Donatto et al v. Global Water-Santa Cruz Water Company Incorporated et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Pauline Donatto, et al.,
Plaintiffs,
v.
Global Water-Santa Cruz Water Company
Incorporated, et al.,
Defendants.
No. CV-26-00101-PHX-DWL
ORDER
Plaintiffs are customers of Defendant Global Water-Santa Cruz Water Company
Incorporated (“GW-Santa Cruz”).1 In their First Amended Complaint (“FAC”), Plaintiffs
raise claims “aris[ing] from an acute drinking-water contamination event in the City of
Maricopa, where [GW-Santa Cruz] operates a public water system serving approximately
84,000 persons.” (Id. ¶ 1.) The FAC asserts four causes of action: (1) declaratory judgment
and injunctive relief for unduly delayed and inadequate public notification (id. ¶¶ 344-90);
(2) declaratory judgment and injunctive relief for false and misleading public notification
(id. ¶¶ 391-440); (3) operational negligence (id. ¶¶ 441-74); and (4) public nuisance (id.
¶¶ 475-95). According to the FAC, all four of these claims are “only state-law causes of
action.” (Id. ¶ 290.)
After being served, Defendants filed a notice of removal. (Doc. 1.) The sole
asserted jurisdictional basis for removal is federal-question jurisdiction: “This Court has
1 Plaintiffs also sue Global Water Resources Incorporated (“GWRI”), the parent
company of GW-Santa Cruz. (Doc. 1-8 ¶ 42.) The Court will refer to GW-Santa Cruz and
GRWI collectively as “Defendants.”
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original jurisdiction over this action under 28 U.S.C. § 1331 because Plaintiffs’ claims
‘arise[] under’ federal law. Although pled as state-law causes of action, in substance,
Plaintiffs’ claims rest on the application of federal regulations and standards. Plaintiffs’
claims thus ‘implicate significant federal issues’ such that this Court has federal-question
jurisdiction over this action and it is removable by Defendants.” (Id. ¶ 4.)
Now pending before the Court is Plaintiffs’ motion to remand. (Doc. 5.) After the
motion became fully briefed (Docs. 10, 11), the Court issued a tentative ruling and
scheduled oral argument (Doc. 17) and the parties then stipulated to vacate oral argument
and submit on the tentative ruling (Doc. 18). For the reasons that follow, the Court
concludes that it lacks subject-matter jurisdiction and thus grants Plaintiffs’ motion and
remands this action to Pinal County Superior Court.2
RELEVANT BACKGROUND
The following relevant background is derived from the FAC. (Doc. 1-8.)
“In late August 2025, Defendant GW-Santa Cruz received a laboratory result
showing the presence of E. coli—a fecal-indicator organism—in its drinking-water
distribution system.” (Id. ¶ 2.) “Under Arizona law and fundamental public health
principles, detection of E. coli in a routine distribution sample constitutes an acute
drinking-water emergency and a potential Maximum Contaminant Level (‘MCL’)
violation because it signals that fecal contamination may have entered the public water
supply.” (Id. ¶ 3.)
“After learning of the E. coli-positive result, Defendant GW-Santa Cruz increased
chlorine levels and flushed hydrants in the affected area before collecting the required
repeat samples.” (Id. ¶ 4.) “Even after Defendant GW-Santa Cruz’s chlorination and
flushing, repeat testing from an adjacent property upstream of the original test point in
Defendant GW-Santa Cruz’s system still showed Total Coliform contamination.” (Id. ¶ 6.)
“Because the routine sample was E. coli-positive, a Total Coliform-positive repeat sample
2 This conclusion renders it unnecessary to address the parties’ arguments regarding
the timeliness of Defendants’ removal notice.
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triggered an acute E. coli MCL violation.” (Id. ¶ 7.) “At that stage, Defendant GW-Santa
Cruz had an immediate, urgent, and non-delegable duty under Arizona law and the Revised
Total Coliform Rule (‘RTCR’) to issue a Tier 1 public notice ‘as soon as practical,’ and in
no event later than 24 hours, to warn persons served of the E. coli MCL violation and the
associated public health risks.” (Id. ¶ 8.)
The RTCR “went into effect on April 1, 2016.” (Id. ¶ 27.) “The RTCR is a federal
regulation promulgated by the Environmental Protection Agency (‘EPA’), pursuant to the
Safe Drinking Water Act [(‘SDWA’)], 42 U.S.C. §§ 300f through 300j26.” (Id.)3 “The
RTCR requires public water systems (‘PWS’) to identify and correct conditions that could
lead to microbial contamination, with E. coli as the primary public health indicator
organism.” (Id. ¶ 28.) The RTCR contains several requirements that are outlined in the
FAC. (Id. ¶¶ 45-84.) Among those is a “public notification” requirement: “If an E. coli
MCL violation occurs—or if required repeat monitoring is not completed and the presence
of E. coli cannot be ruled out—the PWS must issue a Tier 1 public notice ‘as soon as
practical’ (but not later than 24 hours).” (Id. ¶ 60.) The RTCR also includes requirements
for the content of public notices: “A Tier 1 public notice must include: the nature of the
contamination; source of the contamination (if known); required health effects language;
precautionary measures (‘boil your water before using,’ ‘do not drink the water,’ ‘use
bottled water’); the population at risk; corrective actions underway; and when safe water
is expected to be restored.” (Id. ¶ 63.) The RTCR also includes requirements for the
method of delivery of the public notice: “The notice must be provided in a manner
reasonably calculated to immediately reach ‘all persons served,’ including residential,
commercial, transient, and non-transient users of the PWS.” (Id. ¶ 64.)
“Under federal law, states may administer their own drinking water programs if they
obtain ‘primacy’ from the EPA.” (Id. ¶ 34.) “To receive and maintain primacy, a state
3 Defendants explain in their notice of removal that the RTCR and the rules related
to Tier 1 public notice are part of the “rules and standards in the federal National Primary
Drinking Water Regulations [‘NPDWR’], promulgated by the federal [EPA] and found in
Title 40, Part 141 of the Code of Federal Regulations.” (Doc. 1 ¶ 5.)
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must adopt regulations no less stringent than the RTCR, enforce those regulations, report
data to the EPA, and take enforcement action when violations occur.” (Id. ¶ 35.) “States
cannot opt out of the RTCR or adopt weaker standards.” (Id. ¶ 36.) “Arizona has obtained
‘primacy’ and the Arizona Department of Environmental Quality (‘ADEQ’) is charged
with enforcing the RTCR.” (Id. ¶ 37.) “Arizona’s Safe Drinking Water Program is
administered by ADEQ pursuant to A.R.S. §§ 49-104 and 49-351 et seq., and
implementing regulations in A.A.C. Title 18, Chapter 4.” (Id. ¶ 38.) “Arizona adopted
RTCR federal regulations by ‘incorporating them by reference.’” (Id. ¶ 39.) The FAC
alleges that “although [the FAC] cites federal regulations, those provisions are binding
Arizona law and have been adopted by the State of Arizona.” (Id. ¶ 40.)
In a nutshell, the FAC alleges that GW-Santa Cruz’s “Tier 1 public notice was not
distributed ‘as soon as practical.’” (Id. ¶ 10.) The FAC also alleges that “when Defendant
GW-Santa Cruz finally got around to preparing a Tier 1 notice, it crafted a method and
form of notice that diminished and obfuscated significant public health information instead
of fully informing and warning the public, as required by law and standard public health
practices.” (Id. ¶ 11.) And the FAC alleges that, “[i]n practical effect, Defendant GW-
Santa Cruz buried key facts, omitted critical information, and issued communications that
were delayed, incomplete, and misleading, and that were unnecessarily difficult for
customers to understand.” (Id. ¶ 14.) The FAC also alleges that “most persons served by”
GW-Santa Cruz’s public notice system “never received any direct notice.” (Id. ¶ 16.) “As
a result of these actions and omissions,” the FAC alleges that “many residents in Rancho
El Dorado in the City of Maricopa and nearby neighborhoods continued to drink, cook
with, and otherwise use water that may have been contaminated with fecal pathogens,”
resulting in various illnesses and other injuries. (Id. ¶¶ 20-22.)
…
…
…
…
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DISCUSSION
I. Legal Standard
“Under 28 U.S.C. § 1441, a defendant may remove an action filed in state court to
federal court if the federal court would have original subject matter jurisdiction over the
action.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1243 (9th Cir. 2009).
“Federal courts have original jurisdiction over ‘all civil actions arising under the
Constitution, laws, or treaties of the United States.’” Id. (quoting 28 U.S.C. § 1331). “The
scope of this statutory grant of jurisdiction is a matter of congressional intent, and the
Supreme Court has determined that Congress conferred a more limited power than the full
scope of judicial power accorded in the Constitution.” City of Oakland v. BP PLC, 969
F.3d 895, 903 (9th Cir. 2020) (cleaned up). “The general rule, referred to as the ‘well-
pleaded complaint rule,’ is that a civil action arises under federal law for purposes of § 1331
when a federal question appears on the face of the complaint.” Id. (citing Caterpillar Inc.
v. Williams, 482 U.S. 386, 392 (1987)). “[A]s the ‘master of the claim,’ the plaintiff can
generally avoid federal jurisdiction by exclusive reliance on state law.” Id. at 904 (cleaned
up).
There are, however, “a few exceptions to the well-pleaded complaint rule.” Id. As
relevant here, “the Supreme Court has recognized a special and small category of state-law
claims that arise under federal law for purposes of § 1331 because federal law is a necessary
element of the . . . claim for relief.” Id. (cleaned up).4 “Only a few cases have fallen into
this slim category.” Id. (cleaned up). “In other cases where parties have sought to invoke
federal jurisdiction for state-law claims, the Court has concluded that jurisdiction was
lacking, even when the claims were premised on violations of federal law, required
remedies ‘contemplated by a federal statute,’ or required the interpretation and application
of a federal statute in a hypothetical case underlying a legal malpractice claim.” Id.
(citations omitted).
4 This is the only exception to the well-pleaded complaint rule advanced by
Defendants in their removal notice. (Doc. 1 ¶ 4.)
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“The Court has articulated a test for deciding when this exception to the well-
pleaded complaint rule applies. As explained in [Grable & Sons Metal Prods., Inc. v.
Darue Eng’g & Mfg., 545 U.S. 308 (2005)] and later in [Gunn v. Minton, 568 U.S. 251
(2013)], federal jurisdiction over a state-law claim will lie if a federal issue is (1)
necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in
federal court without disrupting the federal-state balance approved by Congress.” Id.
(cleaned up).5 “All four requirements must be met for federal jurisdiction to be proper.”
Id. at 904-05.
“A motion to remand is the proper procedure for challenging removal.” Moore-
Thomas, 553 F.3d at 1244 (citing 28 U.S.C. § 1447(c)). A plaintiff may move to remand
for lack of subject-matter jurisdiction, and “[i]f at any time before final judgment it appears
that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28
U.S.C. § 1447(c). “The removal statute is strictly construed, and any doubt about the right
of removal requires resolution in favor of remand.” Moore-Thomas, 553 F.3d at 1244.
“The presumption against removal means that the defendant always has the burden of
establishing that removal is proper.” Id. (cleaned up).
II. The Parties’ Arguments
Plaintiffs move to remand this case “for lack of federal-question jurisdiction under
28 U.S.C. § 1331.” (Doc. 5 at 1.) Plaintiffs argue that they “pleaded four causes of action
exclusively and expressly under Arizona law” and that the FAC “specifically disclaims any
federal cause of action and pleads only Arizona-law theories.” (Id. at 2.) Plaintiffs argue
that Defendants’ attempt to “invoke Grable’s embedded-issue theory based on Arizona’s
adoption of federally derived standards as state law” fails because “[w]ithout exception,
every federal regulation cited in the FAC was also adopted by Arizona and the FAC clearly
states, ‘although this Complaint cites federal regulations, those provisions are binding
Arizona law and have been adopted by the State of Arizona.’” (Id. at 2-3.) Plaintiffs argue
that “[i]t is well established that a state’s choice to adopt federal standards as state law does
5 This order will refer to this four-factor test as the “Grable/Gunn factors.”
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not convert state-law tort or declaratory relief actions into federal-question cases.” (Id. at
4.) Plaintiffs also argue that “Defendants cannot identify any genuine federal issue that
Plaintiffs must win to prevail.” (Id.) Plaintiffs note that the FAC does not “invoke any
federal private right of action.” (Id. at 8.) And Plaintiffs argue that “[w]here a state adopts
federal standards into state law, a plaintiff’s claim to enforce the state-law duty does not
become a federal claim. Otherwise, vast categories of state tort and consumer-protection
law—routinely referencing federally derived standards (OSHA, FDA, EPA, DOT, etc.)—
would be removable contrary to the well-pleaded complaint rule and Congress’s choice to
keep most of those disputes in state court.” (Id. at 9.) Plaintiffs next argue that the present
case “is the Merrell Dow situation” in which the Supreme Court held that “state-law claims
alleging breach of a standard that originates in federal regulation do not ‘arise under’
federal law, especially where Congress did not create a federal private right of action for
the alleged regulatory violation.” (Id., citing Merrell Dow Pharms. Inc. v. Thompson, 478
U.S. 804 (1986).) Plaintiffs argue that although the SDWA “does include a limited citizen-
suit civil provision for certain SDWA violations . . . Plaintiffs do not plead a SDWA
citizen-suit and the FAC expressly disclaims any such cause of action.” (Id.) Plaintiffs
also emphasize that the SDWA’s citizen-suit provision contains a “savings clause” which
provides that the statute does not restrict “any right which any person (or class of persons)
may have under any statute or common law to seek enforcement of any requirement
prescribed by or under this subchapter or to seek any other relief.” (Id., citing 42 U.S.C.
§ 300j-8(e).) Plaintiffs argue that the SDWA “confirm[s] Congress did not federalize state
drinking-water law or displace state judicial remedies” and that “Congress contemplated
that primacy States would implement and enforce drinking-water standards as state law,
subject to federal oversight backstops—not that every dispute touching a federal standard
would be heard in federal court.” (Id. at 14, emphasis omitted.) Finally, Plaintiffs discuss
the Grable/Gunn factors, arguing that none is satisfied here.
In response, Defendants argue that “Plaintiffs ubiquitously cite federal regulations
as supplying the standards that—they claim—govern the outcome of this case,” and
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“Plaintiffs cannot escape the fact that, in substance, their claims depend on, and require the
Court to interpret, federal law—specifically, federal regulations adopted under the
[SDWA].” (Doc. 10 at 2.) Defendants argue that the “error” in Plaintiffs’ argument “is
that—unlike cases in which a state law claim makes glancing reference to federal law—in
this case, federal regulations supply the entire substance of the standards upon which
Plaintiffs’ claims rely,” and “the interpretation of federal regulations takes on a unique
importance in this case that gives rise to federal-question jurisdiction.” (Id.) Defendants
argue that Count One “requires interpretations of federal standards and seeks a ‘forward
looking’ injunction.” (Id. at 6.) Specifically, Defendants argue that Count One is premised
on a duty to issue Tier 1 notifications “as soon as practical” and “in a manner reasonably
calculated to reach ‘all persons served,’”—standards that are taken from the federal
NPDWRs—and thus the Court will be “require[d] . . . to construe those federal standards
to consider whether Defendants violated them.” (Id.) Next, Defendants argue that Count
Two “requires a determination of what notice content federal regulations require,” and
Defendants again argue that “[t]o resolve these disputes, the Court will have to interpret
rules and regulations that are part of a federal regulatory scheme that encompasses national
drinking water standards.” (Id. at 7.) As for Counts Three and Four, Defendants argue that
Plaintiffs’ “allegations that [GW-Santa Cruz] was negligent per se necessarily derive from
the standards set forth in the NPDWRs” and that “[o]f course, to adjudicate whether [GW-
Santa Cruz] was negligent per se, the Court is required to determine what federal law
requires under a regulatory scheme that encompasses national drinking water standards.”
(Id. at 8.) Defendants next argue that Count Four “relies in substance on [GW-Santa
Cruz’s] alleged violations of the federal regulatory standards that undergird Counts One
and Two,” and thus “the Court cannot adjudicate Count Four without interpreting federal
standards regarding monitoring, sampling, and maintaining potable-water distribution
systems adopted under a regulatory regime that sets national drinking water standards.”
(Id. at 8-9). Next, applying the Grable/Gunn factors, Defendants argue that “Plaintiffs’
claims—especially their claims for declaratory and ‘forward looking’ injunctive relief in
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Counts One and Two—turn on substantial questions of federal law, namely, the meaning
and requirements of federal regulations implemented under a national regulatory regime.”
(Id.at 10.) Defendants emphasize that “[t]he Arizona regulations on which Plaintiffs rely
simply incorporate the applicable federal standards wholesale by reference to federal
regulations.” (Id. at 10-11.) And Defendants argue that “[u]nlike any of the cases Plaintiffs
rely on, this case involves a federal regulatory scheme under which Arizona has
intentionally pegged its law to the minimum standards set by federal law to obtain
primacy,” and “[b]y declining to adopt more-stringent regulations, Arizona necessarily
meant for its regulations to be nothing less than what federal regulations require.” (Id. at
11-12.) Defendants next argue that “[n]one of the cases Plaintiffs cite in their Motion
directly address the circumstances present here, in which state law incorporates wholesale
by reference entire swaths of federal regulations as part of the state’s effort to comply with
minimum standards adopted under a national regulatory scheme.” (Id. at 12.) Defendants
argue that “[t]his is not a case in which state law makes only a glancing reference to federal
law,” “[n]or is it a case in which Plaintiffs’ claims rest on alternative and independent
theories under state and federal law,” nor is this “a case in which Congress has intended
that there not be a federal private action for violations of the federal standard, as Congress
expressly authorized a federal private action under the SDWA.” (Id., cleaned up.) Thus,
Defendants argue that “Congress always envisioned federal-question jurisdiction over
disputes involving these claims.” (Id.) Defendants also argue that the federal issue is
substantial here because “the Court’s interpretation of the federal regulations at issue is
bound to have implications beyond this case.” (Id. at 13.) And Defendants argue that the
“federal issues involve nearly pure issues of law.” (Id. at 14, cleaned up.) Last, Defendants
argue that “Plaintiffs argue as if they only pleaded garden variety, ‘backward-looking’ tort
claims, but the gravamen of the FAC seek to impose Plaintiffs’ interpretation of federal
standards, and enjoin [GW-Santa Cruz] to abide by their interpretation of those federal
standards going forward.” (Id. at 15.)
In reply, Plaintiffs argue that “[t]his is a straightforward remand.” (Doc. 11 at 1.)
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Plaintiffs also reiterate their arguments regarding the Grable/Gunn factors. Among other
things, Plaintiffs contend that they “may prevail on their claims without ever resolving any
federal law as federal law.” (Id. at 3.) Plaintiffs further argue that “Defendants’ ‘citation
counting’ does not satisfy Grable” because counting the number of citations to federal law
in a complaint “cannot convert an expressly state-law case into a federal one.” (Id.)
Plaintiffs also argue that “Defendants’ ‘uniformity’ rhetoric does not identify an actually
disputed federal meaning that must be resolved; it identifies, at most, disputed fact-bound,
situation-specific compliance facts under Arizona’s adopted notice duties,” and a “state-
law claim that is fact-bound and situation-specific is not the type of claim for which federal-
question jurisdiction lies.” (Id. at 5, cleaned up.) Plaintiffs also argue that “Defendants
cite no authority holding a plaintiff ‘necessarily raises’ a ‘substantial’ federal issue for
§ 1331 purposes simply by pleading state-law [SDWA] duties that incorporate federal
drinking-water standards by reference” and that “[t]he only appellate decision Plaintiffs
located addressing such an SDWA-based Grable theory rejected it.” (Id.) Next, Plaintiffs
argue that “Defendants’ emphasis on prospective relief does not change” the substantiality
analysis and that “if prospective relief alone created Grable substantiality whenever a State
incorporated federal text, then every state-law injunction enforcing an incorporated federal
standard would become removable.” (Id. at 6.) Plaintiffs also argue that the SDWA’s
citizen-suit provision cuts in their favor because it “expressly preserves citizens’ state and
common-law avenues to enforce drinking-water requirements and seek other relief.” (Id.
at 6-7, emphasis omitted.) Last, Plaintiffs argue that “[a]dopting Defendants’ theory would
dramatically expand federal jurisdiction by sweeping routine state-law enforcement and
tort cases into federal court,” and if the mere incorporation of federal requirements into
state regulatory programs were enough to confer federal jurisdiction, then “an enormous
swath of routine State enforcement and tort litigation would become removable.” (Id. at
7.)
…
…
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III. Analysis
A. Counts Three and Four
Count Three is entitled “Operational Negligence (Negligence Per Se).” (Doc. 1-8
at 99.) Count Four is entitled “Public Nuisance.” (Id. at 105.)
1. Grable/Gunn Factor 3
Defendants’ removal notice asserts that Count Three “is premised on the theory that
[Defendants] ‘had a duty under the RTCR’ to take various actions.” (Doc. 1 ¶ 7.) And in
their opposition brief, Defendants argue Count Three “arises under” federal law because
“[a]lthough Plaintiffs are careful not to cite federal regulations in their supporting
paragraphs, their allegations that [GW-Santa Cruz] was negligent per se necessarily derive
from the standards set forth in the NPDWRs.” (Doc. 10 at 8.) Likewise, Defendants argue
that Count Four “relies in substance on [GW-Santa Cruz’s] alleged violations of federal
regulatory standards that undergird Counts One and Two.” (Id.) In a nutshell, Defendants’
argument is that because Counts Three and Four are premised on violations of Arizona
law, and because Arizona law simply adopts federal law, any determination of liability
“necessarily depends on resolution of a substantial question of federal law.” Franchise
Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 28 (1983).
This argument is unavailing. As the Ninth Circuit has observed, “the mere fact that
a state statute is construed in accordance with a federal statute” is not, alone, enough to
“give[] rise to federal question jurisdiction.” Rains v. Criterion Sys., Inc., 80 F.3d 339, 347
n.9 (9th Cir. 1996). Indeed, in Merrell Dow, the respondents filed a complaint in Ohio
state court against the petitioner, the manufacturer and distributor of the drug Bendectin,
alleging birth defects caused by ingestion of Bendectin by pregnant women. 478 U.S. at
805. The complaint asserted six counts. Id. “In five of the six counts, the recovery of
substantial damages was requested on common-law theories of negligence, breach of
warranty, strict liability, fraud, and gross negligence. In Count IV, respondents alleged
that the drug Bendectin was ‘misbranded’ in violation of the Federal Food, Drug, and
Cosmetic Act (FDCA), because its labeling did not provide adequate warning that its use
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was potentially dangerous. Paragraph 26 alleged that the violation of the FDCA ‘in the
promotion’ of Bendectin ‘constitutes a rebuttable presumption of negligence.’ Paragraph
27 alleged that the ‘violation of said federal statutes directly and proximately caused the
injuries suffered’ by the two infants.” Id. at 805-06 (citations omitted). After the petitioner
removed the case to federal court, the “[r]espondents filed a motion to remand to the state
forum on the ground that the federal court lacked subject-matter jurisdiction.” Id. at 806.
“[T]he District Court held that Count IV of the complaint alleged a cause of action arising
under federal law and denied the motion to remand.” Id. However, the Sixth Circuit
reversed and the Supreme Court affirmed the Sixth Circuit’s decision. Id. at 806-07. The
Court concluded that because there is no private right of action under the FDCA, “the
presence of the federal issue as an element of the state tort is not the kind of adjudication
for which jurisdiction would serve congressional purposes and the federal system. . . .
[T]he congressional determination that there should be no federal remedy for the violation
of this federal statute is tantamount to a congressional conclusion that the presence of a
claim violation of the statute as an element of a state cause of action is insufficiently
‘substantial’ to confer federal-question jurisdiction.” Id. at 814. The Court summarized:
“[A] complaint alleging a violation of a federal statute as an element of a state cause of
action, when Congress has determined that there should be no private, federal cause of
action for the violation, does not state a claim ‘arising under the Constitution, laws, or
treaties of the United States.’” Id. at 817 (quoting 28 U.S.C. § 1331.). Put differently, the
Court held that what would later become the third Grable/Gunn factor—i.e., whether the
federal issue in the state-law claim is “substantial”—was not satisfied.
The facts here are similar to those in Merrell Dow. In Count Three, Plaintiffs assert
a claim for operational negligence, alleging that the duty and breach elements of their claim
are satisfied based on Defendants’ violation of Arizona law, which incorporates federal
law. Similarly, in Count Four, Plaintiffs assert a claim for public nuisance by alleging,
among other things, that Defendants violated Arizona law incorporating federal law. But
even assuming Defendants are correct that Arizona law’s incorporation of federal law
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means that Counts Three and Four are necessarily based on violations of federal law,
Merrell Dow holds that such state-law claims do not “arise under” federal law if, as here,
Congress has not provided a private right of action to vindicate violations of the underlying
federal law.
In an attempt to distinguish Merrell Dow, Defendants argue that “Congress
expressly authorized a federal private action under the SDWA.” (Doc. 10 at 12.) Citing
42 U.S.C. § 300j-8, Defendants contend that “Congress always envisioned federal-question
jurisdiction over disputes involving these regulations.” (Id.) This argument lacks merit.
True, § 300j-8(a)(1) provides that “any person may commence a civil action on his own
behalf . . . against any person . . . who is alleged to be in violation of any requirement
prescribed by or under this subchapter,” but § 300j-8 does not authorize a private person
bringing such a claim to seek damages. See generally Hootstein v. Amherst-Pelham Reg’l
Sch. Comm., 361 F. Supp. 3d 94, 105 (D. Mass. 2019) (“Beyond giving the EPA authority
to enforce the statute, the SDWA gives enforcement rights to private persons. First, ‘any
person may intervene as a matter of right’ in government enforcement actions. Second,
there is a citizen-suit provision creating a private right of action against alleged SDWA
violators. There are certain procedural requirements for filing a citizen-suit, including
giving notice to the potential defendant, the EPA, and the state where the violation
occurred. The statute does not provide for an award of monetary damages.”) (citations
omitted). Count Three, meanwhile, seeks compensatory damages. (Doc. 1-8 ¶ 458 [“As a
direct and proximate of Defendants GW-Santa Cruz’s acts and omissions, Plaintiffs and
the Illness Subclass sustained compensable injuries, including but not limited to economic
losses . . . , loss of use and enjoyment of their homes and community water supply,
emotional distress, anxiety, and inconvenience arising from reasonable fear of exposure to
contaminated drinking water.”]. See also id. at 109-12 [Prayer for Relief seeking, among
other things, compensatory damages].) So does Count Four. (Id. ¶ 484 [“Plaintiffs and
the class suffered damages, including but not limited to the cost of being billed for unsafe
water, obtaining alternative water supplies, loss of use and enjoyment of their homes, as
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well as fear, inconvenience, emotional distress, discomfort, and annoyance.”]; id. ¶ 485
[noting that “monetary relief under this Count is sought solely on behalf of the Illness
Subclass” whereas “[t]he Exposure Subclass seeks under this Count only declaratory and
injunctive relief”].)6
Many courts have concluded that the presence of such a federally unauthorized
damages claim is inconsistent with the notion that the plaintiff is asserting a claim arising
under federal law. For example, in Mays v. City of Flint, Mich., 871 F.3d 437 (6th Cir.
2017), the plaintiffs sued the City of Flint and state officials in Michigan state court
“asserting various state-law tort claims” stemming from unsafe drinking water. Id. at 440-
41. The defendants “argue[d] . . . that they [were] entitled to removal under 28 U.S.C.
§ 1441” and the Grable/Gunn factors. Id. at 449. In the complaint, the plaintiffs alleged
“state-law claims of gross negligence, fraud, assault and battery, and intentional infliction
of emotional distress,” and the defendants argued that the case met “all of the requirements
for removal under 28 U.S.C. § 1441 because the complaint allege[d] that the [defendants]
breached duties to the [p]laintiffs that were based on the SDWA and the” EPA’s Lead and
Copper Rule (“LCR”). Id. The Sixth Circuit, addressing the third Grable/Gunn factor,
stated that “the Supreme has held that, when a plaintiff’s complaint raises garden-variety
tort claims, the presence of a claimed violation of a federal statute as an element of a state
cause of action is insufficiently ‘substantial’ to confer federal-question jurisdiction.” Id.
(cleaned up). The court held that “where Congress has not created a private cause of action
for violations of a federal statute, there is less likely to be a substantial interest in favor of
removal. And there is no private right of action for damages arising from a violation of
the SDWA or the LCR.” Id. at 450 (emphasis added). Accordingly, the court “conclude[d]
that removal under 28 U.S.C. § 1441 [was] inappropriate.” Id.
Similarly, in Harding-Wright v. D.C. Water & Sewer Auth., 350 F. Supp. 2d 102
6 To the extent Counts Three and Four seek declaratory and/or injunctive relief (as
opposed to damages), the SDWA does authorize private claims for such relief once certain
jurisdictional requirements are met. 42 U.S.C. § 300j-8. However, as explained in the
analysis regarding Counts One and Two infra, those jurisdictional requirements have not
been satisfied here.
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(D.D.C. 2005), the plaintiffs brought a “putative class action against the District of
Columbia Water and Sewer Authority,” alleging that it “failed to provide safe drinking
water to the residences, offices, and schools of the District of Columbia.” Id. at 104. The
plaintiffs asserted claims for “negligence, unfair and deceptive trade practices, breach of
contract, and unjust enrichment, seeking declaratory judgment and compensatory and
punitive damages.” Id. Although the plaintiffs’ initial complaint sought declaratory,
injunctive, and compensatory relief, the court later “dismissed plaintiff’s claims for
injunctive relief.” Id. After the defendants removed the action to federal court, the
plaintiffs sought remand. Id. In addressing whether the plaintiffs’ state-law claims for
unfair or deceptive trade practices, breach of contract, and unjust enrichment arose under
federal law,7 the district court emphasized that, “[u]nder Merrell Dow, a congressional
determination that there should be no federal remedy for the violation of a federal statute
is tantamount to a congressional conclusion that the presence of a claimed violation of the
statute as an element of a state cause of action is insufficiently ‘substantial’ to confer
federal-question jurisdiction.” Id. at 106 (cleaned up). The court acknowledged that the
SDWA “does authorize private party lawsuits against any violator of the Act or its
requirements” but emphasized that the SDWA “does not provide any federal right of action
for the recovery of compensatory damages.” Id. at 107. The court held that “[b]ecause the
remedy plaintiffs seek is unavailable under federal law, a private cause of action under
Merrell Dow does not, in truth, exist.” Id. (cleaned up).8 Thus, the court remanded to state
7 The court held that the plaintiffs’ negligence and negligence per se claim did not
arise under federal law based on an “alternative theory” analysis, which is addressed in
later portions of this order.
8 The court also noted that the SDWA “preserves the right of individuals to pursue
state remedies.” Id. at 107 (cleaned up). Specifically, the court emphasized language in
42 U.S.C. § 300j-8(e) that provides: “Nothing in this section shall restrict any right which
any person (or class of persons) may have under any statute or common law to seek
enforcement of any requirement prescribed by or under this subchapter or to seek any other
relief.” Id. The court held that “[a]gainst this explicit pronouncement preserving the option
of state law remedies, including compensatory damages actions unavailable under federal
law, plaintiffs’ mere citation of a federal statute which provides for a private remedy is
simply not enough to show congressional intent that the federal courts should exercise
jurisdiction over plaintiffs’ state law claims.” Id. (cleaned up).
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court. Id. at 108.
As yet another example, in Hussey v. Total Env’t Sols., Inc., 2015 WL 7282073
(W.D. La. 2015), the plaintiffs filed a “Petition For Damages And/Or Class Action” in
Louisiana state court against Total Environmental Solutions Inc. (“TESI”). Id. at *1. The
“[p]laintiffs allege[d] that from May 2, 2013 to February 6, 2014, TESI’s Trewhill
Subdivision Water System was determined to have violated the [EPA’s] rules pertaining
to disinfectant byproduct contaminants on multiple occasions.” Id. The plaintiffs
“assert[ed] causes of action in state law negligence for various personal injuries, damages,
[and] other relief including medical monitoring.” Id. (cleaned up). TESI removed the
action to federal court, arguing “that while [the plaintiffs] did not identify the specific
regulations of the EPA which TESI allegedly violated, the [SDWA] governs the conduct
of TESI relevant to this matter” and thus the SDWA provided the basis for federal-question
jurisdiction. Id. The court disagreed, noting that the “SDWA does not create a private
civil action under which damages can be recovered for violation of a provision of the
SDWA,” although it does “authorize[] citizens’ civil actions where the government has
failed to pursue an action against a violator.” Id. (citing 42 U.S.C. § 300j-8(a)(1)).
And again, in Mulcahey v. Columbia Organic Chemicals Co., Inc., 29 F.3d 148 (4th
Cir. 1994), the plaintiffs sought “damages and injunctive relief . . . in South Carolina state
court alleging that the defendants negligently operated the Drake Street chemical plant by
releasing hazardous substances into the soil, air, and groundwater in the vicinity of their
property.” Id. at 149 (footnote omitted). The complaint asserted state-law claims for
negligence, abnormally dangerous activities, private nuisance, and injunction. Id. The
defendants nevertheless removed the action, arguing that federal-question jurisdiction
existed based on paragraph 30 of the complaint, which alleged that the defendants had
violated an array of federal environmental statutes. Id. at 150. The Fourth Circuit
acknowledged that, like the SDWA, several of those statutes permit private parties to bring
certain types of actions. Id. Nevertheless, relying on Merrell Dow, the court held that “if
a federal law does not provide a private right of action, a state law action based on its
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violation does not raise a ‘substantial’ federal question.” Id. at 152. Because some of the
underlying federal statutes did authorized limited federal private rights of action, the court
emphasized: “That is not to say that the presence of any private federal remedy would in
all instances suffice to establish federal question jurisdiction. . . . In instances in which a
private federal remedy does exist, the ultimate question under Merrell Dow is whether
Congress intended that such an action, based on state law but incorporating a violation of
federal law, be brought in federal court.” Id. “Applying the principles set forth in Merrell
Dow and examining the federal environmental statutes at issue,” the court found “no
congressional intent that federal question jurisdiction exists in the instant case for several
reasons,” including that the “compensatory damages remedy sought in the complaint is not
available under these environmental statutes at issue.” Id. The same is true here.
Notably, Mulcahey also identified an independent reason (apart from the absence of
a federal damages remedy) why the plaintiffs’ claims did not arise under federal law.
Citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988), the Fourth
Circuit explained that “Christianson teaches us that, if a claim is supported not only by a
theory establishing federal subject matter jurisdiction but also by an alternative theory
which would not establish such jurisdiction, then federal subject matter jurisdiction does
not exist.” Mulcahey, 29 F.3d at 153. Applying that principle to the plaintiffs’ negligence
per se claim, the court held:
Examination of the complaint in the instant case reveals that the negligence
per se claim citing the federal environmental statutes was only an alternative
theory of liability under the Plaintiffs’ negligence claim contained in Count
I. Even if Columbia Organic was found not to have violated any federal
statute, the Plaintiffs might still be entitled to recover under an alternative
theory of negligence. For example, paragraph twenty-seven of the complaint
also alleges negligence in the violation of state and local environmental laws.
Further, the district court admitted that “the federal issues in this case are not
essential to the plaintiffs’ claims . . . .” In short, negligence per se under the
federal environmental statutes is only one of the Plaintiffs’ numerous
theories of recovery, so that the federal issue raised thereby is not substantial
pursuant to Christianson. Thus, in light of the principles enunciated above,
we find that, because the Plaintiffs’ alternative theory of negligence per se is
not “essential” to their negligence theory, no federal subject matter
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jurisdiction exists.
Id. at 153-54 (citations and footnote omitted).9 See also Nevada v. Bank of Am. Corp., 672
F.3d 661, 674-75 (9th Cir. 2012) (where the complaint alleged that the defendant “violated
Nevada’s [Deceptive Trade Practices Act] through numerous misrepresentations, some
about the [federal Home Affordable Mortgage Program], and some which also violate the
[federal Fair Debt Collection Practices Act],” holding that the claim did not necessarily
raise a substantial issue of federal law).
The same is true for Count Three. Although Defendants seek to characterize Count
Three as a claim for negligence per se, that characterization is not quite accurate—in fact,
Count Three is simply a negligence claim. True, the header to Count Three seems to use
the phrases “Operational Negligence” and “Negligence Per Se” interchangeably, but later
portions of Count Three clarify that “[t]o the extent the Court concludes negligence per se
doctrine does not apply on these facts, the same statutes and regulations are pleaded as
admissible evidence of the applicable standard of care.” (Doc. 1-8 ¶ 446.) This
clarification is consistent with Arizona law, under which negligence per se is simply one
of several theories a plaintiff may invoke when seeking to prevail on a negligence claim:
“Negligence per se is not a cause of action separate from common law negligence. It is a
doctrine under which a plaintiff can establish the duty and breach elements of a negligence
claim based on a violation of a statute that supplies the relevant duty of care.” Craten v.
Foster Poultry Farms Inc., 305 F. Supp. 3d 1051, 1054 n.2 (D. Ariz. 2018).
This clarification is significant for jurisdictional purposes because the third
Grable/Gunn factor is not satisfied where a negligence per se theory (premised on
violations of federal law) is simply an alternative way of proving a negligence claim.
Mulcahey, 29 F.3d at 153-54. That is the situation here—under Plaintiffs’ alternative
theory of negligence, although the alleged violations of Arizona statutes and regulations
incorporating federal law would be relevant and admissible evidence, such violations
9 The Ninth Circuit has cited, with approval, Mulcahey’s analysis of Christianson.
Rains, 80 F.3d at 346.
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would not be a “necessary element” of the negligence claim. Rains, 80 F.3d at 346.
Because Count Three “can be supported by alternative and independent theories—one of
which is a state law theory and one of which is a federal law theory—federal question
jurisdiction does not attach because federal law is not a necessary element of the claim.”
Id.10
The same can be said for Count Four. Under Arizona law, “the inquiry in a nuisance
claim is not whether the activity allegedly constituting the nuisance is lawful but whether
it is reasonable under the circumstances.” Armory Park Neighborhood Ass’n v. Episcopal
Cmty. Servs. in Ariz., 712 P.2d 914, 922 (Ariz. 1985). According to the Restatement, “[a]
public nuisance is an unreasonable interference with a right common to the general public.”
Id. (quoting Restatement (Second) Torts § 821B(1)). “Circumstances that may sustain a
holding that an interference with a public right is unreasonable include the following: (a)
Whether the conduct involves a significant interference with the public health, the public
safety, the public peace, the public comfort or the public convenience, or (b) whether the
conduct is proscribed by a statute, ordinance or administrative regulation, or (c) whether
the conduct is of a continuing nature or has produced a permanent or long-lasting effect,
and, as the actor knows or has reason to know, has a significant effect upon the public
right.” Id. (quoting Restatement (Second) Torts § 821B(2)). Count Four is thus premised
10 For this reason, several of the nonbinding cases cited by Defendants (Doc. 10 at 11)
are distinguishable. In each of those cases, a violation of federal law (or a violation of state
law that incorporated federal law) was a required element of the state-law claim at issue.
See, e.g., New York v. Arm or Ally, LLC, 644 F. Supp. 3d 70, 78-79 (S.D.N.Y. 2022) (where
plaintiff’s claim was for violation of New York General Business Law § 898-b, and where
N.Y. Gen. Bus. Law § 898-b(1) only applies to certain gun products as defined by federal
law, the court held that “[i]n order to prevail on its claim that Defendants’ conduct falls
under General Business Law § 898-b(1),” the plaintiff “must demonstrate that the products
at issue in this case were ‘firearms’ or ‘component parts’ thereof within the meaning of
federal law”) (emphasis added); Becnel v. KPMG LLP, 387 F. Supp. 2d 984, 986 (W.D.
Ark. 2005) (“In order for Plaintiffs to prevail on their state law claims, a determination
must be made as to the legitimacy, or legality, of OPIS and BLIPS. Accordingly, the only
way to determine whether OPIS and BLIPS are legitimate is to interpret the relevant
portions of the United States Code relating to them.”) (emphases added); Schendel v. Ace
Mortg. Funding, LLC, 2012 WL 487874, *2-3 (E.D. Cal. 2012) (where complaint alleged
a violation of California Financial Code § 50505, and the only way to violate § 50505 was
to violate one of several federal acts, the court held that the plaintiff’s § 50505 “claim
specifically requires the Court to make a determination of whether the defendants violated
TILA, HOPEA, and RESPA, which are federal statutes”) (emphasis added).
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on alternative theories, some of which do not require a violation of incorporated federal
law. (See, e.g., Doc. 1-8 ¶ 481 [“Defendant GW-Santa Cruz’s acts and omissions created
and maintained a condition that constituted a substantial and unreasonable interference
with rights common to the general public under the circumstances, including the right to
safe, sanitary, and healthful drinking water, and the right to security and comfort within
one’s community.”].) And as noted, “[w]hen a claim can be supported by alternative and
independent theories—one of which is a state law theory and one of which is a federal law
theory—federal question jurisdiction does not attach because federal law is not a necessary
element of the claim.” Rains, 80 F.3d at 346.11
2. Grable/Gunn Factor Four
The fourth Grable/Gunn factor is also not satisfied in relation to Counts Three and
Four. As for Count Three, “[n]egligence tort claims are traditionally regulated by state
law.” Keams v. Tempe Tech. Inst., Inc., 39 F.3d 222, 226 (9th Cir. 1994). If the mere
incorporation of federal standards into state regulations, which in turn form the basis for
state-law tort claims, were alone enough to confer federal jurisdiction, federal courts would
be overburdened. Cf. Nevada, 672 F.3d at 676 (“State courts frequently handle state-law
consumer protection suits that refer to or are predicated on standards set forth in federal
statutes. Exercising federal question jurisdiction over any state law claim that references
a federal consumer protection statute would herald a potentially enormous shift of
traditionally state cases into federal courts.”) (cleaned up). See also Mays, 871 F.3d at 450
(addressing the fourth Grable/Gunn factor and emphasizing that “[b]oth Grable and
Merrell Dow noted that allowing federal jurisdiction over typical negligence claims that
implicated issues of federal law could dramatically increase the volume of federal litigation
over state-law claims”).12
11 Moreover, “evaluation of [Plaintiffs’] claim that [Defendants’] activities amount to
a public nuisance would require factual determinations, and a state-law claim that is ‘fact-
bound and situation specific’ is not the type of claim for which federal-question jurisdiction
lies.” City of Oakland, 969 F.3d at 907 (citation omitted).
12 The Court is also unpersuaded by Defendants’ argument that “the Court’s
interpretation of the federal regulations at issue is bound to have implications beyond this
case” and that “[a]ny declaratory or injunctive relief would have the effect of settling
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As for Count Four, “[c]laims like negligence, public nuisance, and violations of state
specific laws should be decided by a State Court. Thus, allowing this case to proceed in
federal court would aggravate the balance of labor between federal and state courts.”
Nevada v. Optum, Inc., 2025 WL 947041, *5 (D. Nev. 2025).
3. Summary
As noted, federal-question jurisdiction only exists if all four Grable/Gunn factors
are satisfied. City of Oakland, 969 F.3d at 904-05. Here, at least the third and fourth
Grable/Gunn factors are not satisfied in relation to Counts Three and Four. Federal-
question jurisdiction is therefore lacking over those claims. This determination makes it
unnecessary to address the first and second Grable/Gunn factors in relation to Counts Three
and Four.
B. Counts One and Two
Counts One and Two only seek declaratory and injunctive relief. Specifically,
Counts One and Two “seek[] only a declaration of the parties’ rights and obligations under
existing Arizona law and ADEQ regulations incorporating the RTCR, and a narrowly
tailored injunction prohibiting materially delayed or ineffective Tier 1 notice practices and
requiring future notices to be issued and communicated in compliance with those existing
legal requirements.” (Doc. 1-8 ¶¶ 350, 397.) Counts One and Two also expressly disclaim
any assertion of a “private right of action directly under RTCR, the [SDWA], or A.R.S.
§ 36-60(18).” (Id. ¶¶ 367, 418.)
disputed interpretations of federal regulations, at least for Defendants, which would govern
their future conduct in Arizona and perhaps beyond.” (Doc. 10 at 13-14.) In Merrell Dow,
the petitioner argued “that there is a powerful federal interest in seeing that the federal
statute is given uniform interpretations, and that federal review is the best way of insuring
such uniformity.” 478 U.S. at 815. The Supreme Court rejected this argument, holding
that “[t]o the extent that petitioner is arguing that state use and interpretation of the FDCA
pose a threat to the order and stability of the FDCA regime, petitioner should be arguing,
not that federal courts should be able to review and enforce state FDCA-based causes of
action as an aspect of federal-question jurisdiction, but that the FDCA pre-empts state-
court jurisdiction over the issue in dispute.” Id. at 815-16. Defendants make no preemption
argument here. The Supreme Court also held that the “[p]etitioner’s concern about the
uniformity of interpretation, moreover, is considerably mitigated by the fact that, even if
there is no original district court jurisdiction for these kinds of action, this Court retains
power to review the decision of a federal issue in a state cause of action.” Id. at 816.
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As an initial matter, these clarifications are potentially significant because “[t]o
obtain declaratory relief in federal court, there must be an independent basis for
jurisdiction.” Stock W., Inc. v. Confederated Tribes of the Colville Rsrv., 873 F.2d 1221,
1225 (9th Cir. 1989). See also Ajetunmobi v. Clarion Mortg. Cap., Inc., 595 F. App’x 680,
684 (9th Cir. 2014) (same); Cal. Shock Trauma Air Rescue v. State Comp. Ins. Fund, 636
F.3d 538, 543 (9th Cir. 2011) (“The operation of the Declaratory Judgment Act is
procedural only and does not confer arising under jurisdiction. . . . As CALSTAR is unable
to cite any case in which there exists federal subject matter jurisdiction over a declaratory
judgment claim brought by a private party against another private party, CALSTAR’s
argument necessarily fails.”) (cleaned up). Similarly, “where there is no underlying cause
of action over which the district court has primary jurisdiction, it may not entertain an
application for an injunction.” Sires v. State of Wash., 314 F.2d 883, 884 (9th Cir. 1963).
See also Ajetunmobi, 595 F. App’x at 684 (“Declaratory and injunctive relief are remedies,
not causes of action.”); Warren v. JPMorgan Chase Bank, N.A., 2015 WL 11120693, *2
(D. Ariz. 2015) (“Plaintiff’s request for declaratory and injunctive relief does not give rise
to a federal question. The Court cannot provide remedies for a case over which it does not
have subject matter jurisdiction. The Declaratory Judgment Act creates a federal remedy,
but is not an independent basis for federal jurisdiction.”) (citations omitted).
In Inciyan v. City of Carlsbad, 2020 WL 94087 (S.D. Cal. 2020), Inciyan was sued
by Langer for, among other things, violations of the Americans with Disabilities Act of
1990 (“ADA”) premised on Inciyan’s alleged failure to provide ADA-compliant parking
spaces at Inciyan’s restaurant. Id. at *2. Inciyan then filed suit in federal court against the
City of Carlsbad, “alleging five causes of action for indemnification, comparative
indemnity, declaratory relief, contribution, and an affirmative injunction.” Id. The district
court issued an order to show cause why the action should not be dismissed for lack of
subject-matter jurisdiction. Id. In response, Inciyan argued that jurisdiction was proper
“based on the existence of a federal question” because the relief he was seeking, “including
declaratory and injunctive relief, arises under the rights and duties of the parties under the
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ADA, which confers federal jurisdiction under 28 U.S.C. § 1331, because Inciyan [was]
praying that the City of Carlsbad be compelled to comply with the ADA.” Id. (cleaned up,
emphasis added). The district court rejected that argument, holding that “Inciyan’s causes
of action for indemnification, comparative indemnity, and contribution are state law causes
of action that do not raise a federal question” and that “Inciyan’s third and fifth ‘causes of
action’ for declaratory relief and an affirmative injunction, respectively, are not themselves
causes of action, but rather remedies available under Mr. Inciyan’s first, second, and fourth
causes of action.” Id. at *3. “Because no federal question [was] presented by Mr. Inciyan’s
underlying causes of action, his requests for injunctive and declaratory relief [were]
properly dismissed for lack of subject-matter jurisdiction as well.” Id.
For similar reasons, there is a strong argument that Counts One and Two “are not
themselves causes of action, but rather remedies available under” Counts Three and Four.
Id. And because the Court has concluded it lacks federal-question jurisdiction over Counts
Three and Four, there doesn’t appear to be a remaining jurisdictional hook for Counts One
and Two.
Nevertheless, Defendants’ argument is that even though the FAC disavows that it is
asserting a claim under the SDWA, Counts One and Two are, in substance, SDWA claims.
This argument has surface appeal, as both Counts seek “a declaration of the parties’ rights
and obligation under existing Arizona law and ADEQ regulations incorporating the RTCR,
and a narrowly tailored injunction prohibiting materially delayed or ineffective Tier 1
notice practices and requiring future notices to be issued and communicated in compliance
with those existing legal requirements.” (Doc. 1-8 ¶¶ 350, 397 [emphases added].)13
Even so, the Supreme Court’s decision in Franchise Tax Board undermines any
suggestion that Counts One and Two qualify as claims arising under federal law sufficient
to support federal-question jurisdiction. There, the appellant asserted (1) a request to
enforce a tax levy under Cal. Rev. & Tax Code § 18818; and (2) a request for a declaration
13 To the extent Counts Three and Four seek declaratory/injunctive relief (as opposed
to damages), the analysis in this section applies with equal force.
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of the parties’ rights under California’s Declaratory Judgment Act. 463 U.S. at 13. As
relevant here, the appellees argued that the appellant’s “causes of action” were, “in
substance, federal claims.” Id. at 22.14 The Court noted that “[a]lthough we have often
repeated that the party who brings the suit is master to decide what law he will rely upon,
it is an independent corollary of the well-pleaded complaint rule that a plaintiff may not
defeat removal by omitting to plead necessary federal questions in a complaint.” Id.
(cleaned up). The Court also noted that Avco Corp. v. Aero Lodge No. 735, Int’l Assn. of
Machinists, 390 U.S. 557 (1968), “stands for the proposition that if a federal cause of action
completely preempts a state cause of action any complaint that comes within the scope of
the federal cause of action necessarily ‘arises under’ federal law.” Franchise Tax Bd., 463
U.S. at 23-24.15 Against this backdrop, the Court considered whether each of the
appellant’s claims “comes within the scope of one of ERISA’s causes of action.” Id. at 25.
As for the declaratory judgment claim, the Court concluded that although the “question on
which a declaration is sought . . . is undoubtedly a matter of concern under ERISA,” the
claim did not “arise under” ERISA because “ERISA carefully enumerates the parties
entitled to seek relief” and the appellant did not fall within those classes of parties. Id. at
26-27.
For similar reasons, Plaintiffs’ claims for injunctive and declaratory relief in Counts
One and Two cannot be said to “arise under” the SDWA. Although the citizen-suit
provision of the SDWA at 42 U.S.C. § 300j-8 does authorize private parties to seek
14 Defendants make similar arguments here. (Doc. 1 ¶ 4 [“Although pled as state-law
causes of action, in substance, Plaintiffs’ claims rest on the application of federal
regulations and standards.”]; Doc. 10 at 2 [“Plaintiffs cannot escape the fact that, in
substance, their claims depend on, and require the Court to interpret, federal law . . . .”].)
15 Defendants do not argue that the SDWA has preemptive effect. In any event, 42
U.S.C. § 300j-8(e) suggests that Congress did not intend for the SDWA to preempt all
state-law claims: “Nothing in this section shall restrict any right which any person (or class
of persons) may have under any statute or common law to seek enforcement of any
requirement prescribed by or under this subchapter or to seek any other relief.” Cf.
Franchise Tax Bd., 463 U.S. at 24 (holding that § 514(b)(2)(A) of ERISA “makes clear
that Congress did not intend to preempt entirely every state cause of action relating to such
plans” because “[w]ith important, but express limitations, it states that ‘nothing in this
subchapter shall be construed to relieve any person from any law of any State which
regulates insurance, banking, or securities”).
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injunctive relief under certain circumstances, that provision also includes jurisdictional
notice requirements that have not been satisfied here. Thus, Plaintiffs do not qualify as one
of the “carefully enumerate[d]” groups that may avail themselves of relief under § 300j-8.
Franchise Tax Bd., 463 U.S. at 27.
Hussey is in accord. There, although the plaintiffs sought damages, the court’s
remand order largely focused on the fact that the defendant, TESI, had “failed to provide
any evidence that Plaintiffs have alleged a citizens’ suit [under 42 U.S.C. § 300j-8] or have
made any attempt to comply with the jurisdictional requirements necessary to bring a
citizens’ suit.” 2015 WL 7282073 at *2. The court explained:
[T]he citizens’ civil actions provisions of the SDWA, 42 U.S.C. § 300j-8,
permit an individual to act as a ‘private attorney general’ by directly filing a
civil suit in federal district court against an SDWA violator if the citizen
plaintiff can meet certain subject matter jurisdiction and standing
requirements and if, prior to filing the action, the citizen plaintiff has timely
performed certain pre-suit notice procedures. A private individual’s ability
to enforce a SDWA provision or regulation is limited to purs[u]ing a civil
action pursuant to SDWA’s citizens’ suits authorization. This authorization
is governed by certain procedural requirements and subject matter
jurisdiction limitations—i.e. jurisdictional standing, proper notice of the
intent to sue properly served on the EPA, prospective defendant and the
government of the subject state, at least 60 days prior to the filing of the civil
action.
Id. at *2. The court continued:
TESI bases this Court’s federal question jurisdiction on Plaintiffs’ allegations
that TESI’s water treatment services are in violation of the ‘EPA’ and asserts
that Plaintiff’s action is brought under the SDWA. However, with the limited
exception of a citizens’ suit under 42 U.S.C.A. § 300j-8, the SDWA contains
no private right of action. TESI has failed to provide any evidence that
Plaintiffs have alleged a citizens’ suit or have made any attempt to comply
with the jurisdictional requirements necessary to bring a citizens’ suit.
Id.
The court further noted that “[i]n Middlesex County Sewerage Auth. v. Nat’l Sea
Clammers Ass’n, 453 U.S. 1 (1981), the Supreme Court[] analyzed the Clean Water Act
[CWA], which has very similar wording to that of the SDWA’s citizens’ civil action
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section.” Id. (comparing 33 U.S.C. § 1365 with 42 U.S.C. § 300j-8). The court held that
“[t]he Supreme Court’s decision in Sea Clammers precludes implying a private right of
action under any provision of the Clean Water Act other than § 1365, or in this case, the
SDWA under § 300j-8.” Id. The court also noted that the Sixth Circuit “reached a similar
result in Bd. of Trustees of Painesville Township v. City of Painesvile, 200 F.3d 396 (6th
Cir. 1999), in which [it] affirmed the district court’s dismissal of wastewater treatment
Clean Water Act case due to lack of subject matter jurisdiction.” Id. at *3. The court
quoted from Painesville:
We must affirm the district court’s decision dismissing this case because the
Supreme Court’s decision in [Middlesex], clearly precludes us from implying
a private right of action against the defendant under the CWA. Even if
plaintiffs’ claims were authorized under the statute, we would still affirm
because plaintiffs’ failure to comply with the statutory notice provisions
applicable to citizens suits under the Act deprives us of jurisdiction over their
claims.
Id. Accordingly, the Hussey court held that “consistent with the above jurisprudence, . . .
Plaintiffs’ complaint does not arise under federal law” because “Plaintiffs’ Petition makes
no mention of a citizens’ suit under either the SDWA or the CWA,” “[n]or is there any
evidence that Plaintiff has timely performed the jurisprudential statutory notice
provisions.” Id. See also Mulcahey, 29 F.3d at 152-53 (where plaintiffs were “either
procedurally or substantively barred from proceeding under any of the environmental
statutes cited in their complaint,” “a ‘private cause of action’ under Merrell Dow does not,
in truth, exist”); Waters v. City of Atlanta, 2021 WL 12219538, *2 (N.D. Ga. 2021), report
and recommendation adopted, 2021 WL 12219534 (N.D. Ga. 2021) (ordering remand
where plaintiffs brought various state-law negligence claims and sought injunctive relief
and damages premised on defendants’ supplying them contaminated water, even though
complaint alleged violations of the SDWA and CWA, and further holding that “even if this
Court were to assume that Plaintiffs did, in fact, raise claims under the SDWA and CWA,
those claims still would be subject to dismissal” and “the SDWA and CWA both contain
specific notice requirements that constitute additional mandatory prerequisites to citizen
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suits under those statutes”).
The bottom line is that the FAC expressly disavows that Plaintiffs are bringing a
citizen-suit claim under the SDWA and there is no evidence that Plaintiffs have complied,
or even attempted to comply, with any of the statutory notice requirements of § 300j-8.
Although the Court has not located any binding precedent addressing whether the notice
requirements of § 300j-8 are in fact jurisdictional, the Ninth Circuit has held that the notice
requirements of the CWA—which use nearly identical language as § 300j-8—are
jurisdictional. See, e.g., Cottonwood Envt’l L. Ctr. v. Edwards, 86 F.4th 1255, 1264 (9th
Cir 2023) (“For a federal court to exercise subject matter jurisdiction over a private CWA
claim, the individual or entity bringing the claim ‘must give a 60-day notice of intent to
sue. In fact, absent that notice, the action is prohibited,’ as ‘it is a jurisdictional
necessity.’”) (citation omitted); Ctr. for Biological Diversity v. Marina Point Dev. Co., 566
F.3d 794, 800 (9th Cir. 2009) (referring to the CWA’s notice requirement as a
“jurisdictional necessity”); Washington Trout v. McCain Foods, Inc., 45 F.3d 1351, 1354-
55 (9th Cir. 1995) (affirming dismissal for lack of subject-matter jurisdiction where CWA
notice requirements were not satisfied). See also Covington v. Jefferson Cnty., 358 F.3d
626, 636 (9th Cir. 2004) (referring to the notice provision of the RCRA, 42 U.S.C.
§ 6972(b)(1)(A), which uses nearly identical notice language as § 300j-8, as
“jurisdictional” and holding that “[a]bsent compliance with a required notice provision, we
lack subject matter jurisdiction to hear the RCRA claims”).
IV. Fees and Costs
Plaintiffs request fees and costs. (Doc. 5 at 16-17; Doc. 11 at 8-11.) Under 28
U.S.C. § 1447(c), “[a]n order remanding the case may require payment of just costs and
any actual expenses, including attorney fees, incurred as a result of the removal.” In Martin
v. Franklin Cap. Corp., 546 U.S. 132 (2005), the Supreme Court observed that nothing in
§ 1447(c) “tilt[s] the exercise of discretion in favor of fee awards . . . [or] against fee
awards.” Id. at 138. Thus, “the standard for awarding fees should turn on the
reasonableness of the removal.” Id. at 141. “Absent unusual circumstances, courts may
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award attorney’s fees under § 1447(c) only where the removing party lacked an objectively
reasonable basis for seeking removal. Conversely, when an objectively reasonable basis
exists, fees should be denied.” Id.
Here, Defendants had an objectively reasonable basis for their removal effort.
Although the Court has ruled in Plaintiffs’ favor, determining whether a state-law claim
“arises under” federal law has been described by one leading treatise as a “vexing issue”
that “[t]hrough the years, the lower courts have wrestled with.” Wright & Miller, Federal
Practice and Procedure § 3562 (3d ed. 2025). And the Supreme Court has recognized that
there is no “‘single, precise, all-embracing’ test for jurisdiction over federal issues
embedded in state-law claims between nondiverse parties.” Grable, 545 U.S. at 314.
Given the lack of clarity in this area of the law, the Court cannot say that “the relevant case
law clearly foreclosed [Defendants’] basis of removal.” Lussier v. Dollar Tree Stores, Inc.,
518 F.3d 1062, 1066 (9th Cir. 2008). Defendants’ jurisdictional arguments may have
ultimately proved unsuccessful, “[b]ut removal is not objectively unreasonable solely
because the removing party’s arguments lack merit, or else attorney’s fees would always
be awarded whenever remand is granted.” Id. at 1065.16
…
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16 The Court is unpersuaded by Plaintiffs’ reliance on Wells Fargo Bank NA v. WPT
Props. LP, 2025 WL 3264545 (D. Ariz. 2025), in support of their request for fees. There,
the Court granted the plaintiff’s request for attorneys’ fees and costs because the
defendants’ “removal notice failed to disclose ‘the actual partners whose citizenship must
be identified for purposes of determining whether diversity jurisdiction exists’” and
because the defendants failed to rectify the omission in several of their supplemental
filings. Id. at *5. In contrast, Defendants did not omit facts necessary to determine
jurisdiction—they simply argued, albeit unsuccessfully, that their interpretation of the law
and facts justified removal.
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Accordingly,
IT IS ORDERED that Plaintiffs’ motion to remand (Doc. 5) is granted. This
action is remanded to Pinal County Superior Court.
Dated this 9th day of April, 2026.
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