United States District Court, W.D. Louisiana, Lake Charles Division
SEVEN C'S PROPERTIES LLC, ET AL.
KINETICA PARTNERS, LLC, ET AL.
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE
the court is a Motion to Remand filed by nearly all of the
plaintiffs in this matter (Seven C's Properties, LLC;
Stroebner Enterprises, LLC; Martin O. Miller, II, LLC; Marie
Diane Miller, LL; Boulet Family, LLC; and EKM,
LLC). Doc. 14. Defendant Tennessee Gas Pipeline
Company, LLC (“TGP”) opposes remand. Doc. 20.
This motion has been referred to the undersigned for review,
report, and recommendation in accordance with the provisions
of 28 U.S.C. § 636. For the reasons stated below,
IT IS RECOMMENDED that the motion be
case arises from a 1957 Right of Way Agreement
(“ROW”) entered into between Tennessee Gas
Transmission Company and Dr. M.O. Miller, to construct a
pipeline in Cameron Parish, Louisiana. See doc. 1,
att. 2, pp. 46-52. The case began as two separate suits filed
in the 38th Judicial District Court, Cameron Parish,
Louisiana, by the heirs of Dr. Miller. The suits
(“Miller suit” and “Seven C's
suit”) were filed, respectively, in September 2014 and
September 2015 against Tennessee Gas Transmission Company and
its successors, including TGP and Kinetica Partners, LLC
(“Kinetica”). See Id. at 2-6 (Seven
C's petition); doc. 16, att. 1, pp. 2-4 (Miller
petition); doc. 1, att. 2, pp. 12-13 (providing dates of
filing). The suits were consolidated: the plaintiffs'
joint and unopposed motion on November 23, 2016. Doc. 1, att.
2, pp. 12-15.
original suits, plaintiffs alleged that defendants had
breached the ROW Agreement by failing to restore bridges,
levees, and plugs damaged in 2005 Hurricane Rita. On May 17,
2018, they filed an amended and restated complaint against
TGP and Kinetica, in which they also brought claims relating
to the defendants' maintenance of the pipeline canal.
Doc. 1, att. 4, pp. 48-62.
amended petition Plaintiffs allege that the defendants have
failed to maintain the canal in accordance with the express
terms of the ROW Agreement as well as the implied obligations
set forth in the Louisiana Civil Code suppletive rules
regarding servitudes. Id. at 56 (citing La. Civ.
Code art. 697 et seq.). They also allege negligence
in the defendants' use, operation, and maintenance of the
canal. Id. at 57. On June 15, 2018, TGP removed the
action to this court, with Kinetica's consent, on the
basis of federal officer jurisdiction, 28 U.S.C. § 1442,
and federal question jurisdiction, 28 U.S.C. § 1331.
Doc. 1; see doc. 1, att. 5. Plaintiffs filed a
motion to remand on July 16, 2018, asserting that there is no
legitimate basis for federal jurisdiction over its state-law
claims. Doc. 14. They also request attorney fees pursuant to
28 USC § 1447(c). Id. at 3. TGP opposes remand.
courts are courts of limited jurisdiction, possessing
“only that power authorized by Constitution and by
statute.” Gunn v. Minton, 133 S.Ct. 1059, 1064
(2013) (quotation omitted). Generally, a defendant may remove
a civil action to federal court if the federal court has
original jurisdiction over the action. 28 U.S.C. §
1441(a). However, the federal district court must remand the
action to state court if it finds that it lacks subject
matter jurisdiction. 28 U.S.C. § 1447(c). The removing
party bears the burden of showing that removal was
procedurally proper and that federal jurisdiction exists.
See De Aguilar v. Boeing Co., 47 F.3d 1404');">47 F.3d 1404, 1408
(5th Cir. 1995).
asserts two bases for subject matter jurisdiction in its
notice of removal: federal officer removal jurisdiction and
federal question jurisdiction. Doc. 1. The plaintiffs
challenge jurisdiction entirely. Doc. 14. We therefore review
the plaintiffs' challenges to determine whether the
matter ought to be remanded for lack of subject matter
Federal Officer Removal Jurisdiction
28 U.S.C. § 1442(a), a state court suit may be removed
to federal court if it is against the U.S. government,
including agencies and officers of the government “or
any person acting under that officer.” Accordingly,
federal officer jurisdiction may be exercised even over cases
brought against private parties if they are sued for conduct
committed under the direction of federal authorities.
Crutchfield v. Sewerage and Water Bd. of New
Orleans, 829 F.3d 370, 375 (5th Cir. 2017). This statute
arises from the Supremacy Clause and is designed to prevent
state courts from interfering with federal officials'
enforcement of federal law. Willingham v. Morgan, 89
S.Ct. 1813, 1815-16 (1969). Unlike with other bases for
removal, where doubts must be resolved in favor of remand,
the broad reach and liberal construction of § 1442(a)
compel the court to review it “without a thumb on the
remand side of the scale.” Savoie v. Huntington
Ingalls, Inc., 457');">817 F.3d 457, 462 (5th Cir. 2016). Still,
the defendant retains the burden of showing that jurisdiction
is proper under the statute. Bartel v. Alcoa S.S. Co.,
Inc., 805 F.3d 169, 172 (5th Cir. 2015).
justify removal under this statute, a party must show that:
(1) it is a person under the statute's meaning; (2) it
acted “pursuant to a federal officer's
directions;” and (3) it can articulate a
“colorable federal defense.” Zeringue v.
Crane Co., 46 F.3d 785');">846 F.3d 785, 789 (5th Cir. 2017). TGP
satisfies the first factor, given the acceptance of corporate
entities as private persons. E.g., Winters v.