Avitts v. Amoco Production Co. , 53 F.3d 690 ( 1995 )


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  •       UNITED STATES COURT OF APPEALS
    for the Fifth Circuit
    _____________________________________
    No. 94-60058
    _____________________________________
    W.H. AVITTS, ET AL.,
    Plaintiffs-Appellees,
    VERSUS
    AMOCO PRODUCTION CO., ET AL,
    Defendants,
    AMOCO PRODUCTION CO.,
    Defendant-Appellant.
    ******************************************
    LAVERNE LANG, ET AL.,
    Plaintiffs-Appellees,
    VERSUS
    AMOCO PRODUCTION CO., ET AL,
    Defendants,
    AMOCO PRODUCTION CO.,
    Defendant-Appellant.
    ******************************************
    EDWARD J. LUBOJACKY, ET AL,
    Plaintiffs-Appellees,
    VERSUS
    AMOCO PRODUCTION CO., ET AL,
    Defendants,
    AMOCO PRODUCTION CO.,
    Defendant-Appellant.
    ******************************************
    VERNON A. SMITH, ET AL,
    Plaintiffs-Appellees,
    VERSUS
    AMOCO PRODUCTION CO., ET AL,
    Defendants,
    AMOCO PRODUCTION CO.,
    Defendant-Appellant.
    ******************************************
    TETSU TINDEL,
    Plaintiffs-Appellees,
    VERSUS
    AMOCO PRODUCTION CO., ET AL,
    Defendants,
    AMOCO PRODUCTION CO.,
    Defendant-Appellant.
    ******************************************
    O.F. WESTINGHOUSE, ET AL.,
    Plaintiffs-Appellees,
    VERSUS
    AMOCO PRODUCTION CO., ET AL,
    Defendants,
    AMOCO PRODUCTION CO.,
    Defendant-Appellant.
    ******************************************
    2
    JOSEPH E. DURSO, ET AL.,
    Plaintiffs-Appellees,
    VERSUS
    AMOCO PRODUCTION CO., ET AL,
    Defendants,
    AMOCO PRODUCTION CO.,
    Defendant-Appellant.
    ******************************************
    GERALDINE LOUDEN,
    Plaintiffs-Appellees,
    VERSUS
    AMOCO PRODUCTION CO., ET AL,
    Defendants,
    AMOCO PRODUCTION CO.,
    Defendant-Appellant.
    *******************************************
    O.L. SURFACE, ET AL.,
    Plaintiffs-Appellees,
    VERSUS
    AMOCO PRODUCTIONS CO., ET AL.,
    Defendants,
    AMOCO PRODUCTION CO.,
    Defendant-Appellant.
    ***********************************************
    3
    PATTY ANN WALKER,
    Plaintiff-Appellee,
    VERSUS
    AMOCO PRODUCTION CO., ET AL.,
    Defendants,
    AMOCO PRODUCTION CO.,
    Defendant-Appellant.
    ***********************************************
    STEVE TOWNSEND, ET AL.,
    Plaintiffs-Appellees,
    VERSUS
    AMOCO PRODUCTION CO., ET AL.,
    Defendants,
    AMOCO PRODUCTION CO.,
    Defendant-Appellant.
    *************************************************
    MELVIN CARPENTER, ET AL.,
    Plaintiffs-Appellees,
    VERSUS
    AMOCO PRODUCTION CO., ET AL.,
    Defendants,
    AMOCO PRODUCTION CO.,
    Defendant-Appellant.
    ***************************************************
    4
    JOSEPH A. DURSO, ET AL.,
    Plaintiffs-Appellees.
    VERSUS
    AMOCO PRODUCTION CO., ET AL.,
    Defendants,
    AMOCO PRODUCTION CO.,
    Defendant-Appellant.
    ******************************************************
    MARGARET L. DURSO,
    Plaintiff-Appellee,
    VERSUS
    AMOCO PRODUCTION CO., ET AL.,
    Defendants,
    AMOCO PRODUCTION CO.,
    Defendant-Appellant.
    ******************************************************
    JIMMY DEAN LONG, ET AL.,
    Plaintiffs-Appellees,
    VERSUS
    AMOCO PRODUCTION CO., ET AL.,
    Defendants,
    AMOCO PRODUCTION CO.,
    Defendant-Appellant.
    *****************************************************
    5
    JOHN W. COLLINS, ET AL.,
    Plaintiffs-Appellees.
    VERSUS
    AMOCO PRODUCTION CO., ET AL.,
    Defendants,
    AMOCO PRODUCTION CO.,
    Defendant-Appellant.
    _____________________________________
    No. 94-60059
    _____________________________________
    W.H. AVITTS, ET AL.,
    Plaintiffs-Appellees,
    VERSUS
    AMOCO PRODUCTION CO., ET AL,
    Defendants,
    APACHE CORPORATION, MW PETROLEUM CORPORATION
    and AMOCO PRODUCTION COMPANY,
    Defendants-Appellants.
    ______________________________________________________
    Appeals from the United States District Court
    for the Southern District of Texas
    ______________________________________________________
    (May 3, 1995)
    Before LAY,1 DUHÉ and DeMOSS, Circuit Judges.
    PER CURIAM:
    1
    Circuit Judge of the Eighth Circuit, sitting by designation.
    6
    This matter comes before the Court on a consolidated appeal
    from interim orders entered by the district court.     In 94-60058,
    Appellants appeal from the entry of a preliminary injunction
    requiring them to complete a "phase II" environmental study.     In
    94-60059, Appellants appeal from an order requiring them to pay
    approximately $650,0002 in interim costs and attorney's fees.    We
    find that the district court lacked subject matter jurisdiction
    over this action, and therefore vacate the orders of the district
    court and remand with instructions to dismiss this action, without
    prejudice, for lack of jurisdiction.
    I.   BACKGROUND
    Appellees originally filed suit in Texas state district court
    to recover monetary damages for alleged injuries to their property
    caused by the defendants' oil and gas operations in the West
    Hastings Field. The matter was removed to the Southern District of
    Texas on the basis that Appellees' complaint stated,
    It is expected that the evidence will reflect that the
    damages caused by the Defendants are in violation of not
    only State law but also Federal law.
    (emphasis supplied).   Despite the nebulous referral to "federal
    law," the complaint stated no cause of action which could be read
    to confer federal question jurisdiction on the district court.   In
    fact, in concert with their notice of removal Appellants filed a
    Fed. R. Civ. P. 12(e) motion for a more definite statement, which
    inter alia stated,
    2
    The court awarded $328,266 in attorney's fees and $315,875.99
    in expenses. Avitts v. Amoco Production Co., 
    840 F. Supp. 1116
    ,
    1124 (S.D. Tex. 1994).
    7
    Plaintiffs claim Defendants violated "State law" and
    "Federal law" in allegedly causing these spills.
    However, Plaintiffs fail to specify which State or
    Federal laws Defendant allegedly violated. Consequently,
    Defendants cannot possibly formulate a response or know
    what defenses may apply.
    Although the district court summarily denied Appellants' motion for
    a more definite statement, Appellees subsequently filed a first
    amended complaint, this time omitting all reference to federal law.
    Although the Appellees' complaint has been amended several times
    during the pendency of this litigation, no federal question has
    ever been stated.3
    II.   DISCUSSION
    "Any civil action brought in a State court of which the
    district courts of the United States have original jurisdiction,
    may be removed by the defendant or the defendants, to the district
    court of the place where such action is pending."       28 U.S.C. §
    1441(a).    Original   jurisdiction   over   the   subject   matter   is
    mandatory for the maintenance of an action in federal court.
    Subject matter jurisdiction may not be waived, and the district
    court "shall dismiss the action" whenever "it appears by suggestion
    of the parties or otherwise that the court lacks jurisdiction of
    the subject matter."   Fed. R. Civ. P. 12(h)(3).
    Original jurisdiction, in non-maritime claims, lies where the
    conditions of 28 U.S.C. §§ 1331 or 1332 are satisfied.          In the
    3
    Plaintiff's last complaint, the seventh amended complaint,
    contains state law causes of action for "nuisance," "trespass,"
    "negligence, "breach of contract" and "fraud and misrepresentation"
    and prays for actual damages in the amount of ten million dollars
    and exemplary damages in the amount of one hundred million dollars.
    8
    present action, the court claims original jurisdiction pursuant to
    § 1331, also known as federal question jurisdiction.    There is no
    dispute that original jurisdiction does not lie under § 1332,
    diversity of citizenship, because complete diversity does not
    exist.   Under 28 U.S.C. § 1331, "[t]he district courts shall have
    original jurisdiction of all civil actions arising under the
    Constitution, laws, or treaties of the United States."
    Plaintiff is generally considered the master of his complaint,
    and "whether a case arising...under a law of the United States    is
    removable or not...is to be determined by the allegations of the
    complaint or petition and that if the case is not then removable it
    cannot be made removable by any statement in the petition for
    removal or in subsequent pleadings by the defendant."         Great
    Northern Ry., Co. v. Alexander, 
    246 U.S. 276
    , 281, 
    38 S. Ct. 237
    ,
    239 (1918); see also American Fire & Casualty Co. v. Finn, 
    341 U.S. 6
    , 14, 
    71 S. Ct. 534
    , 540 (1951).     Of course, this does not mean
    that a plaintiff can avoid federal jurisdiction by simply "artfully
    pleading" a federal cause of action in state law terms.          See
    Federated Dept. Stores, Inc. v. Moitie, 
    452 U.S. 394
    , 397 n.2, 
    101 S. Ct. 2424
    , 2427 n.2 (1981).   However, it is also plain that when
    both federal and state remedies are available, plaintiff's election
    to proceed exclusively under state law does not give rise to
    federal jurisdiction.
    In the present case, there is no doubt that Appellees have
    chosen to pursue only state law causes of action.   The only mention
    of federal law in any of Appellees' complaints was the above
    9
    mentioned oblique reference to Appellants' violation of unspecified
    federal laws.     No federal cause of action has ever been asserted,
    and it is plain that removal jurisdiction under 28 U.S.C. § 1441
    simply did not exist.      The district court had no jurisdiction over
    the subject matter of the complaint, and the action should have
    been immediately remanded to state court.
    Despite the obvious lack of original jurisdiction under §
    1331, two grounds for maintaining federal jurisdiction have been
    forwarded.    First, in a motion to dismiss filed by Appellants, the
    court was asserted to have maintained jurisdiction under 28 U.S.C.
    § 1367(c) which provides in part,
    The district courts may decline to exercise supplemental
    jurisdiction over a claim under subsection (a) if--
    M     M     M    M
    (3) the district court has dismissed all
    claims   over  which  it   has   original
    jurisdiction.
    This provision is plainly inapplicable because, by its terms, it
    presupposes     that     the   district         court      obtained    supplemental
    jurisdiction over the state law claims via original jurisdiction
    over federal claims arising from the same case or controversy.                    As
    stated   above,    the     district       court      has    never     had   original
    jurisdiction over any of the claims in this action because no
    federal claims have ever been asserted.
    Second, subject matter jurisdiction was supposedly achieved
    through Appellees' reference to CERCLA and the Oil Pollution Act of
    1990 (OPA) in the Joint Pretrial Order (PTO).                 Notwithstanding the
    highly questionable applicability of either of these statutes to
    10
    the facts and circumstances of this case, adoption of this argument
    would require us to rewrite the PTO.   Under the PTO's plain terms,
    CERCLA and OPA are offered only as a means to calculate the
    "Measure of Damages" owed to the Appellees.        Appellees never
    asserted a cause of action under either statute, and subject matter
    jurisdiction cannot be created by simple reference to federal law.
    Subject matter jurisdiction can be created only by pleading a cause
    of action within the district court's original jurisdiction.    No
    such cause of action has ever been plead in this matter, and
    therefore subject matter jurisdiction is plainly absent.
    III.   CONCLUSION
    The district court lacked subject matter jurisdiction over
    this action and was therefore without authority to enter its
    orders.   The orders of the district court are vacated, and this
    matter is remanded to the district court with instructions to
    dismiss Appellee's complaint without prejudice.
    VACATED and REMANDED.
    11
    

Document Info

Docket Number: 94-60058, 94-60059

Citation Numbers: 53 F.3d 690

Judges: DeMOSS, Duhe, Lay, Per Curiam

Filed Date: 5/4/1995

Precedential Status: Precedential

Modified Date: 8/1/2023

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