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January 3, 2005.

AMY HARDING-WRIGHT, et al., Plaintiffs,

The opinion of the court was delivered by: HENRY KENNEDY, District Judge


Amy Harding-Wright, Alfonso Wright, Pranav Badhwar, and Ellen Shaw (collectively, "plaintiffs"), bring this putative class action against the District of Columbia Water and Sewer Authority ("WASA", or "defendant"), alleging that defendant has failed to provide safe drinking water to the residences, offices, and schools of the District of Columbia. Plaintiffs bring claims for negligence, unfair and deceptive trade practices, breach of contract, and unjust enrichment, seeking declaratory judgment and compensatory and punitive damages. Before the court is plaintiffs' motion to remand the case to Superior Court for the District of Columbia [#32]. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that plaintiffs' motion must be granted.


  Plaintiffs originally brought suit in Superior Court on March 8, 2004, seeking declaratory, injunctive, and compensatory relief on a variety of claims against WASA and the District of Columbia. Plaintiffs allege that defendants supplied them water contaminated with lead, thereby exposing plaintiffs to the risk of physical injury, causing them to incur pecuniary losses, and diminishing the value of their real property. Compl. ¶¶ 82, 85-88.*fn1 Defendant removed the case to federal court on April 7, 2004. On August 31, 2004, the court dismissed plaintiff's claims for injunctive relief against WASA and all claims against the District of Columbia. Thereafter, plaintiffs filed the present motion seeking to have their remaining claims remanded to Superior Court.


  A. Standard of Review

  When a federal district court determines at any time prior to final judgment that it lacks jurisdiction over a case that has been removed from state court, the district court must remand the case to the state court. 28 U.S.C. § 1447(c); Republic of Venezuela v. Philip Morris Inc., 287 F.3d 192, 196 (D.C. Cir. 2002). This court is required to construe its own jurisdiction narrowly, and resolve any doubts about the existence of jurisdiction in favor of remand.*fn2 Nwachukwu v. Karl, 223 F. Supp. 2d 60, 66 (D.D.C. 2002). Here, because the defendant is the party asserting federal court jurisdiction, it bears the burden of proving that jurisdiction. Julien v. CCA of Tennessee, Inc., 268 F. Supp. 2d 19, 21 (D.D.C. 2003) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). In cases where federal law creates the plaintiff's cause of action, federal courts "unquestionably" have subject matter jurisdiction. Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994). If, however, state law creates the cause of action, the court must determine whether the adjudication of those state law claims "requires resolution of a substantial question of a federal law," Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 13 (1983), because "the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction." Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 813 (1986).

  B. Discussion

  Here, plaintiffs contend that remand to District of Columbia Superior Court is required because all of the substantive causes of action set forth in their complaint arise under state law. They further argue that federal law is not an "essential element" of their state law claims, with the exception of negligence per se. Pls.' Mot. to Remand at 7. Plaintiffs acknowledge that to prevail on their claim of negligence per se they must prove violation of federal law, but maintain that negligence per se is simply an alternative theory of liability to their claim of negligence/reckless endangerment, which does not materially involve federal law. Id. at 6. Defendant opposes remand, arguing that the negligence per se claim alone is sufficient to justify the court's ongoing jurisdiction, but that all of plaintiffs' other causes of action "also present substantial federal questions." Def.'s Opp'n at 13. Plaintiffs are correct that their surviving claims do not substantially implicate federal law sufficient for the court to retain jurisdiction.

  1. Negligence and Negligence Per Se With regard to plaintiffs' negligence per se claim, the parties agree that proving such a claim would require a showing that defendant violated federal law.*fn3 Pls.' Mot. to Remand at 6, Def.'s Opp'n at 8-9. Plaintiffs, however, contend that their negligence/reckless endangerment claim requires no such showing, and assert that negligence and negligence per se are simply alternative theories of liability. The court agrees. An examination of the complaint shows that plaintiffs' claims for negligence and negligence per se emerge from the same nexus of facts, compare Compl. ¶¶ 90-93 with ¶¶ 94-99. Under either theory, the crux of plaintiffs' argument is that defendant delivered water contaminated with lead to plaintiffs, causing them the specified injuries. The only salient difference under the two theories is the nature of the duty that defendant owes plaintiffs — a state common law duty of care with respect to negligence/reckless endangerment, or a statutory duty to comply with the Lead and Copper Rule for negligence per se. The court finds these claims to be alternative theories of liability because they allege the same injuries, the same causation, and the same unlawful actions or omissions. See Mulcahey, 29 F.3d at 153-54 (finding that the plaintiffs' negligence per se claim citing federal environmental statutes was "only an alternative theory of liability" because even if the defendant had not violated any federal law, the plaintiffs "might still be entitled to recover" under their common law negligence claim).

  If negligence and negligence per se are merely alternative theories under which WASA may be found liable for the same underlying conduct, then the presence of the negligence per se claim cannot support this court's continued jurisdiction.*fn4 A claim "supported by alternative theories" may not supply the basis for federal question jurisdiction unless federal law "is essential to each of those theories." Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 810 (1988); see also Mulcahey, 29 F.3d at 153 (citing Christianson, 486 U.S. at 811) ("if a claim is supported not only by a theory establishing federal subject matter jurisdiction but also by an alternative theory which would not establish such jurisdiction, then federal subject matter jurisdiction does not exist."); Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004) ("a plaintiff's right to relief for a given claim necessarily depends on a question of federal law only when every legal theory supporting the claim requires the resolution of a federal issue."). Defendant acknowledges as much in its opposition, noting that "if the claim rests on multiple theories, some which [sic] do not present a federal question, then the claim does not present a federal question." Def.'s Opp'n at 10.

  2. Remaining Claims

  All of plaintiffs' other remaining claims — unfair or deceptive trade practices, breach of contract, and unjust enrichment — are based upon violations of state law or breaches of statebased common law duties.*fn5 Certainly, federal court jurisdiction would still attach "where the vindication of a right under state law necessarily turned on some construction of federal law." Franchise Tax Board, 463 U.S. at 9. Here, however, the crucial determinations are whether WASA acted in violation of the District of Columbia Consumer Protection Procedures Act, Compl. ¶¶ 101, 103-06; breached a binding contract by tendering delivery of non-conforming goods, Compl. ¶¶ 108-12; or improperly profited at plaintiffs' expense in violation of a quasicontractual obligation, Compl. ¶¶ 116-17. None of these questions depend upon any particular construction of the Lead and Copper Rule, or put the Rule's validity directly into dispute; while the Rule undoubtedly lingers in the background of any action relating to lead levels in drinking water, its role in an adjudication of this suit is "collateral, peripheral, or remote," Mulcahey, 29 F.3d at 152 (quoting Merrell Dow, 478 U.S. at 813 n. 11 (other citations omitted)).

  This conclusion is compelled by common sense, but is also firmly rooted in caselaw. Under Merrell Dow, a "congressional determination that there should be no federal remedy for the violation of [a] federal statute is tantamount to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently `substantial' to confer federal-question jurisdiction." 478 U.S. at 814. The Safe Drinking Water Act, the federal law underlying the Lead and Copper Rule, does authorize private party lawsuits against any violator of the Act or its requirements. 42 U.S.C. § 400j-8(a)-(e). The Act, however, does not provide any federal right of action for the recovery of compensatory damages. Id.; see Batton v. Georgia Gulf, 261 F. ...

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