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White v. Sherwin-Williams Co.

United States District Court, E.D. Louisiana

November 21, 2019


         SECTION: “H”



         Before the Court is Plaintiffs' Motion to Remand (Doc. 4). For the following reasons, the Motion is DENIED.


         Plaintiffs filed this suit against Defendants[1] in state court. The complaint alleges that while Plaintiff Jenna White was pregnant with her son, Justin, she was exposed to multiple products manufactured and/or sold by Defendants. Plaintiffs contend that exposure to these products proximately caused her son's acute myeloid leukemia (“AML”). Specifically, Plaintiffs' complaint alleges that the products manufactured and/or sold by Defendants contain “toxic levels of benzene, benzene-containing products, toluene, xylene, and other solvents.”[2]

         Plaintiffs' complaint solely employs state law theories of recovery, including negligence, gross negligence, strict liability, and Louisiana's Products Liability Act (“LPLA”). Plaintiffs allege that Defendants are liable under these theories of recovery because they “failed to warn Plaintiffs about the health hazards associated with benzene, toluene, xylene, and other solvents;” they breached their duty to design products made without benzene and to recall products with health hazards; and they manufactured and/or sold products that were “[u]nreasonably dangerous in construction, composition, design, and in inadequate warnings.”[3]

         Defendants timely removed the suit to federal court on the basis of federal question jurisdiction pursuant to 28 U.S.C. §§ 1331, 1441(a), and 1441(c).[4] Defendants contend that this Court has federal question jurisdiction because Plaintiffs' claims are preempted by the Federal Hazardous Substances Act (“FHSA” or “the Act”), rendering them as “arising under” the laws of the United States.[5] Plaintiffs subsequently filed the instant Motion to Remand.[6]


         Generally, a defendant may remove a civil state court action to federal court if the federal court has original jurisdiction over the action.[7] “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”[8] “Whether a claim arises under federal law is a question determined by reference to the plaintiffs' well-pleaded complaint.”[9] A federal question under 28 U.S.C. § 1331 is present when “there appears on the face of the complaint some substantial, disputed question of federal law.”[10] This is commonly referred to as the well-pleaded complaint rule.

         The burden is on the removing party to show “that federal jurisdiction exists and that removal was proper.”[11] When determining whether federal jurisdiction exists, courts consider “the claims in the state court petition as they existed at the time of removal.”[12]


         Defendants contend that removal based on 28 U.S.C. § 1331 is proper because the FHSA preempts Plaintiffs' state-law failure to warn claims, rendering Plaintiffs' claims as “arising under” the laws of the United States.

         Congress enacted the FHSA in 1960 to “provide a nationally uniform requirement for adequate cautionary labeling of packages of hazardous substances.”[13] The FHSA regulates benzene, toluene, zylene, and many other substances deemed hazardous.[14] If a product contains certain levels of these substances, the FHSA mandates that the product be fitted with a special label comporting with the requirements under the Act.[15]

         In 1966, Congress amended the statute by adding an express preemption clause, among other things.[16] In 1976, Congress again amended the FHSA, this time restyling the express preemption clause to state:

[I]f a hazardous substance . . . is subject to a cautionary labeling requirement . . . no State . . . may establish or continue in effect a cautionary labeling requirement applicable to such substance . . . unless such cautionary labeling requirement is identical to the labeling requirements [under the act].[17]

         The Fifth Circuit has considered the preemptive effect of the FHSA's express preemption clause. In Comeaux v. National Tea Co., [18] the Fifth Circuit adopted the holding of Moss v. Parks Corp., [19] a Fourth Circuit opinion. After analyzing Congress' preemptive intent under the statute, the Moss court found “it is clear that Congress intended to preempt state laws proposing labeling requirements not identical to the FHSA's regulations.”[20] Moss ultimately held that:

in an area of limited Congressional preemption such as the FHSA, a common law tort action based upon failure to warn may only be brought for non-compliance with existing federal labeling requirements. . . . [I]f the plaintiff requests a label that is “more elaborate or different” than the one required by the FHSA and its regulations, the claim is preempted. . . .[21]

         Thus, as articulated in Moss, and as adopted by the Fifth Circuit in Comeaux, state law claims of inadequate labeling or failure to warn are preempted by the Act to the extent that they request labeling requirements different in any way from those required by the FHSA.[22] Therefore, the FHSA provides the exclusive standard for adjudicating Plaintiffs' failure to warn claims. Because of this, Defendants argue that an essential element of Plaintiffs' claim is controlled by and arises under the laws of the United States.[23] The Court agrees.

         When state law creates a plaintiff's cause of action, the case may nevertheless “arise under” the laws of the United States and confer jurisdiction upon the federal courts if the complaint establishes a “right to relief under state law [that] requires resolution of a substantial question of federal law in dispute between the parties.”[24] For this form of federal question jurisdiction, “the question is, does a state law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.”[25] The Fifth Circuit has interpreted the Supreme Court's articulation of this standard into four elements that consider whether “(1) resolving a federal issue is necessary to resolution of the state-law claim; (2) the federal issue is actually disputed; (3) the federal issue is substantial; and (4) federal jurisdiction will not disturb the ...

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