Buras v. Contact Network, LLC et al

Filing 13

MEMORANDUM OPINION AND ORDER granting 6 Motion to Remand. The matter is remanded to the Circuit Court of Pearl river County, Mississippi; and that a certified copy of this order of remand shall be immediately mailed by the Clerk to the clerk of the state court. Signed by District Judge Louis Guirola, Jr. on 4/13/18. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
GLENDA BURAS

PLAINTIFF

v.

CAUSE NO. 1:18CV22-LG-RHW

CONTACT NETWORK, LLC, KEVIN McCOY,
DOUG WILSON, and JOHN DOES 1-10

DEFENDANTS

MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO REMAND
THIS MATTER COMES BEFORE THE COURT on the [6] Motion to Remand
filed by the plaintiff, Glenda D. Buras. The defendants have filed a joint response,
and Buras has replied. After due consideration of the pleadings, briefs and
arguments of counsel and the relevant legal authorities, the Court finds that it does
not have jurisdiction of this cause, and it should therefore be remanded to the
Circuit Court of Pearl River County, Mississippi.
FACTS AND PROCEDURAL HISTORY
Plaintiff Buras is the owner of real propoerty in Pearl River County,
Mississippi. She alleges that the defendants “illegally dumped a large amount of
foreign, deleterious, toxic chemicals and waste products” on property she owned,
and then “illegally washed down said substance further contaminating the land
belonging to Plaintiff.” (Compl. 2, ECF No. 1-2). Buras brings state law claims of 1)
damages to plaintiff and property; 2) emotional distress and suffering; 3) trespass;
4) punitive damages; and 5) attorney’s fees.
The defendants removed the case to this Court on the basis of the Court’s
federal question jurisdiction. (Notice of Removal 1, ECF No. 1). The defendants

assert that by stating that the dumping and washing were violations of, among
other things, “the laws of the United States of America,” Buras is attempting to
hold them liable for violations of federal law, and she has therefore presented a
federal question.
DISCUSSION
“The right of removal is entirely a creature of statute and a suit commenced
in a state court must remain there until cause is shown for its transfer under some
act of Congress. These statutory procedures for removal are to be strictly
construed.” Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002) (internal
quotations and citations omitted). “It is to be presumed that a cause lies outside
this limited [federal] jurisdiction and the burden of establishing the contrary rests
upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994) (internal citations omitted).
“As a general rule, absent diversity jurisdiction, a case will not be removable
if the complaint does not affirmatively allege a federal claim.” Beneficial Nat’l.
Bank v. Anderson, 539 U.S. 1, 6 (2003). Whether federal question jurisdiction exists
is determined by application of the “well-pleaded complaint rule.” Id. Under this
rule, “the plaintiff’s well-pleaded complaint must exhibit, within its four corners,
either an explicit federal cause of action or a state-law cause of action that contains
an embedded question of federal law that is both substantial and disputed.”
Settlement Funding, L.L.C. v. Rapid Settlements, Ltd., 851 F.3d 530, 536 n.11 (5th

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Cir. 2017) (quoting R.I. Fishermen’s All., Inc. v. R.I. Dep’t of Envtl. Mgmt., 585 F.3d
42, 48 (1st Cir. 2009). “As a result, there is generally no federal question
jurisdiction if the plaintiff properly pleads only a state law cause of action.” Ezell v.
Kansas City S. Ry. Co., 866 F.3d 294, 297 n.2 (5th Cir. 2017) (citation and quotation
marks omitted).
In this case, Buras has alleged substantive claims for trespass and emotional
distress; both state law claims. Federal question jurisdiction presumably does not
apply. The defendants contend however, that the Complaint “specifically claims
that Defendants are liable to her because they acted contrary to federal law by
allegedly dumping of toxic and other waste on her land.” (Def. Resp. 3, ECF No.
11). In the Court’s view, this is a mischaracterization of Buras’ claims. She claims
that the defendants trespassed on her land by dumping toxic waste, causing
damage to the land and emotional distress to her.
“[A] civil trespass cause of action in Mississippi includes three elements: 1)
an intrusion upon the land of another without license or other right for one’s own
purpose; 2) damage to the plaintiff as a result of physical invasion of the land; 3)
credible evidence that the party charged is the party responsible for the tort.”
Green v. Lakeview Loan Servicing, LLC, No. 2:15-CV-156-KS-MTP, 2017 WL
3263722, at *3 (S.D. Miss. May 12, 2017) (citations omitted). The character or
composition of the materials dumped upon her land is not an essential element of
the claim. As this Complaint is drafted, there is no need for Buras to prove that
the defendants violated any federal environmental law or regulation in order to prove
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her trespass claim under state law. She need only show that the defendants came
on her land without permission and caused damage. Because Buras’ state law
causes of action do not rely on federal law for “a necessary element,” the defendants
have not demonstrated that federal question jurisdiction exists in this case. It will
be remanded to state court. However, Buras’ request for fees and costs is denied, as
there was an objectively reasonable basis for seeking removal. See Martin v.
Franklin Capital Corp., 546 U.S. 132, 141 (2005).
IT IS THEREFORE ORDERED AND ADJUDGED that the [6] Motion to
Remand filed by the plaintiff, Glenda D. Buras, is GRANTED. The above styled
and numbered cause is hereby REMANDED TO THE CIRCUIT COURT OF
PEARL RIVER COUNTY, MISSISSIPPI pursuant to 28 U.S.C. § 1447(c).
IT IS FURTHER ORDERED AND ADJUDGED that a certified copy of
this order of remand shall be immediately mailed by the Clerk to the clerk of the
state court pursuant to 28 U.S.C. 1447(c).
SO ORDERED AND ADJUDGED this the 13th day of April, 2018.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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