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Brown v. Saint-Gobain Performance Plastics Corp.

United States District Court, D. New Hampshire

November 30, 2016

Kevin Brown, et al.
v.
Saint-Gobain Performance Plastics Corp., et al. Opinion No. 2016 DNH 213

          Kevin Scott Hannon, Esq.

          Paul M. DeCarolis, Esq.

          Bruce W. Felmly, Esq.

          Douglas E. Fleming, III, Esq.

          Mark Cheffo, Esq.

          Patrick Curran, Esq.

          Sheila L. Birnbaum, Esq.

          Nicholas F. Casolaro, Esq.

          MEMORANDUM ORDER

          Joseph N. Laplante United States District Judge.

         Resolution 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.[1] 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.

         The 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).

         I. Background

         This 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.”[2]

         The 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.[3] 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 members.[4]

         The 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)

         II. Analysis

         A. CAFA jurisdiction

         The 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 satisfied.

         In 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 plaintiff class;
(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.

         Plaintiffs, 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”).

         The plaintiffs argue that the court should look to their Second Amended Complaints, filed after these cases were removed, [5]to decide whether they have met their burden.[6] 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 ...

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