207 F. Supp. 139 | E.D. La. | 1962
United Gas Pipe Line Company, a Delaware corporation doing business in Louisiana, brought suit in the District Court for the Parish of Terrebonne, State of Louisiana, against Edgar W. Brown, Jr., a resident of Texas, and the Donner Corporation, a Texas Corporation, to expropriate their interests in certain lands in Terrebonne Parish. Plaintiff is a certificated natural gas pipeline company under the Natural Gas Act, 15 U.S. C.A. § 717 et seq. and it transports natural gas interstate through a large integrated pipeline system. Having received authorization from the Federal Power Commission to construct a 30-inch pipeline from its Lirette Field in Terrebonne Parish, in Louisiana, to Kosciusko, Mississippi, plaintiff sought to acquire right-of-way from landowners in Terrebonne Parish. Unable to come to terms with defendants herein, plaintiff now seeks to expropriate defendants’ interests under plaintiff’s power of eminent domain.
Defendants timely filed its first petition to remove to the United States District Court for the Eastern District of Louisiana on the grounds that since United operated under a certificate of convenience and necessity from the Federal Power Commission and since United’s sole right of expropriation lay under the Natural Gas Act, supra, there was proper original jurisdiction in the United States District Court for an action arising under the laws of the United States.
At the outset, plaintiff challenges the timeliness of defendants’ Supplemental Petition to Remove. Defendants received notice of plaintiff’s initial pleading on May 23 and May 25, 1962. The Supplemental Petition was filed June 21, 1962, more than twenty days from such dates. While the petition for removal may be amended in any respect during the running of the twenty-day period
Defendants’ petition to remove on the grounds of federal question presents a more serious question. Defendants suggest that since plaintiff operates pipelines interstate under a certificate of convenience and necessity from the Federal Power Commission, this ease involves the variety of “federal question” conceived by the Removal Act. Further, defendants argue that plaintiff’s sole power of eminent domain comes from the Natural Gas Act and therefore defendants have sufficient federal question to remove.
The response to this position is found in the well-reasoned opinion of Chief
The difference in defendants’ argument does not deter the application of the Algonquin principle here. Defendants state that United has no cause of action under the Louisiana Act. From this defendants conclude that United’s sole remedy is under the Natural Gas Act and hence a federal question sufficient for removal is presented.
We need not reach for an interpretation of the Louisiana Statute since even if it were inapplicable this suit would not be removable. Expropriation suits under the Natural Gas Act may be brought in state courts.
Likewise, defendants merely state that United has a certificate from the Federal Power Commission. This, as was pointed out in Algonquin, supra, creates no federal question. Defendants go further and state that since the gas line involved will transport natural gas interstate, plaintiff’s sole remedy is under the Natural Gas Act. While defendants simply cite that Natural Gas Act generally for this position, the problem is of no consequence since, as previously mentioned, the suit even if limited to the Natural Gas Act, is properly brought in the state court and is not removable on this record. Hence the motion to remand is sustained and the suit is remanded to the state court.
SO ORDERED.
. LSA-R.S. 19:2(7); 15 U.S.C.A. § 717f.
. 28 U.S.C.A. § 1441.
. Powers v. Chesapeake & O. R.. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673; Covington v. Indemnity Insurance Co., 5 Cir., 251 E.2d 930; McGuigan v. Roberts, S.D.N.Y., 170 F.Supp. 372.
. “A petition for removal, when presented to the state court, becomes part of the record of that court, and must doubtless show, taken in connection with the other matters on that record, the jurisdictional facts upon which the right of removal depends; because, if those facts are not made to appear upon the record of that court, it is not bound or authorized to surrender its jurisdiction, and if it does, the Circuit Court of the United States cannot allow an amendment of the petition, but must remand the case. * * * But if, upon the face of the petition and of the whole record of the state court, sufficient grounds for removal are shown, the petition may be amended in the Cireuit Court of the United States, by leave of that Court, by stating more fully and distinctly the facts which support those grounds.” Powers v. Chesapeake & Ohio Railway, supra, 169 U.S. at 101, 18 S.Ct. 267. Barron and Holtzoff, Federal Practice and Procedure, supra at 521.
. 28 U.S.C.A. § 1446(b).
“If the case stated by the initial pleading is not removable, a petition for removal may be filed within twenty days after receipt by defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.”
. 28 U.S.C.A. § 1446(b); McLeod v. Cities Service Gas Co., 10 Cir., 233 F.2d 242; Ford v. Roxana Petroleum Corp., N.D. Tex., 31 F.2d 765.
. 15 U.S.C.A. § 717f(h).
. Gully v. First National Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70; Algonquin Gas Transmission Co. v. Gregory, supra. See Pan American Petroleum Corp. v. Superior Court of Delaware for New Castle County, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584; Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 672, 70 S.Ct. 876, 94 L.Ed. 1194 and cases therein cited.
. Shulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 56 L.Ed. 1205.
. “A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto * * * and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal.” Gully v. First National Bank in Meridian, supra, 299 U.S. at 113, 57 S.Ct. 96, 81 L.Ed. 70; Pan American Petroleum Corp. v. Superior Oourt of Delaware for New Castle County, supra.