Delaughder v. Colonial Pipeline Co.

• Decision Date: 21 December 2018
• Docket Number: CIVIL ACTION NO. 1:18-cv-04414-RWS
• Citation: 360 F.Supp.3d 1372
• Parties: Hugh Gerald DELAUGHDER, Jr. and Patsu Ann Whatley, Individually and as Administratrix of the Estate of Bill Monroe Whatley, Deceased, Plaintiffs, v. COLONIAL PIPELINE COMPANY and Superior Land Designs, LLC, Defendants.
• Court: U.S. District Court — Northern District of Georgia

360 F.Supp.3d 1372

Hugh Gerald DELAUGHDER, Jr. and Patsu Ann Whatley, Individually and as Administratrix of the Estate of Bill Monroe Whatley, Deceased, Plaintiffs,

v.COLONIAL PIPELINE COMPANY and Superior Land Designs, LLC, Defendants.

CIVIL ACTION NO. 1:18-cv-04414-RWS

United States District Court, N.D. Georgia, Atlanta Division.

Signed December 21, 2018

Glenda G. Cochran, Matthew R. Moneyham, Glenda Cochran Associates, Birmingham, AL, Travis Edward Lynch, Heninger Garrison & Davis, LLC, Atlanta, GA, for Plaintiffs.

E. Righton Johnson Lewis, Pamela Renee Lawrence, Butler Snow LLP, Cheryl Halliday Shaw, Wesley Calvin Jackson, Freeman Mathis & Gary, LLP, Atlanta, GA, Kyle V. Miller, Lem E. Montgomery, III, Butler Snow LLP, Ridgeland, MS, for Defendants.

ORDER

RICHARD W. STORY, United States District Judge

This case comes before the Court on Plaintiff's Emergency Motion to Remand [17]. Also pending on the docket are Plaintiff's Motion for Order to Release 911 Recordings [46]; Defendant Colonial Pipeline's Motion to Stay Discovery [56]; and Colonial's Motion for Oral Argument [60]. After reviewing the record, the Court enters the following Order commensurate with its ruling at the scheduling conference on December 11, 2018.

Background

Plaintiffs first brought this action on July 9, 2018 in Fulton County State Court, alleging Defendants' failure to follow protocol resulted in an explosion that killed Plaintiff Mill Monroe Whatley and injured Plaintiff Hugh Gerald Delaughder, Jr. On July 12, 2018, before service, Colonial removed the case to this Court on the basis of diversity.¹ Plaintiffs timely moved to remand or alternatively to dismiss without prejudice. The Court granted Plaintiffs' Motion to Dismiss without Prejudice and denied the Motion to Remand as moot on September 19, 2018.

On September 20, 2018, Plaintiffs refiled in Fulton County State Court. On the same day, before service, Colonial again removed to this Court. The following timeline of events is undisputed:

9/19/2018    12:28 p.m.     Colonial changed its registered agent from
                                             Corporation Service Company ("CSC") to
                                             Northwest Registered Agent, LLC ("Northwest")
                9/20/2018     11:50 a.m.     Plaintiffs filed their Complaint in Fulton County
                                             State Court
                              12:26 p.m.     Plaintiffs attempted service on CSC, Colonial's
                                             former registered agent
                              1:15 p.m.      Colonial filed its Notice of Removal in this
                                             Court
                              1:24 p.m.      Colonial filed its Notice of Filing Notice of
                                             Removal in Fulton County State Court
                              1:35 p.m.      Superior filed its joinder in the removal
                              1:38 p.m.      Plaintiffs served Superior.
                10/10/2018                   Plaintiffs attempted service on Northwest,
                                             Colonial's current registered agent.
                10/30/2018                   Plaintiffs served Colonial
                

(Pls.'s Emergency Mot. to Remand, Dkt. [17-1] at 3-5; Def. Colonial's Resp., Dkt. [39] at 5.) Thus, at the time of removal, no forum defendant was properly served.

On October 16, 2018, Plaintiff Delaughder filed his Emergency Motion to Remand [17], arguing removal was procedurally improper under 28 U.S.C. § 1441, also known as the "forum-defendant rule." In response, Colonial maintained removal was proper under the plain language of the statute, and alternatively asserted federal question jurisdiction. At a scheduling conference on December 11, 2018, the Court GRANTED Plaintiff's motion. As such, Colonial's Motion for Oral Argument [60] on Plaintiffs' motion [17] is DENIED as moot. The Court will now memorialize its prior ruling in written order.

Discussion

I. Removal Legal Standard

Unless Congress explicitly provides otherwise, a defendant may remove to federal court a civil action brought in state court, provided that the federal court has original jurisdiction over the action. 28 U.S.C. § 1441(a) - (b). Original jurisdiction may be based on either the presence of a federal question or diversity of citizenship of the parties. 28 U.S.C. §§ 1331, 1332.

Nevertheless, due to federalism and finality concerns, removal statutes should be construed narrowly with any doubt resolved in favor of remand. Allen v. Christenberry, 327 F.3d 1290, 1293 (11th Cir. 2003) ; Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996) ; see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994) ("Defendant's right to remove and plaintiff's right to choose his forum are not on equal footing; ... removal statutes are construed narrowly; where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand."). The party seeking removal bears the burden of establishing federal jurisdiction. Friedman v. New York Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir. 2005).

II. Federal Question Jurisdiction

As an initial matter, the Court does not have federal question jurisdiction over this case. Although Colonial went to great lengths to avoid the forum-defendant rule, it argues that jurisdiction is proper regardless of the rule because "certain claims asserted by Plaintiffs raise a federal question under regulations promulgated by the Pipeline and Hazardous Materials Safety Administration codified at 49 C.F.R. § 195." (Def. Notice of Removal, Dkt. [1], at 2.) Plaintiffs maintain that federal question jurisdiction is improper because their complaint includes only state law claims, and federal law is not essential to any of those claims. The Court agrees.

The determination of whether federal question jurisdiction exists "is governed by the well-pleaded complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Behlen v. Merrill Lynch, 311 F.3d 1087, 1090 (11th Cir. 2002) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) ). Under this rule, federal question jurisdiction clearly lies in cases where federal law creates the cause of action asserted in the complaint. Merrell Dow Pharma., Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). Federal question jurisdiction may also lie in cases where state law creates the cause of action, provided resolution of the state law claim requires resolution of a substantial federal law issue. See id. at 809, 106 S.Ct. 3229 ("We have, however, also noted that a case may arise under federal law where the vindication of a right under state law necessarily turned on some construction of federal law.") (internal quotes and citation omitted); Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 13, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) ("Even though state law creates [the] causes of action, [the] case may still ‘arise under’ the laws of the United States if a well-pleaded complaint established that [the] right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties.") (emphasis added).

Plaintiffs' Second Amended Complaint [38] contains only state law claims against Defendants for their alleged fault in a pipeline explosion that happened in Alabama.² Accordingly, federal question jurisdiction lies only if a substantial question of federal law is a necessary element of one of these causes of action. Franchise Tax Bd., 463 U.S. at 13, 103 S.Ct. 2841 ("[T]he ‘law that creates the cause of action’ is state law, and original federal jurisdiction is unavailable unless it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims....").

Colonial argues that this standard is satisfied. Although Colonial claims Plaintiffs "invoke federal law, rules, or regulations" at least twenty-six times, they focus on Plaintiffs' negligence per se claims. (Colonial's Resp. to Pls.' Mot. to Remand, Dtk. [39] at 20, 21-26.) According to Colonial, adjudication of those claims requires the interpretation of various Pipeline and Hazardous Materials Safety Administration ("PHMSA") federal regulations.

Plaintiffs' negligence per se claim does invoke the PHMSA, however, the Court agrees with Plaintiffs that application of the PHMSA here does not give rise to a federal question such that exercise of federal question jurisdiction would be proper. This is for two primary reasons. First, Plaintiffs' claim does not require judicial interpretation of the federal statute, and second Plaintiffs' negligence per se claim is an alternative theory of liability for ordinary negligence. Here, the state court need only assess whether Defendants violated the well-established regulations; which, as Plaintiffs point out, is entirely "fact-bound and situation-specific" and does not trigger federal question jurisdiction. See Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1299 (2008). Further, as this Court held in Stephens Cty. v. Wilbros, LLC, 2:12-CV-0201-RWS, 2012 WL 4888425, at *3 (N.D. Ga. Oct. 6, 2012) even if Plaintiffs' negligence per se claim were predicated on resolution of a federal issue, Defendants' potential negligence liability is not. Thus, Colonial cannot claim that resolution of Plaintiffs' claims depends on resolution of a substantial federal issue.

In sum, Defendants, as the removing party, bear the burden of establishing federal jurisdiction and overcoming the preference towards remand. The Court perceives no federal question that exists on the face of Plaintiff's Complaint. This is a case primarily concerning Alabama state law. Plaintiffs' allegations concerning violation of a federal statute in a negligence per se claim asserted as an alternative means for establishing negligence is not an essential element of a claim and therefore is not enough to support federal question jurisdiction.

Without federal question...