Bell v. Wind Run Apartments, LLC et al

Filing 29

ORDER granting 11 Motion to Remand to Civil District Court for the Parish of Orleans. Signed by Judge Carl Barbier on 6/12/13. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BELL

CIVIL ACTION

VERSUS

NO: 13-649

WIND RUN APARTMENTS, LLC ET
AL.

SECTION: “J”(2)
ORDER

Before the Court are Plaintiff’s Motion to Remand (Rec. Doc.
11), Defendants’ opposition thereto (Rec. Doc. 18), Plaintiff’s
reply (Rec. Doc. 22), and Defendants’ surreply (Rec. Doc. 24). The
Court, having considered the motion and memoranda of counsel, the
record, and the applicable law, finds that Plaintiff’s motion
should

be

GRANTED.

After

review,

the

Court

cannot

say

that

Plaintiff improperly joined the nondiverse Defendants. As such,
this Court does not have jurisdiction on the grounds of diversity.
Furthermore,

the

Court

finds

that

Defendants

Wind

Run

Apartments, LLC and Southwood Realty Co. are not federal officers
for the purposes of federal officer jurisdiction. In order to
remove a state law claim under 28 U.S.C. § 1442, the removing party
must demonstrate that it (1) acted under the direct and detailed
control of a federal officer, (2) can raise a colorable federal
defense to the plaintiff’s claims,(3) is a person under the
statute, and that (4) a causal nexus exists between the defendant’s
action under the color of federal office and the plaintiff’s
claims. Joseph v. Fluor Corp., 513 F. Supp. 2d 664, 671 (E.D. La.

2007).
In the instant case, the Court finds that Defendants have
failed to show that they acted at the “direct and detailed control”
of

a

federal

officer

and/or

that

a

causal

nexus

exists.

In

particular, the Court notes that while it is evident that the
Defendants, participants in the Section 8 voucher program, would
have performed inspections laid out in the Department of Housing
and Urban Development (“HUD”)’s program guidelines, it is not clear
that any federal officer directly controlled those inspections or
had direct oversight over the employees who performed them. See
Joseph, 513 F. Supp 2d at 671 - 73 (holding that simply because
FEMA set minimum standards and parameters for manufacturing travel
trailers to be used post-Hurricane Katrina, it did not make every
vendor

who

manufactured

said

trailers

a

federal

agent).

Furthermore, the Court also notes that, to the extent that the
Defendants did perform the HUD inspections, their performance of
the inspections, i.e. their “federal action,” cannot be said to
have a causal nexus with Plaintiff’s claims. That is to say, the
performance of HUD required inspections, whether well performed or
ill

performed,

did

not

cause

Plaintiff

to

sue

Defendants.

Plaintiff’s claims exist independent of the federal inspections,
which, at most, will only serve Defendants in establishing a
standard of care within their industry. The Court notes that,
“[w]hile [§ 1442(a)(1)] is to be liberally construed, it must
nevertheless be interpreted ‘with the highest regard for the right

of the states to make and enforce their own laws in the field
belonging to them under the Constitution.’” Joseph, 513 F. Supp 2d
at 673 (quoting Preston v. Tenet Healthsys. Mem’l Ctr., Inc., 463
F. Supp. 2d

583, 590 (E.D. La. 2006)). Accordingly,

IT IS ORDERED that Plaintiff’s motion is GRANTED.
IT IS FURTHER ORDERED that the above-captioned matter is
REMANDED to the Civil District Court for the Parish of Orleans.
New Orleans, Louisiana this 12th day of June, 2013.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE