Opinion
Civil Action No. 02-544, Section "A" (5)
April 29, 2002
MINUTE ENTRY
Before the Court are a Motion to Remand and for Attorney's Fees and Costs (Rec. Doc. 4) filed by plaintiffs, and a Motion to Remand (Rec. Doc. 7) filed by defendants the Parish of Jefferson and Subdrainage District B of the Consolidated Drainage District No. 1 of the Parish of Jefferson (collectively referred to hereinafter as "Jefferson Parish"). The motions, set for hearing on April 24, 2002, are before the Court on the briefs without oral argument. Defendant West Jefferson Levee District ("WJLD") opposes the motion. For the reasons that follow, the motions are GRANTED IN PART AND DENIED IN PART and this case is REMANDED to state court.
Background
Plaintiffs allege that defendants pumped excessive storm water into the outfall canal adjacent to their property causing it to overflow its banks. They further allege that the WJLD failed to properly notify them of its intention to close the floodgate adjacent to their property. They seek recovery for damages to their immovable and movable property.
The outfall canal at issue serves the Cousins Pumping Station. On the date in question, September 11, 1998, the canal overflowed its banks into the area along Destrehan Avenue between Lapalco Boulevard and the floodgate at Destrehan Avenue and Patriot Street.
Plaintiffs filed a petition for damages in the 24th Judicial District Court, for the parish of Jefferson, naming as defendants the WJLD and the parish of Jefferson. Amended petitions were later filed. After the case progressed in state court for nearly three years, the WJLD removed the case to this Court. In its Notice of Removal (Rec. Doc. 1), the WJLD asserts that this Court has original jurisdiction over the case because Plaintiffs' Third supplemental and Amending Petition asserts a civil rights action under 42 U.S.C. § 1983. Rec. Doc. 1 at ¶ 5. Alternatively, the WJLD alleges that the case is removable pursuant to 28 U.S.C. § 1442(a)(1) because the WJLD is a "federal officer."
Plaintiffs, as well as defendant Jefferson Parish now move to remand the case to state court. They argue inter alia that the case does not raise a federal question and that the WJLD is not entitled to removal under the federal officer removal statute, 28 U.S.C. § 1442(a)(1)
Analysis
Removal Based Upon 42 U.S.C. § 1983
The WJLD asserts that Plaintiffs' Third Supplemental and Amending Petition asserts a claim for damages under 42 U.S.C. § 1983. The WJLD does not contend that Plaintiff expressly alleges a violation under section 1983, however, given that Plaintiffs use the term "deliberate indifference" in their petition, a term commonly used in the parlance of section 1983, the WJLD argues that Plaintiffs have invoked federal law. Moreover, in a confidential settlement letter dated February 15, 2002, (WJLD Opposition, Exhibit C), Plaintiffs' counsel attempts to explain how the claimed damages could be recoverable under federal civil rights law, 42 U.S.C. § 1983. Accordingly, under the artful pleading doctrine, Plaintiffs' petition states a federal cause of action removable pursuant to 28 U.S.C. § 1441 (a) 1331.
42 U.S.C. § 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
The well-pleaded complaint rule governs whether a defendant can remove a case based on the existence of a federal question. Terrebonne Homecare, Inc. v. SMA Health Plan, Inc., 271 F.3d 186, 188 (5th Cir. 2001) (citing Rivet v. Regions Bank, 522 U.S. 470, 475, 118 S.Ct. 921, 925, 139 L.Ed.2d 912 (1988); Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987)). Under the well-pleaded complaint rule, removal jurisdiction based upon a federal question exists only when a federal question is presented on the face of plaintiff's properly pleaded petition. Id. (citing Caterpillar, 482 U.S. at 392, 107 S.Ct. at 2429).
The artful pleading doctrine is a narrow exception to the well-pleaded complaint rule and serves to prevent plaintiff from defeating removal by failing to plead necessary federal questions. Id. (citing Rivet, 522 U.S. at 475, 118 S.Ct. at 925; Carpenter v. Witchita Falls Indep. Sch. Dist., 44 F.3d 362, 365 (5th Cir. 1995)). If a court concludes that plaintiff has "artfully pleaded" claims, it may uphold removal even though no federal question appears on the face of plaintiff's complaint. Rivet, 552 U.S. at 475, 118 S.Ct. at 925. The artful pleading doctrine only applies, however, where federal law completely preempts the field such as with ERISA or the Labor Relations Management Act. Terrebonne Homecare, Inc., 271 F.3d at 188 (citing Waste Control Specialists, LLC v. Envirocare, Inc., 199 F.3d 781 (5th Cir. 2000); Avco Corp. v. Machinists, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968);Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). Absent such complete preemption, plaintiff remains the master of his complaint and may choose to assert only state law claims even where an analogous federal cause of action is available to him. See Terrebonne Homecare, Inc., 271 F.3d at 189 (citing Waste Control Specialists, LLC, 199 F.3d at 784).
With these principles of law in mind, the Court turns its attention to case at hand. As an initial matter, federal civil rights law does not completely preempt analogous state law causes of action. See Buena Venture v. City of Coatsville, 1997 WL 164263, at 82 (E.D. Pa. Apr. 2, 1997) (quoting Baucom-Brown v. City of Philadelphia, 1990 WL 4407 (E.D. Pa. Jan. 19, 1990)); Dorsey v. NAACP, 408 F.2d 1022, 1024 (5th Cir. 1969). Consequently, in order for the WJLD to properly remove this suit on the basis of a section 1983 claim, that cause of action must appear on the face of Plaintiffs' petition.
Ostensibly, the various petitions assert claims under state law only. However, as the WJLD points out, the Third Supplemental and Amending Petition refers to "a deliberate act of indifference and gross negligence," (Third Supplemental and Amending Petition ¶ IX(E)). Although the term deliberate indifference is usually found in the context of federal civil rights claims, given the narrow application of the artful pleading doctrine, the court is unable to conclude that such a seemingly nonchalant reference to the term is sufficient to bring this claim within the original federal question jurisdiction of this Court.
Moreover, the confidential settlement letter from Plaintiffs' counsel, which discusses possible civil rights claims, does not change the result. Although the letter could be viewed as evidence of Plaintiff's intent to invoke section 1983 when referring to "a deliberate act of indifference," the letter could also reasonably be interpreted as referring to possible future litigation involving civil rights claims as it states that the facts of the case "may lead to additional class action litigation in Federal Court." It is noteworthy that the letter, which possibly refers to additional civil rights claims was authored after the Third Supplemental and Amending Petition was filed. Given that federal subject matter jurisdiction cannot be premised upon guesswork, the Court concludes that Plaintiffs are not urging a federal claim at this time. Rather, they have chosen to assert causes of action under state law only, as is their right. Therefore, removal is not properly based upon an "artfully pleaded" section 1983 claim.
Plaintiffs should note, however, that while the Court has interpreted their petition as not asserting a federal claim, should they attempt to in fact pursue these claims upon their return to state court, the case would in all likelihood be removable.
Removal Pursuant to "Federal Officer" Status
Pursuant to 28 U.S.C. § 1442, Federal Officers or Agencies Sued or Prosecuted,
A civil action . . . commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office . . . .28 U.S.C. § 1442(a)(1).
Removal pursuant to section 1442 is meant to "ensure a federal forum in any case where a federal official is entitled to raise a defense arising out of his official duties." Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398 (5th Cir. 1998) (quoting Arizona v. Manypenny, 451 U.S. 232, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981)). In order to qualify as a "federal officer," the removing party must (1) demonstrate that it acted under the direction of a federal officer, (2) raise a federal defense to the plaintiffs' claims, and (3) demonstrate a causal nexus between plaintiffs' claims and acts it performed under color of federal office. Crocker v. Borden, Inc., 852 F. Supp. 1322, 1325 (S.D. La. May 6, 1994) (citing Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989); Pack v. AC S, Inc., 838 F. Supp. 1099 (D. Md. 1993)).
In support of its contention that removal is proper under the federal officer removal statute, the WJLD relies upon the December 1990 contract between the Department of the Army and the WJLD, said contract for the construction of the West Bank Hurricane Protection Levee. (WJLD Opposition, Exhibit C). The WJLD argues that Plaintiffs' reference in the Third Supplemental and Amending Petition to "the lack of diligence in proceeding with the `East Harvey Canal Hurricane Project,'" (¶ IX(E)), demonstrates that Plaintiffs are in fact attempting to base liability against the WJLD upon the actions it took pursuant to the federal contract. Plaintiffs, on the other hand, argue that their claims against the WJLD are based solely upon its conduct in conjunction with the September 1998 flood-conduct that did not arise out of the federal contract.
Although the question is a close one, the Court notes that the crux of Plaintiffs' claims against the WJLD does in fact seem to be the alleged negligence of the WJLD in conjunction with closing the floodgate on September 11th. Therefore, assuming arguendo that the WJLD qualifies as a "federal officer," the WJLD nevertheless fails to meet the third requirement for federal officer removal jurisdiction-the existence of a causal nexus between Plaintiffs' claims and the acts it performed under color of federal office. There appears to be no link whatsoever between the WJLD's decision to close the floodgate without warning on September 11th, and the federal contract. Consequently, the WJLD was not acting pursuant to the federal contract when it closed the floodgate and therefore cannot avail itself of a federal forum.
The Court notes, however, that Plaintiffs have included statements in their Third Supplemental and Amending Petition that do tend to cloud the issue of whether their claims vis á vis the WJLD are limited solely to the September 11 incident. Again, however, as with the alleged section 1983 claim discussed above, the Court cannot base a finding of subject matter jurisdiction on mere confusion as to the claims asserted, and therefore at this time finds removal improper. However, should Plaintiffs, upon return to state court, take actions that clarify their intent to pursue claims that arguably arise out of the federal contract, a subsequent removal might be in order.
In sum, the Court remands this case to state court pursuant to 28 U.S.C. § 1447(c) due to a lack of subject matter jurisdiction.
Accordingly;
IT IS ORDERED that the Motion to Remand and for Attorney's Fees and Costs (Rec. Doc. 4) filed by plaintiffs should be and is hereby GRANTED IN PART AND DENIED IN PART, and the Motion to Remand (Rec. Doc. 7) filed Jefferson Parish should be and is hereby GRANTED. This matter is REMANDED to the 24th Judicial District Court for the Parish of Jefferson. Plaintiffs' request for attorneys fees and costs (Rec. Doc. 7) is DENIED.
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