POLOZOLA, District Judge.
Plaintiff originally filed this suit on July 1, 1976 in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana, asserting claims against numerous defendants for damages allegedly resulting from the dumping of materials on the property of Petro Processors of Louisiana, Inc. In plaintiff's Twelfth Amending and Supplemental Petition the United States Environmental Protection Agency (EPA) was named as a defendant. EPA timely removed the action to this court on October 3, 1986 pursuant to 28 U.S.C. § 1441(a) and 28 U.S.C. § 1442(a)(1).
The EPA has now filed motions to dismiss under Fed.R.Civ.P. 12(b)(1) asserting that this court lacks subject matter jurisdiction and under 12(b)(6) for failure to state a claim upon which relief can be granted. Alternatively, EPA has urged that plaintiff's request for a jury trial be stricken.
For reasons which follow the court finds that the court does have subject matter jurisdiction, but that plaintiff has failed to state a claim against EPA upon which relief can be granted. Therefore, EPA's motion to dismiss shall be granted.
Subject Matter Jurisdiction
EPA in its original and supplemental memorandum argues that this court lacks subject matter jurisdiction over this suit. It asserts that the United States cannot be sued without its consent. Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct. 1811, 1819, 75 L.Ed.2d 840 (1983).
EPA removed this action to this court under 28 U.S.C. § 1441(a) and § 1442(a)(1). Section 1441(a) provides:
It should be noted that 28 U.S.C. § 1441 was amended by Pub.L. 99-336, section 3(a) by adding a new subsection which provides:
Section 3(b) of Pub.L. 99-336 further provides:
The law was approved on June 19, 1986.
EPA argues that the 1986 amendment to § 1441 does not apply to the present action because the original suit was commenced in state court on July 1, 1976. This contention is without merit. Section 3(b) of Pub.L. 99-3356 clearly states that subsection (e) shall apply to all "claims" commenced after the effective date. Therefore, the determinative date for purposes of applicability of 28 U.S.C. § 1441(e) is the date the "claim" against EPA was commenced, not the date the suit was initially filed in state court. The "claim" against EPA did not "commence" until the Twelfth Amended and Supplemental Petition was filed on September 9, 1986, more than two months after the effective date of the amendment to § 1441. Therefore, the court finds the 1986 amendment to § 1441 does apply to the claim asserted against the EPA.
The court also finds that it has subject matter jurisdiction over the case pursuant to EPA's removal under 28 U.S.C. § 1442(a)(1). This section authorizes removal of proceedings commenced in a state court against a federal agency.
EPA contends that although 28 U.S.C. § 1441 has been amended to abolish the doctrine of derivative jurisdiction, there has been no such amendment to § 1442. Therefore, the doctrine of derivative jurisdiction would apply to cases removed under § 1442. The court disagrees. "Section 1442 itself grants independent jurisdictional grounds over cases involving federal officers where a district court would otherwise not have jurisdiction." IMFC Professional Services of Florida v. Latin American Home Health, 676 F.2d 152, 156 (5th Cir.1982).
EPA asserts that IMFC does not hold that a federal district court has jurisdiction over a case in which the state court did not have jurisdiction. The court finds to the contrary. Clearly the state court in IMFC did not have subject matter jurisdiction over the Department of Health and Human Resources because there had been a failure to exhaust administrative remedies. Yet the court held that the federal district court did have jurisdiction under § 1442. Id. The Fifth Circuit acknowledged the lack of state court jurisdiction by noting that its decision was not inconsistent with Armstrong v. Alabama Power Co., 667 F.2d 1385 (11th Cir.1982), because Armstrong did not hold "that a subject matter jurisdiction defect in the state court is ground for remand of a case removed under § 1442." Id. at 156 n. 4.
Thus, the court finds that the doctrine of derivative jurisdiction does apply under the facts of this case under § 1441 or § 1442. The court further finds that the court has subject matter jurisdiction over this action and that removal was proper under 28 U.S.C. § 1442(a)(1). Therefore, EPA's motion to dismiss for lack of subject matter jurisdiction is denied.
EPA's Motion to Dismiss for Failure to State a Claim
Because the court finds that it does have subject matter jurisdiction, it now addresses EPA's motion to dismiss for failure to state a claim upon which relief can be granted.
EPA argues that plaintiff's complaint fails to state a claim under 12(b)(6) and fails to comply with the provisions of Rule 8(a) of the Federal Rules of Civil Procedure. EPA asserts that the complaint cites no statutory basis at all for jurisdiction with respect to EPA and also fails to set forth a statute that waives sovereign immunity in this matter as required in a suit
In response, plaintiff argues that pleading requirements in this action are governed by Louisiana law where the petition was originally filed. The Louisiana Code of Civil Procedure sets forth a system of fact pleading.
EPA correctly points out that Rule 81(c) of the Fed.R.Civ.P. states that federal rules apply to civil actions removed to United States District Courts and govern procedure after removal. Because the court finds that the plaintiff has failed to state a claim against EPA under both Louisiana law and the Federal Rules of Civil Procedure, it is not necessary for this court to decide whether the Louisiana or Federal Rules must be complied with.
In plaintiff's complaint, EPA is referred to in only two contexts: once when it is named as a defendant; and, secondly where the complaint seeks an order requiring the private defendants to clean up plaintiff's property "under the supervision of the governmental bodies."
In order to establish a cause of action under Louisiana law, the plaintiff must set forth in his petition specific facts in support of his claim. Lott v. Haley, 370 So.2d 521, 524 (La.1979). Merely setting forth a conclusion is not enough to state a cause of action. Id. at 525, Goad v. May, 376 So.2d 340, 342 (La.App. 3rd Cir.1979). Plaintiff's petition contains no allegations of fact. Therefore, the court concludes that the petition fails to state a cause of action against EPA under Louisiana law.
Additionally, the court finds that the petition fails to state a claim against EPA upon which relief may be granted under the notice pleading provisions of the Federal Rules of Civil Procedure. The complaint contains no reference to a statute containing an express or implied waiver of the government's immunity from suit. The complaint does not contain a short and plain statement of a claim showing that plaintiff is entitled to relief. In fact, the complaint contains no more than a bare averment that plaintiff wants the government to supervise, along with plaintiff, the cleanup of plaintiff's property. The court knows no authority and none has been cited which imposes an obligation on the part of the United States to supervise the cleanup of a private tract of land in a suit filed by the private landowner against other parties. "[M]erely identifying a party as a defendant without alleging more does not meet the minimum standard of notice pleading required by Rule 8(a)." Allied Steel & Tractor Products v. First National City Bank of New York, 54 F.R.D. 256, 260 (N.D. Ohio 1971).
Because the complaint fails to state a claim against EPA upon which relief may be granted, the motion of EPA to dismiss is granted.
Remand After Dismissal of Claim Against EPA
Section 1442(a)(1) authorizes removal of the entire case even though only one of its controversies might involve a federal officer or agency. Thus § 1442(a)(1) creates a species of ancillary jurisdiction over the nonfederal elements of the case. IMFC, supra at 158. The elimination of EPA from this case does not
However, this court has the discretion to decline jurisdiction over the ancillary claims once the federal agency has been dismissed from the case, provided that the discretion is based on clearly articulated authority. IMFC 676 F.2d at 160. As the Fifth Circuit stated in IMFC at 160:
As in IMFC, the federal agency which caused the removal of this action to federal court is being dismissed from the case soon after the federal agency was sued. Thus, it is within the court's discretion to remand this case to state court.
The court, in making the decision to remand, notes that the present case had proceeded in state court for over ten years before the case was removed to this court. The court believes the state court can continue with this case without the necessity of a new judge trying to sift through ten years of litigation and numerous pleadings and decisions. It would be in the interest of justice and judicial economy to allow the case to continue in state court. Therefore, this court declines to exercise jurisdiction over the remaining claims. The court will, therefore, remand this action to the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana.
IT IS ORDERED that the motion of the defendant, United States Environmental Protection Agency, to dismiss for lack of subject matter jurisdiction be and it is hereby DENIED.
IT IS FURTHER ORDERED that the motion of the defendant, United States Environmental Protection Agency, to dismiss for failure to state claim upon which relief can be granted be and it is hereby GRANTED.
IT IS FURTHER ORDERED that this case be remanded to the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana.
IT IS FURTHER ORDERED that the motion of the defendant, United States Environmental Agency, to strike plaintiff's request for jury trial is moot, and is therefore DENIED without prejudice.