Hussey et al v. Total Environmental Solutions Inc

Filing 29

ORDER OF REMAND: IT IS ORDERED that this matter shall be remanded to the 16th Judicial District Court for the Parish of Iberia, State of Louisiana, for lack of subject matter jurisdiction. This Order shall be STAYED for 14 days from the date of issuance. Any appeal to the District Judge must be filed within 14 days from the date of this Order. Signed by Magistrate Judge Carol B Whitehurst on 11/16/2015. (crt,Chicola, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Hussey, et al

Civil action no. 6:14-cv-2186

versus

Judge Richard T. Haik, Sr.

Total Environmental Solutions, Inc.

Magistrate Judge Carol B. Whitehurst

ORDER OF REMAND
This matter was filed as a “Petition For Damages And/Or Class Action” by
Plaintiffs, Dianna Hussey, individually and on behalf of all persons similarly situated
(“Plaintiffs”), in the 15th Judicial District Court for the Parish of Lafayette, State of
Louisiana, against defendant, Total Environmental Solutions Inc. (“TESI”). TESI
removed the action to this Court asserting jurisdiction pursuant to 28 U.S.C. §§ 1331
and 1441, stating “in that, in the Petition, Plaintiffs claim relief against TESI by virtue
of and under laws of the United States.” R. 1.
Plaintiffs allege in their Petition that TESI’s water system provides drinking
water to approximately 65 households in the Trewhill Subdivision located in
Lafayette Parish. R. 1-1, ¶ 2. They further allege that TESI is responsible for the
monitoring of contaminants in the drinking water, including the disinfection
byproducts, Total Trihalomethanes (TTHMs) and Haloacetic Acids (HAA5), which
Plaintiffs contend are known carcinogens. Id. at ¶¶ 3-4. Plaintiffs allege that from

May 2, 2013 to February 6, 2014, TESI’s Trewhill Subdivision Water System was
determined to have violated the U.S. Environmental Protection Agency (“EPA”) rules
pertaining to disinfectant byproduct contaminants on multiple occasions. Id., at ¶¶
8 - 12. Plaintiffs assert causes of action in state law negligence for various personal
“injuries, damages, other relief, including ... medical monitoring.” Id. at ¶13.
Plaintiffs bring their action for damages pursuant to Louisiana Code of Civil
Procedure Article 591, et seq, seeking certification as a class action.
After reviewing the record, including TESI’s Notice of Removal, the Court
issued a sua sponte order requiring TESI to brief the issue of federal question
jurisdiction. In their Memorandum In Response, TESI stated that while Plaintiffs’ did
not identify the specific regulations of the EPA which TESI allegedly violated, “the
Safe Drinking Water Act (“SDWA”), 42 U.S.C.A. § 300f et seq. governs the conduct
of TESI relevant to this matter.” R. 28. While TESI’s initially contended that this
Court has federal question jurisdiction over Plaintiffs’ claims because Plaintiffs’
Petition references “United States Environmental Protection Agency regulations,”
TESI now maintains that the SDWA §§ 300f and 300g provide this Court with
subject matter jurisdiction.
“The Safe Drinking Water Act, 42 U.S.C.A. §§ 300f et seq., was passed in
1974 to establish uniform quality standards for the approximately 240,000 public
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water systems in the United States to reduce contamination in drinking water. Public
drinking water suppliers in the United States are under a duty to provide their
customers with drinking water that meets federal quality standards established under
the provisions of the SDWA.” Robert W. Vinal, J.D. , Citizens’ Suits Under the Safe
Drinking Water Act, 67 Am. Jur. Proof of Facts 3d 95 (2002). The SDWA does not
create a private civil action under which damages can be recovered for violation of
a provision of the SDWA. Id. However, in addition to providing the EPA with the
power to bring administrative and civil actions against violators, the SDWA also
authorizes citizens’ civil actions where the government has failed to pursue an action
against a violator. See 42 U.S.C. § 300j-8(a)(1).
The SDWA’s citizens’ suits provision states that “any person may commence
a civil action on his own behalf against (1) any other person, including the United
States and any other government instrumentality or agency to the extent permitted by
the Eleventh Amendment to the Constitution, who is alleged to be in violation of any
requirement prescribed by or under the Safe Drinking Water Act; or (2) against the
EPA Administrator for alleged failure to perform any nondiscretionary act or duty
under the SDWA.” 42 U.S.C. § 300j-8(a). Thus, the citizens’ civil actions provisions
of the SDWA, 42 U.S.C. § 300j-8, permit an individual to act as a “private attorney
general” by directly filing a civil suit in federal district court against an SDWA
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violator if the citizen plaintiff can meet certain subject matter jurisdiction and
standing requirements and if, prior to filing the action, the citizen plaintiff has timely
performed certain pre-suit notice procedures. A private individual’s ability to enforce
a SDWA provision or regulation is limited to pursing a civil action pursuant to
SDWA’s citizens’ suits authorization. This authorization is governed by certain
procedural requirements and subject matter jurisdiction limitations—i.e. jurisdictional
standing, proper notice of the intent to sue properly served on the EPA, prospective
defendant and the government of the subject state, at least 60 days prior to the filing
of the civil action.
Federal courts are courts of limited jurisdiction. See, e.g., Howery v. Allstate
Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). Thus, a federal district court “must
presume that a suit lies outside [its] jurisdiction.” Id. Further, the burden of
establishing federal jurisdiction rests on the party seeking the federal forum.” Id. As
a Court of limited jurisdiction, this Court is obligated to examine the basis of its own
jurisdiction sua sponte, and accordingly, remand any action where federal jurisdiction
is lacking. Fed.R.Civ.P. 12(h)(3); In re Canion, 196 F.3d 579, 585 (5th Cir.1999).
The mere mention of a federal statute in the plaintiff’s petition does not confer
federal jurisdiction. Hill v. Marston, 13 F.3d 1548, 1550 (11th Cir.1994). In Merrell
Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 817 (1986), the Supreme
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Court held that a state law action based on a violation of federal law does not confer
federal jurisdiction unless the federal statute provides a private right of action.
Federal district courts have “original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “This so-called
‘arising under’ or ‘federal question’ jurisdiction has long been governed by the
well-pleaded-complaint rule, which provides that ‘federal jurisdiction exists only
when a federal question is presented on the face of the plaintiff’s properly pleaded
complaint.’ A federal question ‘is presented’ when the complaint invokes federal law
as the basis for relief. It does not suffice that the facts alleged in support of an
asserted state-law claim would also support a federal complaint. The
well-pleaded-complaint rule makes the plaintiff the master of the claim; he or she may
avoid federal jurisdiction by exclusive reliance on state law.” Beneficial Nat. Bank
v. Anderson, 539 U.S. 1, 13 (2003).
Plaintiffs do not allege a federal cause of action in their original petition filed
in state court and it is clear that the party who brings the suit is master to decide what
law he will rely on. Boone v. DuBose, 718 F.Supp. 479 (M.D.La.1988), (citing The
Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913)). TESI bases this Court’s
federal question jurisdiction on Plaintiffs’ allegations that TESI’s water treatment
services are in violation of the “EPA” and asserts that Plaintiffs’ action is brought
5

under the SDWA. However, with the limited exception of a citizens’ suit under 42
U.S.C.A. § 300j-8, the SDWA contains no private right of action. TESI has failed to
provide any evidence that Plaintiffs have alleged a citizens’ suit or have made any
attempt to comply with the jurisdictional requirements necessary to bring a citizens’
suit.
In Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass’, 453 U.S. 1
(1981), the Supreme Court, analyzed the Clean Water Act, which has very similar
wording to that of the SDWA’s citizens’ civil action section. Compare 33 U.S.C. §
1365 with 42 U.S.C.§ 300j-8. See also Robert W. Vinal, J. D., Citizens’ Suits Under
the Safe Drinking Water Act, 67 Am. Jur. Proof of Facts 3d 95, § 33 (2002). The
Supreme Court’s decision in Sea Clammers precludes implying a private right of
action under any provision of the Clean Water Act other than § 1365, or in this case,
the SDWA under § 300j-8. See Sea Clammers, 453 U.S. at 14–15 (federal courts may
not imply a private right of action under any provision of the Clean Water Act not
expressly referenced in the statute’s citizen suit provision, 33 U.S.C. § 1365). The
Court held:
In view of these elaborate enforcement provisions it cannot be assumed
that Congress intended to authorize by implication additional judicial
remedies for private citizens under the Act. As we stated in
Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19, 100
S.Ct. 242, 62 L.Ed.2d 146 (1979) “it is an elemental canon of statutory
6

construction that where a statute expressly provides a particular remedy
or remedies, a court must be chary of reading others into it.”
Sea Clammers, 453 U.S. at 14-15.
The court reached a similar result in Bd. of Trustees of Painesville Township
v. City of Painesville, 200 F.3d 396 (6th Cir.1999), in which the Sixth Circuit
affirmed the district court’s dismissal of a wastewater treatment Clean Water Act case
due to lack of subject matter jurisdiction. The Painesville court noted,
We must affirm the district court’s decision dismissing this case because
the Supreme Court’s decision in Middlesex County Sewerage Auth. v.
Nat’l Sea Clammers Ass’n, 453 U.S. 1 (1981), clearly precludes us from
implying a private right of action against the defendant under the CWA.
Even if plaintiffs’ claims were authorized under the statute, we would
still affirm because plaintiffs’ failure to comply with the statutory notice
provisions applicable to citizens suits under the Act deprives us of
jurisdiction over their claims.
Painesville, 200 F.3d at 397. The Painesville court underscored that “it is not the role
of federal courts to articulate federal interests-but to enforce the federal interests
identified by Congress.” Id. at 400.
Thus, consistent with the above jurisprudence, the Court determines that
Plaintiffs’ complaint does not arise under federal law. Plaintiff’s Petition makes no
mention of a citizens’ suit under either the SDWA or the CWA. Nor is there any
evidence that Plaintiff has timely performed the jurisprudential statutory notice
provisions. There is no private right of action under the SDWA applicable here, and
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the Petition does not implicate a substantial question of federal law. Accordingly,
IT IS ORDERED that this matter shall be remanded to the 16th Judicial
District Court for the Parish of Iberia, State of Louisiana, for lack of subject matter
jurisdiction.
This Order shall be STAYED for fourteen days from the date of issuance. Any
appeal to the District Judge must be filed within fourteen days from the date of this
Order. If an appeal is taken to the District Judge, the Order shall remain stayed until
the appeal is decided. If no timely appeal is filed, the clerk shall remand the action
forthwith.
Signed at Lafayette, Louisiana, on this 16th day of November 2015.