United States District Court, D. New Hampshire
Kevin Brown, et al.
Saint-Gobain Performance Plastics Corp., et al. Opinion No. 2016 DNH 213
Scott Hannon, Esq.
M. DeCarolis, Esq.
W. Felmly, Esq.
Douglas E. Fleming, III, Esq.
Patrick Curran, Esq.
L. Birnbaum, Esq.
Nicholas F. Casolaro, Esq.
N. Laplante United States District Judge.
of the plaintiffs' motions to remand these environmental
trespass actions to state court turns on whether these
actions amount to “local controversies” under the
Class Action Fairness Act (CAFA). See 28 U.S.C. §
1332(d)(4) Plaintiffs filed two purported class actions in
Hillsborough Superior Court against Saint-Gobain Performance
Plastics Corp. and Gwenael Busnel, general manager for
Saint-Gobain's facility in Merrimack, New Hampshire,
alleging damages from chemical contamination from that
facility. The defendants timely removed the actions,
citing this court's jurisdiction under CAFA. See 28
U.S.C. § 1332(d)(2). Plaintiffs subsequently moved to
remand both actions to the Superior Court, arguing that they
satisfy the local-controversy exception.
court denies the plaintiffs' motion. Though the
plaintiffs make a strong showing on several elements of the
exception, several lawsuits filed in New York and Vermont
“during the 3-year period preceding the filing
of” these actions prevent the exception from applying
here. See Id. § 1332(d)(4).
proposed class action arises out of the release of toxic
chemicals from Saint-Gobain's manufacturing plant in
Merrimack, New Hampshire. Saint-Gobain has owned and operated
a plant in Merrimack since 2003. In early 2016, the New
Hampshire Department of Environmental Services discovered the
presence of Perfluorooctanoic acid (PFOA) in residential
wells in the plant's vicinity and recommended that
certain residents of surrounding cities and towns not drink
or cook with water from those wells. The United States
Environmental Protection Agency considers PFOA “likely
to be carcinogenic to humans.”
plaintiffs filed two suits in Hillsborough Superior Court
against Saint-Gobain and the plant's general manager as a
result of the PFOA contamination. In the first, they contend
that the presence of PFOA in private wells and soil on the
class members' properties has decreased the value of
those properties, and seek damages accordingly. In the second,
they contend that the presence of PFOA has the potential to
damage the class members' health, and seek to have
Saint-Gobain cover the costs of medical monitoring for class
defendants timely removed both cases to this court under
CAFA's jurisdictional provisions. The plaintiffs now ask
the court to remand both cases, citing an exception to that
jurisdiction in cases of distinctly local character. See
28 U.S.C. § 1332(d)(4)
Class Action Fairness Act (CAFA) gives district courts
“original jurisdiction of any civil action in which the
matter in controversy exceeds the sum or value of § 5,
000, 000, . . . and is a class action in which . . . any
member of a class of plaintiffs is a citizen of a State
different from any defendant . . . .” 28 U.S.C. §
1332(d)(2)(A). The parties agree that these requirements are
seeking to remand the actions, the plaintiffs invoke
CAFA's “local-controversy exception, ” which
mandates that “[a] district court shall decline to
exercise jurisdiction” under CAFA
(i) over a class action in which-
(I) greater than two-thirds of the members of all proposed
plaintiff classes in the aggregate are citizens of the State
in which the action was originally filed;
(II) at least 1 defendant is a defendant-
(aa) from whom significant relief is sought by members of the
(bb) whose alleged conduct forms a significant basis for the
claims asserted by the proposed plaintiff class; and
(cc) who is a citizen of the State in which the action was
originally filed; and
(III) principal injuries resulting from the alleged conduct
or any related conduct of each defendant were incurred in the
State in which the action was originally filed; and
(ii) during the 3-year period preceding the filing of that
class action, no other class action has been filed asserting
the same or similar factual allegations against any of the
defendants on behalf of the same or other persons[.]
28 U.S.C. § 1332(d)(4)(A). If these conditions are met,
this court is required to remand the action to the
originating state court.
as the parties seeking remand, bear the burden of
demonstrating, by a preponderance of the evidence, that the
local-controversy exception to CAFA applies in these actions.
In re Hannaford Bros. Co. Customer Data Sec. Breach Litig.,
564 F.3d 75, 78 (1st Cir. 2009); see also Padilla-Mangual
v. Pavia Hosp., 516 F.3d 29, 31 (1st Cir. 2008)
(applying preponderance standard to questions of diversity
jurisdiction). Because the defendants invoke CAFA as the
basis of this court's jurisdiction, the plaintiffs do not
enjoy any presumption against removal. Dart Cherokee
Basin Operating Co. v. Owens, 135 S.Ct. 547, 554 (2014)
(“[N]o antiremoval presumption attends cases invoking
CAFA, which Congress enacted to facilitate adjudication of
certain class actions in federal court.”). The court
resolves any doubt as to whether the exception applies
against the parties seeking remand. Westerfield v.
Independent Processing, LLC, 621 F.3d 819, 823 (8th Cir.
2010) (“the party bearing the burden of proof is not
entitled to the benefit of the doubt”).
plaintiffs argue that the court should look to their Second
Amended Complaints, filed after these cases were removed,
decide whether they have met their burden. This is contrary
to the general rule that “the Court looks to the
complaint as filed at the time that the case was
removed” when deciding whether remand is appropriate.
Premo v. Family Dollar Stores of Mass., Inc., No.
13-11279-TSH, 2014 WL 1330911, at *2 (D. Mass. Mar. 28, 2014)
(citing Cavallini v. State Farm Auto Life Ins. Co.,
44 F.3d 256, 264 (5th Cir.1995)).
Without such a rule, disposition of the issue would never be
final, but would instead have to be revisited every time the
plaintiff sought to amend the complaint to assert a new cause
of action against the nondiverse defendant, all at
considerable expense and ...