Goforth, II et al v. Nevada Power Company et al

Filing 103

ORDER granting 23 Motion to Remand to the Eighth Judicial District Court of Clark County, Nevada, case no. A-14-695310-C. Signed by Judge Richard F. Boulware, II on 3/31/2015. (Copies have been distributed pursuant to the NEF - cc State Court DKJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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HERBERT GOFORTH, II, et al.,

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Case No. 2:14-cv-00330-RFB-NJK

Plaintiff,
ORDER

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v.

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Plaintiffs’ Motion to Remand Under 28
U.S.C. § 1447 (ECF No. 23)

NEVADA POWER COMPANY, et al.,

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Defendants.
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I.

INTRODUCTION

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This case arises from the untimely death of Herbert Goforth, III. Goforth, III died while

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employed as a lineman for Nevada Power Company after he fell from an electrical line tower

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during a training exercise. Am. Compl. ¶ 15, ECF No. 1 Ex. B. Goforth, III’s estate and heirs

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filed suit in the Eighth Judicial District Court of Clark County, Nevada, alleging ten state law

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claims. Defendants filed a Petition for Removal pursuant to 28 USC § 1441(a). ECF No. 1.

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Plaintiffs filed a Motion to Remand to state court. ECF No. 23. Because Defendants have not met

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their burden of establishing that removal jurisdiction is proper, the Court remands this action back

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to the Eighth Judicial District Court of Clark County.

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II.

BACKGROUND

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Plaintiffs’ Amended Complaint contains ten state law claims: (1) wrongful

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death/negligence; (2) negligence per se; (3) negligence/gross negligence; (4) fraud; (5) negligent

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hiring, training, retention, and supervision; (6) negligent infliction of emotional distress; (7) strict

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product liability; (8) breach of warranty; (9) respondeat superior; and (10) punitive/exemplary

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damages. Am. Compl. at 6-18. In support of their negligence per se claim, Plaintiffs allege that

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Defendants violated several Occupational Safety and Health Administration (“OSHA”)

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regulations. Defendants claim this Court has original jurisdiction over Plaintiffs’ negligence per

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se claim, and supplemental jurisdiction over the remaining state law claims, because of these

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alleged violations of federal law. Pet. for Removal at 2-3. In their Motion to Remand, Plaintiffs

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argue that their complaint merely references violations of OSHA regulations and that this is not

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sufficient to create federal question jurisdiction. Mot. Remand at 3-7, Apr. 2, 2014, ECF No. 23.

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III.

LEGAL STANDARD
A. Removal Jurisdiction

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28 U.S.C. § 1441(a) grants district courts jurisdiction over state court actions that

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originally could have been brought in federal court. “Removal and subject matter jurisdiction

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statutes are strictly construed, and a defendant seeking removal has the burden to establish that

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removal is proper and any doubt is resolved against removability.” Hawaii ex rel. Louie v. HSBC

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Bank Nevada, N.A., 761 F.3d 1027, 1034 (9th Cir. 2014) (internal quotation marks omitted).

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B. Federal Question Jurisdiction

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A district court has “original jurisdiction of all civil actions arising under the Constitution,

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laws, or treaties of the United States.” 28 U.S.C. § 1331. An action “arises under” federal law

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when “federal law creates the cause of action.” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S.

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804, 808 (1986). But even where a claim finds its origins in state rather than federal law, the

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Supreme Court has identified a “special and small category” of cases in which federal question

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jurisdiction still exists. Empire Healthchoice Assurance, Inc., v. McVeigh, 547 U.S. 677, 699, 701

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(2006). Federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily

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raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without

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disrupting the federal-state balance approved by Congress. Grable & Sons Metal Prods., Inc. v.

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Darue Eng'g & Mfg., 545 U.S. 308, 313-14 (2005). Where all four Grable requirements are met,

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jurisdiction is proper because there is a “serious federal interest in claiming the advantages thought

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to be inherent in a federal forum,” which can be vindicated without disrupting Congress's intended

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division of labor between state and federal courts. Id. at 313.

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IV.

DISCUSSION

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Applying the Grable framework to this case, it is clear that none of Plaintiffs’ claims “arise

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under” federal law. Although the federal issue in this case of whether Defendants violated certain

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OSHA provisions is “actually disputed,” Defendants’ arguments fail with respect to the other three

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Grable requirements. Therefore, the Court lacks subject matter jurisdiction over this case and must

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remand it to state court.

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A. A Federal Issue Is Not Necessarily Raised

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The federal issue is not necessarily raised because proof of a violation of an OSHA

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regulation is not a necessary element to any of Plaintiffs’ claims. Under Nevada law, negligence

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per se is not a separate cause of action, but rather a method of establishing the duty and breach

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elements of a negligence claim. Cervantes v. Health Plan of Nevada, et al., 263 P.3d 261, 264 n.4

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(Nev. 2011). Plaintiffs’ negligence per se claim is thus merely one theory of establishing the duty

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and breach elements of their first and third claims for wrongful death/negligence and

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negligence/gross negligence; it is not truly a separate cause of action. See id.

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“When a claim can be supported by alternative and independent theories—one of which is

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a state law theory and one of which is a federal law theory—federal question jurisdiction does not

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attach because federal law is not a necessary element of the claim.” Rains v. Criterion Sys., Inc.,

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80 F.3d 339, 346 (9th Cir. 1996) (internal citations and quotations omitted); see also Smith v.

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Grimm, 534 F.2d 1346, 1350 (9th Cir. 1976) (“[T]he federal law must be a direct and essential

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element of the plaintiff’s cause of action”).

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Plaintiffs’ negligence per se, negligence/wrongful death, and negligence/gross negligence

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claims are all based on the theory that defendants outfitted Goforth, III with defective safety

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equipment and failed to warn him about hazardous training conditions which proximately caused

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his death. Am. Compl. ¶¶ 24, 44. Proof that Defendants violated OSHA regulations1 is only one

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Plaintiffs allege violations of the following OSHA provisions: 29 CFR § 1910.132(d)(1)(iii) (personal

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method whereby Plaintiffs may establish that the equipment provided by Defendants to Goforth,

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III was defective. Plaintiffs have also set forth alternative and independent state law theories for

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showing that the equipment was defective. For instance, in the Allegations Common to All Claims

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section of the Amended Complaint, Plaintiffs allege that Defendants gave Goforth, III defective

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equipment, including “gloves with holes, a suit that did not fit, [and] boots that had to be taped,”

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which could support a finding of negligence without reference to federal law. Am. Compl. ¶ 16.

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Even under a theory of negligence per se, proof that Defendants violated OSHA regulations

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would not, standing alone, establish the duty and breach elements of Plaintiffs’ negligence claims.

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Proof of such a violation would only serve as evidence—and not necessarily conclusive proof—

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of negligence. Price v. Sinnott, 460 P.2d 837, 840 (Nev. 1969) (“We prefer the rule that proof of

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a deviation from an administrative regulation is only evidence of negligence; not negligence per

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se.”). Therefore, even under a theory of negligence per se, the federal issue is not necessarily

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raised because proof of a violation of an OSHA regulation is not an essential element of any of

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Plaintiffs’ claims.

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B. Resolution of the Issue Is Not Substantially Important to the Federal System

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Even if Plaintiffs’ complaint were to necessarily raise a federal issue, it would not raise a

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substantial federal issue. “The substantiality inquiry under Grable looks . . . to the importance of

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the issue to the federal system as a whole.” Gunn v. Minton, 133 S.Ct. 1059, 1066 (2013). “[P]ure

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issue[s] of law” are more likely to be substantial because a federal court may settle the issue “once

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and for all.” Empire, 547 U.S. at 700 (internal quotation marks omitted). Conversely, “fact-bound

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and situation specific” inquiries are generally not considered to be substantial. Id. at 700-01.

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The federal issue potentially raised by Plaintiffs’ Amended Complaint involves a case-

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specific determination of whether Defendants violated certain OSHA regulations. This requires a

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“fact-bound and situation-specific” analysis of whether the equipment provided by Defendants to

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Goforth, III was defective under OSHA standards. Although this issue may be significant to the

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protection equipment); 29 CFR § 1910.132(e) (defective or damaged equipment); 29 CFR § 1910.269(g)(2)(i)
(personal fall equipment); 29 CFR § 1926.502(d) (personal fall arrest systems); 29 CFR § 1926.502(d)(15)
(anchorages for fall protection); 29 CFR § 1910.269(g)(2)(v) (fall protection equipment); 29 CFR § 1910.269(h)(2)(ii)
(portable ladders and platforms); 29 CFR § 1910.269(q)(3)(vii) (conductive device requirements); and 29 CFR
§ 1904.40(a) (production of requested documents).

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particular parties in the immediate suit as some evidence of negligence, the question fails to reach

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beyond them. Because resolution of the federal issue will inform only the negligence claims at

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hand, the issue is not significant to the federal system as a whole.

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C. Federal Court Resolution Would Disrupt the Federal-State Balance

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The Occupational Safety and Health Act (“OSHA Act”) does not provide a private right of

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action. See 29 U.S.C. § 653(b)(4) (“Nothing in this chapter shall be construed to . . . enlarge or

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diminish or affect in any manner the common law or statutory rights, duties, or liabilities of

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employers and employees under any law with respect to injuries, diseases, or death of employees

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arising out of, or in the course of, employment.”); Crane v. Conoco, Inc., 41 F.3d 547, 553 (9th

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Cir. 1994) (“OSHA violations do not themselves constitute a private cause of action for breach.”).

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Though not dispositive, the absence of a private right of action is highly relevant to the “sensitive

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judgments about congressional intent” required by Section 1331. Merrell Dow, 478 U.S. at 810.

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Indeed, the OSHA Act itself creates mechanisms by which alleged violations can be raised

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within the agency by a private actor. For example, employees or their representatives may report

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violations or dangerous conditions to the Secretary for investigation, 29 U.S.C. § 657(f)(1), and

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any employee who believes he has been discriminated against for reporting a violation may file a

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complaint with the Secretary, 29 U.S.C. § 660(c)(2). Congress’s decision to include these intra-

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agency enforcement mechanisms combined with the absence of a private cause of action suggests

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that Congress did not intend for OSHA-based actions to be litigated by private actors in federal

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court.

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“In sum, Grable emphasized that it takes more than a federal element to open the ‘arising

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under’ door. This case cannot be squeezed into the slim category Grable exemplifies.” Empire,

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547 U.S. at 701 (internal citations and quotations omitted). Plaintiffs’ Amended Complaint fails

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to satisfy three of the four factors in the Grable framework and remand is therefore proper.

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V.

CONCLUSION

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For the reasons stated above,

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IT IS ORDERED that Plaintiffs Herbert Goforth, II and Rosa Goforth’s Motion to

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Remand Under 28 U.S.C. § 1447 (ECF No. 23) is GRANTED. This case is REMANDED to the

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Eighth Judicial District Court of Clark County, Nevada, case no. A-14-695310-C.

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DATED this 31st day of March, 2015.

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____________________________
RICHARD F. BOULWARE, II
United States District Judge

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