Crawford-Johnson et al v. Midwest Training Servies, LLC et al
Filing
62
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________
BRANDI CRAWFORD,
Plaintiff,
v.
Case No. 1:14-CV-425
MIDWEST TRAINING SERVICES, LLC
d/b/a MIDWEST BUILDERS and MIDWEST
ENVIRONMENTAL SERVICES, MICHAEL
FEHLER, and AAA LEAD INSPECTIONS,
HON. GORDON J. QUIST
Defendants.
_____________________________________/
OPINION
Plaintiff, Brandi Crawford, filed suit in this Court, alleging claims for negligence, gross
negligence, fraud, breach of contract, slander of title, and conversion. Plaintiff alleges that the Court
has subject matter jurisdiction because the case “arises under 15 U.S.C. [§§] 2682, 2686 and 2689
(“Lead Exposure Reduction”), [and] 40 C.F.R. [§] 745.227.” (Dkt. #1 at Page ID#1.) The Court
issued an order for the parties to show cause why the case should not be dismissed for lack of
subject matter jurisdiction. Plaintiff filed a response, arguing that the Court has subject matter
jurisdiction because (1) she has an implied right of action under the Toxic Substances Control Act
(TSCA), 15 U.S.C. § 2601 et seq.; and (2) the case raises issues of federal preemption.
Federal question jurisdiction exists for “civil actions arising under the Constitution, laws,
or treaties of the United States.” 28 U.S.C. § 1331. A case may arise under federal law if the
complaint contains a “cause of action created by federal law.” Grable & Sons Metal Prods., Inc.
v. Darue Eng’g and Mfg., 545 U.S. 308, 312, 125 S. Ct. 2363, 2366 (2005). The claims in Plaintiff’s
complaint—negligence, breach of contract, fraud, slander of title and conversion—are state law
claims. The only reference to federal law is contained within the negligence counts, where Plaintiff
alleges that Defendants failed to perform lead abatement in accordance with the TSCA and
regulations promulgated pursuant to that statute.
The provisions of the TSCA that Plaintiff cites give the Environmental Protection Agency
authority to issue regulations, see 15 U.S.C. §§ 2682, 2686, and provide that violations of the law
are prohibited, see 15 U.S.C. § 2689. Because those sections do not expressly provide a private right
of action, the Court must determine whether there is an implied private right of action under the
statute. Although there is a four-factor test to make that determination, the second factor —whether
the drafters of the statute intended to create a private right to sue — is dispositive. Traverse Bay
Intermediate Sch. Dist. v. Mich. Dep’t of Educ., 615 F.3d 622, 628 (6th Cir. 2010). Because that
factor is not satisfied, the Court need not examine the other factors.
As noted, the sections of the statute cited provide that violations of the statute are prohibited
and that the EPA may issue regulations. Those sections do not even hint at an intent to create a
private right of action. Moreover, the statute does explicitly provide for a private right of action for
other types of violations that are not at issue in this case. For instance, the statute provides that a
seller or lessor of housing may be held liable for failure to disclose the presence of known leadbased paint hazards. 42 U.S.C. § 4852d. See also Kaye v. Acme Invs., Inc., No. 08-12570, 2008 WL
5188712, at *3 (E.D. Mich. Dec. 8, 2008). The fact that Congress explicitly stated that a plaintiff
could sue based on certain types of violations—but made no such provision for other
violations—confirms that it did not intend to create a private right of action for every violation of
the statute. Furthermore, regulations under TSCA are insufficient to create a private right of action.
2
See Johnson v. City of Detroit, 446 F.3d 614, 625 (6th Cir. 2006) (concluding that federal
regulations cannot independently confer a private right of action).1
Finally, Plaintiff’s argument that there is federal question jurisdiction based on preemption
is unavailing. As Plaintiff correctly notes, federal courts have jurisdiction over cases involving
federal preemption, even when the federal law with purported preemptive effect does not provide
a private right of action. See Chase Bank USA, N.A. v. City of Cleveland, 695 F.3d 548, 554 (6th
Cir. 2012). Plaintiff fails, however, to explain how this case raises issues of federal preemption.
Plaintiff’s complaint asserts several violations of state common law, and never mentions
preemption.
Rather, the complaint simply alleges that Defendants violated TSCA and its
regulations, and that such actions constituted negligence. The Court fails to see how such a claim
involves federal preemption.
Plaintiff has failed to demonstrate that this case arises under the Constitution, laws, or
treaties of the United States. See 28 U.S.C. § 1331. Because the Court lacks subject matter over
Plaintiff’s claims, the case will be dismissed.
An order consistent with this Opinion will enter.
Dated: June 4, 2015
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
1
Although Plaintiff’s state law negligence claims are based on violation of a federal regulation, those claims
do not “necessarily raise a stated federal issue, actually disputed and substantial.” Grable, 545 U.S. at 314, 125 S. Ct.
at 2368. Accordingly, they do not give rise to federal question jurisdiction.
3
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