Sherr v. S.C. Elec. & Gas Co.

• Decision Date: 18 April 2016
• Docket Number: Civil Case No. 3:15-cv-4695-JMC
• Citation: 180 F.Supp.3d 407
• Court: U.S. District Court — District of South Carolina
• Parties: Robert Sherr and Kristi Sherr, Plaintiffs, v. South Carolina Electric & Gas Company, Defendant.

180 F.Supp.3d 407

Robert Sherr and Kristi Sherr, Plaintiffs,

v.South Carolina Electric & Gas Company, Defendant.

Civil Case No. 3:15-cv-4695-JMC

United States District Court, D. South Carolina, Columbia Division.

Signed April 18, 2016

Stephen Jahue Moore, Moore Taylor and Thomas, West Columbia, SC, for Plaintiffs.

Elizabethann Loadholt Carroll, Mitchell Myron Willoughby, Tracey Colton Green, Willoughby and Hoefer, Columbia, SC, for Defendant.

ORDER AND OPINION

J. Michelle Childs

, United States District Judge

Plaintiffs Robert Sherr and Kristi Sherr (“Plaintiffs”) filed this action seeking damages from Defendant South Carolina Electric & Gas Company (“SCE&G”) for the damage caused to their home by flood water released from Lake Murray when SCE&G opened floodgates. (ECF No. 1-1 at 3–9.)

This matter is before the court pursuant to Plaintiffs' Motion to Remand the case to the Lexington County (South Carolina) Court of Common Pleas. (ECF No. 5.) SCE&G opposes the Motion to Remand and asks the court to retain jurisdiction. (ECF No. 9.) For the reasons set forth below, the court DENIES Plaintiffs' Motion to Remand.

I. RELEVANT BACKGROUND OF PENDING MOTION

Plaintiffs allege that SCE&G is “a public utility” that generates and sells “hydroelectric power through a large body of water known as Lake Murray.” (ECF No. 1-1 at 3 ¶¶ 4–5.) Plaintiffs further allege that SCE&G (1) “operates Lake Murray and its affiliated dams under a license and pursuant to governmental regulations[ ]”; (2) is responsible for “lake management” and for providing “control of the lake so as to benefit the general public as well as Defendant's customers[ ]”; and (3) “has the power of eminent domain and condemnation....” (Id. at 3 ¶ 6–4 ¶ 8.)

Plaintiffs owned a home “located on Cokesdale Road in the Coldstream subdivision.” (Id. at 4 ¶ 9.) In October 2015, heavy rain caused a historic “1,000-year probability” flood in Columbia, South Carolina. (ECF No. 4 at 3 ¶ 13.) During the flood, SCE&G allegedly opened three floodgates of the Lake Murray Dam, which resulted in some residential areas receiving an influx of water. (ECF No. 1-1 at 4 ¶ 11–5 ¶ 18.) Plaintiffs' home in the Coldstream subdivision was destroyed as a result of the influx of water. (Id. at 5 ¶¶ 19–21.)

On October 23, 2015, Plaintiffs filed their Complaint in the Lexington County (South Carolina) Court of Common Pleas alleging claims against SCE&G for negligence, inverse condemnation, trespass, and strict liability as a result of its management of water levels at the Lake Murray Dam. (ECF No. 1-1.) On November 20, 2015, SCE&G filed a Notice of Removal removing the action to this court pursuant to 28 U.S.C. §§ 1331

, 1367, 1441 & 1446, and provisions of the Federal Power Act (“FPA”), 16 U.S.C. §§ 791 –828c.¹ (ECF No. 1.) Plaintiffs filed their Motion to Remand on December 11, 2015, wherein they argue that there is no federal subject matter jurisdiction over their claims. (ECF No. 5.) On January 14, 2016, SCE&G filed opposition to Plaintiffs' Motion to Remand, to which Plaintiffs filed a Reply on January 29, 2016. (ECF Nos. 9, 12.)

On January 20, 2016, the court heard argument from the parties on the pending Motion. (ECF No. 10.) The court considers the merits of Plaintiffs' Motion to Remand below.

II. LEGAL STANDARD

A party seeking to remove a case from state to federal court bears the burden of demonstrating that jurisdiction is proper at the time it files its petition for removal. Caterpillar Inc. v. Lewis, 519 U.S. 61, 73, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996)

. If federal jurisdiction is doubtful, remand is necessary. Mulca h ey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir.1994) ; see Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir.1993) (noting Congress's “clear intention to restrict removal and to resolve all doubts about the propriety of removal in favor of retained state court jurisdiction”).

The right to remove a case from state to federal court derives solely from 28 U.S.C. § 1441

, which provides that “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 or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” Id. at § 1441(a). Moreover, in a case that does not contain an allegation of diversity citizenship between the parties, the propriety of removal is based on a district court's “original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States”—stated differently, the propriety of removal is based on whether a federal question has been presented. 28 U.S.C. § 1331.

To determine whether an action presents a federal question under 28 U.S.C. § 1331

, courts look to the allegations in the plaintiff's well-pleaded complaint to determine whether the action “arises under” federal law or the United States Constitution.²

Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9–10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)

. A court, in examining the complaint, must first discern whether federal or state law creates the cause of action.

Most cases under federal question jurisdiction “are those in which federal law creates the cause of action.” Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986)

. In such cases, United States courts unquestionably have federal subject matter jurisdiction. Id. If, however, state law creates the cause of action, federal question jurisdiction depends on whether the plaintiff's “well-pleaded complaint establishes ... that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law,....” Pinney v. Nokia, Inc., 402 F.3d 430, 442 (4th Cir.2005) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) ). To establish a substantial federal question, the state law claim must “[1] necessarily raise a stated federal issue, [2] actually disputed and [3] substantial, [4] which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005). “Where all four of these requirements are met...jurisdiction is proper because there is a 'serious federal interest in claiming the advantages thought to be inherent in a federal forum,' which can be vindicated without disrupting Congress's intended division of labor between state and federal courts.” Gunn v. Minton, ––– U.S. ––––, 133 S.Ct. 1059, 1065, 185 L.Ed.2d 72 (2013) (citing Grable, 545 U.S. at 313–14, 125 S.Ct. 2363 ). If the removing party fails to establish these elements, the removal is not justified under federal law.

III. ANALYSIS

A. The Parties' Arguments

1. Plaintiffs

Citing the “well-pleaded complaint rule,” Plaintiffs contend that their case should be remanded because (1) the “Complaint is totally and completely founded upon South Carolina Common Law[ ]” and does not allege a “right to recovery under any Federal Statute or Legislation[ ]”; and (2) “[n]o Federal Question is presented on the face of the Plaintiffs' well pleaded complaint.” (ECF No. 12 at 3.) In response to the allegations in SCE&G's Notice of Removal, Plaintiffs argue that (1) section 825p³ of the FPA does not confer exclusive jurisdiction of their claims against SCE&G to the federal courts and (2) original jurisdiction over this action pursuant to 28 U.S.C. § 1331

is not established based on SCE&G's arguments that “this action arises under and is controlled by the...[FPA].” (ECF No. 5 at 5.) Moreover, because the aforementioned statutes are inapplicable to their claims brought pursuant to state law, Plaintiffs argue that supplemental jurisdiction under 28 U.S.C. § 1367 is also inapplicable. (Id. at 6–7.) In support of their arguments, Plaintiffs mainly rely on Engle v. West Penn Power Co., 366 Pa.Super. 104,530 A.2d 913 (1987)

, a case in which they assert that the state court “addressed the question as to whether Plaintiffs' Common Law claims against Defendant power company for improperly releasing water and causing downstream flooding were within the exclusive jurisdiction of the Federal Court.”⁴ (ECF No. 5 at 5.)

In addition to their request for remand, Plaintiffs assert that because SCE&G “had no objectively reasonable basis for removal” (ECF No. 5 at 9), they “are entitled to an award of all costs and actual expenses, including attorney fees, incurred as a result of Defendant's improper removal.” (Id. at 8 (citation omitted).)

2. SCE&G

In the Notice of Removal, SCE&G asserted that the court has exclusive jurisdiction over Plaintiffs' state law claims pursuant to 16 U.S.C. § 825p

and original jurisdiction under 28 U.S.C. § 1331 based on the FPA. (ECF No. 1 at 1 ¶ 4.) In support of the court's exercise of jurisdiction, SCE&G first cited to information found in the Complaint that referenced a duty to operate the Lake Murray dam under “a license and pursuant to governmental regulations.” (Id. at 2 ¶8.) SCE&G then provided information concerning the Federal Energy Regulatory Commission (“FERC”),⁵ which “is authorized to issue licenses for 'the purpose of constructing, operating, and maintaining' projects 'necessary or convenient ... for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction.”' (Id. at 3 ¶12 (citing 16 U.S.C. § 797(e) ).) SCE&G asserted that the FERC has designated Lake Murray and its affiliated dams as the Saluda Hydroelectric Project 516 (“FERC Project 516”). (Id. at 2 ¶10.) SCE&G asserted that the FPA vests in the FERC broad and exclusive jurisdiction to regulate FERC Project 516. (Id. at 3 ¶11 (citing 16 U.S.C. § 791a ; California v. F . E . R . C ., 495...