United States District Court, S.D. Mississippi, Northern Division
STATE OF MISSISSIPPI ex rel. Jim Hood, Attorney General PLAINTIFF
ENTERGY MISSISSIPPI, INC., et al. DEFENDANTS
ORDER OF REMAND
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE
courts “have an independent obligation to determine
whether subject-matter jurisdiction exists, even in the
absence of a challenge from any party.” Arbaugh v.
Y&H Corp., 546 U.S. 500, 514 (2006) (citation
omitted). This obligation helps the judiciary adhere to the
principles of federalism enshrined in the Constitution. It
exists no matter what the parties may prefer or how much time
they have spent preparing their case for adjudication in
federal court.If “a federal court determines that
it is without subject matter jurisdiction, the court is
powerless to continue.” Amason & Assocs., Inc.,
v. Columbus Land Dev., LLC, No. 7:12-CV-2459-VEH, 2013
WL 12250379, at *3 (N.D. Ala. Feb. 28, 2013) (citing
Wernick v. Mathews, 524 F.2d 543, 545 (5th Cir.
case, jurisdiction depends on the existence of a federal
question in the complaint. Judge Southwick succinctly
explained this strand of the law in Quinn v.
Guerrero, when he recited that
The plaintiff's federal question must appear on the face
of his well-pleaded complaint. The plaintiff need not
specifically cite a federal provision such as Section 1983,
but he must allege facts sufficient to establish a colorable
issue of federal law. The plaintiff is the master of the
claim, so he may confine his arguments to those arising under
state law even if federal claims are available. If he so
chooses, there is no basis for federal jurisdiction. Further,
anticipation of a federal defense is insufficient to
establish federal-question jurisdiction.
863 F.3d 353, 358-59 (5th Cir. 2017) (quotation marks,
citations, and brackets omitted). This law is
well-established. See Arkansas v. Kansas & Texas Coal
Co., 183 U.S. 185, 188 (1901) (“[I]t has been
settled that a case cannot be removed from a state court into
the circuit court of the United States on the sole ground
that it is one arising under the Constitution, laws, or
treaties of the United States, unless that appears by
plaintiff's statement of his own claim.”).
case is presently in its first week of trial. On day two,
during examination of the plaintiff's first witness,
counsel for Entergy urged the Court to apply Entergy
Corporation v. Jenkins to our dispute. See 469
S.W.3d 330 (Tex. App. 2015). The Court took a close look at
is indeed similar to our case. There, as here, the plaintiff(s)
“filed suit against Entergy alleging that it had
devised and operated an improper energy-purchasing scheme
under which it had selected internally generated,
higher-priced electrical power while rejecting less
expensive, available third-party power, resulting in theft
from . . . retail power customers in violation of”
state law. Id. at 335. There, as here,
“Entergy removed the suit to federal court alleging
federal question jurisdiction.” Id. So far, so
Jenkins, however, “[t]he federal court
remanded the case to state court, concluding that the suit
did not invoke federal law.” Id. The question
then becomes, if Jenkins is so similar to this case
and was resolved in state court, why is this case being heard
in federal court? The trial was paused so the parties could
provide supplemental briefing and argue this issue.
earlier Order, the District Judge presiding over this case
determined that jurisdiction was proper under the Class
Action Fairness Act. See Docket No. 37. When an
intervening U.S. Supreme Court decision revealed that
conclusion to be incorrect and rendered CAFA unavailing as a
source of jurisdiction, see Mississippi ex rel. Hood v.
AU Optronics Corp., 571 U.S. 161 (2014), the District
Judge pivoted and determined that jurisdiction was proper
because there was a federal question buried in the complaint.
He reasoned as follows:
Mississippi's complaint challenges EMI's [Entergy
Mississippi's] failure to use its discretion to purchase
the allegedly cheaper energy from third-party suppliers.
Specifically, Mississippi accuses EMI and the other EOCs of
failing to “make a purchase of electricity from a
non-affiliate for its/their ‘own account.' Entergy
Agreement, Sec. 402. Despite this ability to do so, EMI
deliberately decided not to pursue less expensive
non-affiliate supplies of electricity, and, instead, merely
accepted transfers . . . of the expensive ESX
electricity.” Mississippi's Complaint at 38.
Mississippi's challenge, then, requires an analysis of
the Entergy Agreement. The Entergy Agreement is a FERC
tariff, which applies with the force of federal law. See
Carter v. Am. Tel. & Tel. Co., 365 F.2d 486, 496
(5th Cir. 1966). In essence, Mississippi is suing EMI for its
failure to vindicate its federal power to initiate the
process of buying energy from a third-party supplier.
Mississippi's cause of action, therefore, derives from
federal law; this court simply cannot adjudicate
Mississippi's claim without determining the precise
nature of the discretion vested in EMI by federal law.
Whether EMI had the discretion to purchase energy from
third-party suppliers-and failed to do so-within the meaning
of the federal tariff is an essential element of
Docket No. 68 at 11-12.
Jenkins federal court action, however, Judge Kent
arrived at the opposite conclusion. He found no federal
question jurisdiction on the face of the complaint.
None of the Texas common-law or statutory causes of action
cited by Plaintiffs in their Petition require the violation
of a federal tariff. Conduct that violates the tariff may
also violate the [Texas statute] or other common-law duties,
but a violation of the tariff is not an essential element to
any of Plaintiffs' claims. . . . Defendants have tried to
escape this result through very skillful briefing of the
issues in this Motion, but the ...