United States District Court, D. South Carolina, Columbia Division
ORDER AND OPINION
MICHELLE CHILDS, District Judge.
Richard Green ("Plaintiff") filed this action
seeking damages from Defendants South Carolina Electric & Gas
Company ("SCE&G") and CSX Transportation, Inc.
("CSX"), for the damage caused to his home by flood
water released from Lake Murray when SCE&G opened floodgates.
(ECF No. 1-1 at 6-13.)
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. 7.) 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.
RELEVANT BACKGROUND OF PENDING MOTION
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
Â¶Â¶ 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 7 Â¶Â¶ 6-7 & 9.)
owned a home "located on Wilton Hill Road in the
Coldstream subdivision." (Id. at Â¶ 10.) In October 2015,
heavy rain caused a historic "1, 000-year
probability" flood in Columbia, South Carolina. (ECF No.
6 at 4 Â¶ 14.) 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 Â¶ 11-8 Â¶ 18.) Plaintiff's home in the Coldstream
subdivision was destroyed as a result of the influx of water.
(Id. at 8 Â¶Â¶ 19-22.)
March 10, 2016, 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; and against CSX for
negligence, inverse condemnation, and trespass for its
maintenance and operation of culverts on a bridge near
Plaintiff's property. (ECF No. 1-1.) On April 13, 2016,
SCE&G filed a Notice of Removal (with CSX's consent)
removing the action to this court pursuant to 28 U.S.C. Â§Â§
1331, 1367, 1441 & 1446, and provisions of the Federal Power
Act ("FPA"), 16 U.S.C. Â§Â§ 791-828c. (ECF No. 1.)
Plaintiff filed his Motion to Remand on May 5, 2016, wherein
he argues that there is no federal subject matter
jurisdiction over his claims. (ECF No. 7.) On May 23, 2016,
SCE&G filed opposition to Plaintiff's Motion to Remand.
(ECF No. 8.)
court considers the merits of Plaintiff's Motion to
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").
right to remove a case from state to federal court derives
solely from 28 U.S.C. Â§ 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 Â§ 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. Â§ 1331.
determine whether an action presents a federal question under
28 U.S.C. Â§ 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. 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.
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
" necessarily raise a stated federal issue, 
actually disputed and  substantial,  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.
contends that his case should be remanded because (1) his
"causes of action arise under the common law of South
Carolina" and (2) his "causes of action cannot
reasonably be interpreted to raise an applicable federal
question." (ECF No. 7 at 9.) In response to the
allegations in SCE&G's Notice of Removal, Plaintiff
argues that (1) section 825p 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. Â§ 1331 is not established based
on SCE&G's arguments that "this action arises under
and is controlled by the... [FPA]." (ECF No. 7 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. Â§ 1367 is also inapplicable. (ECF No. 7 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." (ECF No. 7 at 5.)
addition to his request for remand, Plaintiff asserts that
because SCE&G and CSX "had no objectively reasonable
basis for removal" (ECF No. 7 at 9), he "is
entitled to an award of all costs and actual expenses,
including attorney fees, incurred as a result of
Defendants' improper removal." (Id. at 8 (citation
Notice of Removal, SCE&G asserted that the court has
exclusive jurisdiction over Plaintiff's state law claims
pursuant to 16 U.S.C. Â§ 825p and original jurisdiction under
28 U.S.C. Â§ 1331 based on the FPA. (ECF No. 1 at 1-2 Â¶ 4.) In
support of the court's exercise of jurisdiction, SCE&G
first cited to information found in the Complaint that
referenced a duty to operate the Lake Murray dam under
"a license and pursuant to governmental
regulations." (Id. at 2 Â¶ 8.) SCE&G then provided
information concerning the Federal Energy Regulatory
Commission ("FERC"),  which "is authorized
to issue licenses for the purpose of constructing, operating,
and maintaining' projects necessary or convenient... for
the development, transmission, and utilization of power
across, along, from, or in any of the streams or other bodies
of water over which Congress has jurisdiction.'"
(Id. at 3 Â¶ 12 (citing 16 U.S.C. Â§ 797(e)).) SCE&G asserted
that the FERC has designated Lake Murray and its affiliated
dams as the Saluda Hydroelectric Project 516 ("FERC
Project 516"). (Id. at 2 Â¶ 10.) SCE&G asserted that the
FPA vests in the FERC broad and exclusive jurisdiction to
regulate FERC Project 516. (Id. at 3 Â¶ 11 (citing 16 U.S.C. Â§
791a; California v. FERC, 495 U.S. 490, 496
(1990)).) SCE&G further asserted that it was licensed by the
FERC to continue the operation and maintenance of FERC
Project 516; and its license specifically provides as
This license is subject to the terms and conditions of the
[Federal Power] Act, which is incorporated by reference as
part of this license, and subject to the regulations the
[Federal Energy Regulatory] Commission issues under the
provisions of the [Federal Power] Act.
The operations of the Licensee, so far as they affect the
use, storage, and discharge from storage of waters affected
by the license, shall at all times be controlled by such
reasonable rules and regulations as the [Federal Energy
Regulatory] Commission may prescribe for the protection of
life, health, and property, and in the interests of the
fullest practicable conservation and utilization of such
waters for power purposes and for other beneficial public
uses, including recreational purposes, and the Licensee shall
release water from the project reservoir at such a rate in
cubic feet per second, or such volume in acre-feet per
specified period of time, as the [Federal Energy Regulatory]
Commission may prescribe for the purposes hereinbefore
(ECF No. 1 at 3 Â¶ 14-4 Â¶ 15 (citing ECF No. 8-1 at 9, 23).)
relates to the foregoing, SCE&G argues that to prove the
allegations of his negligence claim, Plaintiff has to
establish what is "required of SCE&G to operate and
maintain the Saluda Hydroelectric Project in compliance with
the applicable FERC rules and regulations and the duties
imposed by the FERC license, including what the license and
the rules and regulations require of SCE&G with respect to
flood control, if any, related to downstream property
owners...." (ECF No. 8 at 10.) SCE&G further argues that
Plaintiff's strict liability claim requires him to
establish that "SCE&G's maintenance and operation of
the dam as a FERC licensee constitutes an ultrahazardous'
activity that necessarily ...