B.W. v. Huff Management Co., Inc.

Filing 18

OPINION AND ORDER directing that plaintiff B.W.'s motion to remand (Doc. No. 9 ) is granted and that, pursuant to 28 U.S.C. § 1447(c), this cause is remanded to the Circuit Court of Bullock County, Alabama, for lack of subject-matter juris diction; further ORDERED that any other outstanding motion is left for resolution by the state court after remand; the clerk of the court is DIRECTED to take appropriate steps to effect the remand; this case is closed in this court.. Signed by Honorable Judge Myron H. Thompson on 12/11/13. (Furnished to Calendar/AG)(Term'd: Final PTC 01/23/2015 and Jury Trial 02/23/2015)(scn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

B.W., a minor child by
and through Fiona
Williams, his mother
and next friend,

)
)
)
)
)
Plaintiff,
)
)
v.
)
)
HUFF MANAGEMENT CO., INC., )
d/b/a Stoneridge Villas,
)
a domestic corporation,
)
)
Defendant.
)

CIVIL ACTION NO.
2:13cv767-MHT
(WO)

OPINION AND ORDER
Plaintiff B.W., through his mother Fiona Williams,
originally brought this lawsuit in state court charging
defendant Huff Management Company, Inc. with negligence
and

negligence

per

se.

Specifically,

the

complaint

alleged that B.W. had been poisoned by lead paint in a
Huff Management apartment which his mother had leased.
The

complaint

alleged

that

the

management

company’s

precautions and remedial measures with regard to lead
paint fell short of general duties of care and specific

standards provided in the federal Residential Lead-Based
Paint Hazard Reduction Act, 42 U.S.C. § 4851 et seq., and
its implementing regulations.

Huff Management removed

this lawsuit from state to federal court under 28 U.S.C.
§§ 1331, 1441, on the ground that B.W.'s state-law claims
raised questions of federal law.

This lawsuit is now

before the court on B.W.'s motion to remand.

For reasons

that follow, the motion will be granted.
Section

1441(a)

provides,

with

exceptions

not

relevant here, that "any civil action brought in a State
court of which the district courts of the United States
have

original

jurisdiction,

may

be

removed

by

the

defendant or the defendants, to the district court of the
United States for the district and division embracing the
place where such action is pending."

28 U.S.C. § 1447(c)

provides, however, that, "If at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded."

In

this case, the propriety of removal turns on whether the

2

case

falls

within

the

original

jurisdiction of this court.

"federal

question"

Section 1331 provides that,

"district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or
treaties of the United States."
The United States Supreme Court has explained that,
"Since the first version of § 1331 was enacted, Act of
Mar. 3, 1875, ch. 137, § 1, 18 Stat. 470, the statutory
phrase 'arising under the Constitution, laws, or treaties
of the United States' has resisted all attempts to frame
a single, precise definition for determining which cases
fall within, and which cases fall outside, the original
jurisdiction of the district court."

Franchise Tax Bd.

v. Const. Laborers Vac. Trust, 463 U.S. 1, 8 (1983).
"Especially when considered in light of § 1441's removal
jurisdiction," the Court continued, "the phrase 'arising
under'

masks

a

welter

of

issues

regarding

the

interrelation of federal and state authority and the
proper management of the federal judicial system." Id.

3

In Merrell Dow Pharmaceuticals Inc. V. Thompson, 478
U.S. 804 (1986), the Supreme Court specifically addressed
the balance of federal and state judicial authority as it
relates to a negligence per se claim invoking federal
law. “[A] complaint alleging a violation of a federal
statute as an element of a state cause of action, when
Congress has determined that there should be no private,
federal cause of action for the violation, does not state
a claim arising under the Constitution, laws, or treaties
of the United States.” Id. at 817 (internal quotation
marks removed).
It is not clear that B.W. would have a private cause
of action under the Residential Lead-Based Paint Hazard
Reduction Act. The statute provides that, “Any person who
knowingly violates the provisions of this section shall
be jointly and severally liable to the purchaser or
lessee in amount equal to 3 times the amount of damages
incurred by such individual.” 42 U.S.C. § 4852d(b)(3)
(emphasis added). B.W. did not lease the apartment at

4

issue; his mother did. Several Circuit Courts of Appeals
have disagreed as to whether the statute allows a child
of a lessee or purchaser, like B.W., to sue. The First
and Sixth Circuit Courts held that it does not: Roberts
v. Hamer, 655 F.3d 578, 581 (6th Cir. 2011) and Mason ex
rel. Heiser v. Morrisette, 403 F.3d 28, 28 (1st Cir.
2005). The Third Circuit Court, on the other hand, held
that a child a lessee does have statutory standing to sue
under the statute: Cudjoe ex rel. Cudjoe v. Dept. of
Veterans Affairs, 426 F.3d 241, 250 (3d Cir. 2005). The
Eleventh Circuit Court of Appeals has not yet addressed
the issue.
“[R]emoval statutes should be construed narrowly,
with

doubts

Christenberry,

resolved
327

F.3d

against
1290,

removal.”
1293

(11th

Allen
Cir.

v.

2003)

(citing Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir.
1996)). The Roberts and Mason cases create doubt about
whether B.W.’s case is properly removable, and that doubt
is sufficient to justify remand.

5

* * *
Accordingly, for the above reasons, it is the ORDER,
JUDGMENT, and DECREE of the court that plaintiff B.W.’s
motion to remand (Doc. No. 9) is granted and that,
pursuant to 28 U.S.C. § 1447(c), this cause is remanded
to the Circuit Court of Bullock County, Alabama, for lack
of subject-matter jurisdiction.
It is further ORDERED that any other outstanding
motion is left for resolution by the state court after
remand.
The

clerk

of

the

court

is

DIRECTED

to

appropriate steps to effect the remand.
This case is closed in this court.
DONE, this the 11th day of December, 2013.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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