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Soles v. South Carolina Electric & Gas Co.

United States District Court, D. South Carolina, Columbia Division

April 20, 2016

Jesse L. Soles, Plaintiff,
South Carolina Electric & Gas Company, Defendant.


Plaintiff Jesse L. Soles (“Plaintiff”) filed this action seeking damages from Defendant South Carolina Electric & Gas Company (“SCE&G”) for the damage caused to his home by flood water released from Lake Murray when SCE&G opened floodgates. (ECF No. 1-1 at 6- 12.)

This matter is before the court pursuant to Plaintiff’s Motion to Remand the case to the Lexington County (South Carolina) Court of Common Pleas. (ECF No. 5.) SCE&G opposes the Motion to Remand and asks the court to retain jurisdiction. (ECF No. 8.) For the reasons set forth below, the court DENIES Plaintiff’s Motion to Remand.


Plaintiff alleges that SCE&G is “a public utility” that generates and sells “hydroelectric power through a large body of water known as Lake Murray.” (ECF No. 1-1 at 6 ¶¶ 4-5.) Plaintiff further alleges that SCE&G (1) “operates Lake Murray and its affiliated dams under a license and pursuant to governmental regulations[]”; (2) is responsible for “lake management” and for providing “control of the lake so as to benefit the general public as well as Defendant’s customers[]”; and (3) “has the power of eminent domain and condemnation . . . .” (Id. at 6 ¶ 6-7 ¶ 8.)

Plaintiff lived in a home “located on Terrace View Drive in the Saluda Hills subdivision.” (Id. at 7 ¶ 9.) In October 2015, heavy rain caused a historic “1, 000-year probability” flood in Columbia, South Carolina. (ECF No. 4 at 3 ¶ 13.) During the flood, SCE&G allegedly opened three floodgates of the Lake Murray Dam, which resulted in some residential areas receiving an influx of water. (ECF No. 1-1 at 7 ¶ 11-8 ¶ 18.) Plaintiff’s home in the Saluda Hills subdivision was destroyed as a result of the influx of water. (Id. at 8 ¶¶ 19- 21.)

On November 12, 2015, Plaintiff filed a Complaint in the Lexington County (South Carolina) Court of Common Pleas alleging claims against SCE&G for negligence, inverse condemnation, trespass, and strict liability as a result of its management of water levels at the Lake Murray Dam. (ECF No. 1-1.) On December 11, 2015, SCE&G filed a Notice of Removal removing the action to this court pursuant to 28 U.S.C. §§ 1331, 1367, 1441 & 1446, and provisions of the Federal Power Act (“FPA”), 16 U.S.C. §§ 791-828c.[1] (ECF No. 1.) Plaintiff filed his Motion to Remand on January 8, 2016, wherein he argues that there is no federal subject matter jurisdiction over his claims. (ECF No. 5.) On January 21, 2016, SCE&G filed opposition to Plaintiff’s Motion to Remand, to which Plaintiff filed a Reply on January 29, 2016. (ECF Nos. 8, 10.)

On January 20, 2016, the court heard argument from the parties on the pending Motion. (ECF No. 7.) The court considers the merits of Plaintiff’s Motion to Remand below.


A party seeking to remove a case from state to federal court bears the burden of demonstrating that jurisdiction is proper at the time it files its petition for removal. Caterpillar Inc. v. Lewis, 519 U.S. 61, 73 (1996). If federal jurisdiction is doubtful, remand is necessary. Mulchaey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994); see Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993) (noting Congress’s “clear intention to restrict removal and to resolve all doubts about the propriety of removal in favor of retained state court jurisdiction”).

The right to remove a case from state to federal court derives solely from 28 U.S.C. § 1441, which provides that “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.” Id. at § 1441(a). Moreover, in a case that does not contain an allegation of diversity citizenship between the parties, the propriety of removal is based on a district court’s “original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States”-stated differently, the propriety of removal is based on whether a federal question has been presented. 28 U.S.C. § 1331.

To determine whether an action presents a federal question under 28 U.S.C. § 1331, courts look to the allegations in the plaintiff’s well-pleaded complaint to determine whether the action “arises under” federal law or the United States Constitution.[2] Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9-10 (1983). A court, in examining the complaint, must first discern whether federal or state law creates the cause of action.

Most cases under federal question jurisdiction “are those in which federal law creates the cause of action.” Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 808 (1986). In such cases, United States courts unquestionably have federal subject matter jurisdiction. Id. If, however, state law creates the cause of action, federal question jurisdiction depends on whether the plaintiff’s “well-pleaded complaint establishes . . . that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law, . . . .” Pinney v. Nokia, Inc., 402 F.3d 430, 442 (4th Cir. 2005) (quoting Christianson v. Colt. Indus. Operating Corp., 486 U.S. 800, 808 (1988)). To establish a substantial federal question, the state law claim must “[1] necessarily raise a stated federal issue, [2] actually disputed and [3] substantial, [4] which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005). “Where all four of these requirements are met . . . jurisdiction is proper because there is a ‘serious federal interest in claiming the advantages thought to be inherent in a federal forum, ’ which can be vindicated without disrupting Congress's intended division of labor between state and federal courts.” Gunn v. Minton, ___ U.S. ___, 133 S.Ct. 1059, 1065 (2013) (citing Grable, 545 U.S. at 313-14)). If the removing party fails to establish these elements, the removal is not justified under federal law.


A. The Parties’ Arguments

1. Plaintiff

Citing the “well-pleaded complaint rule, ” Plaintiff contends that his case should be remanded because (1) the “Complaint is totally and completely founded upon South Carolina Common Law[]” and does not allege a “right to recovery under any Federal Statute or Legislation[]”; and (2) “[n]o Federal Question is presented on the face of the Plaintiff’s well pleaded Complaint.” (ECF No. 10 at 3.) In response to the allegations in SCE&G’s Notice of Removal, Plaintiff argues that (1) section 825p[3] of the FPA does not confer exclusive jurisdiction of his claims against SCE&G to the federal courts and (2) original jurisdiction over this action pursuant to 28 U.S.C. § 1331 is not established based on SCE&G’s arguments that “this action arises under and is controlled by the . . . [FPA].” (ECF No. 5 at 5.) Moreover, because the aforementioned statutes are inapplicable to his claims brought pursuant to state law, Plaintiff argues that supplemental jurisdiction under 28 U.S.C. § 1367 is also inapplicable. (Id. at 6-7.) In support of his arguments, Plaintiff mainly relies on Engle v. West Penn Power Co., 530 A.2d 913 (Pa. Super. Ct. 1987), a case in which he asserts that the state court “addressed the question as to whether Plaintiffs’ Common Law claims against Defendant power company for improperly releasing water and causing downstream flooding were within the exclusive jurisdiction of the Federal Court.”[4] (ECF No. 5 at 5.)

In addition to his request for remand, Plaintiff asserts that because SCE&G “had no objectively reasonable basis for removal” (ECF No. 5 at 9), he “is entitled to an award of all costs and actual expenses, including attorney fees, incurred as a result of ...

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