Batton v. Georgia Gulf, Civil Action Nos. 02-353-D-M3, 02-354-D-M3, 02-379-D-M3, 02-565-D-M3, 02-943-D-M3 (M.D. La. 3/27/2003)
| Decision Date | 27 March 2003 |
| Docket Number | Civil Action Nos. 02-353-D-M3, 02-354-D-M3, 02-379-D-M3, 02-565-D-M3, 02-943-D-M3. |
| Court | U.S. District Court — Middle District of Louisiana |
| Parties | GEORGENNER BATTON, ET AL. v. GEORGIA GULF, ET AL. DONALD RAY BUTLER, JR., ET AL., v. GEORGIA GULF, ET AL. GEORGE GARDNER, III, ET AL. v. STATE OF LOUISIANA through the DEPARTMENT OF HEALTH & HOSPITALS, ET AL. JOSEPH LEONARD, ET AL. v. STATE OF LOUISIANA, through the DEPARTMENT OF HEALTH AND HOSPITALS, ET AL. JERRY OLDHAM, ET AL. v. THE STATE OF LOUISIANA, through the DEPARTMENT OF HEALTH AND HOSPITALS, ET AL. |
The court has before it a number of motions to remand1 filed in individual actions which have since been consolidated. The underlying litigation in these consolidated actions arises from plaintiffs' alleged exposure to arsenic contaminated drinking water. According to plaintiffs, in 1998, the State, through the Department of Health of Hospitals (LDHH), tested various water wells located at defendant Georgia Gulf's plant in Plaquemine, Louisiana, and found excessive levels of arsenic in the water. LDHH, however, did not warn the plaintiffs or Georgia Gulf of the arsenic levels until some three years later in 2001. Plaintiffs claim that they unwittingly drank the contaminated water during those intervening years, and have as a consequence suffered damages.
Plaintiffs in each of the consolidated cases named the same two defendants — Georgia Gulf and LDHH — with the exception of in the Oldham case, where the defendants are several entities alleged to have been responsible for injection of hazardous waste that caused contamination of the water supply, in addition to LDHH and the Parish of Iberville.2
Georgia Gulf removed all the cases in which it is a named defendant, alleging jurisdiction under both diversity of citizenship and, according to plaintiffs, federal question based on preemption.3 Georgia Gulf contends that LDHH should be disregarded as a defendant because it is not a "citizen," and furthermore, it should be disregarded under the principles of fraudulent joinder. In Oldham, defendants removed based solely on diversity jurisdiction, alleging the fraudulent joinder of both LDHH and the Parish, neither of which initially joined in the notice of removal. Motions to remand by the plaintiffs followed.
The plaintiffs in the Batton, Butler, Gardner, and Leonard remand motions argue the following:
1. Complete diversity does not exist between all plaintiffs and all defendants, and Georgia Gulf's Notice of Removal fails to state the required jurisdictional facts. 28 U.S.C. § 1332.
2. The required amount in controversy in not present, and Georgia Gulf's Notice of Removal fails to state that the required amount is in controversy. 28 U.S.C. § 1332.
3. Complete preemption does not exist under the Safe Drinking Water Act, and plaintiffs have stated valid state law tort claims. 42 U.S.C. § 300j-8(e).
4. Supplemental jurisdiction is not a valid grounds for removal of these cases. 28 U.S.C. § 1441; 28 U.S.C. § 1367.
In addition to these grounds, plaintiffs in Batton and Butler have asserted the following additional grounds for remand:
5. This case was removed more than 30 days after Georgia Gulf Corporation received papers from which it may have determined the alleged fraudulent joinder of the State of Louisiana, through the Department of Health and Hospitals. 28 U.S.C. § 1446(b).
6. The "other paper" that Georgia Gulf claims made this case removable was not a voluntary act by the plaintiff and, therefore, cannot serve as grounds for removal. 28 U.S.C. § 1446(b).
In Oldham, the following grounds are urged for remand:
1. Defendants, State of Louisiana, through the Department of Health and Hospitals, and the Parish of Iberville, did not timely consent to this removal. 28 U.S.C. § 1446(c).
2. Complete diversity does not exist between all plaintiffs and all defendants. 28 U.S.C. § 1441(a).
3. The requisite jurisdictional amount cannot be met by the plaintiffs.
4. Supplemental jurisdiction is not a valid ground for removal of claims.
The removing party bears the burden of establishing the existence of federal jurisdiction over a state court suit. See, e.g., Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387, 397 (5th Cir. 1998). Furthermore, it is axiomatic that the lower federal courts are courts of limited jurisdiction and may exercise only the jurisdiction that has been conferred by Congress. E.g., Trizec Properties, Inc. v. United States Mineral Products Co., 974 F.2d 602, 604 (5th Cir. 1992). Accordingly, there is a presumption against subject matter jurisdiction that must be rebutted by the party bringing the action to federal court, and there is no time limit for filing a motion to remand on the basis of lack of subject matter jurisdiction. Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996).
On the other hand, a motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal. A "procedural defect" is defined as any impropriety in the removal that would not deprive the district court of jurisdiction over the subject matter if the action had been filed as an original action in federal court. In other words, if this court would have had jurisdiction over the action had it been filed originally in federal court, any other irregularities in the removal constitute only procedural defects that are waived if not raised by a party within 30 days of removal. See, e.g., Albarado v. Southern Pacific Transportation Co., 199 F.3d 762, 765-66 (5th Cir. 1999); 28 U.S.C. § 1447(c).
The main thrust of the plaintiffs' arguments in these motions centers around the lack of subject matter jurisdiction. Plaintiffs claim that neither diversity nor federal question jurisdiction exists in these consolidated cases. And in Batton and Butler, the plaintiffs additionally claim that, regardless of the existence of subject matter jurisdiction, the removal was untimely and the motion to remand timely urged; thus remand is required. In Oldham, the plaintiffs also seek remand based on a procedural defect, that is, that the consent of both DHH and the Parish was untimely, and therefore the cases must be remanded regardless of the existence of subject matter jurisdiction.
Since defendants alluded to federal question jurisdiction in their notice of removal and plaintiffs specifically raised the issue, federal question jurisdiction should be addressed first, because if there is jurisdiction on the basis of federal question, then there is no need to look to diversity of citizenship as a grounds for removal.
Plaintiffs did not allege a federal cause of action in their original petitions filed in state court, and it is clear that "the party who brings the suit is master to decide what law he will rely on." Boone v. DuBose, 718 F. Supp. 479 (M.D. La. 1988), citing The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913). Defendants, however, appeared to suggest in their notice of removal that the Safe Drinking Water Act, 42 U.S.C. § 300f, et seq. (SDWA) completely preempts state law and provides federal question jurisdiction.
To establish complete preemption and support federal question jurisdiction, a party must show (1) the statute contains a civil enforcement provision that creates a cause of action that both replaces and protects the analogous area of state law; (2) there is a specific jurisdictional grant to the federal courts for enforcement of the right; and (3) there is a clear Congressional intent that claims brought under the federal law be removable. Heimann v. National Elevator Industry Pension Fund, 187 F.3d 493, 500 (5th Cir. 1999), citing Aaron v. National Union Fire Ins. Co. of Pittsburgh, Pa., 876 F.2d 1157 (5th Cir. 1989).
Arguments that similar federal environmental statutes support federal question jurisdiction have been raised in this court and found unpersuasive,4 and the defendants have provided no definitive authority in support of their position. Indeed, Georgia Gulf writes in its memorandum that its "removal is premised on diversity jurisdiction, not on complete preemption, as plaintiffs suggest."5 Therefore, this court has no original jurisdiction pursuant to 28 U.S.C. § 1331, and removal based on federal question jurisdiction is unavailable.
Regardless of timeliness or procedural defects, if the defendants cannot show diversity jurisdiction as the basis of removal, these matters must be remanded. There is no question that plaintiffs and most of the defendants are diverse. It is the effect of the state defendant (LDHH) on diversity jurisdiction that is at issue. Does the presence of the State through LDHH destroy complete diversity? And if so, can the State's presence nevertheless be ignored because it was fraudulently joined?6
Subject matter jurisdiction in this case is premised on 28 U.S.C. § 1332(a)(1) which reads as follows:
(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between —
(1) citizens of different States
For nearly 200 years, since the 1806 decision in Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435 (1806), the general diversity statute has been construed as requiring complete diversity of citizenship. Accordingly, "[a] case falls within the federal district court's `original' diversity `jurisdiction' only if diversity of citizenship among the parties is complete, i.e., only if there is no plaintiff and no defendant who are citizens of the same State." Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 388, 118 S.Ct. 2047, 2052, 141 L.Ed.2d 364 (1998); accord Caterpillar, Inc. v. Lewis,...
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