Cerny, et al v. Marathon Oil Corporation, et al

Filing 33

ORDER - The Courts order dated August 6, 2013 denying Plaintiffs motion to remand (docket no. 23) is VACATED. Plaintiffs motion to remand (docket no. 11) is granted. This case is remanded pursuant to 28 U.S.C. § 1447(c) for lack of subject matte r jurisdiction. Plaintiffs request for attorneys fees and costs related to the removal of this case is denied. ORDER DISMISSING as moot 25 Motion to Remand to State Court; DISMISSING as moot 26 Motion to Extend Scheduling Order Deadlines. Signed by Judge Xavier Rodriguez. (rg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

MICHAEL A. CERNY and MYRA L.
CERNY, INDIVIDUALLY AND A/N/F
OF C.A.C., A MINOR,
Plaintiffs,
VS.
MARATHON OIL CORPORATION,
MARATHON OIL EF LLC, and
PLAINS EXPLORATION &
PRODUCING COMPANY,
Defendants.

)
)
)
)
)
)
) Civil Action No. SA-13-CA-562-XR
)
)
)
)
)
)
)
ORDER

On this date, the Court considered its jurisdiction over this case. Because Plaintiffs’ claims
are not completely preempted by the Clean Air Act, the Court concludes that it lacks jurisdiction and
remands the case to state court.
Background
Plaintiffs filed this lawsuit in state court, asserting claims under Texas common law for
private nuisance, negligence, and negligence per se arising from Defendants’ oilfield operations
around Plaintiffs’ home. Plaintiffs allege that they have been harmed by Defendants’ emission of
noxious chemicals, noxious odors, and harmful chemical compounds.
Defendant Marathon Oil Corporation and Marathon Oil EF LLC removed the case to this
Court on June 28, 2013, asserting that Plaintiffs’ state-law claims are completely preempted by the
Clean Air Act (“CAA”), 42 U.S.C. §§ 7401 et seq. Plaintiffs filed a motion to remand, arguing that
federal question jurisdiction was lacking. This Court denied the motion to remand, finding that
certain claims were completely preempted. Thereafter, Plaintiffs filed an amended complaint and
a second motion to remand, which is opposed. Having reconsidered the applicable law and an

-1-

intervening decision from the Third Circuit, the Court now concludes that its original order denying
remand was erroneous because there is no complete preemption. Accordingly, the Court vacates its
prior order and remands this case to state court.
Legal Standard
Plaintiffs are the masters of their complaint, and may choose to allege only state-law claims
even where federal remedies exist. Elam v. Kansas City S. Ry. Co. , 635 F.3d 796, 803 (5th Cir.
2011). Under the well-pleaded complaint rule, a federal court lacks federal question jurisdiction
unless a federal question appears on the face of the plaintiff’s well-pleaded complaint. Id. That
federal law might provide a defense to a state-law claim does not create federal question jurisdiction.
Id. However, an exception to the well-pleaded complaint rule arises when Congress “so completely
preempt[s] a particular area that any civil complaint raising this select group of claims is necessarily
federal in character.” Id. When Congress has completely preempted an area, what otherwise appears
as merely a state-law claim is converted to a claim arising under federal law for jurisdictional
purposes because the federal statute so forcibly and completely displaces state law that the plaintiff’s
cause of action is either wholly federal or nothing at all. Id. “The question in complete preemption
analysis is whether Congress intended the federal cause of action to be the exclusive cause of action
for the particular claims asserted under state law.” Id.
Complete preemption must be distinguished from “ordinary,” “conflict,” or “defensive”
preemption, which does not create federal question jurisdiction but simply “declares the primacy of
federal law, regardless of the forum or the claim.” Id. State law may be conflict preempted when
“it operates as an obstacle to the accomplishment of a federal objective, or when federal law
authorizes expressly an activity prohibited by state law.” Teltech Sys., Inc. v. Bryant, 702 F.3d 232,
237 (5th Cir. 2012). “As a general matter, complete preemption is less common and more
extraordinary than defensive or ordinary preemption.” Elam, 635 F.3d at 803. “Indeed, complete
preemption is a “narrow” exception to the well-pleaded complaint rule.” Id. Even an obvious
federal preemption defense does not, in most cases, create removal jurisdiction. Beers v. N. Am. Van
Lines, Inc., 836 F.2d 910, 913 n.3 (5th Cir. 1988).
Congress’s intent is the “ultimate touchstone” for determining the nature and reach of federal
preemption. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). Congress can indicate its
-2-

preemptive intent either expressly through a statute’s plain language, or impliedly through a statute’s
“structure and purpose.” Altria Group, Inc. v. Good, 555 U.S. 70, 76 (2008). In any event, we begin
“with the assumption that the historic police powers of the States are not to be superseded by the
Federal Act unless that was the clear and manifest purpose of Congress.” Elam, 635 F.3d at 803.
This assumption applies with particular force when Congress legislates in a field traditionally
occupied by state law, and applies with less force when Congress legislates in a field with “a history
of significant federal presence.” Id.
Analysis
Defendants argue that any claim asking the Court to determine what constitutes a reasonable
level of air emissions from facilities that are already extensively regulated by the CAA is completely
preempted by the CAA. The Fifth Circuit has stated that in order to establish complete preemption,
the defendant must show that: (1) the statute contains a civil enforcement provision that creates a
cause of action that both replaces and protects the analogous area of state law; (2) there is a specific
jurisdictional grant to the federal courts for enforcement of the right; and (3) there is a clear
Congressional intent that the federal action be exclusive. Gutierrez v. Flores, 543 F.3d 248, 252
(5th Cir. 2008); see also Bellfort Enters. Inc. v. Petrotex Fuels, inc., 339 F. App’x 416, 418 (5th Cir.
2009) (stating that analysis of these factors is required by Fifth Circuit precedent).
The CAA provides for “citizen suits” for CAA violations, which authorize “any person” to
“commence a civil action on his own behalf . . . against any person . . . who is alleged to have
violated (if there is evidence that the alleged violation has been repeated) or to be in violation of (A)
an emission standard or limitations under this chapter or (B) an order issued by the Administrator
or a State with respect to such a standard or limitation.” 42 U.S.C. § 7604(a). “The district courts
shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties,
to enforce such an emission standard or limitation, or such an order . . . and to apply any appropriate
civil penalties.” Id. The Act defines “emission standard or limitation under this chapter” as (1) a
schedule or timetable of compliance, emission limitation, standard of performance or emission
standard, (2) a control or prohibition respecting a motor vehicle fuel or fuel additive, (3) any
condition or requirement of certain permits or CAA provisions, or (4) any other standard, limitation,
or schedule established under any permit issued pursuant to subchapter V of this chapter or under
-3-

any applicable State implementation plan approved by the Administrator, any permit term or
condition, and any requirement to obtain a permit as a condition or operations, which is in effect
under this chapter . . . or under an applicable implementation plan. Id. § 7604(f). Thus, the CAA
does provide a cause of action for violations of the CAA, though it is not analogous to state nuisance
and negligence law. The CAA further provides for jurisdiction over such claims in the federal
district courts (though that jurisdiction is not exclusive).
With regard to whether Congress intended the citizen suit to be exclusive, section 7604(e)
is entitled “Nonrestriction of other rights,” and provides:
Nothing in this section shall restrict any right which any person (or class of persons)
may have under any statute or common law to seek enforcement of any emission
standard or limitation or to seek any other relief (including relief against the
Administrator or a State agency).
Thus, the plain language of § 7604 indicates that Congress did not intend the citizen suit provision
to be the exclusive cause of action for claims arising out of emissions from stationary sources, as it
expressly preserves the right of any person “under any statute or common law” to seek enforcement
of “any emission standard or limitation or to seek any other relief.” Id. (emphasis added); see CSX
Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993) (“If the statute contains an express
pre-emption clause, the task of statutory construction must in the first instance focus on the plain
wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive
intent.”).
The CAA also contains other savings clauses that indicate that Congress did not intend to
regulate the field to such an extent that no room was left for any claim under state law. Section 7416
provides that “nothing in this chapter shall preclude or deny the right of any State or political
subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air
pollutants or (2) any requirement respecting control or abatement of air pollution; except that if an
emission standard or limitation is in effect under an applicable implementation plan or under section
7411 or section 7412 of this title, such State or political subdivision may not adopt or enforce any
emission standard or limitation which is less stringent than the standard or limitation under such plan
or section.” 42 U.S.C. § 7416. Section 7412, which defines and governs hazardous air pollutants,
also states, “Nothing in this subsection shall preclude, deny or limit any right of a State or political
-4-

subdivision thereof to adopt or enforce any regulation, requirement, limitation or standard (including
any procedural requirement) that is more stringent than a regulation, requirement, limitation or
standard in effect under this subsection or that applies to a substance not subject to this subsection.”
42 U.S.C. § 7412(r)(11). Thus, the language of the CAA indicates that Congress did not intend the
CAA to provide the exclusive cause of action, such that Plaintiffs’ state common-law claims for
nuisance and negligence are not completely preempted. See Bernhard v. Whitney Nat’l Bank, 523
F.3d 546, 553 (5th Cir. 2008).
Turning to the case law, very few cases have considered whether the CAA preempts state
common-law claims of nuisance and negligence based on air emissions so as to provide for federal
question jurisdiction. Neither the Fifth Circuit nor the Supreme Court have decided the issue. The
Supreme Court has held that the CWA, which is similar to the CAA, does not preempt state-law
nuisance claims against stationary sources under the source state’s law.
In International Paper Co. v. Ouellette, 479 U.S. 481 (1987), the Supreme Court considered
whether the Clean Water Act (“CWA”) preempted a common-law nuisance suit filed in a Vermont
court under Vermont law, when the source of the alleged injury was located in New York. Id. at 483.
Like the CAA, the CWA “establishes a regulatory ‘partnership’ between the Federal Government
and the source state.” Id. at 490. Also similarly to the CAA, the CWA provides its own remedies,
including civil and criminal fines for permit violations, and citizen suits that allow individuals to sue
for injunction to enforce the statute. The Supreme Court stated that, “[i]n light of this pervasive
regulation and the fact that the control of interstate pollution is primarily a matter of federal law, it
is clear that the only state suits that remain available are those specifically preserved by the Act.”
Id. at 492. Considering the CWA’s savings clause, which is similar to the CAA’s savings clause,
the Court said, “Although Congress intended to dominate the field of pollution regulation, the saving
clause negates the inference that Congress ‘left no room’ for state causes of action.” Id. Though the
Court held that the savings clause did not preclude preemption of the law of an affected state, and
that the CWA precludes a court from applying the law of an affected State against an out-of-state
source, it also held that “nothing in the Act bars aggrieved individuals from bringing a nuisance
claim pursuant to the law of the source State.” Id. at 494, 497. “By its terms,” the Court stated, “the
CWA allows States such as New York to impose higher standards on their own point sources, and
-5-

in Milwaukee II we recognized that this authority may include the right to impose higher commonlaw as well as higher statutory restrictions.” Id. at 497. The Court held that “application of the
source State’s law does not disturb the balance among federal, source-state, and affected-state
interests” and “[b]ecause the Act specifically allows source States to impose stricter standards, the
imposition of source-state law does not disrupt the regulatory partnership established by the permit
system.” Id. at 498.
In America Electric Power v. Connecticut, 131 S. Ct. 2527 (2011), the Supreme Court held
that federal common-law nuisance claims were displaced by the regulatory scheme. The test for
whether congressional legislation excludes the declaration of federal common law is simply whether
the statute speaks directly to the question at issue. Id. at 2637. The Court held that the CAA and the
EPA actions it authorizes displace any federal common law right to seek abatement of carbondioxide emissions from fossil-fuel fired power plants. Id. The Court declined to decide whether the
state-law nuisance claims were preempted because the parties had not briefed the issue. It noted that
“the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal
act,” citing Ouellette with the parenthetical “holding that the Clean Water Act does not preclude
aggrieved individuals from bringing a ‘nuisance claim pursuant to the law of the source State.” Id.
at 2540 (emphasis in original). Thus, AEP indicates that the issue of preemption of state-law
nuisance claims by the CAA is governed by Ouellette.
A few courts have held that the CAA does not completely preempt state-law claims so as to
create federal question jurisdiction. In Gutierrez v. Mobil Oil Corporation, 798 F. Supp. 1280 (W.D.
Tex. 1992), Judge Nowlin held that the CAA did not preempt state tort law negligence claims arising
out of emissions from a stationary source. The plaintiffs sued in state court, and the defendants
removed on the basis of complete preemption. Judge Nowlin held that complete preemption was
lacking, given that the CAA expressly permits more stringent state regulation of stationary sources,
and the preservation of state common law nuisance actions is implicit in the Supreme Court’s
decision Ouellette.
In Gutierrez, Judge Nowlin noted that both the CWA and the CAA have similar savings
provisions that permit persons to commence state common-law actions founded in tort law for
damages or any other relief. Gutierrez, 798 F. Supp. at 1283. Judge Nowlin concluded that
-6-

Congress intended to set minimum standards that states must meet but could not exceed, and
expressly allowed the application of more stringent emission standards by the source state. Id. at
1283-84. Accordingly, he concluded, the only state laws that would be inconsistent with, and
therefore preempted by, the CAA are those state laws that would purport to allow less stringent
requirements or limitations on pollution from stationary sources within the state. He further noted
that this intent was made clear in the 1990 amendments, which provide that air pollution prevention
and air pollution control at its source is the primary responsibility of the States and local
governments, id. at 1284 (citing 42 U.S.C. § 7410(a)), and in the legislative history, citing a Senate
Report that states:
Section 112 as amended by this legislation is intended to create a comprehensive
Federal scheme for the regulation of toxic air pollutants. This regulatory regime
provides a significant role for State and local governments which choose to
participate in the Federal program. On other occasions where similar schemes have
been enacted, Federal courts have concluded that the Federal law is preemptive of
some State or local authorities even when such preemption was not explicitly stated
or intended. To assure that such preemption of State or local law, whether statutory
or common, does not occur, environmental legislation enacted by the Congress has
consistently evidenced great care to preserve State and local authority and the
consequent remedies available to the citizens injured by the release of harmful
substances to the environment.
S. Rep. 101-228, 101st Cong., 1st Sess. 1989, 1990 U.S.C.C.A.N. 3385, 3582. Judge Nowlin noted
that the CAA contains a citizen suit provision, but held that it “does not provide similar or
comparable remedies to those sought by plaintiffs in common law actions for damages.” Gutierrez,
798 F. Supp. at 1285. Although he was concerned with the manageability and efficiency of the dual
system that Congress created, Judge Nowlin followed the language of the Act and the Supreme
Court’s precedent, and held that the CAA did not completely preempt the plaintiffs’ common-law
claims.
In 2007, the Second Circuit similarly held that the CAA does not completely preempt statelaw causes of action sufficient to establish federal question jurisdiction. In In re Methyl Tertiary
Butyl Ether (“MTBE”) Products Liability Litigation, 488 F.3d 112 (2d Cir. 2007), the plaintiffs
(including states, cities, municipalities, private water providers, and other entities) sought relief for
contamination or threatened contamination of groundwater from the defendants’ use of the gasoline
-7-

additive methyl tertiary butyl ether (“MTBE”). The cases were filed in various state courts, and
defendants removed the actions to federal court, asserting several grounds of subject matter
jurisdiction, including substantial federal question and complete preemption. The district court
denied the motion to remand, finding federal agent and bankruptcy jurisdiction. On appeal, the
Second Circuit held that state-law remedies were available to address MTBE in groundwater, and
that the CAA did not completely preempt the claims, nor was there a substantial federal question.
The cases were remanded to state court.
The Sixth Circuit, in Her Majesty the Queen v. City of Detroit, 874 F.2d 332 (6th Cir. 1989),
has also held that the CAA did not completely preempt plaintiffs’ claims under the Michigan
Environmental Protection Act, and that the case was therefore improvidently removed from state
court. The Sixth Circuit recognized that the CAA sets out a comprehensive regulatory scheme
designed to prevent and control air pollution, but that states are free to adopt more stringent
protections pursuant to the CAA’s savings clause, 42 U.S.C. § 7416. The court held that the CAA
“displaces state law only to the extent that state law is not as strict as emission limitations established
in the federal statute.” Id. at 342 (emphasis omitted). The Court also noted, “that Congress did not
seek to preempt actions such as involved in this appeal is clearly indicated by the [Supreme] Court’s
holding in International Paper Co. v. Ouellette, 479 U.S. 481 (1987).” Id. at 343. The plaintiffs’
actions in state court would not alter or modify the validity of the federal permit previously issued,
and would “simply be an instance where a state is enacting and enforcing more stringent pollution
controls as authorized by the CAA.” Id. at 344.
Defendants rely heavily on Comer v. Murphy Oil USA, 839 F. Supp. 2d 849 (S.D. Miss.
2012), aff’d, 718 F.3d 460 (5th Cir. 2013). In that case, plaintiffs filed a class action lawsuit against
a group of oil companies and insurance companies, alleging that the oil company defendants released
by-products that led to the development and increase of global warming, which produced the
conditions that formed Hurricane Katrina, which damaged their property. Plaintiffs filed their first
lawsuit in 2005, asserting state-law tort claims including nuisance and negligence. The district court
held that plaintiffs lacked standing because their injuries were not fairly traceable to the defendants’
actions and that the claims were non-justiciable political questions. On appeal, a panel of the Fifth
Circuit reversed in part with regard to plaintiffs’ claims of public and private nuisance, trespass, and
-8-

negligence. Comer v. Murphy Oil USA, 585 F.3d 855, 880 (5th Cir. 2009). In that opinion, the panel
cited a law review article that stated, “[t]he courts have long and consistently rejected assertions that
the enactment of regulatory statutes like the Clean Air Act and Clean Water Act preempt states from
public nuisance actions,” and further stated that the Supreme Court in City of Milwaukee v. Illinois,
451 U.S. 304 (1981) “noted that the CWA preserved nuisance suits under state common law.”
Comer, 585 F.3d at 878-79. “Given the clear inapplicability of federal preemption in [the] case,”
the panel held, it would “not employ the political question doctrine in a way that would amount to
a de facto preemption of state law.” Id. at 879. The Fifth Circuit granted rehearing en banc, but then
lost a quorum, which meant it was not authorized to transact judicial business, and the appeal was
dismissed. However, the panel opinion was lawfully vacated and could not be reinstated.
Thereafter, plaintiffs filed a new lawsuit, asserting public and private nuisance (pursuant to
both federal and state common law), trespass, and negligence claims against the defendants and
seeking a declaratory judgment that their state-law tort claims arising from the defendants’ emissions
were not preempted by federal law. The district court found that the claims were barred by res
judicata and collateral estoppel. It also held again that the plaintiffs lacked standing and that the
claims presented non-justiciable political questions.

It then briefly addressed the issue of

preemption. Relying on the Supreme Court’s decision in American Electric Power v. Connecticut,
131 S. Ct. 2527 (2011), the district court held “that the plaintiffs’ entire lawsuit is displaced by the
Clean Air Act.” Comer, 839 F. Supp. 2d at 865. On appeal, the Fifth Circuit affirmed the district
court’s judgment, but expressly did so solely on the basis of res judicata. Comer v. Murphy Oil USA,
718 F.3d 460 (5th Cir. 2013).
Relying on Comer, Defendants assert that the Fifth Circuit has held that the CAA completely
preempts state common-law claims. See docket no. 16 at 3. Defendants further assert that Comer
“is controlling precedent on the issue of whether state common law claims challenging the
reasonableness of regulated air emissions are preempted by the Act.” Docket no. 30 at 1. These
contentions are erroneous. As an initial matter, the Fifth Circuit’s second Comer decision does not
consider the preemption issue. The Court did not discuss the preemption issue at all, and in fact
only used the word “preempted” one time in the opinion – to note that the district court had held that
the claims were preempted by the CAA. It expressly affirmed solely on the basis of res judicata, and
-9-

it in no way affirmed or endorsed the district court’s preemption analysis. Thus, the district court’s
analysis on the preemption issue carries only the weight of a district court opinion – persuasive, but
not controlling.
In addition, Comer was initially filed in federal district court. The issue of complete
preemption for purposes of removal or federal jurisdiction was not raised. The Comer district court
did not conduct a complete preemption analysis. Further, the Comer district court relied on AEP’s
displacement analysis to hold that state common-law claims were “displaced.” However, “[t]he
appropriate analysis in determining if federal statutory law governs a question previously the subject
of federal common law is not the same as that employed in deciding if federal law pre-empts state
law.” City of Milwaukee v. Illinois, 451 U.S. 304, 316 (1981); see also Am. Elec. Power v.
Connecticut, 131 S. Ct. 2527, 2537 (2011) (“Legislative displacement of federal common law does
not require the “same sort of evidence of a clear and manifest [congressional] purpose” demanded
for preemption of state law.”); Scott Gallisdorfer, Clean Air Act Preemption of State Common Law:
Greenhouse Gas Nuisance Claims after AEP v. Connecticut, 99 VA. L. REV. 131, 154-55 (March
2013) (arguing that the Comer district court mistakenly conflated displacement and preemption and
unjustifiably enlarged the Supreme Court’s holding in AEP). Accordingly, because the Comer case
did not involve a complete preemption analysis for purposes of jurisdiction, and because the district
court conducted a displacement analysis rather than a preemption analysis, the Court does not find
its decision to be binding or persuasive precedent on the issue of whether plaintiffs’ state-law
nuisance and negligence claims are completely preempted.1
What is controlling precedent, however, is Ouellette. As noted, there the Supreme Court held
that the analogous CWA did not preempt source-state nuisance actions. Defendants contend that the
Supreme Court’s decision in AEP v. Connecticut has changed the law. However, AEP held only that
federal common law was displaced by the CAA. As noted, displacement of federal common law
is a different issue and does not direct a conclusion regarding complete preemption of state common

1

Similarly, North Carolina v. Tennessee Valley Authority, 615 F.3d 291 (4th Cir. 2010) was
originally filed in federal court and the court did not consider the jurisdictional nature of the
preemption. The Fourth Circuit expressly did not “hold flatly that Congress has entirely preempted
the field of emissions regulation.” Id. at 302.
-10-

law. The AEP court expressly left open the question of whether a state nuisance claim was
preempted for consideration on remand,2 citing Ouellette. American Electric Power, 131 S. Ct. at
2540. The Court’s citation to Ouellette indicates that the Ouellette decision should guide the
determination of whether the CAA preempts state common-law nuisance claims, and Ouellette
indicates that source state nuisance claims are not preempted.
After this Court issued its first order denying remand, the Third Circuit issued a decision in
Bell v. Cheswick Generating Station, __ F.3d ___, 2013 WL 4418637 (3d Cir. Aug. 20, 2013). The
Third Circuit reversed the district court’s decision finding that the CAA preempted the plaintiffs’
state law tort claims.3 The Third Circuit held that the plain language of the savings clauses in the
CAA, as well as the Supreme Court’s controlling Ouellette decision, requiring a finding that the
state-law tort claims were not preempted. The court noted that the Supreme Court had already
addressed and rejected the defendants’ arguments, holding that (1) because the Act specifically
allows source States to impose stricter standards, the imposition of source-state law does not disrupt
the regulatory partnership established by the permit system; (2) a source would be required to look
to only a single additional authority, whose rules should be relatively predictable; and (3) states can
be expected to take into account their own nuisance laws in setting permit requirements. Ouellette,
479 U.S. at 498-99. The Third Circuit held that the Supreme Court recognized that the requirements
placed on sources of pollution through the “cooperative federalism” structure of the CWA served
as a regulatory floor, not a ceiling, and expressly held that states are free to impose higher standards
on their own sources of pollution, and that state tort law is a permissible way of doing so.
Having reconsidered the existing authority and the Third Circuit’s recent opinion in Bell, the
Court now concludes that Plaintiffs’ claims are not completely preempted and that federal question
jurisdiction is lacking. The Court notes that it is holding only that Plaintiffs’ claims are not
completely preempted for purposes of federal question jurisdiction. Given that holding, the Court

2

On remand, the plaintiffs voluntarily dismissed and the issue was never reached.

3

The Court notes that jurisdiction in Bell was not premised upon complete preemption.
Plaintiffs filed their lawsuit in state court, and the defendants removed on the basis of diversity.
Thereafter, the defendants moved to dismiss on the basis of a preemption defense. Bell, __ F.3d at
__, 2013 WL at *4.
-11-

may not decide in the first instance whether the CAA provides a federal preemption defense to the
state-law claims, and the Court’s holding regarding complete preemption has no preclusive effect
on the state court’s consideration of the merits of a substantive preemption defense. See Bernhard
v. Whitney Nat’l Bank, 523 F.3d 546, 554 & n.7 (5th Cir. 2008).
Conclusion
The Court’s order dated August 6, 2013 denying Plaintiffs’ motion to remand (docket no. 23)
is VACATED. Plaintiffs’ motion to remand (docket no. 11) is granted. This case is remanded
pursuant to 28 U.S.C. § 1447(c) for lack of subject matter jurisdiction. Plaintiffs’ request for
attorneys’ fees and costs related to the removal of this case is denied.
Plaintiffs’ Amended Complaint (docket no. 24), filed in response to this Court’s vacated
order, is also VACATED. Docket no. 25 and docket no. 26 are DISMISSED AS MOOT. The Clerk
is directed to remand this case to state court and to close this case.
It is so ORDERED.
SIGNED this 7th day of October, 2013.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

-12-