      UNITED STATES COURT OF APPEALS
           for the Fifth Circuit

  _____________________________________

               No. 94-60058
  _____________________________________

          W.H. AVITTS, ET AL.,

                                  Plaintiffs-Appellees,

                  VERSUS

      AMOCO PRODUCTION CO., ET AL,

                                             Defendants,

          AMOCO PRODUCTION CO.,

                                  Defendant-Appellant.

******************************************

          LAVERNE LANG, ET AL.,

                                  Plaintiffs-Appellees,

                  VERSUS

      AMOCO PRODUCTION CO., ET AL,

                                             Defendants,

          AMOCO PRODUCTION CO.,

                                  Defendant-Appellant.

******************************************

       EDWARD J. LUBOJACKY, ET AL,

                                  Plaintiffs-Appellees,

                  VERSUS

      AMOCO PRODUCTION CO., ET AL,

                                             Defendants,

          AMOCO PRODUCTION CO.,

                                  Defendant-Appellant.
******************************************

         VERNON A. SMITH, ET AL,

                                   Plaintiffs-Appellees,

                  VERSUS

      AMOCO PRODUCTION CO., ET AL,

                                             Defendants,

          AMOCO PRODUCTION CO.,

                                    Defendant-Appellant.

******************************************

              TETSU TINDEL,

                                   Plaintiffs-Appellees,

                  VERSUS

      AMOCO PRODUCTION CO., ET AL,

                                             Defendants,

          AMOCO PRODUCTION CO.,

                                    Defendant-Appellant.

******************************************

       O.F. WESTINGHOUSE, ET AL.,

                                   Plaintiffs-Appellees,

                  VERSUS

      AMOCO PRODUCTION CO., ET AL,

                                             Defendants,

          AMOCO PRODUCTION CO.,

                                    Defendant-Appellant.

******************************************




                    2
           JOSEPH E. DURSO, ET AL.,

                                      Plaintiffs-Appellees,

                    VERSUS

         AMOCO PRODUCTION CO., ET AL,

                                                Defendants,

            AMOCO PRODUCTION CO.,

                                      Defendant-Appellant.


  ******************************************

               GERALDINE LOUDEN,

                                      Plaintiffs-Appellees,

                    VERSUS

         AMOCO PRODUCTION CO., ET AL,

                                                Defendants,

            AMOCO PRODUCTION CO.,

                                      Defendant-Appellant.

  *******************************************

             O.L. SURFACE, ET AL.,

                                      Plaintiffs-Appellees,

                    VERSUS

        AMOCO PRODUCTIONS CO., ET AL.,

                                                Defendants,

             AMOCO PRODUCTION CO.,

                                      Defendant-Appellant.


***********************************************




                       3
                 PATTY ANN WALKER,

                                          Plaintiff-Appellee,

                      VERSUS

           AMOCO PRODUCTION CO., ET AL.,

                                                  Defendants,

               AMOCO PRODUCTION CO.,

                                     Defendant-Appellant.

  ***********************************************

              STEVE TOWNSEND, ET AL.,

                                        Plaintiffs-Appellees,

                      VERSUS


           AMOCO PRODUCTION CO., ET AL.,

                                             Defendants,


               AMOCO PRODUCTION CO.,

                                       Defendant-Appellant.

*************************************************

             MELVIN CARPENTER, ET AL.,

                                        Plaintiffs-Appellees,

                      VERSUS

           AMOCO PRODUCTION CO., ET AL.,

                                             Defendants,

               AMOCO PRODUCTION CO.,

                                        Defendant-Appellant.

***************************************************




                         4
               JOSEPH A. DURSO, ET AL.,

                                        Plaintiffs-Appellees.

                        VERSUS

            AMOCO PRODUCTION CO., ET AL.,

                                                Defendants,

                AMOCO PRODUCTION CO.,

                                          Defendant-Appellant.

******************************************************

                  MARGARET L. DURSO,

                                           Plaintiff-Appellee,

                        VERSUS

            AMOCO PRODUCTION CO., ET AL.,

                                                 Defendants,

                AMOCO PRODUCTION CO.,

                                          Defendant-Appellant.

******************************************************

               JIMMY DEAN LONG, ET AL.,

                                        Plaintiffs-Appellees,

                        VERSUS

            AMOCO PRODUCTION CO., ET AL.,

                                               Defendants,

                AMOCO PRODUCTION CO.,

                                          Defendant-Appellant.

*****************************************************




                          5
                     JOHN W. COLLINS, ET AL.,

                                                Plaintiffs-Appellees.

                              VERSUS

                   AMOCO PRODUCTION CO., ET AL.,

                                                       Defendants,

                       AMOCO PRODUCTION CO.,

                                                Defendant-Appellant.

               _____________________________________

                            No. 94-60059
               _____________________________________

                       W.H. AVITTS, ET AL.,

                                               Plaintiffs-Appellees,

                              VERSUS

                   AMOCO PRODUCTION CO., ET AL,

                                                          Defendants,

           APACHE CORPORATION, MW PETROLEUM CORPORATION
                   and AMOCO PRODUCTION COMPANY,

                                               Defendants-Appellants.


      ______________________________________________________

           Appeals from the United States District Court
                 for the Southern District of Texas
      ______________________________________________________
                            (May 3, 1995)

Before LAY,1 DUHÉ and DeMOSS, Circuit Judges.

PER CURIAM:




1
    Circuit Judge of the Eighth Circuit, sitting by designation.

                                 6
     This matter comes before the Court on a consolidated appeal

from interim orders entered by the district court.     In 94-60058,

Appellants appeal from the entry of a preliminary injunction

requiring them to complete a "phase II" environmental study.     In

94-60059, Appellants appeal from an order requiring them to pay

approximately $650,0002 in interim costs and attorney's fees.    We

find that the district court lacked subject matter jurisdiction

over this action, and therefore vacate the orders of the district

court and remand with instructions to dismiss this action, without

prejudice, for lack of jurisdiction.

                         I.   BACKGROUND

     Appellees originally filed suit in Texas state district court

to recover monetary damages for alleged injuries to their property

caused by the defendants' oil and gas operations in the West

Hastings Field. The matter was removed to the Southern District of

Texas on the basis that Appellees' complaint stated,

     It is expected that the evidence will reflect that the
     damages caused by the Defendants are in violation of not
     only State law but also Federal law.

(emphasis supplied).   Despite the nebulous referral to "federal

law," the complaint stated no cause of action which could be read

to confer federal question jurisdiction on the district court.   In

fact, in concert with their notice of removal Appellants filed a

Fed. R. Civ. P. 12(e) motion for a more definite statement, which

inter alia stated,

2
     The court awarded $328,266 in attorney's fees and $315,875.99
in expenses. Avitts v. Amoco Production Co., 840 F. Supp. 1116,
1124 (S.D. Tex. 1994).

                                7
     Plaintiffs claim Defendants violated "State law" and
     "Federal law" in allegedly causing these spills.
     However, Plaintiffs fail to specify which State or
     Federal laws Defendant allegedly violated. Consequently,
     Defendants cannot possibly formulate a response or know
     what defenses may apply.

Although the district court summarily denied Appellants' motion for

a more definite statement, Appellees subsequently filed a first

amended complaint, this time omitting all reference to federal law.

Although the Appellees' complaint has been amended several times

during the pendency of this litigation, no federal question has

ever been stated.3

                          II.   DISCUSSION

     "Any civil action brought in a State court of which the

district courts of the United States have original jurisdiction,

may be removed by the defendant or the defendants, to the district

court of the place where such action is pending."       28 U.S.C. §

1441(a).    Original   jurisdiction   over   the   subject   matter   is

mandatory for the maintenance of an action in federal court.

Subject matter jurisdiction may not be waived, and the district

court "shall dismiss the action" whenever "it appears by suggestion

of the parties or otherwise that the court lacks jurisdiction of

the subject matter."   Fed. R. Civ. P. 12(h)(3).

     Original jurisdiction, in non-maritime claims, lies where the

conditions of 28 U.S.C. §§ 1331 or 1332 are satisfied.          In the


3
     Plaintiff's last complaint, the seventh amended complaint,
contains state law causes of action for "nuisance," "trespass,"
"negligence, "breach of contract" and "fraud and misrepresentation"
and prays for actual damages in the amount of ten million dollars
and exemplary damages in the amount of one hundred million dollars.

                                  8
present action, the court claims original jurisdiction pursuant to

§ 1331, also known as federal question jurisdiction.    There is no

dispute that original jurisdiction does not lie under § 1332,

diversity of citizenship, because complete diversity does not

exist.   Under 28 U.S.C. § 1331, "[t]he district courts shall have

original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States."

     Plaintiff is generally considered the master of his complaint,

and "whether a case arising...under a law of the United States    is

removable or not...is to be determined by the allegations of the

complaint or petition and that if the case is not then removable it

cannot be made removable by any statement in the petition for

removal or in subsequent pleadings by the defendant."         Great

Northern Ry., Co. v. Alexander, 246 U.S. 276, 281, 38 S.Ct. 237,

239 (1918); see also American Fire & Casualty Co. v. Finn, 341 U.S.

6, 14, 71 S.Ct. 534, 540 (1951).     Of course, this does not mean

that a plaintiff can avoid federal jurisdiction by simply "artfully

pleading" a federal cause of action in state law terms.          See

Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 397 n.2, 101

S.Ct. 2424, 2427 n.2 (1981).   However, it is also plain that when

both federal and state remedies are available, plaintiff's election

to proceed exclusively under state law does not give rise to

federal jurisdiction.

     In the present case, there is no doubt that Appellees have

chosen to pursue only state law causes of action.   The only mention

of federal law in any of Appellees' complaints was the above


                                 9
mentioned oblique reference to Appellants' violation of unspecified

federal laws.     No federal cause of action has ever been asserted,

and it is plain that removal jurisdiction under 28 U.S.C. § 1441

simply did not exist.      The district court had no jurisdiction over

the subject matter of the complaint, and the action should have

been immediately remanded to state court.

     Despite the obvious lack of original jurisdiction under §

1331, two grounds for maintaining federal jurisdiction have been

forwarded.    First, in a motion to dismiss filed by Appellants, the

court was asserted to have maintained jurisdiction under 28 U.S.C.

§ 1367(c) which provides in part,

     The district courts may decline to exercise supplemental
     jurisdiction over a claim under subsection (a) if--

                                M     M     M    M

          (3) the district court has dismissed all
          claims   over  which  it   has   original
          jurisdiction.

This provision is plainly inapplicable because, by its terms, it

presupposes     that     the   district         court      obtained    supplemental

jurisdiction over the state law claims via original jurisdiction

over federal claims arising from the same case or controversy.                    As

stated   above,    the     district       court      has    never     had   original

jurisdiction over any of the claims in this action because no

federal claims have ever been asserted.

     Second, subject matter jurisdiction was supposedly achieved

through Appellees' reference to CERCLA and the Oil Pollution Act of

1990 (OPA) in the Joint Pretrial Order (PTO).                 Notwithstanding the

highly questionable applicability of either of these statutes to

                                          10
the facts and circumstances of this case, adoption of this argument

would require us to rewrite the PTO.   Under the PTO's plain terms,

CERCLA and OPA are offered only as a means to calculate the

"Measure of Damages" owed to the Appellees.        Appellees never

asserted a cause of action under either statute, and subject matter

jurisdiction cannot be created by simple reference to federal law.

Subject matter jurisdiction can be created only by pleading a cause

of action within the district court's original jurisdiction.    No

such cause of action has ever been plead in this matter, and

therefore subject matter jurisdiction is plainly absent.

                         III.   CONCLUSION

     The district court lacked subject matter jurisdiction over

this action and was therefore without authority to enter its

orders.   The orders of the district court are vacated, and this

matter is remanded to the district court with instructions to

dismiss Appellee's complaint without prejudice.

     VACATED and REMANDED.




                                 11
