United States District Court, E.D. Louisiana
JUSTIN WHITE, SR., ET AL.
SHERWIN-WILLIAMS CO., ET AL.
ORDER AND REASONS
TRICHE MILAZZO UNITED STATES DISTRICT JUDGE.
the Court is Plaintiffs' Motion to Remand (Doc. 4). For
the following reasons, the Motion is DENIED.
filed this suit against Defendants 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.”
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
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). 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. Plaintiffs subsequently filed the
instant Motion to Remand.
a defendant may remove a civil state court action to federal
court if the federal court has original jurisdiction over the
action. “The district courts shall have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United
States.” “Whether a claim arises under
federal law is a question determined by reference to the
plaintiffs' well-pleaded complaint.” 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.” This is commonly referred to as the
well-pleaded complaint rule.
burden is on the removing party to show “that federal
jurisdiction exists and that removal was
proper.” When determining whether federal
jurisdiction exists, courts consider “the claims in the
state court petition as they existed at the time of
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.
enacted the FHSA in 1960 to “provide a nationally
uniform requirement for adequate cautionary labeling of
packages of hazardous substances.” The FHSA
regulates benzene, toluene, zylene, and many other substances
deemed hazardous. 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.
1966, Congress amended the statute by adding an express
preemption clause, among other things. 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].
Fifth Circuit has considered the preemptive effect of the
FHSA's express preemption clause. In Comeaux v.
National Tea Co.,  the Fifth Circuit adopted the holding
of Moss v. Parks Corp.,  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.” Moss ultimately held
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. . . .
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. 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. The Court agrees.
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.” 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.” 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 ...