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Seven C's Properties LLC v. Kinetica Partners, LLC

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

March 13, 2019

SEVEN C'S PROPERTIES LLC, ET AL.
v.
KINETICA PARTNERS, LLC, ET AL.

          REPORT AND RECOMMENDATION

          KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE

         Before 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).[1] 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 GRANTED.

         I.

         Background

         This 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.

         In the 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.

         In the 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. Doc. 20.

         II.

         Law & Analysis

         Federal 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).

         TGP 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 jurisdiction.

         A. Federal Officer Removal Jurisdiction

         Under 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).

         To 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. ...


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