Opinion
Civil Action No. 01-3864, Section "J" (4)
February 8, 2002
ORDER AND REASONS
Before the Court is a Motion to Remand to State Court for Lack of Subject Matter jurisdiction (Rec. Doc. 9) filed by plaintiffs Casey Billieson on behalf of herself and others similarly situated. Defendants, C.J. Brown Property Management, Inc.; the Housing Authority of New Orleans; and The Travelers Indemnity Company, The Travelers Indemnity Company of Illinois, The Travelers Indemnity Company of Rhode Island, and The Charter Oak Fire Insurance Company (collectively, "Travelers") oppose the motion. The motion, set for hearing on Thursday, February 7, 2002, is before the Court on briefs without oral argument.
The Court conducted a status conference in this matter on January 24, 2002, and subsequently expedited consideration of plaintiffs' Motion to Remand in light of the scheduled April 8, 2002 trial date in state court.
After a review of the motion, opposition, notice of removal, memoranda of the parties, and other evidence in the record, the Court concludes that defendants have not met their burden of proving federal subject matter jurisdiction, and plaintiffs' motion to remand should be granted.
BACKGROUND
On December 14, 1994, plaintiffs filed suit in Civil District Court for the Parish of Orleans for damages resulting from exposure to lead in public housing. The Fourth Circuit Court of Appeal certified the case as a class action on March 3, 1999 and set trial on the merits for April 8, 2002. On December 26, 2001, Travelers removed the case to federal court, invoking 28 U.S.C. § 1651, the "All Writs Act." Plaintiffs filed the instant motion to remand, arguing that this Court lacks jurisdiction.
Plaintiffs argue that: (1) no independent basis for federal jurisdiction exists; and (2) the All Writs Act does not authorize removal. In addition, plaintiffs state that: (1) the consent judgment in Mitchell v. Housing Authority of New Orleans, the case that defendants argue is inextricably intertwined with this case, reserves to tenants such as those in the present case the right to bring damage suits; (2) hundreds of private state court damage actions for lead paint poisoning have been litigated against the Housing Authority of New Orleans; and (3) the Fifth Circuit has recently questioned whether the All Writs Act can ever support removal in a case in which no independent federal jurisdiction exists.
Defendants argue that removal is appropriate under the All Writs Act because plaintiffs' claims are inextricably intertwined with the claims raised in Mitchell. Therefore, defendants argue, this Court should deny remand and assert jurisdiction over this case to protect the Court's continuing jurisdiction over its order in Mitchell.
DISCUSSION
State court actions may be removed to federal court only if the action is a "civil action . . . of which the district courts of the United States have original jurisdiction." Rivet v. Regions Bank of La.(Rivet I), 118 S.Ct. 921, 925 (1998) (quoting 28 U.S.C. § 1441(a)). Case law is clear that "[t]he party invoking the removal jurisdiction of federal courts bears the burden of establishing federal jurisdiction." Gauthier v. Levin, Civ. A. No. 01-1559, 2001 WL 699040, at 1 (E.D. La. June 21, 2001). Without diversity of citizenship, only claims that fall within the federal question jurisdiction of the district courts may properly be removed. Id.
However, section 1441(a) grants Congress the authority to make exceptions to the requirement that there be either diversity or a federal question before a state court action can be removed. Rivet I, 118 S.Ct. at 925. Under 28 U.S.C. § 1651(a), the "All Writs Act," "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Whether section 1651(a) grants courts the authority to remove cases under the All Writs Act, even when no independent basis for jurisdiction exists, is an issue upon which the circuits are split. Texas v. Real Parties in Interest, 259 F.3d 387, 392 (5th Cir. 2001)
Despite conflicting views in other circuits, the Fifth Circuit has stated that "section 1651(a) is not an independent grant of jurisdiction." Id. (citing In re McBryde, 17 F.3d 208, 220 (5th Cir. 1997)). In Texas v. Real Parties in Interest, the Fifth Circuit held that the All Writs Act could not be used to remove a case where no independent basis for federal jurisdiction existed. 259 F.3d at 388. In that case, after the plaintiff State of Texas and defendant members of the tobacco industry reached a settlement agreement which was later incorporated into a final judgment entered by the district court, a dispute arose regarding the attorney's fees awarded. Id. Investigating possible fraud and breach of fiduciary duty, Texas initiated a pre-litigation discovery proceeding. Id. The defendants removed to federal court, arguing that the All Writs Act applied "to protect the integrity of the court's judgment from a collateral assault." Id. Pointing to the lack of diversity or any federal question, Texas moved to remand. Id. After the lower court denied its motion to remand, Texas appealed. Id.
Before concluding that the All Writs Act could not be used as a vehicle for removal absent "extraordinary circumstances" (if even then), the Fifth Circuit reviewed the existing case law that interpreted the All Writs Act. Id. at 392. Despite cases in which other circuits held that the All Writs Act could be used to remove state court actions to federal court, even though the actions had no independent basis for federal jurisdiction, the Fifth Circuit determined otherwise. Id. at 392-95. Citing almost two centuries of Supreme Court precedent for the proposition that the All Writs Act could not serve as an independent basis for federal jurisdiction, the Fifth Circuit rejected the notion that the All Writs Act can transform a nonremovable action into a removable one. Id.
The court declined to decide whether the case could be removed to federal court under the All Writs Act even if extraordinary circumstances were present. Id. at 395.
The Texas court noted that "[t]he breadth and specificity of the removal statutes, found at 28 U.S.C. § 1441, et seq., suggests that federal courts should not read other statutes as providing additional, ad hoc avenues for removal." Texas, 259 F.3d at 394 n. 12. This conclusion, that the All Writs Act should never be used as a way to supplement the removal statutes, finds further support from the Supreme Court's statement that "[t]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." Pennsylvania Bureau of Corr. v. United States Marshals Serv., 474 U.S. 34, 43 (1985).
The court in Texas went on to chastise circuits that have found otherwise non-removable actions to be removable under the All Writs Act, stating that such holdings are questionable following Rivet v. Regions Bank of Louisiana (Rivet I), 118 S. Ct. 921 (1998). In Rivet I (which did not directly address the scope of the All Writs Act), the Supreme Court held that claim preclusion based on a prior federal judgment does not provide a ground for removal when no federal question is apparent on the face of the well-pleaded complaint. Id. at 925-26. The Texas court concluded by warning that, "[w]ith Rivet standing as sentry, it would be bold indeed to read the All Writs Act as authorizing removal of an otherwise unremovable action." Texas, 259 F.3d at 393-94.
Applying these precedents to the case at bar, it does not appear that the instant case should have been removed to federal court for two reasons: (1) other than the All Writs Act, there is no independent basis for federal jurisdiction; and (2) no extraordinary circumstances exist which would justify this Court exercising jurisdiction under the All Writs Act without some other independent basis for federal jurisdiction.
Like the tobacco industry defendants in Texas (and despite the Fifth Circuit's holding in Texas), the defendants herein have no other basis for removal other than the All Writs Act. Just as the Fifth Circuit in Texas rejected such an attempt, this Court also denies defendants' bid to remove an otherwise non-removable case. In attempting to distinguish this case from Texas, defendants argue that, unlike Texas, extraordinary circumstances justifying removal under the All Writs Act do exist in this case, because the present case is so inextricably intertwined with Mitchell that failure to remove it to federal court would affect matters already resolved in Mitchell and may lead to inconsistent rulings and re-litigation of matters already decided. In response to this argument, the Court first observes that the Texas court specifically declined to say whether the presence of extraordinary circumstances would permit removal under the All Writs Act. 259 F.3d at 395. Thus, even if the Court agreed that there was some relationship between the Billieson and Mitchell cases that created an extraordinary circumstance, Texas would not mandate the exercise of federal jurisdiction.
More importantly, however, in this case, there are no extraordinary circumstances to justify employing the All Writs Act to remove this case to federal court. Just as the Fifth Circuit in Texas refused to recognize the tobacco industry defendants' arguments that extraordinary circumstances were present because future lawsuits could result if removal was denied, so too here it appears that the mere potential for possible future, inconsistent rulings does not amount to the "extraordinary circumstances" which the Texas court suggested might make it pause to consider whether the unusual and expansive exercise of jurisdiction under the All Writs Act was appropriate.
Moreover, it is not at all plain to the Court that a real threat exists for future, inconsistent rulings, because as plaintiffs point out in their memorandum in support of their motion to remand, no part of the consent judgment from Mitchell appears to be jeopardized by plaintiffs' state court action. The Mitchell plaintiffs did not seek damages for personal injuries, but an injunction requiring defendants to simply comply with federal regulations regarding lead paint. This Court retained jurisdiction in Mitchell for the sole purpose of enabling any party to the consent judgment to apply for future orders and directions to construct, execute, modify, or enforce the provisions contained in the consent judgment. Not only were the Billieson plaintiffs and defendants not parties to the consent judgment, but they are not seeking to modify or enforce any matter over which this Court retained jurisdiction.
Of course, this is not to say that this Court is precluded from invoking the All Writs Act in the future to protect its judgment in Mitchell if that judgment were infringed upon by the state court proceedings. As the Texas court noted, "if, at some point in the future, the State attempts explicitly to upset provisions of the settlement agreement in state court, circumstances may well dictate that the proceeding will be enjoined." Texas, 259 F.3d at 395. However, the fact that the All Writs Act provides this Court with a method to enjoin execution of an order that actually impairs its judgment is a far cry from finding that it justifies the wholesale removal of an entire state court case simply out of fear that at some future point, the disposition of a case involving different parties, different claims, and seeking different relief might somehow have an impact on a prior federal court judgment.
Finally, defendants assert that plaintiffs' reliance on Rivet I for the principle that removal under the All Writs Act is inappropriate is misplaced, arguing that Rivet I involved the issue of whether federal claim preclusion is a proper basis for removal, and that removal of this case is not based on defensive claim preclusion, but is justified because the Mitchell order is mentioned in plaintiffs' complaint. However, the lesson of Rivet I applicable in this case is not that a defense of federal claim preclusion does not create a basis for the federal courts to exercise jurisdiction under the All Writs Act (although this is true) — in fact, the All Writs Act is not even discussed in the Rivet I opinion. Rather, the point of Rivet I that is relevant to the issue before this Court, is that even when two cases are so factually intertwined that a federal judgment in one case will have a preclusive effect on a second case, that is not sufficient to create federal jurisdiction over the second case, where it is not otherwise present. Thus, despite the fact that the Billieson complaint contains passing references to the consent decree in Mitchell, the cases are simply not so closely intertwined that the Court's continuing jurisdiction in Mitchell provides a basis for jurisdiction in Billieson, where no other independent basis for federal jurisdiction is present.
Accordingly, because there is no independent basis for federal jurisdiction other than the All Writs Act, and because no extraordinary circumstances exist which may warrant this Court exercising jurisdiction solely under the All Writs Act, federal subject matter jurisdiction is lacking over this case. Therefore;
IT IS ORDERED that pursuant to 28 U.S.C. § 1447(c), the Motion to Remand to State Court for Lack of Subject Matter Jurisdiction (Rec. Doc. 9) filed by plaintiffs Casey Billieson, et al, should be and is hereby GRANTED, and this case is REMANDED to the Civil District Court for the Parish of Orleans.