Bowyer v. Rover Pipeline, LLC
Filing
11
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS MOTION TO REMAND DKT. NO. 7 . Court concludes that it lacks subject matter jurisdiction to hear this case. It therefore GRANTS Bowyers motion to remand Dkt. No. 7 and REMANDS this case to the Circuit Court of Doddridge County, West Virginia. Signed by District Judge Irene M. Keeley on 1/23/2017. (Copy counsel of record via CM/ECF)(jmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DAVID E. BOWYER,
Plaintiff,
v.
//
CIVIL ACTION NO. 1:16CV203
(Judge Keeley)
ROVER PIPELINE, LLC,
a Delaware Limited Liability Company,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 7]
On
September
(“Bowyer”),
filed
29,
a
2016,
the
“Complaint
plaintiff,
and
David
Verified
E.
Bowyer
Petition
for
Declaratory Judgment and Motion for Preliminary and/or Permanent
Injunction” against the defendant, Rover Pipeline, LLC (“Rover”),
in the Circuit Court of Doddridge County, West Virginia (“Circuit
Court”) (Dkt. No. 1-1). On October 7, 2016, Rover moved to dismiss
the complaint, arguing that Bowyer’s claims were not ripe, he had
failed to exhaust his administrative remedies, and the court did
not have authority to grant him relief (Dkt. No. 4-3). According to
the parties, on October 12, 2016, the Circuit Court denied Bowyer’s
motion for injunctive relief as well as Rover’s motion to dismiss
(Dkt. Nos. 1 at 2; 7-1 at 1-2).
On October 25, 2016, Rover timely removed the case to this
Court, citing federal question jurisdiction (Dkt. No. 1 at 3).1
1
“[F]iling a pleading like an answer or a motion to dismiss
does not waive [the] right of removal.” Barger v. GAP Entech, Inc.,
BOWYER v. ROVER PIPELINE
1:16CV203
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 7]
Bowyer moved to remand the case to the Circuit Court on November 7,
2016 (Dkt. No. 7). After full briefing, the Court heard argument on
the motion on January 12, 2017 (Dkt. No. 10), and for the reasons
that follow, finds that it lacks subject matter jurisdiction on the
basis of federal question. It therefore GRANTS Bowyer’s motion to
remand (Dkt. No. 7) and REMANDS this case to the Circuit Court of
Doddridge County, West Virginia.
I. BACKGROUND
A.
Factual Allegations
The dispute in this case arises out of Rover’s efforts to
construct a high-pressure interstate natural gas pipeline, which
would cross a portion of Boywer’s property in Doddridge County,
West Virginia. The proposed pipeline (“Rover Project”) would begin
in Doddridge County and end outside of the state. According to the
complaint, Rover has submitted pre-filing materials to the Federal
Energy Regulatory Commission (“FERC”) in pursuit of a Certificate
of Public Convenience and Necessity (“Certificate”) pursuant to the
Natural Gas Act (“NGA”). The complaint alleges, however, that Rover
has not yet received a Certificate (Dkt. No. 1-1 at 5-6, 9).
No. 1:15cv51, 2015 WL 3504438, at *4 n.2 (N.D.W. Va. June 3, 2015)
(citing 16 Moore’s Federal Practice § 107.18[3][b] (Matthew Bender
3d Ed.)).
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BOWYER v. ROVER PIPELINE
1:16CV203
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 7]
Rover has attempted to purchase a permanent right of way over
a portion of Bowyer’s 259-acre property. Id. at 2, 6. Bowyer,
however,
asserts
that
Rover’s
predetermined
location
for
proposed easement “is not suitable or agreeable.” Id.
the
He is
concerned that if Rover locates the pipeline where it seeks to the
easement and construction will have adverse affects on his plans to
develop and harvest certain timber from the property, as well as do
irreparable harm to the surface and waterways. Id. at 6-7. Bowyer
has proposed that Rover consider an alternate route across his
property that will have “no adverse effect, impact or result upon
adjacent property owners” and “little to no adverse effect, impact
or result upon” Rover itself. Id. at 7. Despite his attempt to
accommodate Rover’s needs, Bowyer alleges that Rover has refused to
engage in good faith discussions regarding the location of an
easement. Id.
Bowyer further claims that he has advised Rover on multiple
occasions that it was trespassing on his land without any lawful
authority, much less his consent. Id. at 7-8. Nonetheless, Rover
allegedly threatened to continue trespassing in a manner that
Bowyer claims will cause irreparable harm to his interest in the
property. Since that time, as recently as the summer of 2016, Rover
has expressed a desire to conduct surveys on Bowyer’s land, for
3
BOWYER v. ROVER PIPELINE
1:16CV203
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 7]
which Bowyer has consistently refused permission. Nonetheless,
Rover’s agents allegedly have trespassed on his property without
regard for his wishes and the “no trespassing” signs that he has
posted. Id. at 9. Bowyer contends that because the Rover Project
will not serve West Virginians, and Rover has not received a FERC
Certificate, Rover has no right to enter his property without first
obtaining his permission. Id. at 9-10.
B.
Claims for Relief
In the complaint, Bowyer seeks to establish his right to
relief in three claims, each of which requests declaratory relief
under W. Va. Code § 55-13-1 (Dkt. No. 1-1 at 10-14). Count One
seeks a declaration that, because the Rover Project is not for the
public use of West Virginians, Rover does not have the power of
eminent domain under West Virginia Code § 54-1-3. Id. at 10-12.2 In
the alternative, even if Rover has the power of eminent domain
under West Virginia law, Count Two seeks a declaration concerning
the location and extent of the area to be surveyed under that
power. Id. at 12-13. Lastly, Count Three seeks an alternative
declaration concerning the scope of activities authorized to take
2
Other plaintiffs recently had success before the Supreme
Court of Appeals of West Virginia on a similar request. See
Mountain Valley Pipeline, LLC v. McCurdy, No. 15-0919, 2016 WL
6833119 (W. Va. Nov. 15, 2016).
4
BOWYER v. ROVER PIPELINE
1:16CV203
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 7]
place during pre-condemnation surveys conducted under the authority
of West Virginia law. Id. at 13-14.
In closing, Bowyer reiterates his requests for the declaratory
relief outlined above, and he also asks for a declaration “that
Plaintiff’s proposed alternative route upon the subject property is
reasonable and be used to mitigate damage to Plaintiff’s property.”
Id. at 14.
II. STANDARD OF REVIEW
Title 28 U.S.C. § 1441 provides that “any civil action brought
in a state court of which the district courts of the United States
have original jurisdiction, may be removed by the defendant or the
defendants.” “The burden of establishing federal jurisdiction is
placed upon the party seeking the removal,” Mulcahey v. Columbia
Organic Chems., Inc., 29 F.3d 148, 151 (4th Cir. 1994), and “state
law complaints usually must stay in state court when they assert
what appear to be state law claims.” Lontz v. Tharp, 413 F.3d 435,
440 (4th Cir. 2005).
Federalism
counsels
that
removal
jurisdiction
should
be
strictly construed. Palisades Collections LLC v. Shorts, 552 F.3d
327, 334 (4th Cir. 2008) (citing Md. Stadium Auth. v. Ellerbe
Becket Inc., 407 F.3d 255, 260 (4th Cir. 2005)). As this Court has
previously noted, “[a]ll doubts about the propriety of removal
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BOWYER v. ROVER PIPELINE
1:16CV203
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 7]
should be resolved in favor of retaining state court jurisdiction,”
and
thus
remanding
a
case
to
state
court.
Vitatoe
v.
Mylan
Pharmaceuticals, Inc., 2008 WL 3540462, at *2 (N.D.W. Va. Aug. 13,
2008) (citing Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th
Cir. 1999)). The Court is limited to considering the facts on the
record at the time of removal. See Lowrey v. Al. Power Co., 483
F.3d 1184, 1213-15 (11th Cir. 2007).
III. DISCUSSION
Rover claims that removal of this action is proper under
federal question jurisdiction,3 because Bowyer’s complaint requests
a declaration that “Plaintiff’s proposed alternate route upon the
subject property is reasonable and be used to mitigate damage to
Plaintiff’s property” (Dkt. Nos. 1 at 2; 8 at 3). According to
Rover, this request presents a federal issue on the face of the
well-pleaded
complaint
because
the
pipeline’s
route
will
be
determined by FERC under the NGA. After careful review, however,
3
Although the parties are diverse, Rover does not assert that
the Court has diversity jurisdiction. The burden is on Rover to
establish
jurisdiction,
and
the
Court
will
not
address
jurisdictional bases not proposed by the parties. See Mulcahey, 29
F.3d at 151. The Court notes, however, that the amount-incontroversy requirement would likely not be met in this case. See
McCurdy v. Mountain Valley Pipeline, LLC, No. 1:15-03833, 2015 WL
4497407 (S.D.W. Va. July 23, 2015) (remanding a similar case
because the defendant would be able to conduct necessary surveys
upon receiving a “conditional” certificate from FERC).
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BOWYER v. ROVER PIPELINE
1:16CV203
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 7]
the Court concludes that this case must be remanded to the Circuit
Court of Doddridge County because it neither presents a federal
cause of action nor involves a substantial question of federal law.
A.
Federal Cause of Action
District courts have original jurisdiction to hear cases
involving a federal question, those cases that “arise under”
federal law or the Constitution. 28 U.S.C. § 1331. The most obvious
cases are those where federal law creates the cause of action
asserted. Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257,
260 (1916). Pursuant to the well-pleaded complaint rule, a case
“arise[s] under” federal law “only when a federal question is
presented
on
the
face
of
the
plaintiff’s
properly
pleaded
complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
“The well-pleaded complaint rule stands for the proposition that
the court, in determining whether the case arises under federal
law, will look only to the claim itself and ignore any extraneous
material.” 13D Wright & Miller, Federal Practice and Procedure §
3566 (3d. ed.). Notably, the Supreme Court analyzes the face of the
well-pleaded complaint by reference to the “allegations” that it
contains. Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003).
Here, disregarding extraneous materials and analyzing only the
factual and legal allegations of Bowyer’s complaint, it is apparent
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BOWYER v. ROVER PIPELINE
1:16CV203
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 7]
that Bowyer seeks a declaration of rights under West Virginia’s
eminent domain law. Bowyer seeks to establish that, prior to
receiving a FERC certificate, Rover does not have the power of
eminent domain under West Virginia law and thus cannot enter his
property without permission (Dkt. No. 1-1 at 10-12). Alternatively,
he seeks a declaration of the scope and extent of Rover’s rights if
a court determines that Rover has the power of eminent domain under
West Virginia law. Id. at 12-14.
As Rover points out, Bowyer’s prayer for relief includes a
request that the Court declare that his proposed alternate route
for Rover’s interstate pipeline is reasonable and should be used by
Rover (Dkt. No. 1-1 at 14). Rover also correctly argues that the
state
court
does
not
have
authority
to
grant
such
relief.
Unfortunately for Rover, nor does this Court. The Natural Gas Act
gives FERC sole discretion to determine the pathway of Rover’s
proposed interstate pipeline. See 15 U.S.C. § 717f(c). Those
wishing to challenge FERC’s decisions in this regard must first
apply to FERC for relief and then appeal any adverse decisions
directly to the relevant court of appeals. See 15 U.S.C. § 717r(a)(b).
Moreover, Rover’s request for relief does not amount to a
federal
cause
of
action,
and
to
8
the
extent
that
it
argues
BOWYER v. ROVER PIPELINE
1:16CV203
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 7]
otherwise, Rover has only artfully identified a federal defense.
While it may be true that the Natural Gas Act preempts state law
when the two are in conflict, the NGA certainly does not operate to
completely preempt state eminent domain law prior to issuance of a
Certificate.4
FERC
Such
complete
preemption
would
be
a
jurisdictional doctrine, but the primacy of NGA provisions over
related state law is an ordinary preemption argument, which merely
operates as a federal defense. Lontz, 413 F.3d at 440.
The existence of such a federal defense is insufficient to
establish federal question jurisdiction or to provide a basis for
removal, Caterpillar, 482 U.S. at 392, and the state court is
capable of litigating this defense should Rover raise it there. See
In re Blackwater Security Consulting, LLC, 460 F.3d 576, 589 (4th
Cir. 2006) (“[R]emanding despite a potential federal defense does
not hamstring the litigation of that defense in state court.”).
Therefore,
Rover
has
not
established
that
Bowyer’s
complaint
contains a federal cause of action.
4
Because complete preemption prevents the plaintiff from
pleading under the law of his choice, defendants must meet an
“exacting standard” to prove that federal law is meant to provide
the exclusive cause of action. Lontz, 413 F.3d at 441.
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BOWYER v. ROVER PIPELINE
1:16CV203
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 7]
B.
Substantial Federal Question
Even though Bowyer’s complaint presents no federal cause of
action, in select cases, state law claims may be sufficient to
establish federal question jurisdiction. “Where state law creates
the cause of action, federal-question jurisdiction will nonetheless
lie if the ‘plaintiff’s right to relief necessarily depends on
resolution of a substantial question of federal law.’” Columbia Gas
Transmission Corp. v. Drain, 191 F.3d 552, 557 (4th Cir. 1999)
(quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463
U.S. 1, 27-28 (1983)). “[T]he mere presence of a federal issue in
a state cause of action does not automatically confer federalquestion
jurisdiction.”
Merrell
Dow
Pharmaceuticals
Inc.
v.
Thompson, 478 U.S. 804, 813 (1986). The Court must ask, “does a
state-law
claim
necessarily
raise
a
federal
issue,
actually
disputed and substantial, which a federal forum may entertain
without disturbing any congressionally approved balance of federal
and state judicial responsibility?” Grable & Sons Metal Prods.,
Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005).
Here, Bowyer’s complaint does not fall within the “special and
small category” of cases that give rise to such jurisdiction. See
Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 699
(2006). First, the complaint’s mere mention of Rover’s FERC filing
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BOWYER v. ROVER PIPELINE
1:16CV203
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 7]
and the NGA cannot operate to confer federal question jurisdiction
on this Court anymore than the mere presence of a federal issue in
a state cause of action can do so. See Merrell Dow, 478 U.S. at
813.
Second, and more importantly, the Supreme Court’s analysis of
whether a substantial federal question exists has consistently
focused on the plaintiff’s “right to relief,” not his request for
a remedy. See Franchise Tax Bd., 463 U.S. at 27-28; Merrel Dow, 478
U.S. at 808. Simply put, Bowyer’s remedy requests have no bearing
on whether he has a right to declaratory relief under West Virginia
law. If Bowyer establishes that West Virginia eminent domain law
entitles him to declaratory relief concerning Rover’s activities,
then the Circuit Court will be tasked with determining the proper
scope of Bowyer’s available remedy. See Aegis Defense Servs., LLC
v. Chenega-Patriot Grp., LLC, 141 F. Supp. 3d 479, 487 (E.D. Va.
2015). That such a determination may involve reference to federal
law is insufficient to raise a substantial federal question.
IV. CONCLUSION
For the reasons discussed, the Court concludes that it lacks
subject matter jurisdiction to hear this case. It therefore GRANTS
Bowyer’s motion to remand (Dkt. No. 7) and REMANDS this case to the
Circuit Court of Doddridge County, West Virginia.
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BOWYER v. ROVER PIPELINE
1:16CV203
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 7]
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED: January 23, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
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