Opinion
Civil No. 3:02-CV-1465-H
January 27, 2003
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff the City of Dallas' ("Dallas") Motion to Remand this Cause to State Court and Motion for Attorney Fee and Costs, filed July 26, 2002; Defendant Explorer Pipeline Company's ("Explorer") Response thereto, filed August 15, 2002; and Plaintiffs Reply filed August 30, 2002. Upon review of the pleadings, briefs, and relevant authorities, the Court is of the opinion for the reasons stated below that Plaintiffs Motion for Remand should be GRANTED. Plaintiffs Motion for Attorneys Fees is DENIED.
For the sake of clarity it is noted that although there are multiple Defendants in this lawsuit, Explorer Pipeline ("one of the defendants in this action") filed for removal to federal court. (Def. Explorer Pipeline Co.'s Unopposed Mot. for Leave to File Sur-Reply in Opposition to Pl's Motion to Remand at 1).
I. BACKGROUND
Dallas filed this lawsuit against Explorer, Equilon Enterprises LLC ("Equilon"), Valero Energy Corporation ("Valero"), and Phillips Petroleum Company ("Phillips") on December 5, 2000 in the 160th Judicial District Court of Dallas County, Texas. Dallas alleges that the Defendants are responsible for the March 9, 2000 release of at least 600,000 gallons of reformulated gasoline containing the chemical methyl tertiary butyl ether ("MBTE") into Dallas' primary water supply, Lake Tawakoni, causing property and economic damages. (Pl.'s Fourth Am. Pet. at 3-5). Dallas brings state law causes of action including: negligence, negligence per se, gross negligence, nuisance, liability in tort, product liability, trespass, and intentional pollution. ( Id. at 5-10).
Defendant Explorer removed the case to District Court, claiming that Dallas also alleges claims arising under federal law. Specifically, Explorer points to the Plaintiffs Fourth Amended Petition, in which (for the first time) Dallas mentions the Federal Clean Water Act ("CWA") as a basis of its claim for negligence per se. (Def's. Notice of Removal at 2). Explorer also points to certain of Plaintiffs Responses to Defendants' Interrogatories which allege violations of the CWA, the Federal Oil Pollution Act, and the Toxic Substances Control Act. ( Id. at 2-3).
II. ANALYSIS
Federal courts are courts of limited jurisdiction; the presumption for any case is that the case lies outside of federal jurisdiction. See Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). The burden of establishing federal jurisdiction rests on the party seeking the federal forum. Id. In the instant case, Explorer invoked the jurisdiction of the federal courts by removing Dallas' state court case to federal court.
Federal district courts have jurisdiction over cases "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331 (2000) (cited in Howery, 243 F.3d at 916). In determining whether a case arises under federal law, courts look to whether the "plaintiffs well-pleaded complaint raises issues of federal law." Howery, 243 F.3d at 916 (quoting City of Chicago v. Int'l College of Surgeons, 522 U.S. 156, 163, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997). "Federal question jurisdiction over a case removed from state court also depends on the well-pleaded complaint rule." Howery, 243 F.3d at n. 12. See also Merrell Dow Pharmaceuticals Inc., v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986).
In the instant case, as noted above, Explorer removed the case to District Court based on Dallas' mention of federal claims in its pleadings and in certain discovery responses. First, Dallas invoked the CWA as part of a list of Defendants' alleged violations under its negligence per se claim in its Fourth Amended Complaint. Second, Dallas mentioned the CWA, the Federal Oil Pollution Act, and the Federal Toxic Substances Control Act in its written responses to Defendants' requests for disclosures and interrogatories.
Defendant points to three places where Dallas mentions federal law in its discovery responses: Plaintiffs June 19, 2002 Responses and Objections to Defendants Equilon and Valero's First Set of Interrogatories (Def.'s Resp. at 2; Pl.'s Fourth Am. Pet. at 8); Plaintiffs June 28, 2002 Amended Responses to Defendants' Request for Disclosure (Pl.'s Am./Supplemental Resp. to Defs.' Req. for Disclosure at 8-9); and Plaintiffs Responses to Equilon's Second Set of Interrogatories (Pl.'s Resp. and Objections to Defs. (Equilon) Second Set of Interrogatories at 5).
In its June 19, 2002 Responses and Objections to Defendants Equilon and Valero's First Set of Interrogatories Plaintiff, in response to a question regarding laws, statutes, ordinances, or regulations that resulted in damage to the Plaintiff as a result of the Discharge, alleged both that "Defendants . . . violated Chapter 26 of the Texas Water Code, the Federal Clean Water Act, and the Federal Oil Pollution Act" and that Defendants "fail[ed] to disclose under the Toxic Substances Control Act the environmental and health hazards associated with MTBE." (Def.'s Resp. at 2; Pl.'s Fourth Am. Pet. at 8).
In its June 28, 2002 Amended Responses to Defendants' Request for Disclosure, in the "Factual Predicate" section under a discussion of negligence per se Dallas repeated its allegations that the Defendants violated the Clean Water Act: "The pollution which resulted from the rupture and release of reformulated gasoline is in violation of the Texas Water Code and the Federal Clean Water Act; as such the conduct of Defendant Explorer was negligent per se for which Plaintiff now sues." (Pl.'s Am./Supplemental Resp. to Defs.' Req. for Disclosure at 8-9).
Finally, in its Responses to Equilon's Second Set of Interrogatories, in response to a question regarding Plaintiffs factual basis for asserting violations of the Texas Penal Code, Dallas alleges that "Refiner Defendants have historically engaged in conduct that violates federal, state and municipal laws. Such conduct includes . . . the failure to disclose under the Toxic Substances Control Act the environmental and health hazards associated with MTBE . . ." (Pl.'s Resp. and Objections to Def's. (Equilon) Second Set of Interrogatories at 5).
Two questions are before the Court: 1) whether Dallas' invocation of federal law as part of its state law negligence per se claim in its Fourth Amended Complaint is sufficient to impart jurisdiction to a federal court under 28 U.S.C. § 1331 and, if not 2) whether Dallas' responses to interrogatories and requests for disclosure which mention federal law are by themselves sufficient to impart federal question jurisdiction under the "other paper" provision of 28 U.S.C. § 1446 (b).
A. Federal law imbedded in a state law cause of action.
In Howery the Fifth Circuit addresses the question of how to determine whether a pleading under state law claims which invokes a federal law also thereby alleges a separate federal cause of action sufficient to give federal question jurisdiction under § 1331. In that case the Plaintiff brought a state law claim against his insurer under the Texas Deceptive Trade Practices Act. In the Plaintiffs final amended complaint he also invoked a federal rule, stating that Allstate had "also engaged in conduct in violation of the Federal Trade Commission ["FTC"] rules, regulations, and statutes by obtaining Plaintiffs credit report in a prohibited manner, a further violation of the Texas Deceptive Trade Practices Act . . ." Id. at 915.
Because the complaint invoked the FTC, the case was removed to the Southern District of Texas based on § 1331 jurisdiction. Id. The Plaintiff lost a jury trial in the federal court, and appealed arguing that the federal court did not have jurisdiction to hear the case. The Circuit vacated the jury verdict and remanded for dismissal by the district court, finding that the court did not have federal question jurisdiction, reasoning that the Plaintiffs "mention of federal law merely served to describe types of conduct that violated the [state law] claim, not to allege a separate cause of action under the [federal law]." Id. at 918.
After an extended discussion and historical analysis of the jurisdictional issues presented by the case, the Circuit held that "[f]ederal jurisdiction is sustainable . . . only if [the Plaintiffs] [state law] claim requires resolution of a substantial question of federal law." It promulgated a three-prong test for determining federal jurisdiction under § 1331 when a complaint under state law mentions a federal law: (1) whether the federal right is an essential element of the state claim, (2) whether the interpretation of the federal right is necessary to resolve the case, and (3) whether the question of federal law is substantial. Id. at 918.
In the instant case, Dallas' mention of the CWA in its Fourth Amended Complaint is clearly in the context of its state law negligence per se claim against the Defendants. The Complaint does not allege a separate cause of action under the CWA as Defendant argues. ( See Defs. Resp. at 4-5). Defendants' alleged violation of the CWA is twenty-seventh in a list of thirty alleged acts and omissions "constitut[ing] negligence and/or negligence per se" in a section entitled "Negligence, Negligence Per Se, and Gross Negligence." (Pl.'s Fourth Am. Compl. at 5-8). None of the elements of the CWA are adduced, and there is no section in the pleading for any complaints brought under the CWA comparable to the sections which delineate the various state law claims. Further, Plaintiff specifically states that: "[t]he pollution which resulted from the rupture and release of reformulated gasoline is in violation of the Texas Water Code and the Federal Clean Water Act; as such the conduct of the Defendant Explorer was negligence per se for which Plaintiff now sues." ( Id. at 8).
Defendant's reliance on Benefiel v. Exxon Corp., 959 F.2d 805 (9th Cir. 1992) to show that a mere mention of a federal claim can confer federal jursidiction is misplaced; in Benefiel the Plaintiff stated a federal claim under the Trans-Alaska Pipeline Authorization Act which was not embedded in any state law claim.
Employing the three-prong Howery test, the Court finds:
(1) The CWA is not an essential element of Dallas' negligence per se claim; in addition to the CWA, Dallas invokes violations of the "law of Texas," "state health regulations," "Texas environmental policies," and the "Texas Water Code" to support its claim for negligence per se. (Pl.'s Fourth Am. Compl. at 7-8).
(2) Interpretation of a federal right is not necessary to this case.
(3) The federal question in this case is not substantial, because the "state law questions overwhelm the federal." Howery, 243 F.3d at 919.
Based on the above, the Court finds that Plaintiffs mention of the federal Clean Water Act in its Fourth Amended Petition as a part of its claim for negligence per se is not sufficient to impart federal jurisdiction.
B. Federal law invoked in discovery responses
Defendant argues that Dallas' invocation of federal law in its discovery responses is sufficient to impart federal jurisdiction under 28 U.S.C. § 1446 (b) which allows removal within thirty days in cases where an initial pleading would not be removable, based on 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 . . ." See Delgado v. Shell Oil Co., 231 F.3d 165, 5th Cir. 2000). Discovery responses may constitute "other papers" for the purpose of establishing federal jurisdiction. See Chapman v. Powermatic, Inc., 969 F.2d 160, 164 (5th Cir. 1992).
Defendant cites Chapman, Aiken v. Big Three Industries, Inc., 851 F. Supp. 819, (E.D. Texas 1994), Johnson v. Dillard Dept. Stores, Inc., 836 F. Supp. 390 (N.D. Texas 1993), and Leboeuf v. Texaco, 9 F. Supp.2d 661 (E.D. La. 1998) for the proposition that § 1446(b) "other papers" can establish federal question jurisdiction in and of themselves. The cases cited by the Defendant, however, point to a use of "other papers" which is wholly different and incompatible with the use Defendant advocates. These cases are easily distinguishable from the instant case.
In Leboeuf, the Plaintiff argued that its response to an interrogatory which raised a federal issue was enough to put the Defendants on notice that a federal claim was forthcoming. The Leboeuf court found that the response was enough to trigger the thirty-day period for removal. There is no indication in this case, however, that the response would have been enough in itself to impart federal jurisdiction in the absence of the Plaintiffs actual intent to seek recovery under a federal statute. The holding in the case was clearly related to the timing of removal: "[P]laintiff's . . . interrogatory response appears to have raised an issue of federal law sufficient to trigger the thirty-day period for removal." Leboeuf v. Texaco, 9 F. Supp.2d 661 at 665.
Similarly, in Johnson, the question was whether or not "other papers" including interrogatory responses could provide notice that the amount in controversy in the case exceeded $50,000. The question was not whether the interrogatories themselves conferred federal jurisdiction apart from the complaint. Johnson, 836 F. Supp. 390 at 395.
In Akin the original pleadings were ambiguous as to whether the original pleadings adduced a removable claim. "Other papers" supplied the requisite notice: the location of the "events giving rise to the claims for relief." Akin, 851 F. Supp. at 824. The "other papers" themselves did not provide the basis for federal jurisdiction.
Finally, in Chapman the Fifth Circuit holds that "other paper" must be received after the filing of the initial pleading in order to trigger the thirty-day time period for removal. Nowhere in that case does the Circuit contemplate a Defendant relying entirely on "other paper" to provide federal jurisdiction apart from the pleadings of the case.
None of the cases cited by Defendant deals with whether "other papers" can be used to establish federal question jurisdiction on their own. Further, the Court is not aware of any case in which responses to interrogatories, by themselves and apart from federal issues raised in the pleadings, are used to establish federal question jurisdiction. In keeping with the precedent of the "well-pleaded complaint" rule, which limits the causes of action to those pleaded in the complaint, the Court finds that Plaintiffs interrogatory responses are not sufficient to impart federal jurisdiction. See Howery, 243 F.3d at n. 12; Merrell Dow, 478 U.S. 804 at 808.
III. CONCLUSION
The Court finds that neither the Plaintiffs mention of the Federal Clean Water Act in its Fourth Amended Pleading, nor Plaintiffs mention of federal statutes in certain responses to Defendants' interrogatories impart federal subject matter jurisdiction under 28 U.S.C. § 1331 or 1446(b).
This case is REMANDED to the 160th Judicial District Court of Dallas County, Texas for lack of subject matter jurisdiction.
Plaintiffs Motion for Attorneys Fees is DENIED.
The Clerk is Directed to fax this Order to Counsel immediately.
SO ORDERED.