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Gafford Builders, Inc. v. AJSD, LLC

United States District Court, M.D. Louisiana

February 7, 2019

GAFFORD BUILDERS, INC.
v.
AJSD, LLC, ET AL.

          NOTICE AND ORDER

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

         This is a civil action involving claims for damages based upon a sale of property to Plaintiff Gafford Builders, Inc. (“Plaintiff”) that allegedly suffered from a number of defects due to the negligence of several Defendants.[1] On or about October 29, 2018, Plaintiff filed its Petition for Damages (“Petition”) against Defendants in the Nineteenth Judicial District Court for the Parish of East Baton Rouge.[2] In general, Plaintiff alleges that the residential lot it purchased from Defendants, and on which it was under contract to build a home, suffered from defects that were not disclosed to Plaintiff by Defendants.[3]

         On February 5, 2019, Defendant Columbia Consultants, LLC (“Columbia”) removed the matter to this Court explicitly asserting that this Court has federal question jurisdiction under 28 U.S.C. § 1331.[4] On February 6, 2019, Columbia filed an Amended Notice of Removal (“Amended Notice”), which differs from the original Notice solely in that it specifies the names of the other seven Defendants: AJSD, LLC, Dunbar Construction, LLC, DAGR, LLC, Asphalt Contractors, LLC, RD & KW Investments, LLC, Anderson Dunham, Inc., and the fictious ABC Insurance Company.[5] Columbia asserts that the consent of its co-defendants to the removal is unnecessary because “Columbia is the only defendant against whom causes of action arising from questions of federal law are asserted. No joinder or consent is required by other defendants per 28 USC 1441(c)(2).”[6]

         The Notice of Removal makes the following allegation in support of federal question jurisdiction:

According to the Petition filed by [Plaintiff], Plaintiff is alleging a cause of action against Columbia arising from Columbia's alleged negligence in meeting its duties under the Code of Federal Regulations (40 C.F.R. §§ 312, 312.20 and 312.21). See ¶25 of Plaintiff's Petition.[7]

         Paragraph 25 of Plaintiff's Petition provides:

Defendant Columbia Consultants owed a duty pursuant to 40 Code of Federal Regulations Part 312, including 40 CFR §§ 312.20 and 312.21, to conduct an appropriate inquiry concerning the general conditions and possible hazards in the Subject Property and the property adjoining the Subject Property. Columbia Consultants knew or should have known that the property would be used for residential development giving rise to a duty to future property owners of the Subject Property and other lots in the Subdivision.[8]

         And, although not cited by Columbia, Paragraphs 26-27 of Plaintiff's Petition provide:

         Columbia breached the aforementioned duty in the following illustrative, but not exclusive, acts:

a) Failure to investigate and certify the closure and/or removal of the Gasoline Tank.
b) Failure to strongly recommend a Phase II ESA investigation based on the prior industrial use of the Subject Property and its known intended purpose as a residential development; c) Failure to adequately determine if the Subject Property and/or the property on or around the Subdivision ever contained petroleum products or hazardous substances as a result of the historical operations at the Subject Property or the property around the Subdivision.
d) Failure to property identify any and all recognized environmental conditions on the Subject Property and/or the property on or around the Subdivision.
e) Misrepresenting the condition of the Subject Property as “remarkably clean” when it was documented that there were totes, chemicals and piles of debris, tires, equipment and parts in various locations on the Subject ...

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