FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

C I T Y O F O AK

LA ND , a Municipal Corporation, and The People of the State of California, acting by and through the Oakland City Attorney; C I T Y A

ND C O U N T Y O F S A N F R A N C I S C O , a Municipal Corporation, and The People of the State of California, acting by and through the San Francisco City Attorney Dennis J. Herrera,

Plaintiffs-Appellants ,

v

.
BP PLC, a public lim ited
com p any of England and W ales; C H EVRON C O R

P O R A T I ON , a Delaware corporation; C ON O C O P H I L L I P S , a Delaware corporation; E X

X O N M O B I L C O R P O R A T I ON , a New Jersey corporation; R O Y

AL D UT C H S H E L L PLC, a public lim ited
com p any of England and W ales; D O E S , 1 through 10,

Defendants-Appellees. No. 18-16663

D.C. Nos. 3:17-cv-06011-W HA 3:17-cv-06012-W HA

ORDER AND AMENDED OPINIONC I T Y O F O AK LA ND V

. B P 2 Appeal from

the United States District Court for the Northern District of California W illiamAlsup, District Judge, Presiding Argued and Subm itted February 5, 2020 Pasadena, California Filed May 26, 2020 Am ended August 12, 2020 Before: Sandra S. Ikuta, Morgan Christen, and Kenneth K. Lee, Circuit Judges.

O rder; Opinion by Judge Ikuta

SUMMARY *

Removal/Subject-Matter Jurisdiction

The panel vacated the district court’s judgm ent and order denying d efendants’ m otion to rem and cases to the state court from which they had been rem oved on the ground that plaintiffs’ c laim arose under f ederal law, and rem anded for the d istrict court to consider whether there was an alternative basis for subject-m atter jurisdiction.

The City of Oakland and the City a n d Co unty of San Francisco filed com

plaints in California state court asserting

* This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.C I T Y O F O AK LA ND V

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a California public-nuisance claim against five energy com panies arising from the role o f fossil f uel produc ts i n global warm ing. The com plaints sought an o r d e r o f abatem ent requiring the energy com panies to fund a clim ate change adaptat ion program for the cities. The energy com panies rem oved the com plaints to federal court, identifying seven grounds for subject-m atte r jurisdiction, including that the cities’ public-nuisance claim was governed by federal comm on law. The district court denied the cities’
m otion to rem and the cases to state court, holding that it h ad federal-question jurisdiction under 2 8 U.S.C. § 1331 because the cities’ claim was “necessarily governed by fe d eral
comm on law.” The cities am ended their com p la ints to include a f

ederal nuisance claim

. T h e district court dism issed for failure t o s t ate a claim , and it dism issed four defendants for lack of personal jurisdiction. Considering the pleadings filed at the tim e of rem o val, the panel held that the stat e -l a w public-nuisance claim did not arise under feder a l l a w fo r purposes of § 1331. The panel explained that there is an except i o n to the well-pleaded
com plaint rule for a claim that arises un d e r federal law because federal law is a necessary elem ent of the claim

. This exception applies when a federal issu e i s necessarily raised, actually disputed, substantial, a n d c ap able of resolution in feder al court without disrupting the f ederal-state balance approved by Congress. The panel conclude d th at this exception did not apply because the state-law claim f or public nuisance failed to rais e a substantial f ederal question. A second exception, referred to as the “art ful-pleading doctrine,” allows rem o val where federal law c o mpletely preem pts a state-law claim

. The panel concluded th a t th i s exception did not apply because the state-law claim was not
com pletely preempted by the Clean Air Act.C I T Y O F O AK LA ND V

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The p anel further h eld that the cities c ur ed any subjectmatter jurisdiction defect by am ending their com p lain ts t o as s e rt a claim under f

ederal comm on law. Thus, at the tim e the district court dismi s s ed the cities’ com plaints, there was subject-m atter jurisdiction. Nonetheless, the panel held that it could not affirm the district court’s d ism issals if there was not subject-m atter jurisdiction a t th e t im e of rem oval. The panel concluded that th e cities did not waive their argum ent in favor o f rem and by am ending their com plaints. The panel also rejected the energy com panies’ argum ent that any im p ropriety with respect to rem oval could be excused by
cons i d er a tions of finality, efficiency, and economy. The panel agreed with the F ifth Circuit that a dism issal for failure to state a claim , unlike a grant of sum m ary judgm ent o r judgm ent after trial, is generally insufficien t t o forestall an otherwise proper rem and.

The panel rem anded the cases to the d i s tr i ct court to determ ine if there was an alternative basis for jurisdiction.

C OUNSEL

Michael Rubin (argued), Barbara J. Chishol m, Rebecca Moryl Lee, and Co r inne F. Johnson, Altshuler Berzon LLP, San Francisco, Californ i a; Victor M. Sher and Matthew K

. Edling, Sher Edling L L P, San Francisco, California; Barbara J. P arker, City At torney; Maria Bee, S pecial Counsel; Erin Bernstein, Supervising Attorney; Malia McPherson, Deputy; Office of the City A ttorney, Oak land, California; Dennis J. Herrer a, City Attorney; Ronald P. Flynn, Chief Deputy; Yvonne R. Meré, Chief, Com plex Litigation; Matthew D

. Gol db e r g and Robb W

. Kapla, D eputies; City Attorney’s Office, San Francisco, California; for Plaintiffs-Appellants.C I T Y O F O AK LA ND V

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Theodore J. Boutrous, Jr. (argued), Andr e a E. N eum an, and W illiam E

. Thom son, Gibson Dunn & Crutcher LLP, Los Angeles, C alifornia; Joshua S. Li pshutz, Gibson Dunn & Crutcher LLP, San Francisco, California; Ne a l S. Manne, Johnny W

. Carter, Erica Harris, and Steven Shepard, Susm an Godfrey LLP, Houston, T exas; Herbert J. Stern and J o e l M. Silverstein, Stern & Kilcullen LLC, Florham Park, Ne w Jersey; Andrea E. Neum an and W illiam E. Thom son, Gibson Dunn & Crutcher L LP, Los Angeles, Cali fornia; Joshua S. Li pshutz and T hom as G. Hungar, Gibson Dunn & Crutch e r LLP, W ashington, D.C.; Neal S. Manne, Johnny W

. Carter, Erica Harris, and Steven Shepard, Susm an Godfrey LLP, Housto n , T exas; Herbert J. S tern and Joel M. Silverstein, Stern & Kilcull e n LLC, Florham Park, N ew Jersey; for Defendant-Appellee Chevron Corporation.

Kannon K

. Shanm

ugam (argued), P aul W eiss Rifkind Wharton & Garrison LLP, W ashington, D.C.; Theodore V

. W ells Jr., D aniel J. T oal, and Jaren Janghorbani, Paul W eiss Rifkind Wh arton & Garrison LLP, New York, N ew York; M. Randall Oppenheim er and Dawn Sestito, O’Melveny & Myers LLP, Los Angeles, California; for DefendantAppellant Exxon Mobil Corporation.

Daniel B

. Levin, Munger Tolles & Olson LLP, Los Angeles, California; Jerom e C. Roth and Elizabeth A. Kim , Munger To l l e s & Olson LLP, San Francisco, California; D avid C. Fre d erick and Brendan J. C rimm ins, Kellogg Hansen Todd Figel & Frederick P.L.L.C., W ashington, D .C.; for Defendant-Appellee Royal Dutch Shell PLC.

Jonathan W

. Hughes, Arn o ld & Porter Kaye Scholer LLP, San F rancisco, California; Matthew T. Heartney and John D

. Lom b ardo, Arnold & Porter Kaye Scholer LLP, Los Angeles,C I T Y O F O AK LA ND V

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Cal i fo rnia; Philip H. Curtis and Nancy Milburn, Arnold Porter Kaye Scholer L L P, New York, New York; for Defendant-Appellee for BP PLC.

Sean C

. Grim sley and Jam eson R. Jones, Bartlit Be c k LLP, Denver, Colorado; Megan R. Nishikawa and Nichol a s A

. Miller-Stratton, King & Spalding LLP, San Francisco, California; Tracie J. R enfro e a nd Carol M. W ood, King & Spalding LLP, Houston, Texas; for Defendant-Appellant ConocoPhillips.

Jonathan Brightbill (argu ed) an d E ric Grant, D ep uty A ssistan t Attorneys General; Robert J. Lundm an, R. Justin Sm ith, and Christine W

. En n i s, Trial Attorneys; Environm ent and Natural Resources Division, United States De p a rtm ent o f Justice, W ashington, D.C.; for Am icus Curiae United States.

Michael B urger, Morningside Heights Legal Services, Inc., New York, New York, for Am ici Curiae National League o f Cities, U.S. Conference of Mayors, and Inte rn a t ional Municipal Lawyers Association.

Michael R. Lozeau and Richard T. Drury, Lozeau D rury LLP, Oakland, California, for Am ici Curiae Conflict of Laws and Foreign Relations Law Scholars.

Gerso n H

. S m o ger, Sm oger & Associates P.C., Dallas, Texas; Robert S. Peck, Center f or C onstitutional Litigation P.C., W ashington, D.C.; for Am ici Curiae Senators Sheldo n W h i t e h o u se, D ian

n e F ein stein , Ri ch ard B lum enth al, Mazie K

. Hirono, Edward J. Markey, and Kam ala D. Harris.C I T Y O F O AK LA ND V

. B P 7 Seth Davis, Berkeley, California; Ruthanne M. Deutsch and Hyland Hunt, Deutsch H unt PLLC, W ashington, D.C.; for Am ici Curiae Legal Scholars.

John W

. Keker, Matthew W erdegar, and Dan Jackson, Keker Van Nest & Peters LLP, San Francisco, California; Harold Hongju Koh and Conor Dwyer Reynolds, Rule of Law C linic, Y ale L aw S c h o o l, New Haven, Connecticut; for Am ici Curiae Form er U.S. Governm ent Officials.

Jam es R. W illiam s, County Counsel; Greta S. Hansen, Chief Assistant County C ounsel; Laura S. Trice, Lead D eputy County Counsel; T ony L oPresti, Deputy County Counsel ; Office of County Counsel, County of Santa Clara, San José, California; for Am icus Curiae California State Association o f Counties.

Daniel P. Mensh e r a n d Alison S. Gaffney, Keller Rohrback L.L.P., Seattle, W ashington, for Am ici Curiae Robert Brulle, Center for Clim ate Integrity, Justin Farrell, Benjam in Franta, Stephan Lewan d o wsky, Naom i Oreskes, Geoffrey S upran, and Union of Concerned Scientists.

K enn eth L

. A d am s, A d am s H o lco m b L L P , W ash in g ton, D.C.; W illiam A

. Ro ssbach, Rossbach Law PC, Missoula, Montana; for Am ici Curiae Mario J

. Molina, Michael Oppenheim er, Bob Kopp, F riederike O tto , S u san n e C

. Mo ser, Donald J

. Wu ebbles, Gary Griggs, Peter C. Frumh off, and Kristina Dahl.

Ian Fein, Natural Resources Defense C ouncil, San Francisco, California; Peter Huffm an, Natural Resources De fense Council, W ashington, D.C.; for Am icus Curiae Natural Resources Defense Council.C I T Y O F O AK LA ND V

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Xavier Becerr a , A ttorney General; Sally Magnani, Senior Assistant Attorney General; Dav id A. Zonana, Supervising Deputy Attorney General; Erin Ganahl a n d Heather L eslie, Deputy Attorneys General; A ttorney General’s Office, Sacram ento, California; W illiam Tong, B rian E. Frosh, Keith Ellison, Gurbir S. Grewal, Letitia Jam es, Ellen F

. Rosenblum ; Peter F. Nero n h a , Thom as J. Donovan Jr., Robert W

. Ferguson, and Karl A. Racine, Attorneys General; for Am ici Curiae States of California, Connecticut , Maryland, Minnesota, New Jersey , Ne w York, O regon, Rhode Island, Verm ont, and W ashington, and the District of Columb ia.

Steven P. Lehotsky, Michael B. Schon, and Jonathan D. Urick, U.S. Cham

ber Litigation Center, W ashingt o n , D.C.; Peter D. Keisler, C. F rederick Beckner III, Ryan C. Morris, and To b ias S. Loss-Eaton, Sidley Austin LLP, W ashington, D.C.; Zachary D. Tripp and Lauren E. Morris, W eil Gotshal & Manges LLP, W ashington, D.C.; Sarah M. Sternlieb, W eil Gotshal & Manges LLP, New York, New York; for Am icus Cur ia e Cham

ber of Comm erce of the United States o f Am erica.

Corbin K. Barthold and Cory L. Andrews, W ashington Legal Foundation, W as h in g to n, D.C., for Am icus Curiae W ashington Legal Foundation. Philip S. Gol db e rg and Christopher E

. Appel, Shook Hardy & Bacon LLP, Wa shington, D.C.; Linda E. Kelly and Peter C. Tolsdorf, Manufacturers’ Cente r for Legal Action, W ashington, D.C.; for Am icus Curi ae National Association of Manufacturers.

Curtis T. Hill, Jr., Attorney General; Thom as M. Fi sher, Solicitor General; Kian J. Hudson, Deputy Solicitor G eneral;C I T Y O F O AK LA ND V

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Julia C. Payne and Robert Rowlett, De p u ty Attorneys General; Office o f the Attorney General, Indianapolis, Indiana; Steve Marshall, Kevin G

. C larkson, Leslie Rutledge, Christopher M. Carr, Derek Schm idt, Jeff Landry, Er ic Schm i t t , Tim F ox, Doug Peterson, W ayne Stenehjem , Dave Yost, Mi ke H unter, Alan W ilson, Jason R. Ravnsborg, Ken Paxto n , Sean Reyes, Patrick Morrissey, and Bridget Hill, Attorneys General; for Am ici Curiae States of I n diana, Alabam a, Alaska, Arkansas, Georgia, Kansas, L o uisiana, Missouri, Montana, Nebraska, North Dako t a , Ohio, Oklahom a, South Carolina, S outh D akota, Texas, Utah, W est Virginia, and Wyom ing.
Raym ond A. Card o z o and David J. de Jesus, R eed Sm ith LLP, San F ran cisco , C alifornia; Richard A. Epstein, Chicago, Illinois; fo r Am ici Curiae Professors Richard A. Epstein, Jason Scott Johnston, and Henry N. Butler.C I T Y O F O AK LA ND V

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ORDER

The opinion filed on May 26, 2020, appearing at 960 F.3d 570 (9th Cir. 2020), is am ended as follows: At page 585, footnote 12, replace:

<The district court requested supplem ental brie fi ng on how the concept of the “‘navigable wat e r s o f the United States’

. . . relates t o the rem oval jurisdiction issue in th[e] case.” As the C ities pointed out, h o wever, the Energy Com panies w aived any argum ent related to adm iralty jurisdiction by not invoking it i n their notices of rem oval. See 28 U .S.C. § 1446(a) (noti c e o f rem oval m ust “contain[]
a short an d p lain statem ent of the grounds for rem oval”); ARCO , 2 1 3 F.3d at 1117 (notice of rem oval “cannot be
am ended to add a separate b asis for rem oval jurisdiction after the thirty day per i o d” (citation om itted)); O’Halloran , 856 F.2d at 1 381 ( sam e). Thus, the district court should confine its analysis to the bases for jurisdiction asserted in the notices of rem oval.>

with

<The E nergy Com

panies identified six alternate bases for subject-ma t ter jurisdiction in their notices of rem oval. See supra note 2. On appeal, the Ener g y Com p anies identified admiralty jurisdiction, 28 U.S.C. § 1333, as a seventh alternate basis for jur i sdiction. A s the Cities p oint out, h o w ev e r, th e E n ergy C o m p an ies waived any argu

m ent r e lated to adm iralty jurisdiction by not invoking it in their notices o f
rem oval. See 28 U.S.C. § 1446(a) (notice of rem oval m ust “contain[] a short and plain statem ent of the g r o un d s for
rem oval”); A RCO , 213 F.3d at 1 117 (noti c e of rem ovalC I T Y O F O AK LA ND V

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“ca n no t be am ended to add a separate basis for rem oval jurisdiction after the thirty day period” (citation om itted ) ) ; O’Halloran , 856 F.2d at 1381 (sam e). Because the deadline for am ending the notices of rem oval has passed, the Energy Com panies m ay not rely on adm iralty jurisdiction as a basis for rem o v al on rem and. Moreover, the Energy Com panies’ related argum ent that there is federal-question jurisdiction, 28 U.S.C. § 1331, because “the instrum entality of the alleged harm i s the navigable waters of the United States,” fails for the reasons set forth in Part II, supra

. >

***

W ith this am endm ent, the panel has unanim ously voted to d eny Defendants-Appellees’ Petition for P anel Rehearing and/or Rehearing En Banc (ECF No. 175).

The full court h a s b ee n advised o f the Petition for Panel Rehearing and/or Rehearing En Banc, and no Judge has requested a vote o n wh ether to rehear the m atter en banc. Fed. R. App. P. 35.

The Pe t ition for Panel R ehearing and/or Rehearing E n Banc is DENIED

. No f urther p etitions for rehearing o r rehearing en banc m ay be filed.

OPINION IKUTA, Circuit Judge:

Two California cities brought actions in state court alleging that the defendants’ production and prom otion o fC I T Y O F O AK LA ND V

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fossil fuels is a public nuisance under C alifornia law, and the defendants rem oved the com p laints to federal court. W e hold th at the state-law claim f or public nuisance does not arise under federal law for purposes of 28 U.S.C. § 133 1 , a n d we rem and to the district court to consider whether there was an alternative basis for subject-m atter jurisdiction.

I

In Septem

ber 2017, the city attorneys for the C ity of Oakland and the City and County of Sa n Francisco filed
com plaints in California state court asserting a California public -nui s ance claim against five of the world’s largest energy com

p anies: BP p.l.c., Chevron Corporation, ConocoPhillips, Exxon Mobil Corporation, and Royal Dutch Shell plc. 1 The com

plaints claim that th e defendants are liable for causing or contributing to a public nuisance under California law. See Cal. Civ. Code §§ 3479, 3480, 3491, 3494; C al. Civ. Proc. Code § 7 31. W e refer to the plaintiffs collectively as the “Cities” and to the defendants collectively as the “Energy Com

panies.” According to the com

plaints, the Energy Comp a n ies’ “production and prom otion of ma s s ive quantities of fossil fuels” caused or contributed to “global warm ing-induced sea level rise,” leading t o c oastal flooding of low-lying shorelines, increased shoreline erosion, salt-water im p acts on th e Cities’ wastewater treatm ent system s, and interference wi th stormwater infrastructure, am ong other injuries. Th e

1 Under California law, a ci ty attorney m ay bring an action to abate
a public n uisance “in the nam e o f the p e ople of the State of California,” Cal. Civ. P r oc. Code § 731, and so t he com plaints were broug h t i n th e nam e of the people of the State of Califo rn ia, acting by and t hrough the city attorneys of Oakland and San Francisco.C I T Y O F O AK LA ND V

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com plaints further allege that the Cities are incurring costs to
ab ate these harm s and expect the injuries will becom e mo r e severe over th e n e x t 80 years. A ccordingly, the Cities seek
an order o f abatem ent requiring the Energy Co m panies to fund a “clim ate change adaptation program ” for Oakland and San Francisco “consisting of the building of sea walls, raising the elevation of low-lying property and buildings a n d building such other infrastruct ure as is necessary for [the Cities] to adapt to clim ate change.”

In October 2017, the Energy Co mp a nies rem oved the Cities’ com

plaints to federal court. The Energy Com panies i d entified seven different grounds for subject-m atte r jurisdiction in their n o t ices of rem oval, including that the Cities’ public-nuisance claim w as g overned by federal
comm on law because the claim im plicates “uniquely federal interests.” 2 After rem oval, the cases were assigned to the
sam e district judge, Judge W illiam H. Alsup. 3

2 The notice of rem oval also asserted t hat the com

p laints are rem ovable because the Cities’ claim : ( 1) raises disputed and substantial federal issues, see Gr a b l e & S o n s Metal Prods., Inc v. Darue Eng’g & Mfg. , 545 U.S. 308 (2005); (2) is “com pletely preem

pted” by federal law; (3) arises o ut of operations on the outer Continental S helf, see 43 U.S.C. § 1 3 49(b); (4) im

plicates actions that the Energy Com panies took “pursuant to a federal o ffi c er’s directions,” see 28 U.S.C. § 1442(a)(1); (5) arose on “ federal enclaves”; and (6) is related to b ankruptcy cases, see 28 U.S.C. §§ 1334(b), 1452(a).

3 Other cities and counties in California filed sim i lar cases against the Energy Com

panies and a n

um ber of other energy com

panies. Those cases w e re fi led in California state court and rem oved to federal court, wh e re they were assigned to Judge Vince G

. Chhabria. Judg e C hhabria
rem ande d those cases to state court based on a lack of subject-m atter jurisdiction. S

ee Cty. of San Mateo v. Chevron Corp. , 2 94 F. Sup p. 3d 934, 939 (N.D. Cal. 2018). W e resolve t he appeal from that rem and order in a concurrently filed opinion. See Cty. of San Mateo v. Chevron Corp. ,C I T Y O F O AK LA ND V

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The Cities m oved to rem and the cases to state court on the ground that th e district court lacked subject-m atter jurisdiction. T he district court denied the m otion, concluding that it had federal-question jurisdiction und er 28 U.S.C. § 1331 because the Cities’ claimwas “necessarily governed by federal comm on law.” The district court reasoned that the Cities’ public-nui s a n ce claim raised issues relating to “interstate and international d isputes im plicat i ng the conflicting r i g h t s o f States o r

. . . relations with foreign nations” and that these issues had to be resolved pursuant to a uniform federal standard.

In respon s e to the district court’s ruling, the Cities
am ended their com

plaints to include a public-nuisance claim under federal comm on law. 4 The am ended com plaints stated that the federal claim was a d d ed “ t o conform to the [ district court’s] ruling” and that the C ities “reserve[d] all rights with respect to whether jurisdiction [is] proper in federal court.” The Ene r g y Com

p anies m oved to dism iss the am ended
com plaints.

In June 2018, the district c o urt held that the am ended
com plaints failed “to state a claim u pon which relief can be granted.” Fed. R. C iv. P. 12(b)(6)

. The district court first determ ined that it w ould be inappropriate to ex t e nd federal
comm on law to provide relief because “federal courts should exercise great caution before fashioning federal comm on law in areas touching on f

oreign affairs,” and the Ci ties’ claim s

— F.3d — (9th Cir. 2020).

4 The Cities adde d th e C i ty of Oakland and the City and County o f San Francisco as plaintiffs because federal law, unlike Cali fo rn ia law, does not allow a city attorney to b ring a p ublic-nuisance action in federal court in the nam e of the people of the State of California.C I T Y O F O AK LA ND V

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“im plicate[d] the interests o f countless governm ents, b oth foreign and d om estic.” The district court then dism issed the state-law claim on the ground that it “m ust stand o r fall under federal comm on law.” T he district court therefore dism issed th e am ended com

plaints for failure to state a claim

. On th e sam e day, the district court requested a joint statem ent from the p arties regarding whether it was n e cessary to reach the pending m otions to dism iss for lack of personal jurisdiction. See Fed. R. Civ. P. 1 2(b)(2). After BP, ConocoPhillips, Exxon, and Shell requested a ruling on the issue, the district court ruled th a t it lacked personal jurisdiction over those defendants an d d ism issed them

. The district court then entered j u d g m e nts in f

avor of the E n ergy C om panies and against the Cities.

The Cities appeal the denial of their m otions to rem and, th e di sm issal of their com plaints for failure to state a claim , and the district court’s personal-jurisdiction ruling. W e have jurisdiction under 28 U .S.C. § 1 291. W e review questions o f
s t at uto ry co n stru ctio n an d su

b ject-matter ju

risdictio n d e n o v o

. Ritchey v. Upjohn Drug Co

. , 139 F.3d 1313, 1315 (9th Cir. 199 8)

. “ [S]tatutes extending federal jurisdiction

. . . are narrowly cons true d so as n ot to reach beyond the lim its intended by Congress.” Phillips v. O sborne , 403 F.2d 826, 828 (9th Cir. 1968).

II

W e first consider the Cit i e s’ a rgum ent that the district court erred in d eterm ining th at it had federal-question jurisdiction under 2 8 U.S.C. § 1331. In un d e rt a k ing this analysis, we consider only “the pleadings filed at the tim e o f
rem oval without r e fe rence to subsequent am endm ents.”C I T Y O F O AK LA ND V

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Provincial G ov’t of Marinduque v. P lacer Do me , Inc. , 582 F.3d 1083, 1085 n.1 (9th Cir. 2009) (citation om itted).

A Federal-question jurisdiction stem s from a congressional enactm ent, 28 U.S. C. § 1331, which provides that “[t]he district courts s h a l l have original jurisdiction of all civil actions arising under the C onstitution, laws, or treaties of the United S tates.” The scope of this statutory grant o f ju r i sdiction is a m atter of congressional intent, and the Suprem e Court has determ ined that Congress conferred “a
m ore l i mited power” than the f u ll scope of judicial power accorded i n the Constitution. Merrell Dow Pharm. Inc. v. Thompson , 4 7 8 U.S. 804, 807 (1986). 5 The general rule, referred to as the “well-pleaded com plaint rule,” is that a civil action arises under federal law for purposes of § 1331 when
a federal quest i o n appears on the face of the com plaint. Caterpillar Inc. v. Williams , 482 U.S. 386, 392 (1987). B ecau se federal jurisdiction “depends solely on the plaintiff’s claim s f o r relief and not on anticipated defenses to those claim s,” ARCO Envtl. Remediation, L.L.C. v. Dep’t of Health & Envtl. Quality of Mont. , 213 F.3d 1108, 111 3 (9th Cir. 2000), “a case m ay not be rem oved to federal court on the basis of a federal defense, in c l u d i ng the defense of pree mption, even if the defense is anticipated in the plaintiff’ s

5 Article III of the Const i tution provides that “ [t]he judicial Power shall e x t e n d t o all Cases, in Law and Equity, arising under t h is Constitution, t

he Laws of the United States, and Treaties m ade, or which shall be m ade, under their Authority.” U.S. Const. art. III, § 2

. “[T]he constitutional m eaning of ‘arising under’ m ay extend to all cases in which
a federal question is ‘an ingredient’ o f the action.” Merrell Dow Pharm. , 478 U .S. at 807 (quoting Osborn v. Bank of U.S. , 22 U.S. (9 W heat.) 738, 823 (1824)).C I T Y O F O AK LA ND V

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com plaint, and even if b oth parti e s c o n c ede that the federal d efense is the only question truly at issue,” Caterpi ll a r , 482 U.S. at 393. Therefore, as the “m aster of the claim ,” the p lain tif f can g en erally “av o id f

ederal jurisdiction b y ex clu siv e reliance on state law.” Id. at 392.

There are a few exceptions to the well-pleaded-complaint rule, however.

1
First, in a line of cases, beginning with Northern Pa cific Railway Co. v. S

oderberg , 188 U.S. 526 (190 3 ), and extending m ost recently to Grable & Sons Metal Pr o d u cts, Inc. v. Darue Engineering & Manufacturing , 5 4 5 U.S. 308 ( 2005), the Suprem e Court has recognized a “special a n d
sm all category” of state-law claim s that arise under fe d eral law for purposes of § 1331 “because federal law is ‘a necessary elem ent of th e

. . . claim for relief.’” E m pire Healthchoice Assur., Inc. v. McVeigh , 5 4 7 U.S. 677, 699 (2006) (citation o mitted). Only a few cases have fallen into this “ sl im category,” id. at 701, including: (1) a series o f quiet-title actions from the early 1900s that involved disputes
as to the interpretation and application of fe de ral law, see Ho p kins v. Walker , 244 U.S. 4 86, 489 (1917) (fede ra l jurisdiction was proper because “it [was] plain” that the case inv o l v ed “a co ntro v ersy respecting the constru ctio n a n d ef f ect of” fe deral m ining laws); Wilson Cypress Co. v. Pozo , 236 U.S. 6 35, 642–43 (1915) (federal jurisdiction was proper because the p l ai n t iffs relied “upon [a] treaty with Spain and laws of the United States

. . . to defeat [the] d efendant’s claim of title”); S

oderberg , 188 U.S. at 528 (federal jurisdiction was proper because the p laintiff’s claim “depend[ed] up o n the proper construction of an act o f C o ngress”); (2) a shareholderC I T Y O F O AK LA ND V

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action seeking to enjoin a Missouri corpo r a t ion from investing in federal bonds on the ground th at the f ederal act p u r s u a n t t o w h i c h t h e b o n d s w e r e i s s u e d w a s unconstitutional, see Smith v. Kan. C ity Titl e & Tr. Co. , 255 U.S. 180, 201 (1921); and (3) a state-quiet title a c tion claim ing that property had b een unlawfully seized by the Intern al Revenue Service (IRS) because the n otice of the seizure did not com

ply with the Internal Revenue Code, see Grable , 545 U.S. at 311. In other cases where parties have sought to invoke f

ederal jurisdiction for state-law claim s, the Court has concluded that jurisdiction was lacking, even when the claim s w ere prem ised on violations of federal law, see Merrell Do w Pharm. , 478 U.S. at 805–07; Moore v. Chesapeake & Oh i o Ry. Co. , 291 U.S. 205, 210 (1934), required rem edies “contem plated by a fe deral statute,” Emp ir e Healthchoice , 547 U.S. at 690, or required the interpret a t io n and application of a f ederal statute in a hypothetical case underlying a l e g a l m alpractice claim , see Gunn v. Minton , 568 U.S. 251, 259 (2013).

The C ourt has articulated a test for deciding wh e n this exception to the well-pl ea d e d -com plaint rule applies. A s e x p lained in Grable and later in Gunn , federal jurisdiction
over a state-law claim will lie if a fe deral issue is “(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balanc e approved by Congress.” Gunn , 568 U.S. at 258 (citing Grable , 5 4 5 U.S. at 314). All four requirem ents m

u st be m et for federal jurisdictio n to be proper. Id.

The Court has often focused on the third requirem ent, the question wheth e r a case “turn[s] on substantial questions o f federal law.” Grable , 545 U.S. at 312. This inquiry focusesC I T Y O F O AK LA ND V

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on the im portance of a f

ederal issue “to the federal system as a whole.” Gu n n , 5 6 8 U.S. at 260. An issue has such im portance when it raises substantial quest i ons as to the interpretation or validity of a federal statute, see Smith , 255 U .S. at 201; Hopkins , 2 44 U.S. at 489–90, or wh e n it challenges the functioning of a f ederal agenc y or program , see Grable , 545 U.S. at 315 (hold i n g th ere w as federal jurisdiction to address an action challenging the IRS’s ability to satisfy tax de l i n qu e ncies by seizing and disposing o f property); cf. Bennett v. Sw. Airlines Co. , 484 F.3d 9 07, 911 (7th Cir. 2007) (holding that federal jurisdiction was lacking because, am ong other re asons, the plaintiffs did not “challenge the validity of any federal agency’s or em ployee’s action”). Moreover, an issue m ay qualify as substantial when it is a “pure issue of law, ” Empire Healthchoice , 547 U.S. at 7 0 0 ( c itation om itted), that d irectly d raws into question “the constitutional v alidity of an act of Congress,” Smith , 255 U.S. at 2 01, or challenges the actions of a federal agency,
see Grable , 545 U.S. at 3 10, and a ruling on the issue is “both dispositive of the case and would be controlling in num erous other cases,” Emp i r e Healthchoice , 547 U.S. at 700 (citing Grable , 545 U.S. at 313). By contrast, a federal issue is not substantial if it is “fact-bound and situation-specific,” see id. at 701, o r r a i ses only a hypothetical q uestion unlikely to affect interpreta tions of federal law in the future, see G unn , 568 U.S. at 261. A federal issue is n ot s ub s t a n t ial m erely because of its novelty, see id. at 262, or because it will further
a uniform interpretation of a federal statute, see Merrell Dow Pharm. , 478 U.S. at 815–16.

2

A second exception to the well-pleaded-complaint rule is referred to as the “ a rtful-pleading doctrine.” This doctrineC I T Y O F O AK LA ND V

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“allows rem ov a l where federal law com pletely preem

p ts a plaintiff’ s state-law claim ,” Rivet v. R egions Bank of La. , 522 U.S. 4 70, 475 (1998), m eaning th a t “the pre-em ptive force of the statute is so ‘extraordinary’ that it ‘converts an ordin a ry state comm on-law com plaint into one stating a federal claim for purposes o f the well-pleaded com plaint rule,’” Caterpillar , 482 U .S. at 393 (quoting Metro. Life Ins. Co. v. T aylor , 48 1 U. S. 58, 65 (1987)). To have this effect,
a federal statute m

ust “provide[] the exclusive cause o f action for the claim asserted a nd also set forth procedures and
rem edies gove rn ing that cause of action.” Beneficial Nat’l Bank v. Anderson , 539 U.S. 1, 8 (2003).

The S uprem e Court has identified only three statutes that
m eet this criteria: (1) § 301 of the Labor Managem ent Relations Act (the LMRA), 2 9 U. S. C. § 185, which “displace[s] entirely any state cause of action ‘for violation o f contracts b etwee n a n em ployer and a labor organization,’” Franchise Tax Bd. o

f Ca l. v. Constr. Laborers V acation Tr. f o r S. Cal. , 463 U.S. 1, 23 (1983) (citation om itted) ; (2) § 502(a) of the Em

ployee Retirem ent Incom e S ecurity A ct of 1974 (ERISA), 29 U.S.C. § 1132(a), which preem pts statelaw claim s as s erting im proper processing o f a claim for benefits under an em

ployee-benefit pla n regulation by ERISA, Metro. Life Ins. , 481 U. S. at 65–66; and (3) §§ 85 and 86 of the National B ank Act, 1 2 U.S.C. §§ 85, 86, which p rovide the “exclusive cause of action for usury clai ms against national b anks,” Beneficial Nat’l Bank, 5 3 9 U.S. at 9. In light o f these cases, w e have held that com p lete preem ption for purposes of federal jurisdiction under § 1331 exists when C ongress: (1) intended to displace a state-law
cause of action, and (2) provided a substitute cause o f action. Hansen v. Grp. Health Coop. , 9 02 F.3d 1051, 1057 (9th Cir. 2018) (citing Beneficial Nat’l Bank, 539 U.S. at 8); a c cordC I T Y O F O AK LA ND V

. B P 21

Hunter v. United Van Lines , 746 F.2d 635, 642–43 (9th Cir. 1984).

B

W e now consid e r whether the district court erred in concluding it had jurisdiction over the Cities’ com plaints under § 1 331. At th e tim e o f rem oval, each com plaint asserted only a single cause of action for public nuisance
un d er C alif

o rn i a law. Under the well-pleaded-comp l aint ru l e , the district court la c k ed federal-question jurisdiction unless
one of the two exceptions to the well-pleaded-complaint rule applies.

1

W e first consider whether the Cities’ state-law claim for public nuisance falls within the “special and sm all category” of state-law claims that arise under federal law. E m pire Healthchoice , 547 U .S. at 699. The gist of the Cities’ claim is that the Energy Comp an ies’ production and prom otion o f fossil fuels has resulted in rising sea levels, causing h arm to the Cities. Under the Court’s test, w e mu s t determ ine whether, b y virtue of this c laim , a federal issue is “(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balanc e approved by Congress.” Gunn , 568 U.S. at 258 (citing Grable , 545 U.S. at 314).

Even assum ing that the Cities’ allegations could give rise to a cognizable claim for public nuisa n c e under federal
comm on law, cf

. Am. Elec. Power Co. v. Connecticut (“AEP”) , 564 U.S. 410, 423 (2011), the district court did not have jurisdiction under § 1331 because the state-law claim forC I T Y O F O AK LA ND V

. B P 22 public nuisance fa i l s to raise a substantial federal question. Adjudicating the claim does not require resolution of a substantial question o f f

ederal law: the claim neither requires
an in terpretation of a federal statute, cf. Grable , 545 U.S. at 310; Hopkins , 244 U.S. at 489, nor challenge s a federal statute’s constitutionality, cf. Smith , 255 U. S. at 199

. The Energy Com

panies also do not identify a legal issue necessarily raised by the claim that, if d e c ided, will “be controlling in num erous other cases.” Empire Healthchoice , 547 U .S. at 700 (citing Grable , 545 U.S. at 313). I n d e e d , i t is not clear that the claim requires an interpretation o r application of federal law at all, because the S uprem e Court has not yet d eterm ined that there is a f ederal comm o n law o f public nuisance relating to i n t erstate pollution, see AEP , 564 U.S. at 423, and we have held that federal p ublicnui sance claim s aim ed at im posing liability on energy producers for “acting in concert to create, contribute to, and
m aintain global warm ing” and “conspiring to m islead the public about the science o f globa l wa rming,” Native V ill. of Kivalina v. ExxonMob il C orp. , 696 F.3d 849, 854 (9th Cir. 2012), are displaced by the Clean Air Act, id. at 858.

Rather than identify a legal issue, the Energy Com panies suggest that the Cities’ state-law claim im plicates a variety o f “federal interests, ” in clu d in g en ergy policy, national security, and foreign policy. 6 The question whether the Energy Com panies can be held liable for p ub lic nuisance based on p ro duction and prom otion of the use of fossil fuels and be required to spend billions of dollars on abatem ent is no doubt
an im p ortant policy question, b ut it doe s not raise a

6 W e d o n ot address whether such interests m ay give rise to an affirm ative federal defense because such a defense is not grounds f o r federal jurisdiction. See, e.g. , Caterpillar , 482 U.S. at 393.C I T Y O F O AK LA ND V

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sub s t an t ial question of federal law for the purpose o f determ ining whether the re i s j urisdiction under § 1331. Cf. Empire Healthchoice , 547 U.S. at 701 (holding that the federal governm ent’s “overwhelm ing interest in attracting able workers to the federal workforce” and “in the health and welfare o f the federal workers upon whom it r e l ies to carry out its f unctions” was insufficient to transform a “state-courtinitiated tort litigati o n” into a “federal case”). Finally, evaluation of the Cities’ claim that th e En ergy Com panies’ activities am ount to a public nu isance would require factual determ inations, and a state-law claim that is “fact-bound and situation-specific” is not the type of claim for which federalquestion jurisdiction lies. I d

. ; see also Bennett , 4 8 4 F.3d at 9 10 (holding that f

ederal jurisdiction was lacking whe n th e case required “a fact-specific applicatio n o f rules that com e from both federal and sta te law rather than a context-free inquiry into the m eaning of a federal law”).

Given that the Cities’ state

- la w claim does not raise a substantial federal iss u e, the claim does not fit within the “slim category Grable exem plifies ,” Empire Healthchoice , 547 U. S. a t 7 01, and we need not consider the rem aining requirem ents articulated in Grable

. 2

Th e Energy Com

panies also argue that the Cities’ stat e
law claim for public nuisance arises under federal law because it is com

pletely p reem

pted by the Clean Air Act. This argum ent also fails.

The Clean Air Act is not one of the three statutes that the Suprem e C ourt has determ ined has extraordinary preem ptive force. S ee Ansley v. Ameriquest Mortg. Co. , 34 0 F.3d 858,C I T Y O F O AK LA ND V

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862 (9th Cir. 2003). R ather, the Suprem e Court has left open the question whether the Clean Air Act preem p ts a state-law nuisance claim under ordinary preemption principles. AEP , 564 U .S. at 4 29 (“In light of our holding that the Clean Air Act displaces federal comm on law, the availability vel non o f
a state [ nuisance] l a ws u i t d epends, inter alia , on the preem ptive effect of the federal Ac t.”). Nor does the C lean Air Act m ee t either o f the two requirem ents for com p lete preem ption. See, e.g. , Hansen , 902 F.3d at 1057.

Fi r s t , the statutory language does not indicate that Congress intended to preem pt “every state law cause o f action wi th i n the scope” of the Clean Air Act. In re NOS Commc’ns, MDL No. 1 3 5 7 , 4 9 5 F.3d 1052, 1058 (9th Cir. 2007); see also Beneficial Nat’l Bank, 539 U.S. at 11 (holding that federal law provides the exclusive cau s e o f action for usury claim s against n a t i onal banks such that there is “no such thing as a state-law clai m of usury against a national bank”). Rather, the statute indicates that Congress intended to preserve state- law causes of action pursuant to a saving clause, 42 U.S.C. § 7416, 7 which “m akes clear that states retain th e right to ‘adopt or enforce’ comm on law standards that apply to em issions” and preserves “[s]tate com m on law standards . .

. against preem ption,” Merrick v. Diageo Ams. Supply, Inc. , 805 F .3d 685, 690, 6 91 (6th Cir. 2015) (citation

7 Section 7416 provides, “Except as o therwise provided in [statutory
e xceptions n ot applicable here] nothing in this chapter shall preclude or deny the right of any State or political subdivision thereof to adopt o r enforce (1) any standard or lim itation respec t ing em issions of air pollutants or ( 2) any r equirem ent r especting c o n tro l or abatem ent of air pollution,” except that no state or l ocal governm ent m ay “adopt o r enforce any em ission standard or lim itation which i s less stringent t h an the standard o r lim itation” provided f or by th e Clean Air A ct and its im plem enting plan. 42 U.S.C. § 7416.C I T Y O F O AK LA ND V

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o m itted). When a f

ederal statute h as a saving clause of th i s s o rt, Congress did n ot intend com plete preem

ption, be c aus e “there would be nothing

. . . to ‘save’” if Congress intended to preem pt every state cause of action within the scope of the statute. In re NOS, 4 95 F.3d at 1058. Moreover, th e Cl e an Air Act’s statem ent that “air pollution control at its source is the prim ary responsibility of States and local governm ents,” 42 U.S.C. § 7 4 0 1 (a)(3), weighs against a conclusion that Congress intended to displace state-law causes of action.
Second, the Clea n Ai r Act does n ot provide the Cities with a “substitute[]” cause of ac tion, H ansen , 902 F.3d at 1057, that is, a cause of action that would allow the Cities to “rem edy the wrong [they] assert[] [they] suffered,” Hu n t er , 746 F .2d at 6 4 3

. While the Clean Air Act allows a plaintiff to file a petition to seek j u d i cial review of certain actions taken by the Environm ental Protection Agency, 42 U.S.C. § 7 6 0 7 (b)(1), it does not provide a federal claim or cause of action for nuisance caused by global warm ing. Moreover, the C lean A ir A ct’s citizen -su it provision, § 7604, perm its action s for violations of the Clean Air Act, b ut it does not provide the Citi e s wi th a free-standing cause of action for nuisance that allows for com

pensatory d am ages, see § 7604(a); Mulcahey
v

. Columbia Organic Chems. Co. , 29 F.3d 148, 150 & n.3 (4th Cir. 1994). Thus, the C lean Air Act satis fi es neither requirem ent for com

plete preemption.

***

In sum , because neither excepti o n to the well-pleadedcom plaint rule applies to the Cities’ original com plaints, the district court e rred in holding that it had jurisdiction under 28 U.S.C. § 1331 at the tim e of rem oval.C I T Y O F O AK LA ND V

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III Although the district court lacked jurisdiction under 28 U.S.C. § 1331 at the tim e of rem oval, that doe s not end
our inquiry. This is b ecause the Cities cured an y s ub j e ctm atter jurisdiction defect by am ending their c o mp l aints to assert a claim und e r federal comm o n law. See Pegram v. Herdrich , 530 U.S. 211, 215 n.2 (2000) (h ol d i n g that there
was “jur i s d iction regardless of the correctness of the
r em oval” because the “am ended com plaint alleged ERI SA violations, over which the federal courts have jurisdiction”); Singh v. Am. Honda Fin. Corp. , 925 F.3d 1053, 1070 (9th Cir. 2019); Re ta il Prop. Tr. v. United Bhd. of Carpenters & J oiners of Am. , 768 F .3d 938, 9 49 & n.6 (9th Cir. 2014 )

. 8 Thus, at the tim e the distr i ct court dism issed the Cities’
com plaints, there was subject-m atter jurisdiction because the operative pleadings asserted a claim “arising under” federal
comm on law. 28 U. S. C. § 1331. Based on this cure, the En e rgy Com

panies raise two argum ents as to why we can affirm the d istrict court’s dism issals, even if there was no subject-m atter jurisdiction at the tim e of rem oval.
First, the E nergy Com

panies argue that the Cities waived the argum ent that the distri c t court erred in refusing to
rem and the c a ses to state court because the Cities am ended their com p laints to assert a claim under f ederal comm on law. W e disagree. Th e Ci t ies m oved for rem and and stated, in their am ended com

plaints, that they included a federal claim “to conform to the [ dis tr ic t c o urt’s] ruling” and that they

8 W e reject the Cities’ argum ent that any subject-m atter jurisdiction defect w as not cured because they acted involuntarily when they added a federal claim to their com plaints. Once a plaintiff asserts a federal claim , regardless whether the plaintiff does so under protest, the district court h as subject-m atter jurisdiction. Cf. Pegram , 530 U.S. at 215 n.2.C I T Y O F O AK LA ND V

. B P 27 “reserve[d] all r i g hts with respect to whether jurisdiction is proper in federal court.” T h is was sufficient to preserve the argum ent that rem oval was im proper. See Caterpillar Inc. v. Lewis , 519 U.S. 61, 73–74 (1996); Singh , 925 F.3d at 1066.
Second, the Energy Com panies argue that any im propriety with respect to rem oval can be excused because “considerations of finality, efficiency, and economy ,” Lewis , 519 U.S. at 75, weigh in favor of affirm ing the district court’s dism issal of the Cities’ complaints. Again, we disagree.

Section 1441(a) requires that a cas e be “fit for federal adjudica t i o n a t the tim e [a] rem o v al petition is filed.” Id. at 73. 9 Because a party violates § 1441(a) if it rem oves a case that is not fit for federal a d j u d ication, a district court generally m

ust rem and the case to state court, even if subsequent actions conferred subject-m atter jurisdiction on th e district court. See, e.g. , O’Halloran v. Univ. o f Wash. , 856 F.2d 1375, 1380–81 (9th Cir. 1 9 8 8 ) (directing a district court to rem and a co mp l a i nt to state court even though the plaintiff am ended her com plaint to assert violations of federal law after the district court denied a m otion to rem and).

9 Section 1441(a) provides, in relevant part:
[A]ny civil action brought in a State court of which the district courts of the United States have ori g i n a l juris d iction, m ay be rem o ved b y the defendant or the defendants, to t

he d istrict court of the United States f o r the district and d i v ision em bracing the place where such action is pending. 28 U.S.C. § 1441(a).C I T Y O F O AK LA ND V

. B P 28

There is, howe v e r, a n arrow exception to this rule that takes into account “considerations of f inality, efficiency, and
economy.” Singh , 925 F.3d at 1065 (quoting Grupo Dataflux
v. Atlas Glob. Grp., L.P. , 541 U.S. 567, 574 (200 4 ) ). Specifically, when a jurisdictional defect has been cured after
rem oval and the case has been tried in federal court, a violation of § 1441(a) can be excused i f r e manding the case to state court would be inco n s i s t ent “with the fair and unp ro tracted adm inistration of justice.” Id. (quoting Lewis , 519 U.S. at 77).

The decision t o e xcuse a violation of § 1441(a) depends
on the stage o f the underlying p roceedings. When a case “has been tried in federal court,” “considerations of finality, efficiency, and economy becom e overwh e lm ing,” Lewis , 5 19 U.S. at 75, and in those circum stances, the Supre me Court has refused to “wipe out the adjudication postjudgm ent” so long as the there was jurisdiction when the district court entered judgm ent, id. at 77; see also Grubbs v. Gen. Elec. Credit Corp. , 405 U.S. 699, 702 (1972). For instance, in Lewis , the Court excused a violation of § 1441(a) when th e case was litigated in f ederal court for over three years, culm inating in a six-day jury trial. 519 U.S. at 66–67. “Requiring [rem and] after years of litigation,” the Court explained, “would im

pose unnecessary and wasteful burdens
on the parties, judges, and other litigants waiting for judicial attention.” Id. at 76 (quoting Newman-Green, Inc. v. AlfonzoLarrain , 490 U.S. 826, 8 3 6 (1989)). W e have extended this reasoning to cases where the district court resolves “state law issues on the m erits” at summ ary judgm ent. Singh , 925 F.3dC I T Y O F O AK LA ND V

. B P 29

at 1071. 1 0 For instance, we excused a violation of § 1441(a) when, after extensive m otion pr a c t i c e and discovery, the district court granted summ ary ju dg me n t in favor of the d efe n dants. Id. at 1061–62. W e reasoned that the case wa s sufficiently analogous to one in which there was a trial on the
m erits and therefore held that “[c]onsiderati o n s o f finality, efficiency, and economy” counseled in favor of excusing the violation of § 1 441(a). Id. at 1 071 (quoting Lewis , 519 U.S. at 75).

This reasoning, however, generally wi l l not apply when
a district court dism i ss e s a com plaint for failure to state a claimunder Rule 12(b)(6). That rule is designed “to enable defendants to challenge the legal sufficiency of com plaints without subjecting them selves to discovery,” the cost o f wh i ch c a n be “prohibitive.” Rutman Wine Co. v. E

. & J. Gallo Win e r

y , 829 F.2d 729, 738 (9th Cir. 1987). “[T]he purpose of a m otion under Rule 12(b)(6) is to test the form al
s uffi ciency of

. . . [a] claim for relief; the m otion is not a procedure for reso l v i n g a contest between the parties about the facts or the substantive m erits of the plaintiff’s case.” 5B Arthur R. Miller et al., Federal Practice & Procedure § 1356 (3d ed. 2020). In contrast, a m otion for summ ary judgm ent is designed to “test whether there is a genuine issue o f
ma t e r i a l fact” and “often involves the use of pleadings, d epositions, answers to interrogatories, and affidavits.” Id

.

10 We have held that this rule does not apply when w e rev e rs e th e grant of sum

m ary judgm ent, such t

hat there is no longer a “judgm ent o n the m erits.” Prize Frize, I nc. v. Matrix (

U.S.) I nc. , 167 F.3d 1261, 1266 (9th Cir. 1999), superseded by statute on other grounds as recognized in Abrego Abrego v. Dow Chem. Co. , 4 4 3 F.3d 676, 681 (9th Cir. 2006); accord Emard v. Hughes Aircraft Co. , 153 F.3d 949, 962 (9th Cir. 1998),
a b rogated o n other grounds by Egelhoff v. Egelhoff ex rel. Breiner , 532 U.S. 141, 146 (2001).C I T Y O F O AK LA ND V

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Moreover, summ ary judgm ent is appropriate only if the “m ovant is entitled to j u d g me n t as a m atter of law,” Fed. R. Civ. P. 56(a), whereas “the usual c our s e of action upon granting a defendant’s Rule 12(b)(6) m otion i s to a llow a p la i ntiff to am end his or her com plaint,” Waste Contr o l Specialists, LLC v. Envirocare of Tex., Inc. , 199 F.3d 781, 786 (5th Cir.), opinion withdrawn and superseded in part on reh’g , 207 F.3d 225 (5th Cir. 2000).

In light of these diffe r e n c e s, we agree with the Fifth Circuit that a dism issal under R ule 12(b)(6), unlike a g rant o f
summ ary judgm ent, is generally “insufficien t t o forestall an otherwise proper rem and.” C amsoft Data S

ys., Inc. v. S. Elecs. Supply, Inc. , 756 F.3d 327, 338 (5th Cir. 2014)

. We have recognized that the “c o n c ern for judicial economy” is slight when a case is pendi n g fo r under a year, the plaintiff engages in no discovery, and the district court dism isses the
case “at an early stage, p rior to trial o n the m erits.” Dyer v. Greif Bros. , 766 F.2d 3 98, 399, 401 (9th Cir. 1985), superseded by statute on other grounds as stated in B eeman v. Olson , 828 F. 2 d 6 2 0 , 621 (9th Cir. 1987). A case consum es a “m inimum of judicial resources” if it is pending for only a fe w mo nths before it is dism issed under Rule 1 2 (b)(6). Waste Control Specialists , 199 F.3d at 787. Likewise, the Sixth C ircuit h as recognized that “concerns for ju dicial economy” are in sign if ican t wh en d ismissal co m es “so early in the p l e adings stage that there has been m inim al investm ent of the parties’ tim e in d iscovery or of the court’s tim e in judicial proceedings or d eliberations.” Chivas Prods. Ltd. v. Owen , 864 F .2d 1280, 1286–87 (6t h Ci r

. 1988), abrogated on other grounds by T afflin v. Levitt , 493 U .S. 455, 461 (1990). In short, “considerations o f finality, efficiency, and e conomy” are rarely, if ever, “overwhelm ing” when aC I T Y O F O AK LA ND V

. B P 31

district court dism isses a case at the p leading stage b efore the parties have engaged in discovery. 1 1

In this case, “considerations of finality, effici e n cy , and
econo my” are far from “overwhelm ing.” Lewis , 519 U.S. at 7 5

. Wh en the district court entered jud g ments, the cases had been on its docket for less than a year—just over eight
m onths. T he parties engaged in m otion practice under Rule 12, and there had been no d i scovery. Although the district court h eld hearings and the parties presented a “tut orial” on global warm in g , th at is a relatively m odest use of judicial
resources as com

pared to, for examp l e , three years o f litigation, culm inating in a six- d ay j ury trial. See id. at 66–67. Because the d istrict court dism issed these cases at the pleading stag e , a ft e r they w ere p ending for less than a year and before the parties engaged in discovery, we conclude that “considerations of finality, efficiency, and economy” are not “overwhelm ing.” Id. at 75; see Camsoft Data Sys. , 756 F.3d at 338; Waste Control Specialists , 199 F.3d at 786; Dyer , 766 F.2d at 4 01; Chivas Prods. , 864 F.2d at 1 286–87. Accordingly, i f th ere was not subject-m atter jurisdiction at the tim e of rem oval, the cases mu st proceed in state court.

11 In Parrino v. FHP, Inc. , we held that a defendant’s fa i l ure to
com p ly with a judge-m ade procedural requirem ent fo r re m oval did not warrant reversal of a dism issal under Rule 12 (b )(6) and “rem and o f the
m atter to state court.” 146 F.3d 699, 703 (9th Cir. 1998), superseded by statute on o th e r grounds as recognized in Abrego Abrego , 443 F .3d at 681. But Parrino is not applicable when a case is rem oved in violation o f § 1441(a), resulting i n a “statutory defect” with respect to rem oval. Grupo Dataflux , 541 U.S. at 574.C I T Y O F O AK LA ND V

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IV

The district court did not address the alternative bases for removal asserted in the Energy C om panies’ notices o f
rem ov a l. And we generally d o not consider issues “not passed up o n below.” Am. President Lines, Ltd. v. Int’l Longsh o re & Wa reh o u se U n io n, Alaska Longshore Div., Unit 60 , 721 F.3d 1147, 1157 (9th Cir. 2013) (quoting Singleton v. W u l f f , 428 U.S. 106, 120 (1976)). Accordingly, we rem a n d the s e c a s es to the district court to determ ine whether there
was an alternative basis f or jurisdiction. 1 2 If th e r e was not, the cases should be rem anded to state court. 1 3 This panel will

12 The Energy Com

panies identified six alternate bases fo r subjectm atter jurisdict i o n in their notices of r em oval. See supra note 2

. On appeal, the Energy Com

panies identified adm iralty jurisdiction, 28 U.S.C. § 1 3 3 3, as a seventh alternate basis for jurisdiction. As the Cities p o i n t out, however, the Energy Com panies waived any argum ent related to adm i ralty jurisdiction by not invoking it in their notices of rem oval. See 28 U.S.C. § 1446(a) (notice of rem o val m ust “contain[] a short and plain statem ent of the grounds for r em oval”); ARCO , 213 F.3d at 1117 (notice of rem oval “cannot be am e nded to add a separate basis for r em oval jurisdiction after the thirty day period” (citation om itted)); O’Halloran , 856 F.2d at 1381 (sam e). Because the deadline for am ending the notices of rem oval h as passed, the Energy Com panies m ay not rely on adm iralty jurisdiction as a basis for rem oval on r em and. More o ve r, the Energy Com panies’ related argum ent that t here is federal-question jurisdi c t ion, 28 U.S.C. § 1331, because “ the instrum entality of the alleged harm is the
na v i g ab l e waters of the United States,” fails for the reasons set forth in Part II, supra

.

13 W e do not reach t

he question whether the dis tri c t c ourt lacked personal jurisdiction over four of t he defendants. If, on rem and, the district court determ ines that the cases m ust proceed in st a t e c ourt, the Cities are f

ree to m ove the district court to vacate its personal-jurisdiction ruling. Cf. Ruhrgas A G v. Marathon Oil Co. , 5 2 6 U .S. 574, 587–88 (1999) (stating that in m ost instances “expedition and sensitivity to state courts’ coequal stature should im pel [a] fe d e ral court to dispose o fC I T Y O F O AK LA ND V

. B P 33

retain jurisdiction for any subsequent appeals arising from these cases.

VACATED AND REMANDED

. 1 4

[subject-m atter jurisdiction] issue[s] first”); Cerner Middle E

. Ltd. v. Belbadi Enters. LLC , 939 F.3d 1009, 1014 (9th Cir. 2019 ) (holding t hat the case should be rem anded to state c o urt based on a lack o f subjectm atter jurisdiction and declining to reach the issue of pers o nal jurisdiction); S

pecial Invs., Inc. v. Ae r o Air, Inc. , 360 F.3d 989, 994–95 (9th Cir. 2004).

14 Each party shall bear its own costs on appeal.