United States District Court for the District of Columbia
January 3, 2005.
AMY HARDING-WRIGHT, et al., Plaintiffs,
DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Defendant.
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.
I. BACKGROUND INFORMATION
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).
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
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. Supp. 2d 575, 598 (M.D. La. 2003). Because the remedy plaintiffs
seek is unavailable under federal law, "a `private cause of
action' under Merrell Dow does not, in truth, exist."
Mulcahey, 29 F.3d at 153.
Meanwhile, the Safe Drinking Water Act expressly permits states
to impose more stringent regulations than those promulgated by
the federal government, 42 U.S.C. § 400g-2, and preserves "the right of individuals to pursue state
remedies." Batton, 261 F. Supp. 2d at 598 (citation omitted).
Specifically, the Act provides:
Nothing in this section shall restrict any right
which any person (or class of persons) may have under
any statute or common law to seek enforcement of any
requirement prescribed by or under this subchapter or
to seek any other relief.
42 U.S.C. § 400j-8(e).
Against this explicit pronouncement preserving the option of
state law remedies, including compensatory damages actions
unavailable under federal law, plaintiffs' mere "citation of [a]
federal environmental statute? which provide[s] for a private
federal remedy is simply not enough to show congressional intent"
that the federal courts should exercise jurisdiction over
plaintiffs' state law claims. Mulcahey, 29 F.3d at 153.
To be sure, federal jurisdiction over state law claims may be
appropriate when necessary to protect against inconsistent
interpretation of a federal statutory regime. In re Wireless Tel. Radio
Frequency Emissions Prods. Liab. Litig., 327 F. Supp. 2d 554,
567 (D. Md. 2004). Plaintiffs' surviving claims,
however, do not "challenge the foundation of a complex regulatory scheme,"
Def.'s Opp'n at 7, as a lawsuit seeking injunctive relief
might.*fn6 Instead, plaintiffs simply assert that WASA owes them compensation for the injuries
it caused them, claims specifically permitted by the Safe
Drinking Water Act upon which plaintiffs could prevail whether or
not WASA violated federal law. Defendants have thus failed to
establish that plaintiffs' state law claims implicate substantial
federal questions. Accordingly, the court lacks jurisdiction over
this suit and directs that it be remanded to Superior
For the foregoing reasons, this court concludes that
plaintiffs' motion to remand must be GRANTED. An appropriate
order accompanies this opinion. ORDER
For the reasons stated in the court's memorandum opinion
docketed this same day, it is this 3rd day of January, 2005,
ORDERED, that plaintiffs' motion for remand is GRANTED; and
it is further
ORDERED, that this action is remanded to Superior Court for
the District of Columbia.