Stephens County et al v. Wilbros, LLC et al

Filing 13

ORDER granting Plaintiffs' 5 Motion to Remand to the Superior Court of Stephens County, Georgia. Signed by Judge Richard W. Story on 10/05/12. (sk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
STEPHENS COUNTY, by and
through its Board of
Commissioners; CITY
COMMISSION OF CITY OF
TOCCOA; STEPHENS COUNTY
SCHOOL DISTRICT, by and
through the Stephens County
Board of Education; and
CONCERNED CITIZENS OF
TOCCOA-STEPHENS COUNTY,
LLC,
Plaintiffs,
v.
WILBROS, LLC;
ENVIRONMENTAL RESOURCE
CONCEPTS, LLC; WILCORP,
INC.; and JOSEPH H.
WILBANKS, JR.,
Defendants.

:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO.
2:12-CV-0201-RWS

ORDER
This case comes before the Court on Plaintiffs’ Motion to Remand to the
Superior Court of Stephens County, Georgia (“Pls.’ Mot. to Remand”) [5].
After reviewing the record, the Court GRANTS the Motion for the reasons that
follow:

AO 72A
(Rev.8/82)

Plaintiffs initiated this litigation by filing a Complaint against Defendants
in the Superior Court of Stephens, County, raising claims for nuisance, trespass,
negligence, negligence per se, and unjust enrichment. (See generally Compl.,
Dkt. [1-1].) Each cause of action arises out of Defendants’ operation of a
facility “engaged in the receipt, storage, treatment, processing and disposal of
industrial wastes,” which operation allegedly is releasing noxious odors into the
surrounding environment. (See generally id.) Plaintiffs allege that the odors
are so strong as to “completely . . . interfere[] with the commercial, recreational,
economic and aesthetic interests of the community” and its residents, such as by
causing nausea and vomiting, forcing residents indoors, interfering with
business, and disrupting school activities. (Id. ¶¶ 59-82.)
Defendants timely removed the action to this Court on the basis of
federal question jurisdiction, arguing that Plaintiffs’ Complaint alleges
violations of the federal Clean Water Act, 33 U.S.C. § 1251, et seq. (Defs.’
Notice of Removal, Dkt. [1].) Plaintiffs now move the Court to remand the case
back to the Superior Court of Stephens County, arguing that the Complaint
alleges only violations of state law and does not raise a claim under the Clean
Water Act. (See generally Pl.’s Mot. for Remand, Dkt. [5].)
2

AO 72A
(Rev.8/82)

The determination of whether federal question jurisdiction exists “‘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.’” Behlen v. Merrill Lynch, 311 F.3d
1087, 1090 (11th Cir. 2002) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386,
392 (1987)). Under this rule, federal question jurisdiction clearly lies in cases
where federal law creates the cause of action asserted in the complaint. Merrell
Dow Pharma., Inc. v. Thompson, 478 U.S. 804, 808 (1986). Federal question
jurisdiction may also lie in cases where state law creates the cause of action,
provided resolution of the state law claim requires resolution of a substantial
federal law issue. See id. at 809 (“We have, however, also noted that a case
may arise under federal law where the vindication of a right under state law
necessarily turned on some construction of federal law.”) (internal quotes and
citation omitted); Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463
U.S. 1, 13 (1983) (“Even though state law creates [the] causes of action, [the]
case may still ‘arise under’ the laws of the United States if a well-pleaded
complaint established that [the] right to relief under state law requires

3

AO 72A
(Rev.8/82)

resolution of a substantial question of federal law in dispute between the
parties.”) (emphasis added).
In this case, the causes of action alleged in the Complaint—i.e., nuisance,
trespass, negligence, negligence per se, and unjust enrichment—arise
exclusively under state law. Accordingly, federal question jurisdiction lies only
if a substantial question of federal law is a necessary element of one of these
causes of action. Franchise Tax Bd., 463 U.S. at 13 (“[T]he ‘law that creates
the cause of action’ is state law, and original federal jurisdiction is unavailable
unless it appears that some substantial, disputed question of federal law is a
necessary element of one of the well-pleaded state claims . . . .”); see also
Mulcahey v. Columbia Organic Chemicals Co., 29 F.3d 148, 151 (4th Cir.
1994) (“If, however, state law creates the cause of action, . . . federal question
jurisdiction depends on whether plaintiff’s demand ‘necessarily depends on
resolution of a substantial question of federal law.’”) (emphasis in original)
(quoting Franchise Tax Bd., 463 U.S. at 28).
Defendants argue that this standard is satisfied: “Plaintiffs have set forth
in their Complaint substantial issues concerning [Defendants’] alleged violation
of the Clean Water Act and [their] NPDES permit” (the latter of which was
4

AO 72A
(Rev.8/82)

issued pursuant to the Act). (Defs.’ Resp. to Pls.’ Mot. to Remand (“Defs.’
Resp.”), Dkt. [6] at 13.) Plaintiffs, indeed, cite the federal Clean Water Act in
connection with their claim for negligence per se, alleging specifically as
follows:
Defendants were required to conform their conduct to applicable
federal, state, and local legal requirements, including without
limitation: the federal Clean Water Act, 33 U.S.C. § 1251 et seq.,
the Georgia Water Quality Control Act, O.C.G.A. § 12-5-1 et seq.,
the Georgia Comprehensive Solid Waste Management, O.C.G.A. §
12-8-20 et seq., and the regulations promulgated pursuant to those
statutes, as well as Stephens County Ordinances governing
Nuisances (Code of Ordinances, Chapter 34, Article III).
(Compl., Dkt. [1] ¶ 161.) Plaintiffs argue, however, that their references to the
Clean Water Act are insufficient to create federal question jurisdiction because
the references are made only to show one alternative basis upon which Plaintiffs
may establish negligence per se. (See generally Pl.’s Br. in Supp. of Pl.’s Mot.
to Remand (“Pl.’s Br.”), Dkt. [5-1].)
The Court agrees with Plaintiffs that the references in the Complaint to
the Clean Water Act (and NPDES permit) do not give rise to a substantial
federal question such that the exercise of federal question jurisdiction would be
proper. Plaintiffs allege the federal Clean Water Act as one of several potential

5

AO 72A
(Rev.8/82)

sources of liability for negligence per se–the remainder being state law statutory
schemes. See Lewis v. Melbourne Hous. Auth., No. 6:09-CV-1457-Orl28DAB, 209 WL 2988899, at *3 (M.D. Fla Sept. 17, 2009) (“state tort law
causes of action. . . do not morph into federal claims simply because they look
to federal regulations as setting the standard of care”); Burney v. 4373 Houston,
LLC, No. Civ. A. 5:05-CV-255, 2005 WL 2736515, at *2 (M.D. Ga. Oct. 24,
2005) (“The reference to a federal regulation in Count Three of Plaintiff’s
Complaint, as an element of Plaintiff’s negligence per se claim, is insufficient to
crate a federal question or to give this Court jurisdiction over the matter.”).
Furthermore, the claim for negligence per se is set out in the alternative
to Plaintiffs’ claim for ordinary negligence. Accordingly, Defendants’ potential
negligence liability does not necessarily depend on resolution of a federal law
issue, much less a substantial one. See, e.g., Mulcahey, 29 F.3d at 153
(“Examination of the complaint in the instant case reveals that the negligence
per se claim citing the federal environmental statutes was only an alternative
theory of liability under the Plaintiffs’ negligence claim . . . . Even if [the
Defendant] was found not to have violated any federal statute, the Plaintiffs
might still be entitled to recover under an alternative theory of negligence. . . .
6

AO 72A
(Rev.8/82)

Thus . . . we find that, because the Plaintiffs’ alternative theory of negligence
per se is not ‘essential’ to their negligence theory, no federal subject matter
jurisdiction exists.”). Because resolution of Plaintiffs’ claims does not
necessarily depend on resolution of a substantial federal law issue, the Court
finds federal question jurisdiction lacking in this case.
Conclusion
In accordance with the foregoing, Plaintiffs’ Motion to Remand [5] is
GRANTED and the case is REMANDED back to the Superior Court of
Stephens County, Georgia.
SO ORDERED, this 5th day of October, 2012.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

7

AO 72A
(Rev.8/82)