DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY v. FIRST HAND LAND, LLC et al

Filing 32

ORDER granting 17 Motion to Remand to State Court. This case shall be remanded to the Superior Court of the District of Columbia. See Order for complete details. SO ORDERED. Signed by Judge Amy Berman Jackson on 3/1/2017. (lcabj3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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DISTRICT OF COLUMBIA WATER
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AND SEWER AUTHORITY,
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Plaintiff,
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v.
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Civil Action No. 16-2456 (ABJ)
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FIRST HAND LAND, LLC, et al.,
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Defendants.
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____________________________________)
ORDER
Plaintiff has filed a motion to remand this removed action to the Superior Court of the
District of Columbia. Pl.’s Opposed Mot. for Remand to Super. Ct. of D.C. [Dkt. # 17] (“Pl.’s
Mot.”). Because the Court concludes that it lacks jurisdiction, it will grant the motion and remand
the case.
On January 8, 2016, plaintiff, the District of Columbia Water and Sewer Authority, brought
a negligence action in the Superior Court of the District of Columbia against defendants First Hand
Land, LLC (“First Hand”); Bello, Bello, and Associates, LLC (“Bello”); several employees of the
D.C. Department of Consumer and Regulatory Affairs (“DCRA”); Edge Investment, LLC
(“Edge”); and Edge’s Chief Executive Officer, seeking recovery for damage caused to the
Northeast Boundary Tunnel Sewer during the course of a construction project. Compl. [Dkt. # 115] at 126–43. Plaintiff filed an amended complaint on April 7, 2016. First Am. Compl. [Dkt. # 114] at 12–35.
On October 24, 2016, defendant Edge filed a counterclaim against plaintiff DC Water and
Sewer, claiming violations of the constitutional guarantee of due process, unconstitutional taking
of private property, trespass, and negligence. Edge’s Countercls. & Demand for Jury Trial [Dkt.

# 11] at 254–68. Edge filed an amended counterclaim on February 1, 2017, alleging additional
violations of its procedural and substantive due process rights. Edge’s Am. Countercls. & Demand
for Jury Trial [Dkt. # 22]. And on November 7, 2016, Edge filed a third-party complaint against
defendant the District of Columbia. Edge’s Third Party Compl. & Demand for Jury Trial [Dkt.
# 11] at 162–78. The third-party complaint alleges that the District violated Edge’s due process
rights, and that the District authorized an unconstitutional taking of Edge’s property, among other
claims. Id.
In response to the counterclaim filed against it by Edge, DC Water and Sewer filed a thirdparty complaint for contribution and indemnification against Pinpoint Underground, LLC. ThirdParty Compl. [Dkt. # 11] at 207–11.
And on December 16, 2016, the District of Columbia filed a notice of removal which
purported to remove Edge’s third-party complaint to this Court. Notice of Removal [Dkt. # 1].
On January 19, 2017, the original plaintiff, DC Water and Sewer, filed a motion to remand
the case to the Superior Court. Pl.’s Mot. The party that removed the matter, the District of
Columbia, subsequently notified the Court that it would not oppose remand. Praecipe Notifying
Ct. That D.C. Does Not Opp. Remand [Dkt. # 26] (“D.C.’s Non-Opp. of Remand”) at 2. However,
Pinpoint Underground and Edge both oppose plaintiff’s request to remand the case. Third Party
Def. Pinpoint Underground LLC’s Opp. to Pl.’s Mot. for Remand [Dkt. # 21] (“Pinpoint’s Opp.”);
Edge’s Mem. in Opp. to Pl.’s Mot. [Dkt. # 27] (“Edge’s Opp.”). Plaintiff has replied in support of
its motion. Combined Reply to Opps. to Pl.’s Mot. [Dkt. # 29].
ANALYSIS
Here, the removing party, the District of Columbia, does not oppose remand. D.C.’s NonOpp. of Remand at 2. It is unclear whether Edge, which chose to litigate its claims in Superior

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Court in the first instance, or Pinpoint, a third-party defendant, has standing to oppose the motion.
But even if they can be heard on this issue, the law tends to favor remand under these
circumstances.
Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies
outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of
limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). The federal
removal statute, 28 U.S.C. § 1441, provides that civil actions “may be removed by the defendant
or the defendants” when the claim “aris[es] under the Constitution, law or treaties of the United
States.” 28 U.S.C. § 1441. “The presence or absence of federal-question jurisdiction is governed
by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a
federal question is presented on the face of the plaintiff’s properly pleaded complaint. The rule
makes the plaintiff the master of the claim.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987).
In this case, plaintiff’s complaint alleges negligence under state law. See First Am. Compl.
While the D.C. Circuit has not addressed the issue, courts in this district have consistently applied
Caterpillar to conclude that a “cause of action arises under federal law only when the federal claim
can be found on ‘the face of the complaint and only the face of the complaint.’” U.S. Airways
Master Exec., Council v. Am. West Master Exec. Council, 525 F. Supp. 2d 127, 132–33 (D.D.C.
2007), quoting Strategic Lien Acquisitions LLC v. Republic of Zaire, 344 F. Supp. 2d 145, 148
(D.D.C. 2004); see also Zuurbier v. MedStar Health, Inc., 306 F. Supp. 2d 1, 4 (D.D.C. 2004).
And while circuits are split on the issue, the majority of the circuits that have considered the issue
have concluded that a third-party defendant may not remove an action under section 1441(c). See

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First Nat’l Bank of Pulaski v. Curry, 301 F.3d 456, 463–64 (6th Cir. 2002); Lewis v. Windsor Door
Co., 926 F.2d 729, 733 (8th Cir. 1991); Thomas v. Shelton, 740 F.2d 478, 487 (7th Cir. 1984); but
see Carl Heck Eng’rs, Inc. v. Lafourche Par. Police Jury, 622 F.2d 133, 135–36 (5th Cir. 1980)
(authorizing third-party removal if the claim is separate and independent from the plaintiff’s
original claim). Leading commentators on civil procedure ascribe to the majority view. See 14B
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure
§ 3722.3 (4th ed. 2017).
Particularly under the circumstances here, where the removing party does not oppose
remand, the Court will follow other courts in this district and the majority of the circuits that have
concluded that a third-party defendant may not remove an action to federal court. Because there
are no federal claims on the face of plaintiff’s complaint, Caterpillar, 482 U.S. at 392, the Court
lacks subject matter jurisdiction over this action. It is hereby
ORDERED that plaintiff’s motion to remand is GRANTED. This case shall be remanded
to the Superior Court of the District of Columbia.
SO ORDERED.

AMY BERMAN JACKSON
United States District Judge
DATE: March 1, 2017

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