Case 2:22-cv-00132-JRH-BWC Document 1 Filed 11/18/22 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

CITY OF BRUNSWICK, by and through )

its MAYOR AND BOARD OF )
COMMISSIONERS, )
)
Plaintiff, )
) CIVIL ACTION NO.
v. )
) _________________________
HONEYWELL INTERNATIONAL, INC., )
f/k/a ALLIED CHEMICAL )
CORPORATION and as ALLIEDSIGNAL, )
INC., and THE GEORGIA POWER )
COMPANY, )
)
Defendants. )

NOTICE OF REMOVAL

PLEASE TAKE NOTICE that Defendants Honeywell International, Inc. f/k/a Allied

Chemical Corporation and as AlliedSignal, Inc. (“Honeywell”) and Georgia Power Company

(“Georgia Power”) hereby remove this Action (Civil Action File No. CE22-01086) from the

Superior Court of Glynn County, State of Georgia, to the United States District Court for the

Southern District of Georgia pursuant to 28 U.S.C. §§ 1331, 1332, 1441, 1442(a), and 1446. To

the extent any part of the City of Brunswick’s causes of action can be construed as non-federal,

this Court has supplemental jurisdiction over them under 28 U.S.C. § 1367(a) because they form

part of the same case or controversy as those causes of action over which the Court has original

jurisdiction.1

1
By filing this Notice of Removal, Defendants do not waive any right, defense, affirmative
defense, or objection, including without limitation any challenges to personal jurisdiction,
insufficient process, and/or insufficient service of process.

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TIMELINESS OF REMOVAL

1. Plaintiff, the City of Brunswick, by and through its Mayor and Board of

Commissioners (“Plaintiff” or “City”), filed this Action in the Superior Court of Glynn County,

Georgia as Civil Case File No. CE22-01086, on October 20, 2022 (the “State Court Action”).

2. Honeywell was served with a copy of the Complaint in the State Court Action on

October 21, 2022. Georgia Power was served with a copy of the Complaint in the State Court

Action on October 28, 2022. No Defendant was served prior to October 21, 2022.

3. This Notice of Removal is timely because it is filed within 30 days after the

receipt by Defendants, through service or otherwise, of the Complaint. See 28 U.S.C. § 1446(b).

NATURE OF THE ACTION

4. On July 27, 2017, the Honorable J. Randal Hall entered the Consent Decree for

Remedial Design and Remedial Action at Operable Unit One of the LCP Chemicals Superfund

Site (“Consent Decree”) between Honeywell, Georgia Power, and the United States

Environmental Protection Agency (“EPA”), pursuant to which “[t]his Court has jurisdiction over

the subject matter of this action.” See United States v. Honeywell Int’l Inc. & Georgia Power

Co., Civil Action No. 2:16-cv-00112, Doc. No. 26, at 2 ¶ 1 (S.D. Ga. July 27, 2017), attached

hereto as Exhibit A; see also United States v. Honeywell Int’l Inc. & Georgia Power Co., Civil

Action No. 2:16-cv-00112, Complaint, Doc. No. 1 (S.D. Ga. July 29, 2016) (hereinafter “EPA

Complaint”), attached hereto as Exhibit B.

HONEYWELL

5. In this Action, the City alleges that Honeywell’s operation of a chlor-alkalai plant

in Brunswick, Georgia (the “Plant Site”) from 1956 to 1979, as well as its role in keeping the

Plant Site operational from 1979 to 1994 after the plant was sold to Linden Chemicals and

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Plastics Corporation (“LCP”), resulted in discharges of mercury and poly-chlorinated byphenals

(“PCBs”) into the air and water that spread into waters, marshes, and property of the City of

Brunswick. See Compl. ¶¶ 7, 9, 11-13, 19-22, 34-35, 41-42, 66, 75.

GEORGIA POWER

6. In the mid-1930s, Georgia Power acquired certain parcels on the Plant Site. See

EPA Compl. ¶ 9.

7. Georgia Power operated an oil-fired electric generating plant on portions of the

Plant Site between 1937 and 1955.

8. The City’s Complaint fails to allege that Georgia Power emitted hazardous

substances as a result of its operations on the Plant Site.

9. In 1955, Allied Chemical & Dye Corporation, which later became Honeywell,

acquired Georgia Power’s parcels on the Plant Site. See EPA Compl. ¶¶ 10-12.

10. Additionally, Georgia Power owns a parcel of land bearing Parcel Number 03-

06321 (“McManus Parcel”). The McManus Parcel is adjacent to, but entirely separate from, the

Plant Site. See, e.g., The Glynn County GIS Department Website, available at

https://qpublic.schneidercorp.com/Application.aspx?AppID=964&LayerID=19142&PageTypeI

D=4&PageID=8448&KeyValue=03-06321 [last visited November 17, 2022].

11. In 1952, Georgia Power began operating the McManus Electric Generating Plant

(“Plant McManus”) as a coal-fired electric generating plant on the McManus Parcel. See Plant

McManus History of Construction, attached hereto as Exhibit C.

12. The City alleges that mercury was emitted from Plant McManus because Plant

McManus was coal-fired. See Compl. ¶ 87 (“The Georgia Power Plant was coal fired, and

emitted mercury into the air, the waters and the marshes of Glynn County.”).

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13. In 1971, Georgia Power converted Plant McManus from a coal-fired electric

generating plant to a fuel-oil electric generating plant. See Plant McManus History of

Construction. Plant McManus ceased using coal in 1972. See id. As a result, the latest Plant

McManus would have emitted the alleged mercury from burning coal is the year 1972. See id.

14. Plant McManus is entirely separate from Georgia Power’s operations on the Plant

Site from 1937-1955, which were not coal-fired.

15. The City’s 134-paragraph Complaint includes only three paragraphs vaguely

alleging Georgia Power’s tortious conduct:

87.
For many years, the Defendant Georgia Power Company
owned and operated an electrical generator station that abutted the
Turtle River known as Plant McManus. The Georgia Power Plant
was coal fired, and emitted mercury into the air, the waters, and the
marshes of Glynn County.

88.
The mercury released by Georgia Power has, in part,
migrated onto marshes and shoreline owned by the City of
Brunswick thereby contributing to the pollution of property of the
City of Brunswick.

89.
The Defendant Georgia Power has acknowledged joint
responsibility for the mercury pollution of the Marshes of Glynn, as
evidenced by the Consent Decree agreed to by Georgia Power.
United States of America v. Honeywell International Inc. and
Georgia Power Company, Civil Action No. 2:16-CV-00112, U.S.
District Court, S.D. GA, DKT. 3-1, 07-29-16.

16. However, the Consent Decree and its directives, referenced in Paragraph 89 of the

City’s Complaint, did not result from Georgia Power’s operation of Plant McManus. The

Consent Decree resulted from alleged operations on the Plant Site, which were entirely separate

from Plant McManus. See EPA Compl. ¶ 9. This fact makes the City’s allegations regarding

Georgia Power nonsense.

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DEFENDANTS’ REMEDIAL ACTIONS

17. The City’s allegations are not limited to Honeywell’s and LCP’s operation of the

Plant Site prior to 1994 and Georgia Power’s operation of Plant McManus. Instead, and as

particularly relevant to this Notice of Removal, the City further alleges that Defendants failed to

take appropriate remedial action to remove from the environment the mercury and PCBs that

they and others allegedly discharged. See, e.g., Compl. ¶ 35 (“Defendant Honeywell took no

action to remove any of the tens of thousands of pounds of PCBs that it had already dumped on

its Site, into the marshlands and in the outfall canal that leads to Purvis Creek, the Turtle River

Estuary and beyond.”); ¶ 108 (“[I]t was foreseeable to Defendants that their failure to

permanently remove their pollutants from property of the City of Brunswick could harm the City

of Brunswick and its property.”).

18. The City thus purports to assert two causes of action under state common law

(Continuing Trespass and Continuing Nuisance) arising out of this alleged misconduct, seeking

damages and other relief based on, inter alia: (i) “Defendants’ continuing failure and refusal to

permanently remove their pollution from property of the City of Brunswick,” which the City

alleges “unreasonably and substantially interferes with the City’s right to exclude others and the

pollutants of others from its property” and the “City’s use and enjoyment of its property” (id.

¶¶ 111, 122); and (ii) “Defendants’ failure and refusal to permanently abate their continuing

nuisances and damage” (id. ¶ 125).

19. The City further alleges that it “owns properties containing hazardous and toxic

wastes that render the City of Brunswick potentially liable for the remediation of the waste on its

property” and “Defendants are liable for all such remediation costs and damages.” Id. ¶ 100.

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20. As the City acknowledges, however, Defendants already are in the process of

investigating and remediating mercury and PCB contamination pursuant to the federal

Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) under

the authority and oversight of EPA.

21. The City alleges, for example, that in or around 1994, EPA issued a “Unilateral

Administrative Order” to Honeywell and others “ordering them to remove the chemicals

remaining at the Plant, to determine the extent of contamination at the Plant, and to begin the

environmental remediation of the Plant and the Plant Site.” Id. ¶ 69. And “[i]n 1998, U.S. EPA

required Defendant Honeywell to remove one foot of soil from thirteen acres of the marsh and

sediment in creeks in front of the old Honeywell trash dump.” Id. ¶ 72.

22. In fact, since 1994, EPA has been comprehensively directing and overseeing the

investigation and remediation of environmental contamination at and around the Plant Site

pursuant to its authority under CERCLA.

23. On July 6, 1995, for example, Defendants commenced a Remedial Investigation

and Feasibility Study for the area in and around the Plant Site pursuant to an Administrative

Order of Consent with EPA. See Administrative Order of Consent, attached hereto as Exhibit

D;2 see also Consent Decree at 1 ¶ G.

24. In 1996, EPA formally designated the area in and around the Plant Site as a

federal Superfund site (the “LCP Chemicals Superfund Site”) by adding it to the National

Priorities List. See 61 Fed. Reg. 30,510 (June 17, 1996); see also Consent Decree at 1 ¶ F.

2
Defendants entered into additional Administrative Orders of Consent with EPA in 1997 and
2007 relating to the remedial investigation. See EPA LCP Chemicals Website, available at
https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.schedule&id=0401
634 [last visited November 15, 2022].

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25. Defendants completed the Remedial Investigation for the Site in November 2012

and the Feasibility Study in August 2015. See Consent Decree at 1 ¶ H.

26. On December 1, 2014, and pursuant to Section 117 of CERCLA, 42 U.S.C.

§ 9617, EPA published notice of the completion of the Feasibility Study and of the proposed

plan for remedial action at the Site in the Brunswick News, a major local newspaper of general

circulation. Id. at 1 ¶ I. EPA issued a final Record of Decision (“ROD”) for the remedial action

to be implemented at the Site on September 22, 2015. Id. at 2 ¶ J.

27. In July 2016, Defendants entered into the Consent Decree with EPA pursuant to

which Defendants agreed to undertake a remedial action at the LCP Chemicals Superfund Site.

See Ex. A; see also Compl. ¶¶ 89, 96 (referencing the Consent Decree and the LCP Chemicals

Superfund Site). This Court approved the Consent Decree on July 27, 2017 in an action filed by

the United States (on behalf of EPA) pursuant to Sections 106 and 107 of CERCLA, 42 U.S.C.

§§ 9606, 9607. See Ex. A; see also EPA Complaint at ¶ 1.

28. Defendants are implementing the remedial action set forth in the ROD pursuant to

the Consent Decree. The obligations of the Consent Decree are ongoing and require Defendants

to undertake remediation efforts under the authority and oversight of EPA.

29. In short, for nearly 30 years, Defendants have been investigating and remediating

mercury and PCB contamination in and around the Plant Site at the direction and under the

oversight of EPA pursuant to a federal statute. Because the City’s lawsuit directly challenges the

sufficiency of Defendants’ remedial efforts under CERCLA, it should be heard in federal court.

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GROUNDS FOR REMOVAL

30. A defendant may remove “any civil action brought in State court of which the

district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a).3 This action

is removable on multiple independent grounds.

31. First, this Action meets the elements of the federal officer removal statute, 28

U.S.C. § 1442, because the City’s claims are “connected or associated with” Defendants’

decades-long investigation and remediation of environmental contamination at and around the

Plant Site under the direction and oversight of EPA.

32. Second, this Action is removable because the City’s state-law claims necessarily

involve substantial and disputed federal questions over which this Court has original jurisdiction

pursuant to 28 U.S.C. § 1331, including because they constitute a challenge to a federally

directed environmental cleanup under CERCLA and because they seek contribution for response

costs under CERCLA. Accordingly, the City’s claims are subject to removal as necessarily

federal claims, under the artful-pleading and Grable doctrines.

33. Third, this Action is removable because diversity jurisdiction exists under 28

U.S.C. § 1332(a) because the matter in controversy exceeds $75,000 and is between citizens of

different states. The City fraudulently joined Georgia Power to this Action to defeat diversity

3
Removal jurisdiction under 28 U.S.C. § 1441(a) is coextensive with original jurisdiction under
28 U.S.C. § 1331. See Wis. Dep’t of Corr. v. Schactz, 524 U.S. 381, 390 (1998) (“Since a federal
court would have original jurisdiction to hear this case had [the plaintiff] originally filed it there,
the defendant may remove the case from state to federal court.”) (citing 28 U.S.C. § 1441(a));
see also 14C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3711
(4th ed. Apr. 2020 Update) (“Generally, then, removal based on Section 1441(a) embraces the
same class of cases as is covered by Section 1331, the original federal-question jurisdiction
statute.”).

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jurisdiction under 28 U.S.C. § 1332(a). See, e.g., Stillwell v. Allstate Ins. Co., 663 F.3d 1329,

1332 (11th Cir. 2011).

I. This Action Is Removable Under the Federal Officer Removal Statute

34. The federal officer removal statute allows removal of an action against “any

officer (or any person acting under that officer) of the United States or of any agency thereof . . .

for or relating to any act under color of such office.” 28 U.S.C. § 1442(a)(1) (emphasis added).

35. The federal officer removal statute is to be “liberally construed” in favor of a

federal forum. Watson v. Philip Morris Cos., 551 U.S. 142, 150 (2007). Indeed, courts have

held repeatedly that “defendants enjoy much broader removal rights under the federal officer

removal statute than they do under the general removal statute.” Leite v. Crane, 749 F.3d 1117,

1122 (9th Cir. 2014); see also In re 3M Combat Arms Earplug Prod. Liab. Litig., No.

3:19MD2885, 2020 WL 365617, at *2 (N.D. Fla. Jan. 22, 2020) (“In re 3M”) (distinguishing

federal officer removal statute from general removal statute). The Supreme Court has therefore

emphasized that the policy of providing the protection of a federal forum to federal officers

“should not be frustrated by a narrow, grudging interpretation of § 1442(a)(1).” Willingham v.

Morgan, 395 U.S. 402, 407 (1969); see also Florida v. Cohen, 887 F.2d 1451, 1453 (11th Cir.

1989) (“This statute is an incident of federal supremacy and is designed to provide federal

officials with a federal forum in which to raise defenses arising from their official duties.”). In

short, courts must apply a “broad construction” of the statute—“particularly with respect to

private parties who claim to be ‘acting under’ a federal officer.” Agyin v. Razmzan, 986 F.3d

168, 174 (2d Cir. 2021).

36. “Not only must the words of § 1442 be construed broadly but a court also must

‘credit [the d]efendants’ theory of the case’ when evaluating the relationship between the

defendants’ actions and the federal officer.” Id. at 175 (citing Isaacson v. Dow Chem. Co., 517

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F.3d 129, 137 (2d Cir. 2008)); see also Jefferson Cnty. v. Acker, 527 U.S. 423, 432 (1999)

(“[W]e credit the [defendants]’ theory of the case for purposes of [all] elements of our

jurisdictional inquiry.”). At this stage, a defendant’s allegations “in support of removal” need

only be “facially plausible,” and the defendant receives the “benefit of all reasonable inferences

from the facts alleged.” Baker v. Atl. Richfield Co., 962 F.3d 937, 947 (7th Cir. 2020).

37. To remove an action under the federal officer removal statute (28 U.S.C. § 1442),

a defendant who is not itself a federal officer must demonstrate that it (1) “is a person within the

meaning of the statute who acted under a federal officer”; (2) “performed the actions for which it

is being sued under color of federal office”; and (3) has a “colorable federal defense.” Caver v.

Cent. Alabama Elec. Coop., 845 F.3d 1135, 1142 (11th Cir. 2017) (internal citations omitted).

Defendants satisfy all three of these criteria here.

38. First, Defendants are “persons” within the meaning of the statute who “acted

under” a federal officer. Defendants are corporations, Compl. ¶¶ 3-4, which qualify as “persons”

within the meaning of 28 U.S.C. § 1442. And Defendants “acted under” federal officers by

assisting a federal agency, EPA, in carrying out its statutory duty to investigate and remediate

environmental contamination at the LCP Chemicals Superfund Site (both of which EPA would

have performed itself without Defendants’ assistance) under the “subjection, guidance, or

control” of EPA. Watson, 551 U.S. at 151-54. Second, the City’s claims relate to actions that

Defendants performed “under color of federal office” because the claims are “connect[ed] or

associat[ed]” with Defendants’ performance of a decades-long EPA-led cleanup. Third,

Defendants have a “colorable federal defense” that the City’s claims are preempted by CERCLA.

A. Defendants “Acted Under” Federal Officers.

39. Defendants “acted under” federal officers because the federal government exerted

extensive “subjection, guidance, or control” over Defendants’ remediation of the LCP Chemicals

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Superfund Site and because Defendants engaged in “an effort to assist, or to help carry out, the

duties or tasks of the federal superior.” Watson, 551 U.S. at 151-52 (emphasis in original).

40. First, a federal agency, EPA, has plainly exerted “subjection, guidance, or

control” over Defendants for several decades, closely supervising Defendants’ cleanup activities.

See Watson, 551 U.S. at 151; Caver, 845 F.3d at 1143-44. In 1994, EPA issued a Unilateral

Administrative Order to Honeywell and others, “ordering them to remove the chemicals

remaining at the Plant, to determine the extent of contamination at the Plant, and to begin the

environmental remediation of the Plant and the Plant Site” pursuant to cleanup plans approved or

to be approved by EPA. Compl. ¶ 69. In 1995, pursuant to an Administrative Order on Consent

with EPA (Ex. D), Defendants commenced a Remedial Investigation and Feasibility Study under

EPA’s oversight and subject to EPA’s approval. In 2015, EPA issued a ROD setting forth the

remedial action to be implemented at the Site to accomplish EPA’s federal remediation

objectives. See Consent Decree at 2. And in 2016, Defendants entered into a Consent Decree

with EPA (Ex. A) pursuant to which Defendants agreed to implement the remedial action that

EPA selected—subject to EPA’s oversight and control.

41. Second, if Defendants had not carried out the investigation and remediation of

environmental contamination at the Site under EPA’s supervision, the federal government would

“at least arguably” have performed these tasks itself. Watson, 551 U.S. at 154. While “simply

complying . . . with federal laws, rules, and regulations” does not constitute “acting under” a

federal official, “the words ‘acting under’ are broad, and . . . the statute must be ‘liberally

construed.’” Id. at 147, 152-53. A private defendant crosses the threshold from mere

compliance to assistance where, “at least arguably, [the entity] performed a job that . . . the

Government itself would have had to perform.” Id. at 154. Under CERCLA, EPA is required

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“to compile and annually revise a prioritized list of contaminated sites for cleanup, commonly

known as Superfund sites.” Atlantic Richfield Co. v. Christian, 140 S.Ct. 1335, 1346 (2020)

(citing 42 U.S.C. § 9605). “EPA may clean those sites itself or compel responsible parties to

perform the cleanup.” Id. (citing 42 U.S.C. §§ 9604, 9606). And here, under the Consent

Decree, EPA retains authority to take over the remediation work. See Consent Decree at 27-28.

Thus, had Defendants not performed the EPA-supervised remediation, those tasks “at least

arguably” would fall to the federal government under CERCLA.

42. For these reasons, federal appellate courts have concluded that private

corporations “act[] under” federal authority when they perform EPA-directed cleanups. See,

e.g., Greene v. Citigroup, Inc., No. 99-1030, 2000 WL 647190, at *1-2 (10th Cir. May 19, 2000)

(affirming § 1442 jurisdiction where plaintiff sought injunctive and declaratory relief related to

site subject to ongoing EPA cleanup); People State of Cal. v. H & H Ship Serv. Co., No. 94-

10182, 1995 WL 619293, at *2 (9th Cir. Oct. 17, 1995) (holding corporation “acted under”

federal officer when performing tasks “taken during the course of a removal action that was

under the direction and control of the Coast Guard”). Indeed, faced with similar claims to

Plaintiff’s here, the Tenth Circuit in Greene squarely held that the private corporation “acted

under the direction of a federal officer” by “implement[ing] a remedy selected by the EPA, a

federal agency, pursuant to CERCLA.” Greene, 2000 WL 647190, at *2.

43. Put simply, in investigating and remediating the Site, Defendants “work[ed] hand-

in-hand with the federal government to achieve a task that furthers an end of the federal

government.” Baker, 962 F.3d at 942-43 (7th Cir. 2020) (finding jurisdiction under § 1442); see

also Carver, 845 F.3d at 1143-44 (finding jurisdiction under § 1442 where defendants performed

tasks under “close supervision” of government agency, pursuant to a federal statute “designed to

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guide and control” an important and beneficial “public function conceived of and directed by the

federal government”—there, bringing electricity to rural areas); Ruppel, 701 F.3d at 1181

(finding jurisdiction under §1442 where “the federal government use[d] a private corporation to

achieve an end it would have otherwise used its own agents to complete”).

44. The City’s claims seek to punish Defendants for activities conducted under the

close supervision of the federal government to remediate environmental contamination. The

City’s claims thus implicate precisely the type of “special relationship” between private entities

and the federal government that supports federal officer removal. Watson, 551 U.S. at 157.

B. The City’s Claims Are “For or Relating to” Defendants’ Acts Under Color of
Federal Office

45. The City’s claims are “for or relating to” acts Defendants performed “under color

of federal office.” 28 U.S.C. § 1442(a)(1). To meet this prong, there need only be “a connection

or association” between the act in question and the federal office.” Caver, 845 F.3d at 1144; see

also Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 292 (5th Cir. 2020) (en banc); Sawyer v.

Foster Wheeler LLC, 860 F.3d 249, 255 (4th Cir. 2017); In re Commonwealth’s Mot. to Appoint

Counsel Against or Directed to Def. Ass’n of Philadelphia, 790 F.3d 457, 471 (3d Cir. 2015)

(“Def. Ass’n of Philadelphia”). In this regard, the Removal Clarification Act of 2011 inserted

the words “or relating to” into the federal officer removal statute, which “broaden[ed] the

universe of acts that enable Federal officers to remove to Federal court.” Def. Ass’n of

Philadelphia, 790 F.3d at 467 (quoting H.R. Rep. 112-17, at 6, 2011 U.S.C.C.A.N. 420, 425).

Thus, the Removal Clarification Act “broadened federal officer removal to actions, not just

causally connected, but alternatively connected or associated, with acts under color of federal

office.” Latiolais, 951 F.3d at 292 (emphasis in original).

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46. The Eleventh Circuit has held that “[t]he hurdle erected by this requirement is

quite low.” Carver, 845 F.3d at 1144 (quoting Isaacson v. Dow Chem. Co., 517 F.3d 129, 137

(2d Cir. 2008)); see also Ronald E. Sholes, P.A. v. Campbell, No. 3:21-CV-494-MMH-PDB,

2022 WL 801117, at *2 (M.D. Fla. Feb. 17, 2022), report and recommendation adopted, No.

3:21-CV-494-MMH-PDB, 2022 WL 797404 (M.D. Fla. Mar. 16, 2022). It is not necessary “that

the complained-of conduct itself was at the behest of a federal agency”; rather, it is “sufficient” if

the City’s “allegations are directed at the relationship between the [Defendants] and the federal

government” for at least some of the time frame relevant to the City’s claims. Baker, 962 F.3d at

944-45; accord Def. Ass’n of Philadelphia, 790 F.3d at 470-71; Papp v. Fore-Kast Sales Co.,

842 F.3d 805, 813 (3d Cir. 2016). In addition, “courts credit the defendant's theory of a case

when determining whether a causal connection exists.” In re 3M, 2020 WL 365617, at *4 (citing

Acker, 527 U.S. at 432; Leite, 749 F.3d at 1124; Isaacson, 517 F.3d at 137.) As the Supreme

Court explained, any other rule would “defeat the purpose of the removal statute” by

“demanding an airtight case on the merits in order to show the required causal connection.”

Acker, 527 U.S. at 432.

47. Defendants readily satisfy the “under color of” federal office prong here. In

asserting claims for continuing trespass and nuisance, the City expressly challenges Defendants’

remediation of the Plant Site and surrounding areas as insufficient to remove pollution from the

property of the City of Brunswick. See Compl. ¶¶ 111, 122 (alleging continuing trespass and

continuing nuisance because of “Defendants’ continuing failure and refusal to permanently

remove their pollution from the property of the City of Brunswick”). Indeed, the City’s

Complaint is replete with allegations that Defendants failed to take appropriate remedial action

to remove mercury and PCBs from the environment. See, e.g., id. ¶ 35 (“Defendant Honeywell

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took no action to remove any of the tens of thousands of pounds of PCBs that it had already

dumped on its Site, into the marshlands and in the outfall canal that leads to Purvis Creek, the

Turtle River Estuary and beyond.”); id. ¶¶ 57-58 (alleging that Honeywell kept the Brunswick

Plant in operation to “delay environmental remediation costs”); id. ¶ 108 (“[I]t was foreseeable

to Defendants that their failure to permanently remove their pollutants from property of the City

of Brunswick could harm the City of Brunswick and its property.”).

48. This Action thus “relates to” (i.e., is “connected or associated” with) Defendants’

actions under color of federal office—namely, Defendants’ investigation and remediation of

environmental contamination at the Site since 1994 under EPA’s oversight and direction (which

includes both those remedial actions EPA required and those it did not require). Indeed, the

City’s claims are premised—at least in part—on the notion that the EPA-directed remediation

activities were erroneous or otherwise insufficient to protect the City’s property.

49. Notably, CERCLA expressly prohibits remediation activities that are inconsistent

with an EPA-directed remedial action, stating: “When either the President, or a potentially

responsible party pursuant to an administrative order or consent decree under [CERCLA], has

initiated a remedial investigation and feasibility study for a particular facility under this chapter,

no potentially responsible party may undertake any remedial action at the facility unless such

remedial action has been authorized by the President.” 42 U.S.C. § 9622(e)(6).4 That statute

defines “facility,” in turn, to include “any site or area where a hazardous substance has been

deposited, stored, disposed of, or place, or otherwise come to be located.” Id. § 9601(9).

4
As relevant here, the functions vested in the President under CERCLA are delegated to EPA.
See Executive Order 12580 (Superfund Implementation), available at
https://www.archives.gov/federal-register/codification/executive-order/12580.html.

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50. Here, Defendants initiated a remedial investigation and feasibility study for the

Plant Site in 1995 pursuant to an administrative order with EPA. See para. 23, supra. And in

2016, Defendants entered into a Consent Decree with EPA to implement the remedial action that

EPA selected in the ROD based on that remedial investigation and feasibility study. See paras.

26-28, supra. As such, Defendants could not have undertaken additional remedial activities to

remove pollution from the City’s property (i.e., a site or area where pollution from the Plate Site

allegedly came to be located) without EPA’s authorization and approval.

51. The City’s claims thus have far more than the minimal “connection or

association” to Defendants’ EPA-led cleanup needed to satisfy the “for or relating to any act

under color of [federal] office” requirement for jurisdiction under 28 U.S.C. § 1442. See Caver,

845 F.3d at 1144. The City’s claims are a collateral attack on EPA’s remediation prerogatives,

seeking to divest the federal agency of jurisdiction over remediation at the Plant Site and

surrounding areas. Congress enacted § 1442 precisely to ensure a federal forum is available for

disputes like these. See Watson, 551 U.S. at 150 (“[T]he removal statute’s ‘basic’ purpose is to

protect the Federal Government from the interference with its ‘operations.’”).

C. Defendants Have a Colorable Federal Defense

52. Finally, Defendants have a colorable federal defense. “Courts have imposed few

limitations on what qualifies as a colorable federal defense.” Isaacson, 517 F.3d at 138. This

element of the federal officer removal statute requires only that a defendant “raise a claim that is

defensive and based in federal law.” Id. (internal quotation marks and citations omitted).

Further, a colorable federal defense need only be “plausible,” Carver, 845 F.3d at 1145, meaning

it cannot be “immaterial and made solely for the purpose of obtaining jurisdiction or . . . wholly

insubstantial and frivolous,” In re 3M, 2020 WL 365617, at *5 (quoting Zeringue v. Crane Co.,

846 F.3d 785, 792 (5th Cir. 2017)). In other words, “a defendant’s burden on this issue is

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relatively low.” Id. The defendant need not “virtually . . . win his case before he can have it

removed,” and removal is proper even if the federal defense is “ultimately reject[ed].” Acker,

527 U.S. at 431 (internal quotes omitted); see also Mesa v. California, 489 U.S. 121, 129 (1989)

(“[T]he validity of the defense authorized to be made is a distinct subject . . . [and] has no

connection whatever with the question of jurisdiction.”).

53. Here, Defendants intend to raise federal preemption as a defense. “Conflict

preemption occurs either when it is physically impossible to comply with both the federal and

the state laws or when the state law stands as an obstacle to the objective of the federal law.”

Club Madonna Inc. v. City of Miami Beach, 42 F.4th 1231, 1253 (11th Cir. 2022) (quoting Fla.

State Conf. of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1167 (11th Cir. 2008)). Here, the City’s

claims that Defendants’ are liable because they failed to remove pollution from the Plant Site and

surrounding areas are preempted because such claims conflict with Defendants’ remedial

obligations under EPA’s CERCLA-based directives.

54. York v. Northrop Grumman Guidance & Elecs. Co., Inc., No. 21-03251-CV-S-

BP, 2022 WL 3971283 (W.D. Mo. Aug. 31, 2022), is analogous. There, the district court

explained that, under CERCLA, responsible parties are encouraged to “enter an agreement with

the federal or state government to resolve the method for addressing a release of environmental

contaminants.” Id. at *3. These agreements have “the effect of federal law, and state laws

(including state claims) that conflict with the agreement are preempted.” Id. As such, “claims

for damages resulting from (1) actions required by a consent decree or (2) the failure to do more

than is required/permitted by the settlement are also preempted.” Id. The court explained that

“this feature of CERCLA derives from 42 U.S.C. § 9622(e)(6)” (which is addressed above in

paragraph 49, supra). Id. Thus, the court concluded, the plaintiffs’ claims were preempted to

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the extent they sought: (1) “equitable relief requiring Defendants to undertake ‘remedial actions’

different from or in addition to those set forth in the settlements”; (2) “damages because

Defendants failed to undertake ‘remedial actions’ that were not required by the settlements”; or

(3) “damages because Defendants did something required by the settlements, so long as there is

not also a claim that Defendants performed that task improperly or negligently.” Id.

55. The same analysis applies here. The City seeks damages because Defendants

allegedly failed to undertake remedial actions—that were not required by EPA—to remove

pollution from City property or prevent pollution from migrating to City property. See paras. 17-

18, supra. As the district court held in York, such claims are preempted by CERCLA. As such,

Defendants have raised a colorable federal defense to satisfy the third and final requirement for

removal under 28 U.S.C. § 1442.

II. The City’s Claims Necessarily Raise Substantial Federal Issues and Therefore Are
Subject to Removal Under 28 U.S.C. §§ 1331 and 1441(a)

56. Federal courts possess jurisdiction over “all civil actions arising under the

Constitution, laws, or treaties of the United States,” and such cases may thus be removed from

state to federal court. 28 U.S.C. § 1331; see also id. § 1441(a) (providing for the removal of civil

cases within the “original jurisdiction” of federal courts).

57. Generally, courts determine “whether a claim arises under federal law” by

evaluating “whether a federal question appears on the face of the plaintiff's well-pleaded

complaint” (the so-called “well-pleaded complaint rule”). Cmty. State Bank v. Strong, 651 F.3d

1241, 1251 (11th Cir. 2011) (citing Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152

(1908)). However, federal questions can arise “even where a claim finds its origins in state

rather than federal law.” Gunn v. Minton, 568 U.S. 251, 258 (2013). Indeed, even if no federal

questions appear on the face of a plaintiff’s complaint, removal will nonetheless be proper where

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the “state-law claim necessarily raise[s] 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.” Id. (quoting Grable & Sons Metal Products, Inc. v.

Darue Engineering & Mfg., 545 U.S. 308, 314 (2005)).

58. Thus, the Supreme Court has identified two situations in which federal-question

jurisdiction is available even though a plaintiff bases its claims in state court on state law:

(1) “when ‘it appears that some substantial, disputed question of federal law is a necessary

element of one of the well-pleaded state claims,’” and (2) “when it appears that the plaintiff’s

claim is ‘really one of federal law.’” W. Va. State Univ. Bd. of Governors v. Dow Chem. Co., 23

F.4th 288, 307 (4th Cir. 2022) (quoting Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation

Trust for S. Cal., 463 U.S. 1, 13 (1983)).5

59. Accordingly, in evaluating whether a plaintiff’s claims have “a sufficient federal

character to support removal,” the court must “seek to determine whether the real nature of the

claim is federal, regardless of plaintiff's characterization.” Federated Dep’t Stores, Inc. v.

Moitie, 452 U.S. 394, 397 n.2 (1981). In this way, “[c]ourts will not permit plaintiff to use artful

pleading to close off defendant’s right to a federal forum,” id., and “a plaintiff may not defeat

removal by omitting to plead necessary federal questions in a complaint,” Darden v. U.S. Steel

Corp., 830 F.2d 1116, 1119 (11th Cir. 1987) (quoting Franchise Tax Bd., 463 U.S. at 22).

5
One example of when a plaintiff’s state law claim is “really one of federal law” is where there
is complete preemption. See, e.g., Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591
F.3d 1337, 1343 (11th Cir. 2009) (“Complete preemption is a narrow exception to the well-
pleaded complaint rule and exists where the preemptive force of a federal statute is so
extraordinary that it converts an ordinary state law claim into a statutory federal claim.”).

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60. Here, the City’s claims necessarily raise disputed and substantial federal issues

sufficient to support this Court’s jurisdiction because (1) they constitute a challenge to a

CERCLA cleanup, and (2) they seek contribution for response costs under CERCLA.

A. The City’s Claims Constitute a Challenge to a CERCLA Cleanup and Thus

Necessarily Raise Disputed and Substantial Federal Issues

61. Because plaintiff’s claims will interfere with the implementation of a remedial

plan being conducted under CERCLA, they necessarily raise federal questions sufficient to

support this Court’s jurisdiction under 28 U.S.C. § 1332. The Eleventh Circuit has explained

that a complaint constitutes a “challenge” to a remedial plan—within the meaning of

CERCLA—“if it interferes with the implementation of a CERCLA remedy.” Broward Gardens

Tenants Ass’n v. EPA, 311 F.3d 1066, 1072 (11th Cir. 2002). In particular, “[t]o determine

whether a suit interferes with, and thus challenges, a cleanup, courts look to see if the relief

requested will impact the remedial action selected.” Id. Where such an impact is found, courts

have held that federal-question jurisdiction is present. See W. Va. State Univ. Bd. of Governors

v. Dow Chem. Co., 23 F.4th 288, 308 (4th Cir. 2022) (collecting cases).

62. For example, in Bartlett v. Honeywell Int’l Inc., the plaintiffs argued, “on a state

tort law theory, that Honeywell should have departed from [a] consent decree’s terms by

conducting additional or different remedial action than that mandated by CERCLA and the

consent decree.” 737 F. Appx. 543, 549 (2d Cir. 2018). The Second Circuit affirmed that the

issues implicated by the allegations, including whether Honeywell had complied with the

consent decree and “the circumstances under which CERCLA might preempt the residents’ state

tort law claims,” raised disputed and substantial federal issues that established federal-question

jurisdiction. Id. at 546. As the court explained, “a contrary holding that the district court lacks

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jurisdiction could allow litigants to use the state courts as a vehicle to undermine a federal

court’s ability to police its consent decrees.” Id. (quotation omitted).

63. In this case, the City’s claims—alleging continuing trespass and nuisance—

implicate and threaten to interfere with the ongoing implementation of a CERCLA cleanup that

Defendants are performing under EPA’s direction. As the City’s allegations reflect, Defendants

have been investigating and remediating environmental contamination at the LCP Chemicals

Superfund Site since 1994. See Compl. ¶¶ 69, 72. In 1995, Defendants entered into an

agreement with EPA to undertake a Remedial Investigation and Feasibility Study at the Site; in

2015, EPA selected a remedy for the Site; and in 2016, Defendants entered into a Consent

Decree with EPA to implement that remedy. See paras. 23-28, supra.

64. In its Complaint, the City effectively asks Defendants to go further than the terms

of the Consent Decree and, in the process, seeks to use a state court “as a vehicle to undermine a

federal court’s ability to police its consent decrees.” Bartlett, 737 F. Appx. at 546. This is true

irrespective of whether the City expressly seeks injunctive relief to alter or expand EPA’s

selected remedy. See, e.g., New Mexico v. Gen. Elec. Co., 467 F.3d 1223, 1249-50 (10th Cir.

2006) (recognizing that preemption was appropriate when plaintiffs’ arguments “might place

[defendants] in the unenviable position of being held liable for monetary damages because they

are complying with an EPA-ordered remedy which [they] have no power to alter without prior

EPA approval”). Under such circumstances, the substantial and disputed federal issues raised by

the City’s claims support this Court’s jurisdiction under 28 U.S.C. § 1332.

65. Further, and as a separate and independent basis for this Court’s jurisdiction,

Section 113(b) of CERCLA confers on the federal district courts “exclusive original jurisdiction

over all controversies arising under [CERCLA].” 42 U.S.C. § 9613(b). Here, the United States

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(on behalf of EPA) already filed a civil action against Defendants in this Court pursuant to

Sections 106 and 107 of CERCLA, 42 U.S.C. §§ 9606, 9607, to address remediation of the Site.

See EPA Complaint. This Court approved the Consent Decree in that action and expressly

“retain[ed] jurisdiction over both the subject matter of [the Consent Decree] and the Parties for

the duration of the performance of the terms and provisions of [the Consent Decree].” Consent

Decree at 33 ¶ 84. As such, this Court is the proper forum to address the City’s claims

challenging the sufficiency of Defendants’ remedial efforts under the Consent Decree.

B. The City’s Claim that It Is a Potentially Responsible Party Entitled to

Contribution from Defendants Raises Substantial Questions of Federal Law

66. Separately, the City alleges that, “[a]s a direct result of Defendants’ wrongful

actions,” it has been rendered “potentially liable for the remediation of the waste on its

property.” Compl. ¶ 100. It further contends that Defendants are “liable for all such remediation

costs and damages.” Id. The City thus effectively argues that it is a potentially responsible party

(“PRP”) under CERCLA and demands contribution from Defendants. Such claims depend on

federal law for resolution and therefore implicate substantial and disputed federal questions

sufficient to support this Court’s jurisdiction.

67. A “potentially responsible party” is any person who “may be liable” under

Section 107(a) of CERCLA. 40 C.F.R. § 304.12(m). CERCLA intentionally defines such

liability in broad terms. See 42 U.S.C. § 9607(a). “[E]ven parties not responsible for

contamination may fall within the broad definitions of PRPs” under the statute. United States v.

Atlantic Research Corp., 551 U.S. 128, 136 (2007). That includes “‘innocent’ . . . landowner[s]

whose land has been contaminated by another.” Atlantic Richfield, 140 S. Ct. at 1353 (quoting

Atlantic Research Corp., 551 U.S. at 136). As the Supreme Court recently explained, broadly

interpreting PRPs to “include owners of polluted property reflects the Act’s objective to develop,

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as its name suggests, a ‘Comprehensive Environmental Response’ to hazardous waste pollution.”

Id. CERCLA thus ensures “the careful development of a single EPA-led cleanup effort rather

than tens of thousands of competing individual ones.” Id.; see also In re Acushnet River & New

Bedford Harbor, 675 F. Supp. 22, 31 (D. Mass. 1987) (“In attempting to eliminate the dangers of

hazardous wastes, CERCLA presents a national solution to a nationwide problem.”); United

States v. Chem-Dyne Corp., 572F. Supp. 802, 808 (S.D. Ohio 1983) (“The improper disposal or

release of hazardous substances is an enormous and complex problem of national magnitude

involving uniquely federal interests.”).

68. Assuming as true the City’s allegations that it faces liability for remediation of

pollution associated with the LCP Chemicals Superfund Site, CERCLA’s national, uniform

approach to addressing such issues is clearly implicated. That is particularly true here, where the

United States (on behalf of EPA) already has filed a civil action under Sections 106 and 107 of

CERCLA, 42 U.S.C. §§ 9606, 9607, to address remediation of the Site. See EPA Complaint.

69. There are at least three questions presented by the City’s allegations that turn on

federal law: (1) whether the City is a PRP, (2) the extent to which the City is entitled to

contribution from Defendants, and (3) the extent to which Defendants are entitled to contribution

from the City, including but not limited to contribution for response costs incurred in relation to

contamination released or discharged by the City. As to the latter two questions, deciding the

precise scope of the City’s liability for environmental contamination associated with the Site will

involve the resolution of substantial questions under CERCLA. See Atlantic Richfield, 140 S. Ct.

at 1353 (summarizing defenses regarding and limitations on the liability faced by PRPs).

Moreover, the statute expressly provides for a means of seeking contribution from another PRP,

such as Defendants. See 42 U.S.C. § 9613(f)(1) (“Any person may seek contribution from any

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other person who is liable or potentially liable under section 9607(a) of this title, during or

following any civil action under section 9606 of this title or under section 9607(a) of this title.”).

At bottom, “[w]here contribution is sought by one who has had to pay damages for violating a

federal statute, the scope and limitations of the right of contribution are invariably treated as

questions of federal rather than state law.” Donovan v. Robbins, 752 F.2d 1170 (7th Cir. 1985).

70. Courts have thus recognized that claims pled in state law may nonetheless remain

“inextricably tied to CERCLA” and depend on the resolution of substantial questions of federal

law. New Mexico v. General Electric, 335 F. Supp. 2d 1157, 1178 (D.N.M. 2003). For example,

in New Mexico, plaintiffs sought damages based on contamination at a site that was already

subject to ongoing remediation under CERCLA. Id. at 1177. Though these claims were brought

under state law, the court found that plaintiff’s claims “must be defined in terms of the CERCLA

remedy and the scope and extent of the ongoing CERCLA remediation” given that they sought

damages that were “residual at the end of the currently operated remediation system.” Id. at

1177-78. The court thus recognized that, “in a limited respect, Congress has ‘federalized’ state

law as it relates to recovery for injuries caused by the release of hazardous substances: such state

environmental claims are ‘controversies arising’ under CERCLA, as well as state law, because it

is the federal statute that defines when they accrue.” Id. at 1178 (quoting Bolin v. Cessna

Aircraft Co., 759 F. Supp. 692, 716 (D. Kan. 1991)).

71. In this case, the City seeks damages for alleged contamination arising in

connection with an ongoing remediation effort. The City does so, at least in part, because it

recognizes that it is potentially liable for that contamination under CERCLA and seeks

contribution from two other PRPs. The resolution of these claims necessarily implicates

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substantial and disputed questions of federal law under the CERCLA statute. These federal

questions are therefore sufficient to establish this Court’s jurisdiction under 42 U.S.C. § 1332.

III. The City Fraudulently Joined Georgia Power and Therefore This Action Is
Removable Under 28 U.S.C. §§ 1332(a) and 1441(b)

72. “To establish fraudulent joinder, ‘the removing party has the burden of proving

[by clear and convincing evidence] that either: (1) there is no possibility the plaintiff can

establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently

pled jurisdictional facts to bring the resident defendant into state court.’” Stillwell v. Allstate Ins.

Co., 663 F.3d 1329, 1332 (11th Cir. 2011) (quoting Crowe v. Coleman, 113 F.3d 1536, 1538

(11th Cir. 1997)).

73. There is no possibility that the City can establish a cause of action against Georgia

Power.

A. The Statute of Limitations Bars the City’s Claims.

74. First, the City cannot establish a cause of action against Georgia Power because

Georgia Power last emitted the alleged mercury from combusting coal over fifty years ago – in

1972; therefore, the statute of limitations bars the City’s claims. See, e.g., Grancare, LLC v.

Thrower by & through Mills, 889 F.3d 543, 548 (9th Cir. 2018) (“We have upheld rulings of

fraudulent joinder where a defendant demonstrates that a plaintiff is barred by the statute of

limitations from bringing claims against that defendant.”); Owens v. Life Ins. Co. of Georgia,

289 F. Supp.2d 1319, 1326 (M.D. Ala. 2003) (finding fraudulent joinder due to expiration of the

statute of limitations.).

75. Trespass and nuisance claims are subject to a four-year statute of limitation.

O.C.G.A. § 9-3-30(a).

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76. “[W]hether a nuisance is deemed to be continuing or permanent in nature

determines the ‘manner in which the statute of limitations will be applied.’” Oglethorpe Power

v. Forrister, 289 Ga. 331, 333 (2011) (quoting City of Atlanta v. Kleber, 285 Ga. 413, 416

(2009)).

77. If a nuisance is not abatable, it is considered permanent. Forrister, 289 Ga. at

333. “A nuisance is deemed not abatable, even if possible to abate, if ‘it is one whose character

is such that, from its nature and under the circumstances of its existence, it presumably will

continue indefinitely.’” Id. (quoting Bainbridge Power Co. v. Ivey, 41 Ga. App. 193, 193

(1930)). A permanent nuisance gives but one right of action which accrues immediately upon

the creation of the nuisance. Kleber, 285 Ga. at 416 (2009).

78. Moreover, “‘[i]n cases in which a public utility or governmental agency erects a

harmful structure such as a bridge or conducts a harmful activity such as opening a sewer that

pollutes a stream and the interference with the plaintiff's interests is not abatable by a proceeding

in equity, the statutory period normally begins when the structure is completed or the activity is

begun.’” Forrister, 289 Ga. at 333 (quoting Restatement (Second) of Torts § 899, cmt. D).

79. “[I]f the invasions are caused by some substantial and relatively enduring feature

of the plan of construction or from an essential method of operation, then it will usually not be

abatable by injunction. . . .” Forrister, 289 Ga. at 334 (quoting Restatement (Second) of Torts

§ 930, cmt. D).

80. Georgia Power is a public utility.

81. Any alleged mercury emissions from Georgia Power’s operations at the Site or

from Plant McManus were not and are not abatable by a proceeding in equity because the alleged

mercury emissions allegedly caused by burning coal to generate electricity resulted from the plan

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of construction and essential method of operation of Plant McManus and/or Georgia Power’s

operation at the Plant Site. Thus, the alleged trespass and/or nuisance by Georgia Power was not

and is not considered abatable.

82. The alleged trespasses and nuisances from Georgia Power’s operations meet the

definition of permanent nuisances – not continuing nuisances – as they are alleged in the City’s

Complaint.

83. Because the City alleges the mercury was emitted from a coal-fired plant, the

latest Georgia Power would have emitted the alleged mercury was 1972 – the year Georgia

Power ceased combusting coal at Plant McManus. Thus, the last alleged mercury emissions

occurred more than fifty years ago.

84. The statutory period under O.C.G.A. § 9-3-30(a) and/or its predecessor

terminated, at the latest, in 1976 – four years after Plant McManus stopped allegedly emitting

mercury.

85. O.C.G.A. § 9-3-30(a) bars the City’s claims against Georgia Power in their

entirety because Georgia Power would have last emitted the alleged mercury over fifty years

ago.

B. The City Has Failed to Sufficiently Allege Its Trespass and Nuisance Claims

86. As to the City’s trespass claim, it cannot state a claim against Georgia Power

because the City fails to state a prima facie claim of trespass.

87. “‘[T]he act of trespass must have been a voluntary, intentional act in that it

intended the immediate consequences of the act, causing the trespass or invasion, i.e., an

intended act as opposed to a negligent act.’” Rouse v. City of Atlanta, 353 Ga. App. 542, 546

(2020) (quoting Lanier v. Burnette, 245 Ga. App. 566, 570 (2000)).

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88. The City’s Complaint fails to allege Georgia Power’s actions were intentional for

the purpose of pleading the intentionality requirement for trespass; therefore, the City cannot

state a trespass claim against Georgia Power.

89. The City’s Complaint fails to allege any mercury on the City’s property was

intentionally placed on the City’s property by Georgia Power; therefore, the City cannot state a

trespass claim against Georgia Power.

90. The City cannot prove any mercury on the City’s property was intentionally

placed by Georgia Power on the City’s property; therefore, the City cannot state a trespass claim

against Georgia Power.

91. Finally, the City cannot establish a nuisance claim against Georgia Power because

“[t]hat which the law authorizes to be done, if done as the law authorizes, cannot be a nuisance.

Thus, where the act is lawful in itself, it becomes a nuisance only when conducted in an illegal

manner to the hurt, inconvenience or damage of another.” City of Douglasville v. Queen, 270

Ga. 770, 773 (1999).

92. Georgia Power’s alleged actions in Paragraphs 87 and 88 of the City’s Complaint

were authorized by law and done as the law authorizes. The statutes the City cites for the

allegation that Georgia Power’s alleged actions were illegal, O.C.G.A. §§ 12-5-29(a), (b) and 12-

5-53, did not become effective until 1996 and 1986, respectively. Georgia Power could not have

violated laws that did not exist at the time the alleged wrongful conduct occurred – 1937 through

1972. Accordingly, the City cannot establish a nuisance claim against Georgia Power.

93. In sum, the City fraudulently joined Georgia Power to this Action because (1) the

statute of limitations bars the City’s claims against Georgia Power; and, separately, (2) the City

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fails to allege the elements required to state a claim for trespass against Georgia Power; and the

City fails to allege Georgia Power’s actions were illegal.

C. Diversity Jurisdiction Exists Because Georgia Power Was Fraudulently

Joined

94. The City is a citizen of the State of Georgia. Honeywell is a corporation

incorporated under the laws of the State of Delaware. Its principal place of business is 855 S.

Mint Street, Charlotte, North Carolina 29201. Honeywell is therefore a citizen of the States of

Delaware and North Carolina. Georgia Power is a citizen of the State of Georgia; however, as

shown above, Georgia Power was fraudulently joined to this Action to defeat Diversity

Jurisdiction under 28 U.S.C. § 1332(a). Thus, all of the properly joined parties are citizens of

different states under 28 U.S.C. § 1332(a)(1).

95. The amount in controversy exceeds $75,000 under 28 U.S.C. 1332(a). The City

alleges more than fifty years of tortious conduct causing damage to hundreds or thousands of

acres of the City’s property – all allegations the Defendants dispute.

96. Accordingly, because the properly joined parties to this Action have diversity of

citizenship and this Action meets the amount in controversy requirement, this Action is

removable under 28 U.S.C. 1441(b).

COMPLIANCE WITH OTHER REMOVAL REQUIREMENTS

97. Based on the foregoing, this Court has original jurisdiction of this Action under

28 U.S.C. §§ 1331, 1441, and 1442(a).

98. The United States District Court for the Southern District of Georgia is the

appropriate venue for removal under 28 U.S.C. § 1441(a) because it is the federal judicial district

encompassing the Superior Court of Glynn County, Georgia, where this suit was originally filed.

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99. Pursuant to 28 U.S.C. § 1446(a), copies of all process, pleadings, and orders from

the State Court Action are attached hereto as Exhibit E.

100. Pursuant to 28 U.S.C. § 1446(d), Honeywell will promptly file a copy of this

Notice of Removal, as well as a Notice of Filing of this Notice of Removal, with the clerk of the

Superior Court of Glynn County, Georgia, and serve a copy of the same on the City.

101. Honeywell reserves all defenses and objections available under applicable law,

and the filing of this Notice of Removal is subject to, and without waiver of, any such defenses

or objections.

CONCLUSION

For the foregoing reasons, Honeywell and Georgia Power respectfully give notice that

this Action is hereby removed from the Superior Court of Glynn County, Georgia, to the United

States District Court for the Southern District of Georgia.

RESPECTFULLY SUBMITTED, this 18th day of November, 2022.

/s/ Mark D. Johnson

Mark D. Johnson
Georgia Bar No. 395041

/s/ Amber M. Carter

Amber M. Carter
Georgia Bar No. 631649

Gilbert, Harrell, Sumerford & Martin, P.C.

777 Gloucester St., Ste. 200
Brunswick, GA 31520
P: (912)265-6700
F: (912)264-0244
mjohnson@gilbertharrelllaw.com
acarter@gilbertharrelllaw.com

Attorneys for Defendant

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Honeywell International, Inc. f/k/a Allied

Chemical Corporation and as AlliedSignal,
Inc.

/s/ Benjamin H. Brewton

Benjamin H. Brewton
Georgia Bar No. 002530

/s/ T. Joshua R. Archer

T. Joshua R. Archer
Georgia Bar No. 021208

Balch & Bingham LLP

801 Broad Street
Suite 800
Augusta, Georgia 30901
P: (706)842-3711
F: (866)258-8984
bbrewton@balch.com
jarcher@balch.com

Attorneys for Defendant

The Georgia Power Company

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 Case 2:22-cv-00132-JRH-BWC Document 1 Filed 11/18/22 Page 32 of 33

CERTIFICATE OF SERVICE

I, Mark D. Johnson, certify that I have electronically filed the foregoing DEFENDANT

HONEYWELL INTERNATIONAL, INC. AND DEFENDANT THE GEORGIA POWER

COMPANY’S NOTICE OF REMOVAL with the Clerk of the Court using the CM/ECF system

which will automatically send electronic mail notification of such filing to counsel of record who

are CM/ECF participants; I have also emailed the pleading upon all parties to this matter; and I

have also deposited a true copy of the same in the United States Mail, proper postage prepaid as

follows:

John C. Bell, Jr
Pamela S. James
THE BELL FIRM
PO Box 1547
Augusta, Georgia 30903-1547
(706)722-2014
john@bellfirm.net
pam@bellfirm.net

Robert P. Killian
KILLIAN LAW FIRM LLC
47 Professional Drive
Brunswick, Georgia 31520
(912)263-9520
bob@killianlawfirm.com

Brian Donald Corry

McQUIGG SMITH & CORRY
504 Beachview Drive
Suite 3D
Saint Simons Island, Georgia 31522
(912)638-1174
brian@msclawga.com

Attorneys for Plaintiff

Respectfully submitted this 18th day of November, 2022.

/s/ Mark D. Johnson

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Case 2:22-cv-00132-JRH-BWC Document 1 Filed 11/18/22 Page 33 of 33

Gilbert, Harrell, Sumerford & Martin, P.C.

777 Gloucester St., Ste. 200
Brunswick, GA 31520
P: (912)265-6700
F: (912)264-0244
mjohnson@gilbertharrelllaw.com

Attorney for Honeywell International, Inc.

f/k/a Allied Chemical Corporation and as
AlliedSignal, Inc.

33