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Crowe v. Coleman

ELR Citation: 27 ELR 21555
Nos. 96-8116, 113 F.3d 1536/(11th Cir., 05/21/1997)

The court holds that plaintiff-appellant landowners' allegation that gasoline contamination from an adjoining property constituted a continuing nuisance presents an arguable cause of action under state law against the current adjacent landowner. The court first holds that plaintiff-appellants' pleading for nuisance against the current adjacent owner is adequate. Although plaintiff-appellants' unamended complaint might be capable of more than one meaning, the complaint can easily be read to be a sworn statement that the current adjacent landowner allowed gasoline from his land to intrude wrongfully on plaintiff-appellants' property and to contaminate their land. The court next holds that the facts alleged in plaintiff-appellants' complaint state an arguable cause of action against the current adjacent landowner under Georgia law. The court then holds that the plaintiff-appellants' motion for remand to state court was improperly denied. For a remand, plaintiff-appellants need only establish a reasonable basis for predicting that the state law might impose liability on the current adjacent landowner. The court concludes that the district court should have remanded the case to state court and should have never addressed the current adjacent landowner's motion for summary judgment. Last, the court holds that the concessions and admissions made by plaintiff-appellants' counsel at oral argument were too ambiguous to prevent a remand to state court.

A dissenting judge would hold that plaintiff-appellants have no cause of action against the current adjacent landowner.

Counsel for Plaintiffs
Roy E. Barnes
Barnes, Browning, Tanksley & Casurella
166 Anderson St., Ste. 225, Marietta GA 30060
(770) 424-1500

Counsel for Defendants
Stephen E. O'Day
Smith, Gambrell & Russell
Promenade II
1230 Peachtree St. NE, Ste. 3100, Atlanta GA 30309
(404) 815-3527

Before Black and Roney, JJ.