                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
DISTRICT OF COLUMBIA WATER          )
AND SEWER AUTHORITY,                )
                                     )
                  Plaintiff,        )
                                     )
      v.                            )   Civil Action No. 16-2456 (ABJ)
                                     )
FIRST HAND LAND, LLC, et al.,        )
                                     )
                  Defendants.        )
____________________________________)

                                            ORDER

       Plaintiff has filed a motion to remand this removed action to the Superior Court of the

District of Columbia. Pl.’s Opposed Mot. for Remand to Super. Ct. of D.C. [Dkt. # 17] (“Pl.’s

Mot.”). Because the Court concludes that it lacks jurisdiction, it will grant the motion and remand

the case.

       On January 8, 2016, plaintiff, the District of Columbia Water and Sewer Authority, brought

a negligence action in the Superior Court of the District of Columbia against defendants First Hand

Land, LLC (“First Hand”); Bello, Bello, and Associates, LLC (“Bello”); several employees of the

D.C. Department of Consumer and Regulatory Affairs (“DCRA”); Edge Investment, LLC

(“Edge”); and Edge’s Chief Executive Officer, seeking recovery for damage caused to the

Northeast Boundary Tunnel Sewer during the course of a construction project. Compl. [Dkt. # 11-

5] at 126–43. Plaintiff filed an amended complaint on April 7, 2016. First Am. Compl. [Dkt. # 11-

4] at 12–35.

       On October 24, 2016, defendant Edge filed a counterclaim against plaintiff DC Water and

Sewer, claiming violations of the constitutional guarantee of due process, unconstitutional taking

of private property, trespass, and negligence. Edge’s Countercls. & Demand for Jury Trial [Dkt.
# 11] at 254–68. Edge filed an amended counterclaim on February 1, 2017, alleging additional

violations of its procedural and substantive due process rights. Edge’s Am. Countercls. & Demand

for Jury Trial [Dkt. # 22]. And on November 7, 2016, Edge filed a third-party complaint against

defendant the District of Columbia. Edge’s Third Party Compl. & Demand for Jury Trial [Dkt.

# 11] at 162–78. The third-party complaint alleges that the District violated Edge’s due process

rights, and that the District authorized an unconstitutional taking of Edge’s property, among other

claims. Id.

       In response to the counterclaim filed against it by Edge, DC Water and Sewer filed a third-

party complaint for contribution and indemnification against Pinpoint Underground, LLC. Third-

Party Compl. [Dkt. # 11] at 207–11.

       And on December 16, 2016, the District of Columbia filed a notice of removal which

purported to remove Edge’s third-party complaint to this Court. Notice of Removal [Dkt. # 1].

       On January 19, 2017, the original plaintiff, DC Water and Sewer, filed a motion to remand

the case to the Superior Court. Pl.’s Mot. The party that removed the matter, the District of

Columbia, subsequently notified the Court that it would not oppose remand. Praecipe Notifying

Ct. That D.C. Does Not Opp. Remand [Dkt. # 26] (“D.C.’s Non-Opp. of Remand”) at 2. However,

Pinpoint Underground and Edge both oppose plaintiff’s request to remand the case. Third Party

Def. Pinpoint Underground LLC’s Opp. to Pl.’s Mot. for Remand [Dkt. # 21] (“Pinpoint’s Opp.”);

Edge’s Mem. in Opp. to Pl.’s Mot. [Dkt. # 27] (“Edge’s Opp.”). Plaintiff has replied in support of

its motion. Combined Reply to Opps. to Pl.’s Mot. [Dkt. # 29].

                                           ANALYSIS

       Here, the removing party, the District of Columbia, does not oppose remand. D.C.’s Non-

Opp. of Remand at 2. It is unclear whether Edge, which chose to litigate its claims in Superior



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Court in the first instance, or Pinpoint, a third-party defendant, has standing to oppose the motion.

But even if they can be heard on this issue, the law tends to favor remand under these

circumstances.

          Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies

outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of

limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). The federal

removal statute, 28 U.S.C. § 1441, provides that civil actions “may be removed by the defendant

or the defendants” when the claim “aris[es] under the Constitution, law or treaties of the United

States.” 28 U.S.C. § 1441. “The presence or absence of federal-question jurisdiction is governed

by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a

federal question is presented on the face of the plaintiff’s properly pleaded complaint. The rule

makes the plaintiff the master of the claim.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392

(1987).

          In this case, plaintiff’s complaint alleges negligence under state law. See First Am. Compl.

While the D.C. Circuit has not addressed the issue, courts in this district have consistently applied

Caterpillar to conclude that a “cause of action arises under federal law only when the federal claim

can be found on ‘the face of the complaint and only the face of the complaint.’” U.S. Airways

Master Exec., Council v. Am. West Master Exec. Council, 525 F. Supp. 2d 127, 132–33 (D.D.C.

2007), quoting Strategic Lien Acquisitions LLC v. Republic of Zaire, 344 F. Supp. 2d 145, 148

(D.D.C. 2004); see also Zuurbier v. MedStar Health, Inc., 306 F. Supp. 2d 1, 4 (D.D.C. 2004).

And while circuits are split on the issue, the majority of the circuits that have considered the issue

have concluded that a third-party defendant may not remove an action under section 1441(c). See



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First Nat’l Bank of Pulaski v. Curry, 301 F.3d 456, 463–64 (6th Cir. 2002); Lewis v. Windsor Door

Co., 926 F.2d 729, 733 (8th Cir. 1991); Thomas v. Shelton, 740 F.2d 478, 487 (7th Cir. 1984); but

see Carl Heck Eng’rs, Inc. v. Lafourche Par. Police Jury, 622 F.2d 133, 135–36 (5th Cir. 1980)

(authorizing third-party removal if the claim is separate and independent from the plaintiff’s

original claim). Leading commentators on civil procedure ascribe to the majority view. See 14B

Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure

§ 3722.3 (4th ed. 2017).

       Particularly under the circumstances here, where the removing party does not oppose

remand, the Court will follow other courts in this district and the majority of the circuits that have

concluded that a third-party defendant may not remove an action to federal court. Because there

are no federal claims on the face of plaintiff’s complaint, Caterpillar, 482 U.S. at 392, the Court

lacks subject matter jurisdiction over this action. It is hereby

       ORDERED that plaintiff’s motion to remand is GRANTED. This case shall be remanded

to the Superior Court of the District of Columbia.

       SO ORDERED.




                                               AMY BERMAN JACKSON
                                               United States District Judge

DATE: March 1, 2017




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