Moody et al v. Great West Casualty Company et al
ORDER granting in part and denying in part 5 Motion to Remand. Remand is granted and attorney fees are denied. The Clerk of Court is hereby directed to Remand this case to the State Court of Chatham County. Signed by Chief Judge Lisa G. Wood on 1/9/17. (wwp)
R the Uniteb btatto flttritt Court
for the boutbern flitritt of *eorgia
THOMAS VIRGIL MOODY and
VALERIE MICHELLE MOODY, as
the Surviving Parents of
VIRGIL STEPHEN MOODY,
GREAT WEST CASUALTY CO.;
GEORGIA FREIGHTWAYS CORP.;
CMA-CGM (AMERICA), LLC;
SOUTH ATLANTIC CONSOLIDATED
CHASSIS POOL, LLC;
MANAGEMENT, LLC; INTERPOOL,
INC. d/b/a TRAC INTERNODAL;
DIRECT CHASSISLINK, INC.;
and DAVID J. GIBBONS;
Before the Court is Plaintiffs Thomas Virgil Moody's and
Valerie Michelle Moody's Motion for Remand and Attorney Fees,
dkt. no. 5. Remand will be GRANTED; attorneys' fees, DENIED.
In determining whether it has
jurisdiction over this case, the Court looks only to "the face
of the plaintiff's complaint-" City of Huntsville v. City of
Madison, 24 F.3d 169, 172 n.4 (11th Cir. 1994) . On May 22,
2015, Plaintiffs brought a wrongful death suit in Georgia
state court against Defendants Great West Casualty Co.;
Georgia Freightways Corp.; CMA-CGM (America), LLC; South
Atlantic Consolidated Chassis Pool, LLC; Consolidated Chassis
Management, LLC; Interpool, Inc. d/b/a Trac Intermodal; Direct
Chassislink, Inc.; and David J. Gibbons. See generally Dkt.
Nos. 1, 1-1 at 14-30. The suit arises out of a highway wreck
between the decedent Virgil Stephen Moody and a tractortrailer. Dkt. No. 1-1 at 17.
The tractor-trailer was carrying a container being sent
under a bill of lading issued by CMA.-CGM (America), LLC ("CMACGM"). Id. at 25. CMA-CGM' s agency liability and vicarious
liability are alleged based on 46 U.S.C. § 40102 (6) (A)
("Shipping Act"), 49 C.F.R. § 390.5 (Federal Motor Carrier
Safety Regulations, hereinafter "E'MCSR"), "principles of
agency, [and] respondeat superior." Id. at 24-26.
Specifically, Plaintiffs allege that cMA-CGM "is accountable
for independent negligence because of its nondelegable duty in
that [it] assumes responsibility . . . as an ocean common
carrier by virtue of [the Shipping Act]" and "is vicariously
liable" due to "statutory employment under [FMCSR] ." Id. at
On October 19, 2016, Defendants removed the case to this
Court, claiming the existence of federal questions relating to
agency and vicarious liability under the Shipping Act and
FMCSR. Dkt. No. 1 at 3; Dkt. No. 9 at 2-3. Plaintiffs moved
for remand and attorneys' fees on October 25, 2016. Dkt. No.
5. The parties fully briefed the Motion. Dkt. Nos. 9, 11,
19, 27. The Motion is now ripe for disposition.
Civil actions in state court, "of which the district
courts of the United States have original jurisdiction, may be
removed by . . . the defendants." 28 U.S.C. § 1441. Upon the
plaintiff's challenge to removal, the defendant "bears the
burden of proving that federal jurisdiction exists." Williams
v. Best Buy Co., 269 F. 3d 1316, 1319 (11th Cir. 2001).
"[R]emoval statutes are construed narrowly; where
plaintiff and defendant clash about jurisdiction,
uncertainties are resolved in favor of remand." Burns v.
Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). This
is partly out of "due respect for state sovereignty and the
independence of state courts." McCaslin v. Blue Cross & Blue
Shield of Ala., 779 F. Supp. 1312, 1314 (N.D. Ala. 1991)
After all, "any state court is generally presumed competent to
interpret and apply federal law . . . ." Walker v. Jefferson
Cty. Bd. of Educ., 771 F.3d 748, 755 (11th Cir. 2014).
Removal is also construed narrowly because "the plaintiff
[is] the, master of the claim; he or she may avoid federal
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)
This case will be remanded, but attorneys' fees will be
I. THE CASE IS REMANDED TO STATE COURT.
This case must be remanded to Georgia state court because
it does not arise under federal law. Removal is only allowed
"when plaintiff's claim could have been filed in federal court
originally." Burns, 31 F.3d at
Federal courts have
original jurisdiction over cases "arising under" federal law.
9 1331. This case does not arise under federal law,
because Plaintiffs do not raise a federal claim, and no
substantial federal question is embedded in their state claim.
A. Plaintiffs Have No Federal Claim.
Plaintiffs do not raise a federal claim.
complaint's sole cause of action is a state claim: wrongful
death. See Dkt. No. 1-1 at 14-30; Dkt. No. 11; City of Dallas
v. Explorer Pipeline Co., No. 3:02-CV-1465, 2003 WL 193444, at
*3 (N.D. Tex. Jan.
2003) (finding no federal claim where
no elements were identified in complaint, which lacked section
setting forth separate claim).
Nevertheless, Defendants argue that Plaintiffs "are
invoking a legal theory that would not exist or otherwise be
available to them but for . . . federal law." Dkt. No. 9 at
16. But there is a large difference between a federally based
theory and a federal claim. Even when it is an element, "the
mere presence of a federal issue in a state cause of action"
does not make it into a federal one. Merrell Dow Pharms.,
Inc. v. Thompson, 478 U.S. 804, 813-14 (1986); see also
Franchise Tax Bd. of State of Cal. v. Constr. Laborers
Vacation Tr. for S. Cal., 463 U.S. 1, 13 (1983)). For
example, in Petigny v. Toledo, No. 6:12-CV-497, 2012 WL
3291765, at *1 (M.D. Fla. Aug. 13, 2012), the plaintiff
brought a state wrongful-death claim (just like Plaintiffs
here). She alleged that the defendant owed a non-delegable
duty as a motor carrier under FMCSR (an allegation similar to
Plaintiffs' here that CMA-CGM is vicariously liable because of
statutory employment under FMCSR). Id. But the Petigny court
did not so much as hint that the plaintiff was subtly raising
a federal claim. See generally id.; see also Jairath v. Dyer,
154 F.3d 1280, 1281-82 (11th Cir. 1998) (finding that
plaintiff "[did] not assert a cause of action created by
federal law," even though federal statute allegedly "created
the duty which served as the basis for [his] state law
claim."). Nor are Plaintiffs masking a federal claim here.
Defendants rely on two cases, Schramm v. Foster, 341 F.
Supp. 2d 536, 540 (D. Md. 2004) and Benefiel v. Exxon Corp.,
959 F.2d 805, 807 (9th Cir. 1992) .
In Schramm, 341 F. Supp.
2d at 540, the district court found that the plaintiffs had
alleged a federal FMCSR claim. Here, though, the Court does
not suggest that such a thing is impossible—only that
Plaintiffs did not do it. In Benefiel, 959 F.2d at 807, the
plaintiffs "den[ied] any intention to pursue a claim pursuant
to [a federal statute]," but their complaint alleged that the
statute imposed strict liability and defendants were liable
"in accordance with the [statute's] provisions." Without
further discussion, the Ninth Circuit held that the complaint
set forth a federal claim. Id. The Benefiel opinion does not
give any context as to the rest of the complaint. See
generally id. Neither does the district court opinion. See
generally Benefiel v. Exxon Corp., No. CV 90 2184, 1990 WL
180503 (C.D. Cal. July 27, 1990). Benefiel's very brief
analysis simply is not enough to overcome Merrell Dow,
Jairath, and Petigny. As "master of the claim[ ] [Plaintiffs
had the right to] avoid federal jurisdiction by exclusive
reliance on state law." Caterpillar, Inc., 482 U.S. at 392.
At least as far as choosing their causes of action goes, they
did. There is no federal-question jurisdiction here based on
a federal claim.
B. No Substantial Federal Question Is Embedded in
Plaintiffs' State Claim.
Thus, the Court must consider whether "a substantial,
disputed question of federal law is a necessary element of
[Plaintiffs'] state cause of action." Jairath, 154 F.3d at
1282. No such question lurks behind Plaintiffs' state claim.
Four elements have to be met for a federal question embedded
in a state claim to extend federal-question jurisdiction: A
federal question must be "(1) necessarily raised, (2) actually
disputed, (3) substantial, and (4) capable of resolution in
federal court without disrupting the federal-state balance
approved by Congress." Gunn v. Minton, 133 S. Ct. 1059, 1065
(2013). At the very least, the third element is unmet here.
Substantiality does not depend on the importance of a
question to the suit at hand, as every issue that is
necessarily raised is surely important to the parties. Id. at
1066. Substantiality depends instead on "the importance of
the issue to the federal system as a whole." Id. Analyzing
this is no simple task. In fact, the U.S. Supreme Court
recently compared relevant precedent to a work of Jackson
Pollock. Id. at 1065. Still, four paint splotches—that
types of systemically important cases—can be discerned from
the cases, and three factors sketch out the law's remainder.
They all show a lack of jurisdiction here.
This case does not share canvas space with any discrete
area of law affording per se federal-question jurisdiction:
1. Cases involving challenges to the validity of a
federal law. Coker v. DaimlerChrysler Corp., 220 F. Supp. 2d
1367, 1370 (N.D. Ga. Sept. 5, 2002);
2. Those impacting federal-government operations.
Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545
U.S. 308, 315 (2005); Ormet Corp. v. Ohio Power Co., 98 F.3d
799 (4thCir. 1996); Waitz
Yoon, No. 1:14-CV-2875, 2015 WL
11511577, at *3 (N.D. Ga. June 30, 2015);
3. Those involving contracts incorporating federal
law. Tamiami Partners, Ltd. by & through Tamiami Dev. Corp.
v. Miccosukee Tribe of Indians of Fla., 63 F.3d 1030, 1047
(11th Cir. 1995); Shelley v. AmSouth Bank, No. Civ.A. 97-1170,
2000 WL 1121770, at *7 (S.D. Ala. July 24, 2000); and
4. Those requiring construal of federal criminal law.
Ayres v. Gen. Motors Corp., 234 F.3d 514, 519 (11th Cir.
2000); but see Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d
1290, 1300-03 (11th Cir. 2008) (limiting Ayres)
Beyond these genres, a case can only be substantial given
three factors: (1) whether the question "will control many
other cases"; (2) the federal government's "interest in
litigating in a federal forum"; and (3) the question of law's
purity. MDS (Can.) Inc. v. Rad Source Techs., Inc., 720 F.3d
833, 842 (11th Cir. 2013); see also Bollea v. Clem, 937 F.
Supp. 2d 1344, 1353 (M.D. Fla. 2013) ("Issues. that will
'change the real-world result' for future cases . . . are
substantial." (quoting Gunn, 133 S. Ct. at 1067)). The
balance of these factors weighs against removal.
The result here will not bind many other cases. The
showcase example of this comes from Grable & Sons Metal
Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S.
308 (2005). The federal question there was whether a federal
agency gave enough notice to a citizen under federal law. Id.
The state court's resolution could settle the
question nationally "once and for all and
thereafter . . . govern numerous . . . cases."
Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 700 (2006)
(citation omitted) (discussing Grable & Sons Metal Prods.,
Inc.). Here, by contrast, even if the federal questions prove
to be "novel," "another federal court will, at some point,
have a chance to decide the issue." Bollea, 937 F. Supp. 2d
at 1354; cf. Bonnafant v. Chico's FAS, Inc., 17 F. Supp. 3d
1196, 1202 (M. D. Fla. 2014) ("[T]he possibility of
inconsistent judgments does not render the federal question
substantial."). The first factor therefore weighs against
So does the next—the federal government's interest in
litigating in a federal forum. Most importantly, "[t]his is a
dispute between . . . private parties; no federal actor is
involved." Bonnaf ant, 17 F. Supp. 3d at 1201. Nor has
Congress shown any interest in having private parties litigate
personal-injury and death disputes involving the Shipping Act
and FMCSR in federal courts, as neither law contains a
relevant private cause of action. Leon v. FedEx Ground
Package Sys., Inc., No. CIV 13-1005, 2016 WL 836980, at *11
(D.N.M. Feb. 16, 2016);' MAVL Capital, Inc. v. Marine Transp.
Logistics, Inc., 130 F. Supp. 3d 726, 730-31 (E.D.N.Y. 2015)
(describing Shipping Act and its precedent). Besides, federal
law has long honored states' interest in adjudicating tort
See, e.g., Farmer v. United Bhd. of Carpenters &
Joiners of Am., Loc. 25, 430 U.S. 290, 303 (1977).
federal government's lack of interest in seeing cases like
this one in federal courts further weighs against removal.
With these two factors weighing against removal and the
Court being bound to remand any close cases, the third factor
need not be considered. See Burns v. Windsor Ins. Co., 31
F.3d 1092, 1095 (11th Cir. 1994). This case will be remanded
to Georgia state court.
' As far as the Court could determine, only one of many federal courts
asking the question has found a private personal-injury cause of action in
FMCSR. Marrier v. New Penn Motor Express, Inc., 140 F. Supp. 2d 326 (D.
Vt. 2001). For the reasons in Leon, this Court disagrees with Marrier.
II. TORNEYS' FEES ARE DENIED.
The Court denies Plaintiffs' motion for attorneys' fees.
It has the discretion to do so, and normally should "when the
removing party has an objectively reasonable basis for
removal." Martin v. Franklin Capital Corp., 546 U.S. 132, 136
(2005); see also 28 U.S.C. § 1447. Here, the removal issue
was "not so clear as to warrant an award." Mason v. Home
Depot, No. 1:05-CV-0755, 2006 WL 6065792, at *3 (N.D. Ga. Jan.
5, 2006); accord Estate of Martin Luther King, Jr., Inc. v.
King, No. 1:13-CV-3009, 2013 WL 12080301, at
*3 (N.D. Ga.
Sept. 30, 2013). Thus, attorneys' fees will be denied.
For the reasons above, Plaintiffs' Motion for Remand and
Attorney Fees, dkt. no. 5,
is GRANTED in part and DENIED in
part. The Clerk of Court is hereby directed to REMAND this
case to the State Court of Chatham County.
SO ORDERED, this 9th day of January, 2017.
L SA GO D]39Y wbOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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