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Flandro v. Chevron Pipe Line Co.

United States District Court, D. Utah

April 11, 2019

ALLAN FLANDRO and SUSANNE FLANDRO, Plaintiffs,
v.
CHEVRON PIPE LINE COMPANY, et al., Defendants.

          MEMORANDUM DECISION AND ORDER ORDER REMANDING CASE TO THIRD JUDICIAL DISTRICT OF UTAH, SALT LAKE COUNTY

          Jill N. Parrish United States District Court Judge

         Before the court is a Motion to Remand filed by plaintiffs Allan and Susanne Flandro on October 3, 2018 (ECF No. 16). Removing defendant Chevron Pipe Line Company (“Chevron”) filed an opposition on October 17, 2018 (ECF No. 34), to which plaintiffs replied on October 29, 2018 (ECF No. 39). On the basis of the parties' memoranda, a review of relevant law, and for the reasons below, plaintiffs' Motion to Remand is granted.

         I. BACKGROUND

         Plaintiffs initiated an action in state court on July 23, 2018. On August 3, 2018, counsel for defendant Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints (“CPB”)-a citizen of Utah-executed and transmitted to plaintiffs' counsel an Acceptance of Service document as contemplated by Utah Rule of Civil Procedure 4(d)(3)(C). On August 22, 2018, Chevron removed that action to federal court. The following day, plaintiffs voluntarily dismissed the case.

         On August 24, 2018, plaintiffs filed a new complaint in state court. Five days later, on August 29, 2018, plaintiffs' counsel sent the complaint to CPB's counsel, requesting that he accept service on behalf of his client as he had done in the first lawsuit. CPB's counsel assented the following day, on August 30, 2018, writing to plaintiffs' counsel that “CPB accepts service as of today's date.” (ECF No. 39-2 at 6). Contrary to the first lawsuit, however, CPB's counsel did not execute and return an acceptance of service document to plaintiffs' counsel.

         Five days later, on September 4, 2018, Chevron removed the action to federal court, asserting both diversity jurisdiction and federal question jurisdiction.

         II. ANALYSIS

         Under 28 U.S.C. § 1441, “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, to the district court of the United States for the district and division embracing the place where such action is pending.” Thus, to determine whether this action was properly removed, the court must analyze whether the operative complaint would have established subject matter jurisdiction if filed in this court in the first instance.

         “Because the jurisdiction of federal courts is limited, there is a presumption against our jurisdiction, and the party invoking federal jurisdiction bears the burden of proof.” Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005). “Federal removal jurisdiction is statutory in nature and is to be strictly construed.” Archuleta v. Lacuesta, 131 F.3d 1359, 1370 (10th Cir. 1997). “Doubtful cases must be resolved in favor of remand.” Id.

         Chevron, the party invoking federal jurisdiction via removal, asserts both federal question jurisdiction and diversity jurisdiction. As explained below, Chevron has not met its burden to establish federal question jurisdiction, and whether or not it has met its burden to establish diversity jurisdiction, the presence of a forum defendant to which the plaintiffs have timely objected[1] requires that this case be remanded.

         A. The Scope of Federal-Question Jurisdiction under 28 U.S.C. § 1331

         Under 28 U.S.C. § 1331, “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” “[W]hether a claim ‘arises under' federal law must be determined by reference to the ‘well-pleaded complaint.'” Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 808 (1986). Thus, a plaintiff is master of his complaint, and “[j]urisdiction may not be sustained on a theory that the plaintiff has not advanced.” Id. at 809 n.6. “Nor can federal question jurisdiction depend solely on ‘a federal defense, . . . even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue.'” Becker v. Ute Indian Tribe of the Uintah & Ouray Reservation, 770 F.3d 944, 947 (10th Cir. 2014) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987)).

         In general, for purposes of § 1331, [2] a suit “aris[es] under” the law that creates the cause of action. Merrell Dow Pharms., Inc., 478 U.S. at 808. Indeed, “the vast majority of cases brought under the general federal-question jurisdiction of the federal courts are those in which federal law creates the cause of action.” Id. “As a rule of inclusion, this ‘creation' test admits of only extremely rare exceptions . . . .” Gunn v. Minton, 568 U.S. 251, 257 (2013).

         The parties agree that plaintiffs' complaint asserts only state law claims, and thus, federal law does not “create” plaintiffs' causes of action. Chevron contends, however, that plaintiffs' state law claims implicate “substantial questions” of federal law sufficient to establish federal-question jurisdiction.

         “The ‘substantial question' branch of federal question jurisdiction is exceedingly narrow-a ‘special and small category' of cases.” Gilmore v. Weatherford, 694 F.3d 1160, 1171 (10th Cir. 2012) (quoting Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 699 (2006)). This slim path to federal court is available only when a state law claim contains “a federal issue [that] is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn, 568 U.S. at 258.

         “The narrow boundaries of the substantial question category are marked by a few important principles.” Becker, 770 F.3d at 947. One principle is that the Supreme Court's recognition of this special and rare category of cases “does not ‘disturb the long-settled understanding that the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction.” Id. (quoting Merrell Dow Pharms., Inc., 478 U.S. at 813). And, “[t]o determine whether an issue is ‘necessarily' raised, the Supreme Court has focused on whether the issue is an ‘essential element' of a plaintiff's claim.” Gilmore, 694 F.3d at 1173. “Finally, if a claim does not present ‘a nearly pure issue of law, one that could be settled once and for all and thereafter would govern numerous . . . cases,' but rather is ‘fact- bound and situation-specific,' then federal question jurisdiction will generally be inappropriate.” Becker, 770 F.3d at 947-48 (quoting Empire Healthchoice Assurance, Inc., 547 U.S. at 700-01).

         Plaintiffs' complaint contains three varieties of state tort claims: (1) negligence, (2) strict liability for abnormally dangerous and/or ultra-hazardous activities, and (3) negligent misrepresentation. Chevron does not identify any essential elements of federal law in any of these claims. Instead, Chevron identifies the presence of two potential ...


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