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FLINT, MI: Judge Remands “Nappier” to Michigan Court of Claims

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Judge Gordin J. Quist of the U.S. District Court for the Western District of Michigan, Southern Division, remanded the case styled TAMARA NAPPIER, as mother and next fried of T.N., a minor child, on behalf of T.N. and a class of all others similarly situated, Plaintiff, v. RICHARD SNYDER, et al., Defendants, Case No. 1:16- CV-636 (W.D. Mich.).

As a cost-saving measure, the City of Flint switched its water source from the City of Detroit water system to the Flint River. In connection with the switch, officials discontinued corrosion- control treatments required by the Environmental Protection Agency’s (EPA) Lead and Copper Rule (LCR) and added ferric chloride, which increased the corrosivity of the Flint River water, to reduce formation of trihalomethanes from organic matter. Plaintiff Tamara Nappier, the mother and next friend of T.K., a minor, alleges that defendants knew that the water pumped from the Flint River was toxic and not fit for consumption, but nonetheless assured the public that it was safe to drink. Plaintiff further alleges that, in spite of defendants’ assurances, T.K. experienced an elevated blood lead level and suffered permanent brain damage as a result of drinking water from the Flint River. Plaintiff alleges that Defendants were grossly negligent and/or negligent in participating in, or facilitating, the switch to Flint River water as the source of the City of Flint’s water. Plaintiff seeks to represent a class of all individuals who were minors, resided in the City of Flint, and suffered brain damage as a result of ingesting water supplied from the Flint River.

Plaintiff filed a putative class action case in the Michigan Court of Claims on March 23, 2016, against Richard Snyder, Nick Lyon, Eden Wells, Nancy Peeler, and Robert(State defendants), Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, and Bradley Wurfel and Darnell Early (MDEQ defendants) and Gerald Ambrose. Plaintiff alleged a single substantive count of gross negligence and/or negligence against all defendants arising out of the water crisis in Flint, Michigan.

Busch removed the case to the Western District of Michigan, Southern Division, pursuant to the federal-officer removal statute, 28 U.S.C. Section 1442(a)(1), alleging that pursuant to the federal Safe Water Drinking Act (SDWA), 42 U.S.C. Section 300f et seq. and the EPA’s LCR, the EPA has delegated authority to the MDEQ to act on its behalf and regulate public water drinking systems and that defendant Busch took the actions alleged by plaintiff in the course of fulfilling his duties delegated by the EPA to the MDEQ. Defendant Busch alleged that he was standing in the shoes of the EPA and taking actions which EPA would have otherwise been required to take, and his alleged actions were taken pursuant to EPA’s oversight and guidance. Defendant Busch also alleged that the court has jurisdiction under 28 U.S.C. Section 1441 because plaintiffs’ claims are inextricably intertwined with the construction, interpretation, and effect of the SDWA and the LCR.

Judge Quist concludes that the MDEQ defendants were not acting under any federal officer or agencies when they took the actions set forth in the complaint, and thus were not entitled to remove the case under the federal-officer removal statute. In addition, the court concludes that it does not have jurisdiction under the substantial federal question doctrine. Judge Quist will remand the case to the Michigan Court of claims for lack of jurisdiction.

A copy of Judge Quist’s opinion dated March 31, 2017, is available at https://goo.gl/sxGh5F from Leagle.com.

Tamara Nappier, Plaintiff, represented by Elizabeth C. Thomson, Hertz Schram PC — Patricia A. Stamler — at Hertz Schram PC

Richard Snyder, Defendant, represented by Eugene Driker — Morley Witus — Todd R. Mendel — at Barris, Sott, Denn & Driker; Margaret Bettenhausen — Nathan A. Gambill — Richard S. Kuhl — Zachary C. Larsen — at MI Dept Attorney General

Darnell Earley, Defendant, represented by Todd Russell Perkins — The Perkins Law Group PLLC

Gerald Ambrose, Defendant, represented by Barry Abba Wolf — at Barry A. Wolf, Attorney at Law, PLLC

Bradley Wurfel and Daniel Wyant, Defendant, represented by Christopher Bradley Clare — Jay M. Berger  — Michael J. Pattwell — at Clark Hill PLC

Liane Shekter Smith, Defendant, represented by Michael H. Perry — Robert Paul Vance — Thaddeus E. Morgan — at Fraser Trebilcock Davis & Dunlap PC

Stephen Busch, Defendant, represented by Courtney Beth Ciullo — Dennis Egan — Krista A. Jackson — Philip A. Grashoff, Jr. — at Kotz Sangster Wysocki PC

Patrick Cook and Michael Prysby, Defendants, represented by Allison Marie Collins — Charles E. Barbieri — at Foster Swift Collins & Smith PC

Nick Lyon and Eden Wells, Defendants, represented by Margaret Bettenhausen — Nathan A. Gambill — Richard S. Kuhl — Zachary C. Larsen — at MI Dept Attorney General

Robert Scott and Nancy Peeler, Defendants, represented by Michael S. Cafferty — at Michael S. Cafferty & Associates PC