Simmons v. Sabine River Auth. of Louisiana

• Decision Date: 03 October 2011
• Docket Number: No. 2:11–cv–0588.,2:11–cv–0588.
• Citation: 823 F.Supp.2d 420
• Parties: Jeff SIMMONS, et al. v. SABINE RIVER AUTHORITY OF LOUISIANA, et al.
• Court: U.S. District Court — Western District of Louisiana

823 F.Supp.2d 420

Jeff SIMMONS, et al.

v.SABINE RIVER AUTHORITY OF LOUISIANA, et al.

No. 2:11–cv–0588.

United States District Court, W.D. Louisiana,Lake Charles Division.

Oct. 3, 2011.

Scott David Webre, Stockstill & Webre, Lafayette, LA, D. Adele Owen, Victor L. Marcello, Brian T. Carmouche, John H. Carmouche, John S. Dupont, III, Ross J. Donnes, William Robert Coenen, III, Talbot Carmouche & Marcello, Baton Rouge, LA, Patrick W. Pendley, Pendley Baudin & Coffin, Plaquemine, LA, for Plaintiffs.

Allen L. Smith, Jr., James R. Nieset, Matthew Patrick Keating, Plauche' Smith & Nieset, Lake Charles, LA, John F. McDermott, Taylor Porter et al., Baton Rouge, LA, for Defendants.

MEMORANDUM ORDER

KATHLEEN KAY, United States Magistrate Judge.

Pending before this court is the plaintiff's motion to remand this suit to the 30th Judicial District Court, Parish of Vernon, State of Louisiana. Doc. 8. For the following reasons, the Motion to Remand is DENIED.

Facts and Procedural History

This motion arises from a complaint filed in the 30th Judicial District Court, Parish of Vernon, State of Louisiana, on February 20, 2002. Doc. 1. The original complaint alleged that the Sabine River Authority of Louisiana, the Louisiana Department of Transportation and Development, Linda Curtis Sparks, Entergy Corporation, Entergy Gulf States, Inc., and Entergy Services, Inc. ¹ “negligently and recklessly” caused catastrophic floodwaters in March, 2001, by opening the floodgates of the Toledo Bend Dam. Id. This action was brought on behalf of two proposed classes:

1) All owners, lessees, and/or possessors by legal right of real property located in the lower Sabine River Basin in Louisiana subjected to floodwaters during March of 2001 and

2) All such owners, lessees, and possessors by legal right of real property located along the Louisiana bank of the Sabine River south of the Toledo Bend dam ... and generally north of southern boundary of Deweyville.²

Id. According to the plaintiffs, the flooding caused by the defendants lasted forty days, until defendants closed the flood gates on April 9, 2001. Doc. 8, att. 1, p. 6. Due to the opening of the floodgates, “[h]undreds of thousands of acres of property were flooded in an area approximately 65 miles in length....” Id. Plaintiffs asserted claims for trespass, nuisance, and the unconstitutional taking of their property without just compensation in violation of Louisiana's Constitution. Doc. 1. Plaintiffs sought recovery for damage to their real and personal properties, general damages for loss of use, inconvenience, and mental anguish, and punitive damages. Id.

Subsequent to the initial petition, this suit took the following course:

1) On March 12, 2002, plaintiffs filed a First Amended Petition and Suit for Damages for Personal Injuries and Property Damage modifying the proposed class and questions of law and fact common to each class and slightly clarifying the original claims and damages sought. Id. at pp. 35–46.

2) On March 15, 2002, plaintiffs filed a Second Amended Petition and Suit for Damages for Personal Injuries and Property Damage, adding a request for attorney's fees and costs. Doc. 1, att. 2, pp. 3–14.

3) On April 2, 2002, plaintiffs filed a Third Amended Petition and Suit for Damages for Personal Injuries and Property Damage slightly clarifying the original claims and adding a request for pecuniary damages. Id. at pp. 17–29.

4) On May 7, 2002, defendant Louisiana Department of Transportation and Development (“DOTD”) filed a Preemptory Exception of No Cause of Action, arguing that the DOTD had no control over the alleged cause of action, and requesting that plaintiffs' suit be dismissed against the DOTD. Id. at pp. 37–41.

5) On June 6, 2002, defendants Sabine River Authority of Louisiana (“SRA”) ³ and Linda Curtis–Sparks filed a Preemptory Exception of No Cause of Action, arguing that they were explicitly entitled to immunity pursuant to La.Rev.Stat. Ann. § 38:27.⁴ Id. at pp. 60–67.

6) On July 19, 2002, plaintiffs filed a Fourth Amended Petition and Suit for Damages for Personal Injuries and Property, amending their petition to include claims arising under the United States Constitution. Doc. 1, att. 3, pp. 16–26 (citing U.S. Const. amends. V, XIV). This amended petition was served upon the parties on July 30, 2002. Doc. 13, att. 4, p. 5.

7) On December 3, 2002, the 30th Judicial District Court entered a ruling on DOTD, SRA, and Linda Curtis–Sparks' Preemptory Exception of No Cause of Actions. Finding that La.Rev.Stat. Ann. § 38:27 was inapplicable to the Toledo Bend Dam, the court dismissed the defendants' exceptions. The DOTD, SRA, and Linda Curtis–Sparks therefore remained parties to the suit. Doc. 1, att. 3, pp. 35–36.

8) On September 8, 2005, plaintiffs dismissed defendant DOTD. Doc. 1, att. 4, pp. 6–7.

9) On February 10, 2011, plaintiffs filed a Fifth Supplemental and Amending Petition, adding a paragraph alleging the following:

[A]t the time the claims herein were made, there was in existence and effect a policy of insurance issued by Northfield Insurance Company, which policy provided insurance coverage for the damages alleged in this matter.... Further, ... there was in existence and effect a policy of insurance issued by AEGIS [ (“Policy” or “AEGIS Policy”) ].... Northfield Insurance Company and AEGIS ... are made defendants herein under the direct action statute.

Id. at pp. 54–55.

On April 13, 2011, defendants sought removal to this court, under 28 U.S.C. §§ 1331, 1441, and pursuant to the Convention on Recognition and Enforcement of Foreign Arbitral Awards (“the Convention”), 9 U.S.C. §§ 201–208. Doc. 1, pp. 3–4. Attached with the notice of removal were notifications indicating that all defendants consented to the removal. Doc. 1, atts. 7–9. On May 5, 2011, plaintiffs filed the motion for remand now before the court.⁵ Doc. 8.

Law and Analysis

I. Federal Question Removal

Jurisdiction under 28 U.S.C. § 1331 is properly invoked when plaintiff pleads a colorable claim “arising under” the Constitution or laws of the United States.⁶ Arbaugh v. Y & H Corporation, 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). “The assertion of a claim under a federal statute alone is sufficient to empower the District Court to assume jurisdiction over the case....” Cervantez v. Bexar County Civil Service Commission, 99 F.3d 730, 733 (5th Cir.1996). Defendants are free to “remove to the appropriate federal district court ‘any civil action brought in a State court of which the district courts of the United States have original jurisdiction.’ ” City of Chicago v. International College of Surgeons, 522 U.S. 156, 163, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997) (quoting 28 U.S.C. § 1441(a)).⁷ In other words, “[i]f a plaintiff files suit in state court and asserts a federal cause of action ... the defendants might invoke § 1441 to remove the case to federal court.” Halmekangas v. State Farm Fire and Cas. Co., 603 F.3d 290, 293 (5th Cir.2010).

The propriety of removal depends on whether the case originally could have been filed in federal court. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (“Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant[;] absent diversity of citizenship, federal-question jurisdiction is required.”). When removal is based upon federal question jurisdiction, the attempt at removal “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.” Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 474, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998) (citations omitted).

If an action is not initially removable, but later becomes removable, the second paragraph of § 1446(b) directs that, “a notice of removal may be filed within thirty days after receipt by the defendant ... of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable....” 28 U.S.C. § 1446(b); see also Chapman v. Powermatic, Inc., 969 F.2d 160, 161 (5th Cir.1992) (“[I]f the case stated in the initial pleading is not removable, then notice of removal must be filed within thirty days from the receipt of an amended pleading, motion, order, or other paper from which the defendant can ascertain that the case is removable.”); McCabe v. Ford Motor Co., No. 10–98, 2010 WL 2545513, at *5 (E.D.Tex. June 21, 2010) (“While the first paragraph of § 1446(b) applies to cases that are removable based on the initial pleadings, paragraph two applies to cases that are not removable at the time of filing but become removable at a later date.”). The burden of proof for establishing removal jurisdiction is placed on the party seeking removal. Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir.1988) (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921)). “If the right to remove is doubtful, the case should be remanded.” Case v. ANPAC Louisiana Ins. Co., 466 F.Supp.2d 781, 784 (E.D.La.2006); see also Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) (removal is to be construed narrowly and in favor of remand to state court); Perkins v. State of Miss., 455 F.2d 7 (5th Cir.1972) (same).

Here defendants, as the removing party, bear the burden of demonstrating the proprietary of removal. Gaitor v. Peninsular & Occidental S.S. Co., 287 F.2d 252, 253–54 (5th Cir.1961).

Plaintiffs herein have amended their complaint to explicitly assert federal claims in their Fourth Amended Petition. Doc. 1, att. 3, p. 23–24. This amended petition was served upon the parties on July 30, 2002. Doc. 13, att. 4, p. 5. At that point, the suit became removable under the second paragraph of § 1446(b).⁸ Pursuant to the clear direction of ...