McClelland et al v. New Orleans and Gulf Coast Railway Company

Filing 15

ORDER AND REASONS: ORDERED pursuant to 28 U.S.C. 1447(c) that Plaintiffs' 6 Motion to Remand is GRANTED and this matter is hereby REMANDED to the 25th Judicial District Court for Plaquemines Parish.Signed by Judge Stanwood R. Duval, Jr on 11/6/2014. (Attachments: # 1 Remand Letter)(my)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL MCCLELLAND, ET AL.
VERSUS

CIVIL ACTION
NO. 14-1473

NEW ORLEANS AND GULF COAST
RAILWAY COMPANY

SECTION "K"(2)

ORDER AND REASONS
Before the Court is Plaintiffs' Motion to Remand (Doc. 6) filed by plaintiffs, Michael
McClelland , et al. ("Plaintiffs") who seek to have this matter remanded to the 25th Judicial
District Court for Plaquemines Parish. The motion is before the Court on briefs, without oral
argument. Having considered the memoranda of counsel, the record and the applicable law, the
Court finds merit in the motion.

I. Background
This suit is brought by 28 individuals against defendant New Orleans and Gulf Coast
Railway Company ("NOGC"). Plaintiffs contend that NOGC has stored creosote treated railway
ties which emit pungent, nauseous odored fumes that "have the potential to negatively affect the
health of anyone within a certain radius by causing eye or respiratory tract irritation, headaches,
drowsiness, as well as possible weakness and incoordination." (Doc. 1, Petition, ¶ 7). They
further contend that NOGC has failed to use any abatement methods to control the migration of
"severe fumes" from its property.
As such, plaintiffs maintain that the creosote fumes are a continuing nuisance, forcing
them to spend much of the spring/summer months inside and depriving them of the full
enjoyment of their property. Moreover, they contend the fumes constitute a continuing nuisance

to those who derive their livelihood working in the immediate vicinity of NOGC's facility.
Plaintiffs have had to "endure burning and watering of the eyes, itching and tingling of the skin,
as well as irritation of the respiratory system, thus becoming a constant and continual daily
nuisance. (Doc. 1, Petition, ¶ 11).
For these alleged actions, plaintiffs seeks damages for (1) loss of use and enjoyment of
property; (2) diminution of property value; (3) damage to property; (4) nuisance; (5) emotional
distress; (6) remediation costs; and (6) other damages to be discovered. Most importantly, the
damages as alleged are not permanent; plaintiffs contend that simple abatement techniques
would end the noxious gas emission and thus end their complaints. This case is not one of
permanent contamination; it is in the nature of a correctable nuisance.
This case was removed by NOGC pursuant to 28 U.S.C. § 1332 based on its contention
that there is complete diversity of citizenship between plaintiffs1 and defendant and that the
mount in controversy exceeds $75,000.00. NOGC maintains that the complaint as outlined
above makes it facially apparent that the amount in controversy exceeds the requisite
jurisdictional amount. Defendant makes no other showing to support its allegations that the
matter is subject to being removed to federal court. With that as background, the Court now
turns to an analysis of the law as applied to these facts.

II. Law and Analysis
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There is no contention raised that diversity between plaintiffs and defendant exists. Thus, the sole inquiry
is whether the requisite amount in controversy is present.

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A defendant generally may remove a state court civil action to federal court if the federal
court would have original jurisdiction over that action. 28 U.S.C. § 1441(a); Syngenta Crop
Prot., Inc. v. Henson, 537 U.S. 28, 34 (2002). The removing party bears the burden of
establishing the facts necessary to show that federal jurisdiction exists. Allen v. R&H Oil & Gas
Co., 63 F.3d 1326, 1335 (5th Cir. 1995). As Louisiana prohibits a plaintiff from alleging or
demanding a specific dollar amount of damages, a Louisiana petition is silent on the specific
amount of damages. In that instance,
the removing party can meet this burden [to prove jurisdiction exists] in one of
two ways: (1) by showing that it is "facially apparent" from the complaint that
damages will likely exceed $75,000, or (2) by providing "the facts in controversypreferably in the removal petition, but sometimes by affidavit–that support a
finding of the requisite amount."
Weston v. Liberty Mut. Fire Ins. co., 2011 WL 290341 (E.D. La. Jan. 25, 2011) (Barbier, J.)
citing Grant v. Chevron Phillips Chem. Co. L.P., 309 F.3d 864, 868 (5th Cir. 2002). "All doubts
and uncertainties regarding federal jurisdiction must be resolved in favor of remand." Aisola v.
Exxonmobil Corp., 2009 WL 1455788 (E.D.La. May 22, 2009) (Engelhardt, J.). Moreover, the
claims of the individual plaintiffs cannot be aggregated for purposes of jurisdiction, although, if
one plaintiff's injuries meet the $75,000.00 threshold, then the Court would have supplemental
jurisdiction over all of the claims pursuant to 28 U.S.C. § 1367. Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 559 (2005).
In the instant matter, defendant has not provided facts either in the removal petition or by
affidavit to support a finding of requisite amount. Rather, defendant relies on its contention that
it is "facially apparent" from the petition that the jurisdictional amount is met. To that end, in its
opposition to this motion, it cites a number of cases for that proposition. However, none of them

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are analogous to the case at bar. This case is analogous to Jones v. Capitol Enterprises, Inc., 89
So.2d 474 (La. App. 4th Cir. 2012), writ den'd, 99 So.3d 625 (2012). There, members of a class
action brought against the general contractor and owner of a water tower for damages from a
project to sandblast and paint that water tower where silica, sand, dust and other particles were
released into the surrounding area. Each of the plaintiffs were awarded by the district court a
lump sum of $20,000 for physical pain and suffering, property damage, mental anguish and
nuisance and the award was affirmed.
It is clear from the petition that what is at issue is a group of homeowners and shop
owners have had to endure a nuisance that stems from the odor of creosote. There is no
contamination of any of the property owners' land; there is no seepage of waste water, poisonous
material or the like. Likewise, there is no allegation that any person has actually come into
physical contact with any harmful product. The allegations simply are not analogous to the cases
cited by defendant. See Hendry v. Meadwestvaco Corp., 2009 WL 2135120 (W.D.La. July 10,
2009) (exposure to hydrogen sulfide and other chemicals alleged to have resulted in past, present
and future physical pain and suffering, mental anguish and anxiety; future medial rehabilitation,
loss of past, present and future wages, earning capacity, and enjoyment of life); Gordon v. Air
Liquide-Big Three Inc., 2014 WL 639396 (M.D. La. Feb. 18, 2014 (series of explosions and
fires caused 8 plaintiffs alleged damages for (1) past and future pain, suffering and
disfigurement; (2) past and future emotional distress, anxiety and fear; (3) past and future
medical expenses; (4) loss of income and earning capacity; aggravation of pre-existing
conditions; property damages and diminution in value of property; (5) remediation costs; (6)
evacuation causes; (7) loss of enjoyment of life). Soileau v. Olin Corp., 467 So.2d 128 (La. App.

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3rd Cir. 1985) (exposure to Phosgene gas which is a highly toxic substance used as a chemical
weapon during World War I caused serious disabling psychological condition–a dysfunction in
the brain); Jeffery v. Thibaut Oil Co., 652 So.2d 1021 (La. App. 5th Cir. 1995) (gas station
customer doused with gasoline when hose broke causing dry eye syndrome and moderate to
sever posttraumatic stress disorder with high probability of developing serious physical disease
in the future all requiring medical treatment and medication).
Moreover, two of the cases cited by defendant actually demonstrate that plaintiffs
possible award will not meet the $75,000.00 threshold. See Williams v. City of Baton Rouge,
731 So.2d 240 (La. 1999) (landowners awarded damages for trespass for city's unlawful entry on
property and conducting excavation project to maintain alleged natural drainage channel were
limited in their award for mental anguish to $12,500 to $35,000 where they were subjected to
open ditches causing increased presence of rats, snakes and other vermin on property and having
to forego hobbies as a result); Holzenthal v. Sewerage & Water Bd. of New Orleans, 950 So.2d
55 (La. App. 4th Cir. 2007), writ denied, 953 So.2d 71 (La. 2007) (mental anguish awards for
homeowners' property damage in amount of $15,000, $25,000 and $25,000 were not excessive).
Additionally, as to the cases cited for the proposition that plaintiffs' claims for nuisance
and loss of use and enjoyment of property satisfy the jurisdiction amount, irrespective of any
other claim, defendant cites not one Louisiana case. Finally, as noted above, the Louisiana cases
cited by defendant to support its allegation of "facially apparent" allegations of damages in
excess of $75,000.00 all entail fact patterns that far exceed the harm alleged and the damages
allegedly caused by NOGC at issue here.

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Thus, defendant has failed in its burden to prove that this Court has jurisdiction and as
such, plaintiffs' Motion to Remand must be granted. Accordingly,
IT IS ORDERED pursuant to 28 U.S.C. 1447(c) that Plaintiffs' Motion to Remand (Doc.
6) filed by plaintiffs, Michael McClelland , et al. is GRANTED and this matter is hereby
REMANDED to the 25th Judicial District Court for Plaquemines Parish.
New Orleans, Louisiana, this 6th day of November, 2014.

STANWOOD R. DUVAL, JR.
UNITED STATES DISTRICT COURT JUDGE

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