Opinion
Civil Action No. 01-2899, Section "C" (2)
November 16, 2001
ORDER REASONS
This matter comes before the Court on Plaintiffs' Motion to Remand and for Costs and Fees. Having considered the record, the memoranda of counsel, and the law, IT IS ORDERED that the Motion is hereby PARTIALLY GRANTED and PARTIALLY DENIED.
BACKGROUND
This case arises from events previously the subject of another suit begun in a different section of this court. See Bayou Fleet, Inc. v. Alexander, 68 F. Supp.2d 734 (E.D. La., 1999), aff'd, 234 F.3d 852 (5th Cir. 2000), cert. denied, Bayou Fleet, Inc. v. Home Place Batture Leasing, Inc., 121 S.Ct. 1228, 149 L.Ed.2d 138 (2001) (" Bayou Fleet I"). In that suit, Defendant Bayou Fleet, Inc. ("Bayou Fleet"), alleged civil rights violations under 42 U.S.C. § 1983, antitrust violations under the Sherman Act, 15 U.S.C. § 1 and 2, and state law violations of the Louisiana Unfair Trade Practices Act, La. R.S. § 15:1401, et seq. See id. Plaintiffs, as well as parties not named here, were Defendants in that suit. See id. Plaintiffs there settled with all defendants in that case except Mary Clulee, Neal Clulee, Homeplace Batture Leasing, Inc., and N/C Materials, Inc., who were absolved of liability upon the Supreme Court's denial of certiorari. See Bayou Fleet I, 68 F. Supp.2d 734, affd, 234 F.3d 852, cert. denied, 121 S.Ct. 1228, 149 L.Ed.2d 138.
During this litigation, Plaintiffs assert, Bayou Fleet's allegations regarding Plaintiffs "were widely discussed in the community and were publicized in area newspapers." On July 1, 1998, Plaintiffs filed this suit in the 29th Judicial District Court for the Parish of St. Charles, State of Louisiana. See Rec. Doc. 9. In the original Petition, Plaintiffs asserted claims of, inter alia, defamation and malicious prosecution. See id. Defendants removed, but Judge Mentz, before whose Court the case was proceeding at the time, granted Plaintiffs' Motion to Remand after oral argument. Clulee v. Bayou Fleet, Inc., 1998 WL 682275 (E.D. La. Sept. 30, 1998). Judge Mentz, however, denied Plaintiffs' request for attorney's fees and costs. See id. (denial after oral argument and following motion to reconsider). Plaintiffs assert that the parties then agreed to stay the pending state court petition until the proceedings in Bayou Fleet I had concluded. See Rec. Doc. 9, Mem. in Supp. of Mot. to Remand at 2.
The case was transferred to the present Section of the Court because it was related to another case previously allotted to this Section. See Louisiana Rule of Court 3.1.1E.
When the Supreme Court denied certiorari, Plaintiffs filed a First Supplemental and Amended Petition ("Amended Petition"). See Rec. Doc. 1 at Ex. A. The Amended Petition advances a number of state claims including trespass, nuisance, and violation of state environmental laws. See id. The Amended Petition also alleges that Bayou Fleet may have entered into a settlement with other Bayou Fleet I defendants "to conceal the fact that Bayou Fleet was attempting to dispose of long-stored toxic wastes in a manner which might be in violation of St. Charles Parish zoning (not to mention state and federal environmental laws)." Id. at ¶ 34 (emphasis added). In addition, Plaintiffs assert that they have incurred costs from defending against the claims in Bayou I, including attorney's fees and costs. See id. at ¶ 42.
Following the filing of the Amended Petition, Defendants removed again, asserting that Plaintiffs raise federal claims, including those under federal environmental laws and 42 U.S.C. § 1988, which, under certain circumstances, provides for the award of attorney's fees and other costs for successful defense of § 1983 actions. Plaintiffs now seek to remand a second time.
ANALYSIS Remand
Federal jurisdiction extends to suits involving a "claim or right arising under the Constitution, treaties or laws of the United States," 28 U.S.C. § 1441(b). Federal courts have jurisdiction over causes of action arising under federal law, and federal jurisdiction does not extend to defendants invoking a federal defense. Under the "well-pleaded complaint rule," federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint. Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). The plaintiff is "master" of his claim under this rule and may avoid federal jurisdiction by exclusive reliance on state law. Id.
Defendants contend first that Plaintiffs, as a result of contending that Defendants may have violated federal environmental laws, seek relief under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601, et seq. ("CERCLA"), and the Oil Pollution Act of 1990, 33 U.S.C. § 2701, et seq. ("OPA"). Plaintiffs vigorously deny that their Amended Petition seeks relief under either statute. See Rec. Doc. 9, Mem. in Supp. of Mot. to Remand at 5-8. Rather, Plaintiffs assert, the Amended Petition seeks relief only under state law. See id. at 5. The Amended Petition does not specifically seek relief under CERCLA or OPA. See Rec. Doc. 1 at Ex. A. But, as stated above, it does allege a violation of "federal environmental laws." See id. at ¶ 34.
Such a vague reference to a supposed federal cause of action is not sufficient to confer jurisdiction on this Court. See Avitts v. Amoco Production Co., 53 F.3d 690, 693 (5th Cir. 1995). In Avitts, plaintiffs claimed that defendants had violated state and federal law in causing oil spills damaging plaintiffs' property. Defendants in that case attempted to remove. Plaintiffs subsequently amended their complaint to eliminate all reference to federal law. The Fifth Circuit concluded that "no federal question has ever been stated." Id. at 692 (emphasis added). Here, just as in Avitts, where reference to violation of federal law was not sufficient to create federal jurisdiction, the nebulous reference to "federal environmental laws" is not sufficient to confer jurisdiction on this Court.
In their Amended Petition, Plaintiffs' reference to "federal environmental laws" is arguably more specific than the complaint at issue in Avitts, which referred only to federal laws without specifying their specific type. Nevertheless, at bottom, the Amended Petition fails to mention a particular law under which Plaintiffs seek relief. Thus, it is not sufficiently specific to confer federal jurisdiction here. See id. at 693 (where only reference to federal laws was oblique and unspecified, no federal cause of action asserted).
Although it is true that the plaintiffs in Avitts amended their complaint to remove all reference to federal law and Plaintiffs here have added a reference to federal law, the Fifth Circuit's order to remand in Avitts did not depend on the deletion of the reference in the amendments of the complaint. "Although the . . . complaint has been amended several times during the pendency of this litigation, no federal question has ever been stated." Id. at 692 (emphasis added). Plaintiffs here mentioned Defendants' possible violation of federal law for the first time in the Amended Complaint. But this addition still does not alter the oblique and unspecified nature of the reference to federal law. Thus, although the reference to federal laws is extant and was included for the first time in the Amended Complaint, this mention of federal law in its current form is insufficient to create subject matter jurisdiction.
Defendants further contend, however, that Plaintiffs have participated in a pending federal investigation of the owner of the property in question here. Moreover, Defendants assert that Plaintiffs attempted to participate in a case arising out of that investigation by filing a Motion for Permission to Appear as Amicus Curiae. See Batture Fleet, Inc. v. Browner, No. 00-0205-C, 2000 WL 748094 (E.D. La. Jun. 8, 2000). Defendants apparently argue that, given Plaintiffs' mention of "federal environmental laws" in the Amended Complaint and their interest and participation in the federal investigation, they assert a claim under federal law here. Under the well-pleaded complaint rule, however, federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint. See Caterpillar, Inc., 482 U.S. at 392, 107 S.Ct. at 2429, 96 L.Ed.2d 318. Thus, because the well-pleaded complaint focuses only on the face of the plaintiffs complaint, any role Plaintiffs may have played in a federal investigation is irrelevant here with respect to whether federal jurisdiction exists.
Plaintiffs claim they served Defendants in that case with the Amicus Motion but that they never filed the motion. See Rec. Doc. 19 at 1-2. A search of the record in this case revealed that the motion was not filed.
Defendants next contend that Plaintiffs' claims for attorney's fees and costs creates jurisdiction here because they are potentially available under 42 U.S.C. § 1988 as a result of Plaintiffs prevailing on Defendants' § 1983 claims in Bayou Fleet I. Plaintiffs, however, nowhere refer to § 1988 in either the original or Amended Petition. Indeed, as Defendants concede, attorney's fees and costs may be available stemming from their unsuccessful claim against the Clulees in Bayou I under the Louisiana Unfair Trade Practices Act. See La. R.S. § 51:1409 (court may award reasonable attorney's fees and costs for LUFTA action that it finds was groundless and brought in bad faith or for harassment purposes). Thus, given that Plaintiffs' claim for attorney's fees and costs nowhere references federal law, federal jurisdiction does not lie.
Attorney's fees and costs
Plaintiffs seek attorney's fees and costs resulting from their efforts to remand the case. 28 U.S.C. § 1447(c) allows a court remanding a case to order "payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." "When removal was obviously legally defective, an award of costs is within the court's discretion." Teer v. Upjohn Co., 741 F. Supp. 1242, 1244 (M.D. La. 1990).
Plaintiffs assert that as Defendants have, inter alia, unsuccessfully removed once before, Plaintiffs are now entitled to attorney's fees and costs. For this proposition, Plaintiffs cite Grefer v. Alpha Technical, No. Civ.A. 01-0218, 2001 WL 65559 (E.D. La. Jan. 25, 2001). In Grefer, however, attorney's fees and costs were awarded after a defendant removed the case where plaintiffs complaint contained no indication of a federal question. Here, Defendants, although erroneous, reasonably could have believed that Plaintiffs intended to insert a federal claim into the Amended Petition because Plaintiffs mentioned "federal environmental laws" for the first time there. Although the Avitts court concluded that a mere mention of federal law is insufficient to create subject matter jurisdiction, that case still was arguably distinguishable — it specifically involved an amended complaint that deleted any reference to a federal claim, unlike here, where the amended complaint added a reference to federal law. Thus, removal here was not obviously legally defective so as to justify the award of attorney's costs and fees. CONCLUSION
Plaintiffs also assert that they are due attorney's fees and costs in part because Bayou Fleet previously sought to deny the Clulees a hearing on the zoning issue in state court by prevailing on Judge Mentz to sign an order in effect prohibiting the state court from proceeding. See Rec. Doc. 9, Mem. in Supp. of Mot. to Remand at 9, 9 n. 2. Plaintiffs, however, do not indicate how this activity bears on whether the removal was obviously legally defective.
Because of the Court's disposition of the Motion, there is no need to address Plaintiffs' argument that Defendants did not comply with the technical requirements for removal under 28 U.S.C. § 1446(a).
For the reasons stated above, IT IS ORDERED that the Motion to Remand and for Costs and Fees is hereby PARTIALLY GRANTED and PARTIALLY DENIED. Accordingly, the matter is REMANDED to the 29th Judicial District Court for the Parish of St. Charles, State of Louisiana, for lack of subject matter jurisdiction under 28 U.S.C. § 1447(c). However, no attorney's fees or costs shall be awarded to Plaintiffs as a result of their preparation of said Motion.
Given the Court's disposition of this Motion, IT IS FURTHER ORDERED that Defendants' Motion to Dismiss, see Rec. Doc. 7, is hereby DISMISSED for lack of subject matter jurisdiction and that, accordingly, Defendant's request for oral argument on their Motion to Dismiss, see Rec. Doc. 8, is hereby DENIED.