Burton v. Southwood Door Co., Mea, Inc., No. CIV.A. 4:02CV107LN.

• Decision Date: 07 July 2003
• Docket Number: No. CIV.A. 4:02CV107LN.
• Citation: 305 F.Supp.2d 629
• Parties: Raymond BURTON Plaintiff v. SOUTHWOOD DOOR COMPANY, MEA, INC. and Medical Group South Defendants
• Court: U.S. District Court — Southern District of Mississippi

305 F.Supp.2d 629

Raymond BURTON Plaintiff v. SOUTHWOOD DOOR COMPANY, MEA, INC. and Medical Group South Defendants

No. CIV.A. 4:02CV107LN.

United States District Court, S.D. Mississippi, Eastern Division.

July 7, 2003.

COPYRIGHT MATERIAL OMITTED

Steven Douglas Slade, Meridian, MS, for Plaintiff.

Robert Mark Hodges, Brenda M. Currie, Wise, Carter, Child & Caraway, Jackson, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on plaintiff Raymond Burton's motion to remand. Defendants Southwood Door Company, MEA, Inc. and Medical Group South (MGS) have responded in opposition to the motion and have moved contemporaneously to dismiss plaintiff's claims with prejudice. The court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes that the motion is well taken and should be granted.

Plaintiff was formerly employed as an over-the-road truck driver for Southwood Door. In that job, he was subject to Department of Transportation (DOT) regulations requiring random drug testing of workers engaged in "safety-sensitive" tasks, 49 C.F.R. §§ 382.301, 382.305 (1999), said regulations having been promulgated pursuant to the Federal Omnibus Transportation Employee Testing Act (FOTETA), 49 U.S.C. § 31306, which, by its express terms, requires the Secretary of Transportation to promulgate regulations requiring "testing of operators of commercial motor vehicles for the use of a controlled substance." 49 U.S.C. § 31306(b)(1)(A).¹

In July 1999, Burton was terminated after a random drug test performed on behalf of Southwood by MGS and MEA was reported as positive for marijuana usage. Plaintiff filed this action in the Circuit Court of Clarke County, Mississippi, on March 19, 2002 against Southwood, MGS and MEA asserting a claim of common law negligence, based on allegations, inter alia, that defendants' negligence in conducting the test resulted in a false-positive result, and also claiming defamation, based on allegations that defendants communicated to prospective employers that he had been terminated as result of a positive drug test result, causing him to lose employment opportunities.

Defendants removed the case to this court on the basis of federal question jurisdiction under 28 U.S.C. § 1331, contending that inasmuch as plaintiff's complaint alleges that defendants' actions violated FOTETA and its implementing regulations plaintiff's putative state law claims are preempted by FOTETA, thus giving rise to jurisdiction. Plaintiff maintains otherwise, and has moved to remand.

Under 28 U.S.C. § 1441, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant ... to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). Thus, for the district court to have removal jurisdiction, 28 U.S.C. § 1441(a) requires that the case be one over "which the district courts of the United States have original jurisdiction." District courts have original jurisdiction over cases concerning a "federal question," that is, cases "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.

The determination whether a plaintiff's claim arises under federal law is made by examining the "well pleaded" allegations of the complaint, ignoring potential defenses. Under this "well pleaded complaint" rule, "`a suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution....'" Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 123 S.Ct. 2058, 2062, 156 L.Ed.2d 1 (2003) (citations omitted). Thus, "[a]s a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim." Id.See also Heimann v. National Elevator Indus. Pension Fund, 187 F.3d 493, 499 (5th Cir.1999) ("It is well-settled that a cause of action arises under federal law only when the plaintiff's well-pleaded complaint raises issues of federal law.").

In his complaint in the case at bar, Burton asserts that at no relevant time prior to the drug test in question had he taken or been exposed to any illegal narcotic or other legally prescribed compound, and that the test produced a false-positive result. He attributes this to negligence on the part of defendants, alleging that the urine specimen was collected negligently, grossly negligently or recklessly by the employee of MCG so that the specimen was either contaminated and/or confused with another specimen. Plaintiff alleges specifically that the specimen "was not collected in a manner prescribed by the policies generated by Southwood Door, the DOT, and/or established procedural methods for the collection of such specimens so as to conform with minimally accepted professional pathology standards." Plaintiff complains additionally that the test results were negligently communicated to him, in that an employee of MEA contacted him to advise him of the test results despite a requirement of Southwood Door and the collection facilities that a physician notify Burton if a positive result were obtained. He further charges that despite his having communicated to defendants that he disputed the test results, MEA destroyed or otherwise subjected the specimen to spoliation in disregard of its duties as to possession of contested specimens. And he alleges that despite DOT random drug testing regulations, he was not given subsequent confirmation tests and provided counseling and evaluation by a substance abuse professional preliminary to discharge, and instead, Southwood Door, MGS and MEA, "on [their] own initiative and thus in violation of Federal law altered this law and procedure and discharged Burton immediately upon receipt of the false-positive drug test," by which actions defendants "were negligent per se, and grossly negligent, with respect to the Federal guidelines."²

Burton complains, finally, that following his termination, he sought employment as a truck driver with other companies, each of which was required to and did contact Southwood Door, and each of which was informed by Southwood Door that Burton had been terminated for testing positive, and none of which were advised of subsequent drug tests which rendered negative results.³ Plaintiff thus alleges that as a result of this "negligent, grossly negligent and false communication," he was not offered a job.

In their response to plaintiff's motion to remand, defendants point out that Burton has specifically alleged in his complaint that defendants' actions with respect to the handling of plaintiff's drug test violated the DOT regulations on random drug testing in a number of particulars. Defendants thus consider it apparent that plaintiff's complaint arises under federal law. It appears to the court, however, that plaintiff has not undertaken to allege a claim arising under federal law, but rather has identified defendant's violation of federal regulations as a basis for his state law claims of negligence and/or negligence per se. The first, question, then, is whether plaintiff's invocation of federal law as part of his state law negligence/negligence per se claim is sufficient to impart jurisdiction to a federal court under 28 U.S.C. § 1331. In the court's opinion, it is not.

The federal courts have recognized "exceptions" to the well-pleaded complaint rule, one of which permits federal courts to exercise jurisdiction over actions that raise a substantial question of federal law, even where the plaintiff has not purported to seek relief under federal law but has instead undertaken to assert his claims under state law. See Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir.2001); Willy v. Coastal Corp., 855 F.2d 1160, 1169 (5th Cir.1988).⁴ In Howery, the Fifth Circuit held that in such a circumstance, at least in the absence of complete preemption,⁵ "[f]ederal jurisdiction is sustainable ... only if [the plaintiff's] [state law] claim requires resolution of a substantial question of federal law." Howery, 243 F.3d at 918. The court set forth a three-part 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. The Fifth Circuit has repeatedly emphasized, though, that a necessary predicate for an exercise of federal jurisdiction on the basis of a substantial federal question, is the existence of a private, federal remedy. As aptly put by one court,

The presence of a federal remedy in a statute is a minimum threshold requirement to determine whether Congress intended for federal courts to adjudicate state-court actions. Following controlling Fifth Circuit jurisprudence, "we begin with the minimum requirement that the federal statutes involved provide a private, federal remedy." Willy v. Coastal Corp., 855 F.2d 1160, 1169 (5th Cir.1988)(citing Merrell Dow, 478 U.S. at 813-816, 106 S.Ct. 3229, 92 L.Ed.2d 650). Here, as in that case, no private remedy exists. That is the end of the issue, and has been since the Supreme Court decided Merrell Dow."The significance of the necessary assumption that there is no federal private cause of action thus cannot be overstated." Merrell Dow, 478 U.S. at 812, 106 S.Ct. 3229, 92 L.Ed.2d 650.

Brock v. Provident America Ins. Co., 144 F.Supp.2d 652, 657 (N.D.Tex.2001). See also Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 814, 106 S.Ct. 3229, 3235, 92 L.Ed.2d 650 (1986) ("[T]he congressional determination that there should be no federal remedy...