Opinion
CIVIL ACTION NO. 01-0107 SECTION "N"
January 22, 2001
ORDER AND REASONS
Before the Court is Plaintiffs' Motion to Remand. For the following reasons, the Motion is GRANTED.
The instant motion presents the question of whether a demand letter may give notice of a plaintiff's intent to pursue a federal cause of action so as to justify removal under 28 U.S.C. § 1446 (b).
Together with 28 U.S.C. § 1441, § 1446(b) provides that a civil action filed in state court may be removed to federal district court within 30 days after the defendant receives a copy of the initial pleading setting forth the grounds for removal or, "if the case stated by the initial pleading is not removable," within 30 days after the defendant receives a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446 (b) (emphasis added). It is unquestionable that, in this Circuit, a demand letter may constitute a relevant "other paper" under certain circumstances. Whether a demand letter that mentions a potential federal cause of action represents one of those circumstances, however, is unclear.
In Addo v. Globe Life and Accident Insurance Company, 230 F.3d 759 (2000), the Fifth Circuit held that "a post-complaint letter, which is not plainly a sham, may be `other paper' under § 1446(b)." Id. at 762. However, in its narrowest reading, Addo is limited to circumstances in which "a defendant first learns [from a post-complaint letter] that the plaintiff's demand exceeds the federal jurisdictional limit" id., and, as Plaintiffs point out, there is reason to believe that Addo should be limited to cases in which removal is based on diversity jurisdiction. Most important is the fact that, since the Supreme Court established the well-pleaded complaint rule in Louisville Nashville R.R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126, in 1908, federal courts have been required to ascertain federal question jurisdiction from the allegations contained within the four corners of the plaintiff's complaint. The mere possibility that a plaintiff could bring a federal cause of action on the same facts, in most cases, is insufficient to create federal question jurisdiction.
In contrast, diversity jurisdiction is often determined by facts that can only be presented outside of the complaint. For example, it has been well documented that Louisiana law generally prevents plaintiffs from alleging damage amounts in tort petitions, and, as a result, federal courts in Louisiana often are required to analyze extrinsic evidence to determine whether the jurisdictional amount has been satisfied. See, e.g., Simon v. Wal-Mart, 193 F.3d 848, 850 (5th Cir. 1999) (where no monetary amount asserted in petition filed in Louisiana state court, defendant may justify removal "by setting forth facts in controversy . . . that support a finding of the requisite amount"). Thus, by its nature diversity jurisdiction invites the federal court to look outside the complaint for jurisdiction, whereas the well-pleaded complaint rule requires the federal court to look within. This probably explains why the vast majority of courts that have found "other papers" to support jurisdiction have done so in the diversity context. See, e.g., Lebouef v. Texaco, 9 F. Supp.2d 661, 664 (E.D. La. 1998) (collecting cases in which "other paper," such as interrogatory responses and requests for admission, gave first notice of circumstances which support diversity jurisdiction).
Under the circumstances presented by the instant motion, the Court finds that the Plaintiffs' demand letters have not provided grounds for removal. As Plaintiffs correctly note, neither their initial nor their supplemental petitions expressly allege a CERCLA claim. Although it is always possible that a federal cause of action is lurking somewhere in the background of a petition, it appears that Plaintiffs here took great pains to amend their petition every time they added a new cause of action, and none of the these new causes of action were federal. And judging by their counsel's frantic reaction to removal, rather than mere artful pleading, it appears that the Plaintiffs really never intended to bring a CERCLA claim. of course, they could have avoided this "emergency" by not making a "demand . . . upon [defendants] for all response costs recoverable pursuant to 28 U.S.C. § 2201 et seq. (CERCLA)" (Plaintiffs' demand letter) a month before trial, but, again, Plaintiffs' counsel's response to removal convinces the Court that his improvident reference to CERCLA in the demand letter was "nothing more than posturing by plaintiff's counsel for settlement purposes and cannot be considered a reliable indicator of the [claims] plaintiff [will pursue]." Addo, 230 F.3d at 764 (Weiner, J., dissenting) (quoting Standridge v. Wal-Mart Stores, Inc., 945 F. Supp. 252, 256 (N.D. Ga. 1996)).
For this reason, Lebouef v. Texaco, 9 F. Supp.2d 661 (E.D. La. 1998) is distinguishable. In Lebouef, "[a]fter reviewing the exhibits submitted by the plaintiffs," Judge Porteous concluded that the plaintiffs' numerous assertions in their interrogatory responses that their claims involved the federal Oil Pollution Act provided notice that plaintiffs' intended to pursue federal causes of action. This Court's decision in Vincent v. Silver Cinema's, Inc., 1998 WL 274242 (E.D.La. May 21, 1998) is also distinguishable because the defendants were first put on notice of fraudulent joinder (a diversity issue) by plaintiffs interrogatory responses.
Of course, if it turns out that Plaintiffs do intend to bring a CERCLA claim, that changes the picture entirely. The Court assumes that Plaintiffs' counsel has fully considered the res judicata issues involved in his desire to expressly forsake his clients' CERCLA claims and that his theory of the case cannot change the day trial begins because this case would be removed again.
For the reasons set forth above,
IT IS ORDERED that Plaintiffs' Motion to Remand is GRANTED and the case is hereby REMANDED to the Civil District Court for the Parish of Orleans, State of Louisiana, for further proceedings, each party to bear its own costs.