ELR Citation: ELR 21460
No(s). 91-2821 (8th Cir. May 12, 1992)

The court holds that a plaintiff's state law claims alleging injuries from exposure to the pesticide Dursban were improperly removed to federal court, and a chemical manufacturer's defense of preemption under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not confer federal question jurisdiction on a U.S. district court. The district court had granted the manufacturer's petition to remove the plaintiff's state court action to federal district court on the basis of FIFRA preemption. The court first holds that defendants cannot invoke the original jurisdiction of the federal district courts. The court next holds that the plaintiff's claim does not arise under federal question jurisdiction, because under the well-pleaded complaint rule, an action arises under federal law only if the federal question appears on the face of a properly pleaded complaint. That both parties anticipate a federal defense, including the defense of preemption, does not cause the plaintiff's claim to arise under federal law. The court also holds that this case does not fit into the "complete preemption" exception to the well-pleaded complaint rule, converting an ordinary state common-law complaint into one stating a federal claim. Standing alone, FIFRA §24(b), which preempts state authority in the area of pesticide labelling and packaging, does not constitute complete preemption in the field of pesticide regulation, and nothing else demonstrates that Congress intended to completely preempt the field. Further, the U.S. Supreme Court has held in Wisconsin Public Intervenor v. Mortier, 21 ELR 21127, that FIFRA does not preempt the field of pesticide regulation. The court also rejects the defendants' arguments based on diversity jurisdiction and contrary precedent.

Counsel for Appellant
Mary E. Coffey
John Frank Partnership
100 N. Broadway, Ste. 850, St. Louis MO 63102
(314) 421-2811

Counsel for Appellees
Paul Venker
Armstrong, Teasdale, Schlafly & Davis
One Metropolitan Sq., Ste. 2600, St. Louis MO 63102
(314) 621-5070

Gary E. Wiseman
Kortenhof & Ely
1015 Locust St., Ste. 500, St. Louis MO 63101
(314) 621-5757

Before ARNOLD, Chief Judge, McMILLIAN and HANSEN, Circuit Judges.