CA1: the difference between ordinary and complete preemption

Fayard v. Northeast Vehicle Services, No. 07-2222.  This is a dispute between neighbors.  The defendant operates a car distribution facility that apparently is quite noisy.  The defendants removed to the District Court.  The District Court held that removal was proper because the Interstate Commerce Commission Termination Act ("ICCTA"), Pub. L. No. 104-88, 109 Stat. 803 (codified in scattered sections of 11, 45, and 49 U.S.C. (2000), the District Court said, completely preempts state law.  The District Court certified the issue, and denied a motion for an injunction.

The First explains that “complete preemption.. is a short-hand for the doctrine that in certain matters Congress so strongly intended an exclusive federal cause of action that what a plaintiff calls a state law claim is to be recharacterized as a federal claim. A federal claim, of course, falls within the district court's federal question jurisdiction” and “ordinary preemption--i.e., that a state claim conflicts with a federal statute--is merely a defense and is not a basis for removal.”  It also says that complete preemption is narrow and rare.  (Law students, take note.)

Therefore, the First says “For complete preemption, the critical question is whether federal law provides an exclusive substitute federal cause of action that a federal court (or possibly a federal agency) can employ for the kind of claim or wrong at issue.”  And then, the court figures that a nuisance claim was never preempted, so  the claim goes back to state court, where, of course, the defendants could raise federal law as a defense.