United States District Court, E.D. Louisiana
ORDER AND REASONS
STANWOOD R. DUVAL, Jr., District Judge.
Before the Court is a Motion to Remand (Doc. 8) filed by plaintiffs Susan Laurendine, William Laurendine, Albert Leboeuf, Peter Ascani, III, Gladys Hodges and Theresa Harvey. This suit has now been removed to this Court for a third time, this time by the Sewerage and Water Board of New Orleans ("SWB"). Plaintiffs maintain that this matter should be remanded to Civil District Court for the Parish of Orleans ("CDC") because:
(1) the February 18, 2015, removal was procedurally untimely under 28 U.S.C. § 1446(b)(3) because it occurred more than thirty days after receipt of a copy of the Amended Master Class Action Petition;
(2) plaintiffs's expressly stated claims do not arise under the Constitution, law, or treaties of the United States, and this Court does not have "federal question" jurisdiction pursuant to 28 U.S.C. § 1331; and
(3) pursuant to 28 U.S.C. § 1441(c)(2), this Court is required to sever and remand to Civil District Court all claims which fall within the meaning of 28 U.S.C. § 144(c)(1)(B).
As the Court finds that the removal was procedurally untimely, the motion will be granted for the reasons that follow.
This case arises out of the cataclysmic flooding caused by the failure of the levees abutting the outfall canals at 17th Street and London Avenue in the wake of Hurricane Katrina on August 29, 2005. In the initial petition, plaintiffs alleged that the Orleans Levee District, Parish of Orleans ("OLD") was liable for (1) designing and installing concrete flood walls which were below standard and potentially unstable in a flood; (2) failing to test the flood walls to withstand the strength of a storm surge, and (3) failing to interlock the flood walls. The suit was remanded by order of this Court on June 2, 2006 (Doc. 36 in Harvey v. The Board of Commissioners, C.A. No. 05-4568).
This Court rejected OLD's analysis and noted in its reasons that "[t]he fallacy with removing this case based on § 1441(a)(1) is that OLD did not "act under the direction of a federal officer' to build or design any structure." In addition, the Court declined to exercise federal question jurisdiction as the Court found that the claims against OLD focused on whether OLD had the ability to act apart from the Corps or in concert therewith to fulfill its state law duties. The Court noted that a federal defense did not give rise to jurisdiction.
Subsequent to that opinion, the Court rendered an opinion in a related case which informed the Court's decision remanding this case for a second time on August 9, 2006. ( In re Katrina Canal Breaches Consolidated Litigation, Re: 06-3529 Laurendine, Doc. 6). In its Order and Reasons remanding another suit removed by OLD, Vanderbrook v. State Farm Fire & Cas.Co., C.A. No. 05-6323 "K"(2), the Court found that the same legal analysis applied to claims that rested solely on Louisiana law and duties owed to those plaintiffs under La. Rev. Stat. 38:281, La. Rev. Stat. 38:301(A)(1) which allow levee boards of the State of Louisiana to construct and maintain levees and La. Rev. Stat. 38:301(B)(1) which provides that care and inspection of levees devolve on the commissioner. Those claims also were based on the Louisiana concept of garde found at La. Civ. Code art. 2317 and negligence under La. Civ. Code art. 2315. This Court found that OLD was not under sufficient supervision of the Corps of Engineers to create federal officer jurisdiction concerning those claims, and likewise a federal defense to a state law claim did not create federal question jurisdiction. See Berthelot v. Boh Brothers Construction Co., L.L.C., 2006 WL 1984661 (E.D.La. June 1, 2006) ( Vanderbrook remand opinion).
In its August 2006 opinion, the Court rejected OLD's second attempt to remove this case under 28 U.S.C §1446(b) in which it argued that the case had been made removable because plaintiffs had added three new causes of action, new plaintiffs and additional factual allegations. Because these "new" grounds were fundamentally the same grounds rejected in the Vanderbrook opinion, the matter was remanded again.
The SWB was added as a defendant in July of 2006 and the case has proceeded in state court since that time. A Class Certification hearing was set to commence on April 20, 2015. On December 23, 2014, a Motion for Leave to File Master Class Action Petition was filed in CDC. (Doc. 8-4 at 2 of 29). Plaintiffs opine that the sole purpose in its being filed was to streamline and clarify the litigation as the previous amendments were confusing and did not reflect certain matters learned during discovery and did not reflect the proposed class definition. (Doc. 801, at 2 of 19, n.2). At the time it was filed on December 23rd, the proposed petition was accompanied by a letter to the Honorable Robert Burns and Counsel for Defendants. That letter was "clocked in" as well by the Clerk of Court for CDC at 3:35 p.m. on December 23, 2014. Doc. 8-4 at 1 of 29.
In the Memorandum in Support of the Motion for Leave, counsel for plaintiff explained that there had been two prior amendments to the initial petition, the last one having been in July of 2006, prior to the litigation of the federal cases contained in In re Katrina Levee Breaches Litigation, C.A. 05-4182. As such, plaintiffs sought to submit a master petition in order set forth all of the claims and parties in one pleading which was to "condense the three prior petitions into a single statement of their claims against the remaining defendants." (Doc. 8-4 at 6 of 29). The Order granting leave to file the Master Class Action Petition was signed on December 29, 2014 and entered on the Minutes of the court on January 6, 2015. (Doc. 8-4 at 3 of 29). Two days later, on January 8, 2015, a hearing was held before the Honorable Robert Burns which was attended by counsel for the SWB. At that hearing, a Motion to Substitute Bellwethers was argued.
At the very beginning of that hearing in response to counsel for plaintiffs' argument as to the substitution, Judge Burns made specific reference to certain plaintiffs that are listed in the amended class action petition that was filed on the date of December 23, of 2014. (Doc. 8-6 at 3 of 9). Ms. Jacobs responded that the people who were being sought to be added/substituted were not included in that document because the court had not ruled on the substitution. Moreover, addition of the new plaintiffs to the Amended Master Class Action Complaint was required because Anita Sarrat and Dale Atkins no longer wanted to participate in the ...