Kervin et al v. Gregory Goodyear et al

Filing 13

ORDER& REASONS: denying 6 Motion to Remand and for Costs and Attorney Fees. Signed by Judge Carl Barbier on 8/12/14. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

KERVIN ET AL.

CIVIL ACTION

VERSUS

NO: 14-171

GOODYEAR ET AL.

SECTION: "J”(5)

ORDER AND REASONS
Before the Court is the Motion to Remand and for Costs and
Attorney Fees (Rec. Doc. 6) filed by Plaintiffs, Christy Kervin
and David Kervin, individually and on behalf of their minor
child, and Defendant Latter and Blum Property Management, Inc.
(Latter

and

Blum)'s

opposition

thereto.

(Rec.

Doc.7)

Having

considered the motion and memoranda of counsel, the record, and
the applicable law, the Court finds that the motion should be
DENIED for the reasons set forth more fully below.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This matter arises out of Plaintiffs' alleged exposure to
harmful lead paint while leasing and residing in a home owned by
Defendant Gregory Goodyear and managed by Defendant Latter and
1

Blum. (Rec. Doc. 7-1) On November 7, 2013, Plaintiffs filed a
Petition

for

Damages

Goodyear

was

liable

in
for,

state

court

inter

alia,

alleging
his

that

Defendant

"[f]ailure

to

warn

plaintiffs of lead-based paint that existed in [the] house,"
"[f]ailure to warn plaintiffs of lead-based paint risks that
existed in the house," and "[f]ailure to provide plaintiffs with
health information relating to lead-based paint and lead dust
risks." (Rec. Doc. 7-1, p. 7) Plaintiffs alleged that these three
omissions, as well as ten other acts or omissions, constituted
negligent

acts

giving

rise

Louisiana

Civil

Code

article

Plaintiffs

likewise

alleged

to

liability
2315.

that

and

(Rec.

Defendant

Doc.

damages
7-1,

Latter

under
p.

and

8)
Blum

committed negligent acts or omissions under article 23151 when
it, inter alia, "fail[ed] to warn plaintiffs of lead-based paint
and lead-based paint risks that existed in [the] house." (Rec.
Doc. 7-1, p. 8)

Again, this allegation was but one of eleven

claims against Latter and Blum. None of the other claims against
the Defendants related to the failure to warn or failure to
provide information about lead paint or lead paint risks. The
petition

on

its

face

did

not

reference

1

any

federal

laws

or

Plaintiffs' other claims included those for breach of contract, breach
of warranty, loss of wages and disruption in business income, and violations of
the Louisiana Unfair Trade Practices Act, Louisiana Revised Statute 51:1409, et
seq.

2

explicitly indicate that it presented any federal question.
On December 26, 2013, Plaintiffs filed their First Amended
Petition. (Rec. Doc. 7-2) In it, Plaintiffs for the first time
asserted

claims

under

law.2

federal

Specifically,

Plaintiffs

alleged for the first time that Defendants' failure to warn or
failure to provide information about lead paint or lead paint
risks violated 42 U.S.C. § 4852d, et seq., which requires lessors
to provide federal lead pamphlets and disclosures to lessees.
Plaintiffs sought treble damages in accordance with 42 U.S.C. §
4852d(b)(3). This addition of a federal cause of action prompted
Defendant

Latter

and

Blum,

with

the

consent

of

the

other

defendants, to file a Notice of Removal with the United States
District Court for the Eastern District of Louisiana on January
22, 2014. (Rec. Doc. 1) On January 30, 2014, Plaintiffs filed the
instant
Blum's

Motion
Notice

to
of

Remand,
Removal,

arguing
filed

that

more

Defendant

than

thirty

Latter
days

and

after

Plaintiffs' original petition, was untimely. (Rec. Doc. 6)
LEGAL STANDARD
The procedure for removal of civil actions derives from 28
U.S.C.

§

1446.

Section

1446(b)

2

provides

that

the

notice

of

The Court acknowledges that Plaintiffs amended their petition in other
ways, but will not discuss the other alterations or additions because they are
irrelevant to the instant motion.

3

removal "shall be filed within 30 days after receipt by the
defendant, through service or otherwise, of a copy of the initial
pleading"

if

such

initial

pleading

indicates

that

the

civil

action is removable. Id. § 1446(b)(1).

If it only becomes clear

that

receipt

the

action

is

removable

after

of

"an

amended

pleading, motion, order or other paper," then the notice of
removal

"may

be

filed

within

30

days

[of]

receipt"

of

that

document. Id. § 1446(b)(3).
Under

the

well-pleaded

complaint

rule,

"a

defendant

can

remove a case based on federal question jurisdiction only when a
federal question is presented on the face of [a] plaintiff's
properly pleaded complaint." Alim v. KBR, Inc., No. 13-11094,
2014 WL 2526843, at *1 n.4 (5th Cir. June 5, 2014)(internal
quotation marks omitted). Likewise, the United States Court of
Appeals for the Fifth Circuit has held that "the thirty-day
removal period under [Section 1446(b)(1)] is triggered only where
the initial pleading 'affirmatively reveals on its face that the
[case is removable].'" Mumfrey v. CVS Pharmacy, Inc., 719 F.3d
392, 399 (5th Cir. 2013)(quoting Chapman v. Powermatic, Inc., 969
F.2d

160,

163

"specifically
defendants

to

(5th

declined

Cir.
to

'ascertain[]

1992)).
adopt

a

from

the

4

The

Fifth

rule

which

Circuit
would

circumstance[s]

has

expect
and

the

initial pleading that the [case was removable]." Id. Thus, a
plaintiff may not rely on a defendant's subjective knowledge from
outside the initial pleading to render the action removable. See
id.

at

399-400.

Rather,

when

the

initial

pleading

does

not

affirmatively reveal that the case is removable, the removal
clock is triggered only when an amended pleading or other paper
subsequently enables a defendant to ascertain that the action is
removable. See 28 U.S.C. § 1446(b)(3).
DISCUSSION
Plaintiffs argue that, although their original petition did
not allege a cause of action arising under federal law, the
original petition made Defendants aware of the presence of a
federal question "because it plainly alleged that [Defendants]
failed to warn [Plaintiffs] of lead paint risks–conduct squarely
prohibited in the federal statute and corresponding regulations."
(Rec.

Doc.

6-2,

p.

3)

Consequently,

Plaintiffs

argue

that

Defendants' Notice of Removal, filed more than thirty days after
receipt of the original petition, was untimely "such that remand
back to state court is warranted." Id. Plaintiffs reason that the
only thing missing from the original petition was a citation to
the

federal

statute,

and

that

Defendant

Latter

and

Blum,

a

sophisticated real estate company, surely knew of the federal

5

requirement to inform lessees of lead paint risks.3 Id. Lastly,
Plaintiffs request attorney fees and costs for improper removal.
Defendant Latter and Blum argues that the original petition
failed to provide notice of a federal question. Latter and Blum
stresses that Plaintiffs presented only four claims relating to
the failure to warn of lead risks and failed to request triple
damages

as

permitted

under

the

later-incorporated

federal

statute. (Rec. Doc. 7) Instead, Latter and Blum contends that the
presence

of

a

federal

question

did

not

become

clear

until

Plaintiffs filed their First Amended Petition on December 26,
2013. Id. Thus, the First Amended Petition is the pleading "from
which [Latter and Blum first] ascertained that the case is one
which is . . . removable." 28 U.S.C. § 1446(b)(3). Consequently,
Latter and Blum had thirty days from receipt of the First Amended
Petition in which to file its Notice of Removal. Id. Latter and
Blum concludes that its January 22, 2014, removal to federal
court was therefore timely.
The Court agrees with Latter and Blum that the First Amended
Petition was an amended pleading from which Latter and Blum could
first ascertain that the matter was removable within the meaning
3

Plaintiffs further assert that if the Court does not remand the entire
matter to state court, the "unrelated state law violations" will require
severance. (Rec. Doc. 6-2, pp. 6-7) Because the Court need not rule on this
particular claim to resolve the instant motion, the Court declines to discuss it.

6

of 28 U.S.C. § 1446(b)(3). Latter and Blum's Notice of Removal,
filed

within

Petition,

was

thirty

days

therefore

of

receipt

timely.

of

the

Plaintiffs'

First

failure

Amended
to

warn

claims constituted only four of many alleged negligent acts or
omissions under the Louisiana Civil Code. Plaintiffs did not
reference the federal statute in their original petition, nor did
they request treble damages for its violation as permitted under
42

U.S.C.

§

4852d(b)(3).

Under

the

circumstances,

the

Court

cannot say that the initial pleading affirmatively revealed on
its face that the action was removable. Plaintiffs cannot rely on
Latter and Blum's subjective knowledge to convert the initial
pleading into one providing notice of a federal question and
triggering the removal clock as a result. As such, the initial
pleading did not trigger the removal clock. Latter and Blum's
Notice of Removal, filed within thirty days of Plaintiffs' First
Amended Complaint, was timely.
Latter and Blum's point that "a federal court's jurisdiction
is not supposed to be a game" is well taken. As Latter and Blum
argues,
original

in

failing

petition,

to

reference

Plaintiffs

42

U.S.C.

either

§

4852d

obscured

the

in

their

federal

question or were unaware of its existence. In the case of the
former, the Court declines to now allow Plaintiffs to capitalize

7

on their oversight by claiming Latter and Blum should have known
that the allegations could support a claim under federal law and
thus

any

removal

more

than

thirty

days

after

the

original

petition must be untimely. In the case of the latter, the Court
refuses to require Latter and Blum to choose between alerting
Plaintiffs

to

an

additional

cause

of

action

(especially

one

permitting treble damages) or losing entirely its ability to
remove the case to federal court. Latter and Blum timely removed
the case when it did so within thirty days of receipt of the
First Amended Petition. Consequently, the Court will not remand
the case to state court. Finally, because the Court finds that
the matter was not improperly removed, the Court further denies
Plaintiffs' motion for attorney fees and costs.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Motion to Remand and
for Costs and Attorney Fees (Rec. Doc. 6) is DENIED.
New Orleans, Louisiana, this 12th day of August, 2014.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

8