Laurendine et al v. Sewerage & Water Board of New Orleans et al

Filing 14

ORDER granting 8 Motion to Remand to State Court. Signed by Judge Stanwood R. Duval, Jr. (jrc) (Additional attachment(s) added on 6/26/2015: # 1 Letter) (jrc).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SUSAN LAURENDINE, ET AL.

CIVIL ACTION

VERSUS

NO. 15-495

SEWERAGE & WATER BOARD OF
NEW ORLEANS, ET AL.

SECTION "K"(1)

ORDER AND REASONS
Before the Court is a Motion to Remand (Doc. 8) filed by plaintiffs Susan Laurendine,
William Laurendine, Albert Leboeuf, Peter Ascani, III, Gladys Hodges and Theresa Harvey.
This suit has now been removed to this Court for a third time, this time by the Sewerage and
Water Board of New Orleans ("SWB"). Plaintiffs maintain that this matter should be remanded
to Civil District Court for the Parish of Orleans ("CDC") because:
(1)

the February 18, 2015, removal was procedurally untimely under 28 U.S.C. §
1446(b)(3) because it occurred more than thirty days after receipt of a copy of the
Amended Master Class Action Petition;

(2)

plaintiffs's expressly stated claims do not arise under the Constitution, law, or
treaties of the United States, and this Court does not have "federal question"
jurisdiction pursuant to 28 U.S.C. § 1331; and

(3)

pursuant to 28 U.S.C. § 1441(c)(2), this Court is required to sever and remand to
Civil District Court all claims which fall within the meaning of 28 U.S.C. §
144(c)(1)(B).

As the Court finds that the removal was procedurally untimely, the motion will be granted for the
reasons that follow.

Background
This case arises out of the cataclysmic flooding caused by the failure of the levees
abutting the outfall canals at 17th Street and London Avenue in the wake of Hurricane Katrina
on August 29, 2005. In the initial petition, plaintiffs alleged that the Orleans Levee District,
Parish of Orleans ("OLD") was liable for (1) designing and installing concrete flood walls which
were below standard and potentially unstable in a flood; (2) failing to test the flood walls to
withstand the strength of a storm surge, and (3) failing to interlock the flood walls. The suit was
remanded by order of this Court on June 2, 2006 (Doc. 36 in Harvey v. The Board of
Commissioners, C.A. No. 05-4568).
This Court rejected OLD's analysis and noted in its reasons that "[t]he fallacy with
removing this case based on § 1441(a)(1) is that OLD did not "'act under the direction of a
federal officer' to build or design any structure." In addition, the Court declined to exercise
federal question jurisdiction as the Court found that the claims against OLD focused on whether
OLD had the ability to act apart from the Corps or in concert therewith to fulfill its state law
duties. The Court noted that a federal defense did not give rise to jurisdiction.
Subsequent to that opinion, the Court rendered an opinion in a related case which
informed the Court's decision remanding this case for a second time on August 9, 2006. (In re
Katrina Canal Breaches Consolidated Litigation, Re: 06-3529 Laurendine, Doc. 6). In its Order
and Reasons remanding another suit removed by OLD, Vanderbrook v. State Farm Fire &
Cas.Co., C.A. No. 05-6323 "K"(2), the Court found that the same legal analysis applied to
claims that rested solely on Louisiana law and duties owed to those plaintiffs under La. Rev.
Stat. 38:281, La. Rev. Stat. 38:301(A)(1) which allow levee boards of the State of Louisiana to

2

construct and maintain levees and La. Rev. Stat. 38:301(B)(1) which provides that care and
inspection of levees devolve on the commissioner. Those claims also were based on the
Louisiana concept of garde found at La. Civ. Code art. 2317 and negligence under La. Civ. Code
art. 2315. This Court found that OLD was not under sufficient supervision of the Corps of
Engineers to create federal officer jurisdiction concerning those claims, and likewise a federal
defense to a state law claim did not create federal question jurisdiction. See Berthelot v. Boh
Brothers Construction Co., L.L.C., 2006 WL 1984661 (E.D.La. June 1, 2006) (Vanderbrook
remand opinion).
In its August 2006 opinion, the Court rejected OLD's second attempt to remove this case
under 28 U.S.C §1446(b) in which it argued that the case had been made removable because
plaintiffs had added three new causes of action, new plaintiffs and additional factual allegations.
Because these "new" grounds were fundamentally the same grounds rejected in the Vanderbrook
opinion, the matter was remanded again.
The SWB was added as a defendant in July of 2006 and the case has proceeded in state
court since that time. A Class Certification hearing was set to commence on April 20, 2015.
On December 23, 2014, a Motion for Leave to File Master Class Action Petition was filed in
CDC. (Doc. 8-4 at 2 of 29). Plaintiffs opine that the sole purpose in its being filed was to
streamline and clarify the litigation as the previous amendments were confusing and did not
reflect certain matters learned during discovery and did not reflect the proposed class definition.
(Doc. 801, at 2 of 19, n.2). At the time it was filed on December 23rd, the proposed petition was
accompanied by a letter to the Honorable Robert Burns and Counsel for Defendants. That letter

3

was "clocked in" as well by the Clerk of Court for CDC at 3:35 p.m. on December 23, 2014.
Doc. 8-4 at 1 of 29.
In the Memorandum in Support of the Motion for Leave, counsel for plaintiff explained
that there had been two prior amendments to the initial petition, the last one having been in July
of 2006, prior to the litigation of the federal cases contained in In re Katrina Levee Breaches
Litigation, C.A. 05-4182. As such, plaintiffs sought to submit a master petition in order set forth
all of the claims and parties in one pleading which was to "condense the three prior petitions into
a single statement of their claims against the remaining defendants." (Doc. 8-4 at 6 of 29). The
Order granting leave to file the Master Class Action Petition was signed on December 29, 2014
and entered on the Minutes of the court on January 6, 2015. (Doc. 8-4 at 3 of 29). Two days
later, on January 8, 2015, a hearing was held before the Honorable Robert Burns which was
attended by counsel for the SWB. At that hearing, a Motion to Substitute Bellwethers was
argued.
At the very beginning of that hearing in response to counsel for plaintiffs' argument as to
the substitution, Judge Burns made specific reference to certain plaintiffs that are listed in the
amended class action petition that was filed on the date of December 23, of 2014. (Doc. 8-6 at 3
of 9). Ms. Jacobs responded that the people who were being sought to be added/substituted were
not included in that document because the court had not ruled on the substitution. Moreover,
addition of the new plaintiffs to the Amended Master Class Action Complaint was required
because Anita Sarrat and Dale Atkins no longer wanted to participate in the litigation, leaving a
geographical "hole" so to speak in the bellwether class representatives. As such, this new
Amended Master Class Action petition was discussed in detail.

4

Mr. Lanier, counsel for SWB and Mr. Hassinger for DODT, did not register any surprise
concerning this Amended Master Class Action petition. Rather, their seminal argument centered
on the cost of including new petitioners past the cut-off under the Case Management Order or
"CMO." After argument, Judge Burns indicated he would allow the substitution, (Doc. 8-6 at 15
of 19), but required the filing of a motion for leave to amend to add those new plaintiffs. (Doc.
8-6 at 17 of19). During that colloquy, the judge stated specifically that he had signed a Motion
for Leave to File Master Class Action petition on December 28, 2014. Id.
Included in the subject Motion to Remand is an affidavit signed by Melvin J. Burmaster,
an attorney admitted to practice in Louisiana, who stated that he sent plaintiffs the Amended
Master Class Action to opposing counsel of record on December 22, 2014 to the proper
addresses.
Counsel for SWB states in its opposition to this motion that "to date, neither defendant
has received the mailing plaintiffs say they sent to defendants on December 22, 2014." (Rec.
Doc. 12 at 2 of 17 n. 4). No affidavit to that end was filed; there is nothing other than this
passing footnote to call into question the mailing of the Amended Master Complaint. Moreover,
counsel states:

The January 8, 2015, hearing resulted in plaintiffs filing a motion for leave and
proposed Second Amended Master Class Action Petition. Still not aware of the
filing of the Amended Master Class Action Petition, on January 13, 2015, the
SWB objected to the filing of the Second Amended Master Class Action Petition
because it is was such a dramatic departure from the Second Supplemental and
Amending petition filed in 2006 and proposed almost ten years after Hurricane
Katrina."
Id. n. 3. This Court does not have a copy of that the second motion for leave and proposed
Second Amended Master Class Action Petition, and that motion is apparently still pending.
5

However, from the dialogue at the January 8, 2015 hearing, it would appear that the Second
Amended Master Class Action Petition concerned the addition of new bellwether plaintiffs.
Thus, from the foregoing, at a minimum, counsel for defendants were apprised , at the
January 8th hearing that a motion to file a Master Class Action Complaint had been filed on
December 23, 2014 and granted on December 29, 2014. Moreover, defense counsel must have
had a copy of the motion for leave to file a proposed Second Amended Master Class Action
Petition by January 13, 2015 if they were able to file an opposition thereto. Again, by
definition, this motion apprised counsel there must have been a "First" Amended Master Class
Action Petition.
As proof of the timeliness of the removal, counsel for SWB filed as exhibits in the
opposition to the motion to remand, the Citations for a document described as "AMENDED
PETITION W/MOTION &MEMO ATTACHED." These Citations were issued by the Clerk of
the Civil District Court for the Parish of Orleans State of Louisiana on January 7, 2015, as to the
Sewerage and Water Board of New Orleans (Doc. 12-1) and the Louisiana Department of
Transportation and Development ("DOTD") (Doc. 12-2) Apparently, these Citations
accompanied service of the first Amended Master Class Action Petition which was made on
January 21, 2015 on SWB and January 22, 2015 on DOTD. It is on January 21, 2015, that SWB
contends its time to remove this matter commenced and thus is timely. With that as background,
the Court will now analyze the timeliness of the removal of this matter.

6

Timeliness of Removal
As stated by Judge Lemelle in 4C's Land Corp. v. Columbia Gulf Transmission Co., C.A.
No: 13-5532"B"(1), 2014 U.S.C. Dist. LEXIS 65062 (E.D.La. June 25, 2015):
Federal Courts are courts of limited jurisdiction. Coury v. Prot, 85 F.3d
244, 248 (5th Cir. 1996). A defendant may remove a civil action pending in state
court only where a federal court has original jurisdiction over the action. 28
U.S.C. § 1441(a). Once removal jurisdiction is challenged, the removing
defendant has the burden of establishing facts that would show federal
jurisdiction. Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995);
Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). Any ambiguities
are construed against removal and in favor of remand. Manguno v. Prudential
Prop. And Cas. Ins. Co., 276 F.3d 720 723 (5th Cir. 2002).
Id. at *3.
SWB has removed this matter based its contention that this Court has original federal
question jurisdiction under 28 U.S.C. §1331 and it is properly removed pursuant to 28 U.S.C. §
1441(a). It maintains that federal question jurisdiction exists here because plaintiffs' allegations
raised for the first time in plaintiffs' Amended Master Class Action Petition"that defendants'
action substantially interfered with plaintiffs' free use and enjoyment of property which
constituted a taking of property within the meaning of the United States Constitution " citing ¶¶
112 and 1291 and that plaintiffs' claim "will require resolution of issues premised on the
application of federal law and regulations."
These allegations, pretermitting whether they are sufficient to raise federal question
jurisdiction, were contained as an attachment to a Motion to Amend that was mailed to the
defendants on December 22, 2014, as attested to by affidavit of the attorney Melvin J.
Burmaster. The motion to amend was granted on December 29, 2014. The defendants argued a
1

In reality in both instances the actual phrase was "within the meaning of the U.S. and Louisiana
Constitutions." The distinction will be address infra.

7

motion in open court on January 8, 2015, wherein a significant discussion was had concerning
the fact that an Amended Master Complaint had been filed and that the addition of substitute
bellwether plaintiffs was needed as the withdrawing plaintiffs were not named in the new
petition without any mention of not having received a copy thereof. Indeed an opposition to a
second motion was filed on January 13, 2015. It is only with service that defendants contend
that the time for removal runs. Since service was effected on January 21, 2015 on SWB and
January 22, 2015 on DODT, SWB and DODT argue that removal was done in a timely manner.
Section 1446(b)(3) of Title 28 of the United States Code provides:
Except as provided in subsection (c), if the case stated by the initial
pleading is not removable, a notice of removal may be filed within 30 days after
receipt by the defendant, through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may first be ascertained that
the case is one which is or has become removable.
28 U.S.C. § 1446(b)(3). Here, plaintiffs have filed a sworn affidavit stating that the Amended
Master Class Action to Opposing counsel of record on December 22, 2014 at the proper
addresses. (Doc. 8-5). SWB has stated in a footnote that neither SWB nor DODT ever received
this mailing.
As stated by the United States Court of Appeals for the Fifth Circuit in United States v.
Ekong, 518 F.3d 285 (5th Cir. 2007):
"Proof that a letter properly directed was placed in a U.S. post office mail
receptacle creates a presumption that it reached its destination in the usual time
and was actually received by the person to whom it was address." Beck v.
Somerset Technologies, Inc., 882 F.2d 993, 996 (5th Cir. 1989). "A sworn
statement is credible evidence of mailing for the purposes of the mailbox rule."
Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 420 (5th Cir. 2007) (brackets and
quotation marks omitted). The placement of a letter in the mail may be proved by
circumstantial evidence, including evidence of the sender's customary mailing
practice. Id. The addressee's "bare assertion of non-receipt" is insufficient to
rebut the assumption. Id. at 421.
8

Id. at 285. Given that federal question jurisdiction has been invoked, this federal mailbox rule is
applicable here. Thus, it is appropriate to find, particularly in light of the rubric that any
ambiguities are construed against removal and in favor of remand, that the defendants would be
presumed to have received this no later than December 26, 2014. As such, removal is clearly
untimely. SWB's bare assertion of non-receipt "of this mailing" is insufficient to rebut this
assumption considering it is unclear whether it had not received a copy of the pleading in some
other manner before January 18, 2015 or thirty days before this matter was removed to this
Court.
This conclusion is supported given the January 8th hearing and the colloquy that occurred
therein. It appears to the Court that SWB's assertion to be a bit disingenuous considering the
argument of counsel at that time. It was clear that an Amended Master Class Action Complaint
had been filed and was actively discussed. Indeed, the need for the Second Amended Master
Class Action Complaint was triggered by the Court's order allowing the first Amended Master
Class Action Complaint to be filed as that complaint did not contain plaintiffs from certain
geographical areas which needed to be included in this class action. At no time during that
hearing did counsel for SWB or DOTD register surprise or inform the Court that it was unaware
of the Amended Master Class Action Complaint or lodge any objection thereto for counsel's
failure to serve the motion concerning that amendment on them.
SWB's reliance on service to trigger the removal period is simply misplaced. It is clear
that the term "service or otherwise" means two different things in this statute based on the status
of the litigation. As dictated in Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 334, 354
(1999), formal service of process of a summons and complaint is required to trigger the removal

9

time clock at the instigation of litigation. “An individual or entity named as a defendant is not
obliged to engage in litigation unless notified of the action, and brought under a court’s
authority, by formal process.” Id. at 348. Thus, a defendant is required to act, and is bound by the
thirty day time-window, “only upon service of a summons or other authority – asserting measure
stating the time within which the party served must appear and defend.” Id. at 345. Defendants
state unequivocally that "the law is clear" that "the time of removal begins upon service of the
petition." (Doc. 12, p.12 of 17). This statement constitutes a clear misapprehension of the law
of removal.
As outlined clearly in Fernando Garcia v. MVT Services, Inc., 589 F.Supp.2d 797(5th
Cir. 2008), section 1446(b) of Title 28 of the United States Code requires service as a trigger to
the time for removal only at the commencement of the suit. After that, "service or otherwise" as
contained in what is now § 1446(b)(3)2 does not require the same procedural requirement:
However, paragraph two of § 1446(b) allows for receipt of post-pleading
documents for which the Federal Rules of Civil Procedure require less strict
means of delivery than formal service of process. Compare Fed. R. Civ. P. 4
(generally requiring a summons and complaint to be delivered physically to
constitute service absent waiver) with Fed. R. Civ.P. 5 (allowing for various other
means to constitute "service" of post-pleading documents). Moreover the Fifth
Circuit has held that "receipt" of "orders" and "other paper" can include
documents wholly absent from the state court proceedings. See Green v. R.J.
Reynolds Tobacco co., 274 F.3d 263, 268 (5th Cir. 2001) (publishing of an order
in unrelated case with the same defendant and similar facts and issues constituted
receipt of order for purposes of §1446(b); Addo v. Globe Life & Acc. Ins. Co., 230
F.3d 759, 762 (5th Cir. 200) (receipt by defendant of the plaintiff's demand letter
outside the pleadings is "other paper" under paragraph two of § 14469b)); S.W.S.
Erectors Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996)(removal petition
based on evidence in deposition testimony supported federal jurisdiction under
paragraph two of §1446(b)). If "service or otherwise" in the second paragraph
2

The "second sentence" or "paragraph two" of § 1446(b) to which reference is made herein has been redesignated as §1446(b)(3) by the 2011 Amendments to the law by Title I of Pub.L. 112-63 which took effect upon
the expiration of the 30-day period beginning on Dec. 7, 2011.

10

require service of post-pleadings document as required under Murphy Brothers or
even by the less stringent standards of Federal Rule 5, documents such as demand
letters and orders published in other cases would be excluded. Accordingly, the
term "service or otherwise" in paragraph two of § 1446(b) unlike paragraph one,
does not require a party to receive a document by formal service.
Fernando Garcia, 589 F.2d at 802. Thus, based on the foregoing, the Court finds that
defendants have failed in their burden to prove this matter was removed in a timely manner.
Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995); Howery v. Allstate Ins. Co.,
243 F.3d 912, 916 (5th Cir. 2001). This decision is buttressed by the requirement that any
ambiguities are construed against removal and in favor of remand. Manguno v. Prudential Prop.
And Cas. Ins. Co., 276 F.3d 720 723 (5th Cir. 2002). The removal is thus procedurally barred.
Nonetheless, the Court will not assess attorney's fees, costs and expenses. Accordingly,
IT IS ORDERED pursuant to 28 U.S.C. §1447(c), the Motion to Remand (Doc. 8) is
GRANTED and this matter is REMANDED to the Civil District Court for the Parish of
Orleans.
New Orleans, Louisiana, this 26th day of June, 2015.

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

11