired 'only to set out more specifically the grounds for removal that already have been stated, albeit imperfectly, in the original notice.... Completely new grounds for removal jurisdiction may not be added and missing allegations may not be furnished, however." Alsup v. 2-Day Blinds, Inc., 435 F. Supp.2d 838, 844 n.2 (S.D. Ill. 2006) (quoting 14C Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Joan E. Steinman, Federal Practice & Procedure § 3733 (3d ed. 1998 & Supp. 2005)) (collecting cases). See also Bova v. U.S. Bank, N.A., 446 F. Supp.2d 926, 937 (S.D.Ill. 2006); Brown v. Alter Barge Line, Inc., 461 F. Supp. 2d 781, 785 (S.D. Ill. 2005). Here, Defendants supplement sets out entirely new grounds for removal and is thus untimely. ...

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