IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

ALICE M. ANDREWS, et al., : 

Plaintiffs, : 

vs. : CA 10-357-CG-C 

SOUTH ALABAMA UTILITIES, : 

Defendant. 

REPORT AND RECOMMENDATION

This matter is before the undersigned, pursuant to 28 U.S.C. § 636(b)(1)(B), on 

Plaintiffs’ Motion to Remand (Doc. 11), filed July 19, 2010, and Defendant's response 

(Doc. 15) thereto, filed August 11, 2010. After consideration of the motion, it is the 

undersigned's recommendation that it be GRANTED. 

FINDINGS OF FACT

1. On or about June 8, 2010, the Plaintiffs filed suit in the Circuit Court of 

Mobile County against South Alabama Utilities. (Doc. 1, Notice of Removal, pp. 1-2; 

Doc. 2-2, Cir. Ct. Compl.) In their lawsuit—related to the contamination of water 

supplied by the Defendant to their homes—Plaintiffs allege negligence; wantonness; 

nuisance; implied warranty of fitness for a particular purpose; and sale of a defective and 

unreasonably dangerous product, and seek damages and preliminary and permanent 

injunctive relief. (Id.) 

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2. Defendant’s sole basis for removal is that it “anticipates invoking 

preemption as an affirmative defense to the allegations in the plaintiffs’ complaint.” 

(Doc. 1, p. 2.) 

3. In their Motion to Remand, the Plaintiffs contend that Defendant’s 

“bare-bones assertion,” above, “is inadequate to establish ‘federal question jurisdiction.’” 

 (Doc. 11, p. 2.) Moreover, Plaintiffs’ Motion states that “[t]he Defendant did not cite 

any federal law upon which its assertion is based,” and that “a federal preemption 

defense, even if thoroughly asserted, has never been sufficient to establish ‘federal 

jurisdiction’ pursuant to 28 U.S.C. §1441(b) or (c).” (Id.) 

4. In its Response, Defendant agrees with the Plaintiffs: “Based upon the 

statements made by Plaintiffs’ counsel on behalf of the Plaintiffs concerning the scope, 

factually and legally, of the claims being made in this complaint, the Defendant believes 

that remand of this matter to state court is appropriate at this time and consents to the 

same.” (Doc. 15, p. 1.) 

CONCLUSIONS OF LAW

1. “Any civil case filed in state court may be removed by the defendant to 

federal court if the case could have been brought originally in federal court.” Tapscott v. 

MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir. 1996) (citing 28 U.S.C. § 1441(a)), 

abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 

2000). Because federal courts are courts of limited jurisdiction, “the party invoking the 

court’s jurisdiction bears the burden of proving, by a preponderance of the evidence, facts 

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supporting the existence of federal jurisdiction.” McCormick v. Aderholt, 293 F.3d 1254, 

1257 (11th Cir. 2002); see also Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 

n. 4 (11th Cir. 1998) (“[T]he removing party bears the burden of demonstrating federal 

jurisdiction.”) (citation omitted); Tapscott, 77 F.3d at 1356 (“A removing defendant has 

the burden of proving the existence of federal jurisdiction.”). Moreover, “[t]he removal 

statute should be construed narrowly with doubt construed against removal.” Diaz v. 

Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996) (citation omitted). 

The jurisdiction conferred by Article III, section 2 of the Constitution is 

codified in part in Title 28, section 1331 of the United States Code. “The 

district courts shall have original jurisdiction of all civil actions arising 

under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 

1331. And yet, this simple jurisdictional statement “masks a welter of 

issues regarding the interrelation of federal and state authority and the 

proper management of the federal judicial system.” Franchise Tax Bd. v. 

Construction Laborers Vacation Trust, 463 U.S. 1, 8, 103 S.Ct. 2841, 77 

L.Ed.2d 420 (1983). 

Just as federal courts are courts of limited jurisdiction, the plaintiff is the 

master of his or her complaint. See, e.g., Hill v. BellSouth 

Telecommunications, Inc., 364 F.3d 1308, 1314 (11th Cir. 2004) (“the 

plaintiff is the master of the complaint, free to avoid federal jurisdiction by 

pleading only state claims even where a federal claim is also available” 

(citation omitted)). However, “it is an independent corollary of the 

well-pleaded complaint rule that a plaintiff may not defeat removal by 

omitting to plead necessary federal questions in a complaint.” Franchise 

Tax Bd., 463 U.S. at 22. “[I]f the plaintiff's right to relief necessarily 

depends on resolution of a substantial question of federal law, federal 

question jurisdiction may nevertheless attach to the state-law claim.” Hill, 

364 F.3d at 1314 (citation and internal quotations omitted). 

The Supreme Court has stated that a cause of action arises under federal law 

in one of three ways. The most common circumstance is where federal law 

“creates the cause of action.” Franchise Tax Board, supra, 463 U.S. at 

8-9, quoting Justice Holmes in American Well Works Co. v. Layne & 

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Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 60 L.Ed. 987 (1916). A 

cause of action may also arise where “some substantial, disputed question 

of federal law is a necessary element of one of the well-pleaded state 

claims” or where “a federal cause of action completely preempts a state 

cause of action.” Id., at 13, 24. 

Bd. of Water & Sewer Comm’rs of the City of Mobile v. Ala. Dep’t of Transp., Civil 

Action No. 07-0870-CG-C, 2008 WL 4874053, at *2 (S.D. Ala. Nov. 7, 2008) (footnote 

omitted). 

2. As stated above, Defendant’s basis for removal here is its anticipation of 

“invoking preemption as an affirmative defense to the allegations in the plaintiffs’ 

complaint.” (Doc. 1, p. 2.) Although it is not clear, based on the Notice of Removal, 

what alleged “federal cause of action completely preempts [plaintiffs’ asserted] state 

cause[s] of action,” Ala. Dep’t of Transp., 2008 WL 4874053, at *2, as to allow removal, 

“[t]he starting point for any preemption analysis is “‘the assumption that the historic 

police powers of the states are not superseded by federal law unless preemption is the 

clear and manifest purpose of Congress.’” Pace v. CSX Transp., Inc., ___ F.3d ____, 

2010 WL 3034664, at *2 (11th Cir. Aug. 5, 2010) (quoting Cliff v. Payco Gen. Am. 

Credits, Inc., 363 F.3d 1113, 1122 (11th Cir. 2004). 

4. Here, “[b]ecause the propriety of removal is at issue, our analysis concerns 

complete preemption.” Conn. State Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d 

1337, 1344 (11th Cir. 2009). “Complete preemption . . . carries a higher burden than 

proving a defense based on preemption.” Pace v. CSX Transp., Inc., ___ F.3d ____, 

2010 WL 3034664, at *2 n.1 (11th Cir. Aug. 5, 2010) (citation omitted); see, e.g., Conn. 

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State Dental Ass'n, 591 F.3d at 1344 (“Complete preemption under ERISA derives from 

ERISA’s civil enforcement provision, § 502(a), which has such ‘extraordinary’ 

preemptive power that it ‘converts an ordinary state common law complaint into one 

stating a federal claim for purposes of the well-pleaded complaint rule,’” and 

“[c]onsequently, any ‘cause[ ] of action within the scope of the civil enforcement 

provisions of § 502(a) [is] removable to federal court.’” (quoting Metro. Life Ins. Co. v. 

Taylor, 481 U.S. 58, 65-66 (1987)). 

[T]he Supreme Court has described complete preemption as a “narrow 

exception,” Beneficial [Nat. Bank v. Anderson], 539 U.S. [1, 5, (2003)], to 

the usual rule against federal jurisdiction or removal premised merely upon 

a prospective federal defense. Both jurisdiction and removal are primarily 

creatures of Congress; and the balance Congress has struck should not 

lightly be disregarded. Grable & Sons Metal Prods., Inc. v. Darue Eng'g 

& Mfg., 545 U.S. 308, 314, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005). 

Congress has only rarely chosen to make a federal defense the basis for 

federal jurisdiction or removal—the federal officer removal statute, 28 

U.S.C. § 1442(a), being one example. 

Further, numerous federal statutes regulate a great variety of entities, 

products, services and other activities affecting commerce (e.g., the food 

and drug laws, see Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 

121 S.Ct. 1012, 148 L.Ed.2d 854 (2001)); and if each of these regulatory 

schemes allowed for related state law claims to be removed to federal court 

merely because of a potential preemption defense, but without a federal 

cause of action, this would license wholesale transfer of state law claims 

into federal court. Cf. Campbell v. SmithKline Beecham, 919 F. Supp. 173, 

176-77 (E.D. Pa. 1996). 

Fayard v. Northeast Vehicle Servs., LLC, 533 F.3d 42, 48 (1st Cir. 2008). 

 4. Moreover, “[a]s the Supreme Court held in Rivet v. Regions Bank of 

Louisiana, federal jurisdiction is a creature of statute, and because ‘Congress has not 

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authorized removal based on a defense or anticipated defense federal in character,’” 

Domnister v. Exclusive Ambulette, Inc., 607 F.3d 84, 91 (2d Cir. 2010) (quoting 522 U.S. 

470, 472 (1998)), the affirmative defense of preemption cannot provide a federal court 

with removal jurisdiction. And, fortunately, Defendant now agrees that this case has no 

business in federal court. (See Doc. 15, p. 1 (“Defendant believes that remand of this 

matter to state court is appropriate at this time and consents to the same.”).) 

CONCLUSION

In light of the foregoing, the undersigned RECOMMENDS that the motion to 

remand this case to the Circuit Court of Mobile County, Alabama (Doc. 11) be 

GRANTED. 

DONE this the 23rd day of August, 2010. 

s/ WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

 

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND 

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND 

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must, within 

fourteen (14) days of the date of service of this document, file specific written objections with the Clerk 

of this court. Failure to do so will bar a de novo determination by the district judge of anything in the 

recommendation and will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See

28 U.S.C. ' 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 

F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for challenging the findings and 

recommendations of the Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), 

which provides that: 

A party may object to a recommendation entered by a magistrate judge in a dispositive 

matter, that is, a matter excepted by 28 U.S.C. ' 636(b)(1)(A), by filing a >Statement of 

Objection to Magistrate Judge=s Recommendation= within ten days1

 after being served 

with a copy of the recommendation, unless a different time is established by order. The 

statement of objection shall specify those portions of the recommendation to which 

objection is made and the basis for the objection. The objecting party shall submit to the 

district judge, at the time of filing the objection, a brief setting forth the party=s arguments 

that the magistrate judge=s recommendation should be reviewed de novo and a different 

disposition made. It is insufficient to submit only a copy of the original brief submitted 

to the magistrate judge, although a copy of the original brief may be submitted or referred 

to and incorporated into the brief in support of the objection. Failure to submit a brief in 

support of the objection may be deemed an abandonment of the objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district 

judge's order or judgment can be appealed. 

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. ' 1915 and 

FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are 

adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay 

the fee for a transcript, is advised that a judicial determination that transcription is necessary is required 

before the United States will pay the cost of the transcript.

 1

 Effective December 1, 2009, the time for filing written objections was extended 

to A14 days after being served with a copy of the recommended disposition[.]@ Fed.R.Civ.P. 

72(b)(2). 

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