Williams-Ward v. Lorenzo Pitts, Inc.

Decision Date18 October 1995
Docket NumberCiv. A. No. 93-11703-PBS.
Citation908 F. Supp. 48
PartiesImira WILLIAMS-WARD, Plaintiff, v. LORENZO PITTS, INC., Defendant.
CourtU.S. District Court — District of Massachusetts

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Chris A. Milne, Rainer and Rainer, Boston, MA, for Plaintiff.

Marsha K. Zierk, Diane C. Tillotson, Hemenway & Barnes, Boston, MA, for Defendant.

MEMORANDUM OF DECISION AND ORDER

SARIS, District Judge.

INTRODUCTION

Plaintiff, Imira Williams-Ward, a minor girl,1 brings this action against the defendant, Lorenzo Pitts, Inc., for injuries allegedly sustained as a result of her ingestion in 1987 of lead paint in an apartment building ("the premises") owned by the United States Department of Housing and Urban Development ("HUD") and managed by the defendant.

The four count complaint filed in Suffolk Superior Court in July of 1993 asserts claims of strict liability under the Massachusetts Lead Poisoning Prevention and Control Act ("Massachusetts Lead Paint Act"), Mass. Gen.L. ch. 111, §§ 196 and 197, resulting in breach of the implied warranty of habitability and covenant of quiet enjoyment (Count I); violation of Mass.Gen.L. ch. 111, § 199 for failure to remedy the dangerous level of lead paint (Count II); violation of Mass.Gen.L. ch. 93A (Count III); and negligence (Count IV). The complaint does not allege any violation of federal law; nor does it name the United States or any federal agency as a defendant.

On or about August 3, 1993 the defendant removed the case to federal court stating that the Federal Lead-Based Paint Poisoning Prevention Act (FLPPPA), 42 U.S.C. §§ 4821-4846, the National Housing Act, 12 U.S.C. § 1701 et seq., and federal common law pre-empt the plaintiff's claims. Waiving her warranty and quiet enjoyment claims, plaintiff moves this court to vacate the defendant's notice of removal and remand the action to the Superior Court. In the alternative, the plaintiff seeks partial summary judgment as to Counts I and II of the complaint, and the imposition of sanctions upon the defendant pursuant to Fed.R.Civ.P. 11. The defendant urges this court to retain jurisdiction over the entire case, and has also moved for summary judgment with respect to all remaining claims.

After hearing, the Plaintiff's Motion to Vacate Notice of Removal, Motion for Rule 11 Sanctions, and Cross-Motion for Partial Summary Judgment are DENIED. Defendant's Motion for Summary Judgment is DENIED with respect to Count IV of the plaintiff's complaint alleging negligence, and ALLOWED with respect to the remaining claims.

I. PLAINTIFF'S MOTION TO VACATE NOTICE OF REMOVAL

Plaintiff's motion to vacate notice of removal comes almost two years after the case was initially removed. The original complaint filed in state court asserted claims under the covenant of quiet enjoyment and implied warranty of habitability. Having waived these claims, the plaintiff now seeks remand of her remaining claims.

As long as this case was properly removed to federal court, this court has jurisdiction, "whether or not the basis of removal, i.e., the federal claim, thereafter remains." Ching v. MITRE Corp., 921 F.2d 11, 13 (1st Cir.1990). The propriety of removal is determined by examining the complaint at the time the notice of removal was filed. Id. Thus, the plaintiff's subsequent waiver of any and all federal claims will not defeat this court's jurisdiction. Id. at 13. Rather, assuming all federal claims have been eliminated, it is within this court's discretion whether or not to remand the remaining state claims. Id.

Pursuant to 28 U.S.C. § 1441(b), a defendant can remove "any action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution ... or laws of the United States". For purposes of removal, federal question jurisdiction exists where the complaint establishes either that federal law creates the cause of action, or that the plaintiff's right to relief under state law requires resolution of "a substantial question of federal law." Franchise Tax Board v. Laborers Vacation Trust, 463 U.S. 1, 13, 103 S.Ct. 2841, 2848, 77 L.Ed.2d 420 (1983); Commonwealth of Massachusetts v. V & M Management Inc., 752 F.Supp. 519, 521 (D.Mass.1990), aff'd, 929 F.2d 830 (1st Cir.1991). Moreover, where a federal cause of action completely pre-empts a state claim, that claim is deemed to "arise under federal law". Franchise Tax Board, 463 U.S. at 24, 103 S.Ct. at 2854.

As plaintiff concedes, the implied warranty and quiet enjoyment claims arise under federal law because they involve the rights and obligations of the parties pursuant to the plaintiff's lease with HUD, a federal agency. See Conille v. Secretary of Housing and Urban Development, 840 F.2d 105, 109 (1st Cir.1988) ("It is well-established that cases involving the rights and obligations of the United States or one of its agents under a contract, entered into pursuant to authority conferred by federal statute, are governed by federal law."). Accordingly, initial removal of the case was proper, and it is now within the discretion of this court whether or not to retain jurisdiction over the pendent claims. See Ching, 921 F.2d at 13.

This case has a long and complex history of discovery disputes, with which this court is painfully familiar. As previously stated, it was initially removed from Suffolk Superior Court in August, 1993. Subsequently, considerable time and resources have been devoted to its management. Accordingly, it is in the interest of "judicial economy, convenience, fairness and comity" for this court to retain jurisdiction over the remaining claims. See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 619, 98 L.Ed.2d 720 (1988). Indeed, at the hearing, plaintiff did not contest this Court's jurisdiction over this action. The plaintiff's motion to vacate defendant's notice of removal is therefore DENIED.

II. SUMMARY JUDGMENT

This court next considers the parties' cross-motions for summary judgment. Summary judgment must be granted where:

The pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c). Summary judgment is appropriate "only when no genuine issue of material fact exists and the movant has successfully demonstrated an entitlement to judgment as a matter of law." In re Varrasso, 37 F.3d 760, 762 (1st Cir.1994) (citing cases). Accordingly, "the moving party must show that there is an absence of evidence to support the nonmoving party's position." Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990). Thereafter, the burden "shifts to the nonmoving party to establish the existence of an issue of fact ... from which a reasonable jury could find for the nonmoving party." Id. (citations omitted). The nonmoving party cannot rest on mere allegations. Rather, there must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).

A. FEDERAL PRE-EMPTION

The defendant argues that the plaintiff's claims based upon alleged violations of the Massachusetts Lead Paint Act are pre-empted by the Federal Lead Paint Act, 42 U.S.C. §§ 4821-4846.

The question of pre-emption arises under the Supremacy Clause of the United States Constitution. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 515, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992); King v. Collagen Corp., 983 F.2d 1130, 1133 (1st Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 84, 126 L.Ed.2d 52 (1993). In accordance with Article VI, any state laws that conflict with federal laws and regulations are preempted. Id. "The critical question ... is whether Congress intended that federal regulation supersede state law". Norris v. Lumbermen's Mut. Cas. Co., 881 F.2d 1144, 1147 (1st Cir.1989).

Congressional intent to pre-empt state law may be expressed "explicitly in the language of the statute," or implicitly, "by passing an extensive statutory scheme that extensively covers the field of regulation." King, 983 F.2d at 1133 (citations omitted). "Implied preemption also occurs when a conflict between state and federal law makes compliance with both impossible, or when state law would frustrate the purpose and objectives of the federal law." Id. at 1133. Especially in areas involving the state's interest in public health and safety, it is presumed that Congress did not intend to preempt state law. Id.; Talbott v. C.R. Bard, Inc., 865 F.Supp. 37, 43 (D.Mass.1994).

Where "Congress has included an express pre-emption provision in a statute, such a provision ... implies that matters beyond that pre-emptive reach are not pre-empted." Cipollone, 505 U.S. 504, 112 S.Ct. at 2618; King, 983 F.2d at 1139; Talbott, 865 F.Supp. at 43. Thus, where a federal statute contains an express pre-emption provision, a court may not expand its inquiry to consider the possibility of implied pre-emption. Talbott, 865 F.Supp. at 43.

Remarkably, the issue of pre-emption with respect to claims arising under the Massachusetts Lead Paint Act appears to raise a question of first impression. The FLPPPA does contain an express pre-emption provision, 42 U.S.C. § 4846, which provides in part:

It is hereby expressly declared that it is the intent of the Congress to supersede any and all laws of the States and units of local government insofar as they may now or hereafter provide for a requirement, prohibition or standard relating to lead content in paints or other similar surface-coating materials which differs from the provisions of this Act or regulations issued pursuant to this Act.... Any law, regulation or ordinance purporting to establish such different requirement, prohibition or standard shall be null and void.

Id. (Emphasis...

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