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Dowling v. Saint-Gobain Performance Plastics Corp.

United States District Court, D. New Hampshire

July 6, 2018

Jean Dowling et al.
v.
Saint-Gobain Performance Plastics Corp. et al.

          MEMORANDUM ORDER

          JOSEPH N. LAPLANTE UNITED STATES DISTRICT JUDGE.

         Resolution of the plaintiffs' motions to remand these environmental trespass actions to state court[1] turns on whether the plaintiffs pleaded proposed class actions in their state-court complaints. After voluntarily dismissing their class-based claims in this court, the plaintiffs refiled their claims in Hillsborough Superior Court against Saint-Gobain Performance Plastics Corp. and two of its employees, Gwenael Busnel and Chris Gilman. The defendants timely removed the actions, citing this court's jurisdiction under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2).

         The plaintiffs move to remand both actions to the Superior Court. They argue that the court lacks jurisdiction under CAFA because they plead claims only on behalf of the named plaintiffs, not any proposed class, and that any class-related language in their complaints constitutes mere scrivener's error. Because the court declines to construe the complaints as proposed class action complaints, it lacks subject-matter jurisdiction over the Dowling plaintiffs' actions. Accordingly, their motions to remand are granted.

         I. Applicable legal standard

         With certain exceptions not relevant here, a defendant may remove to this court “[a]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction . . . .” 28 U.S.C. 1441(a). “The party invoking federal jurisdiction has the burden of establishing that the court has subject matter jurisdiction over the case. This is true generally for defendants removing to federal court.” Amoche v. Guarantee Tr. Life Ins. Co., 556 F.3d 41, 48 (1st Cir. 2009).

         As a general matter, “[r]emoval statutes should be strictly construed against removal and doubts resolved in favor of remand.” Kelleher v. Marvin Lumber & Cedar Co., 2000 DNH 132, 3 (DiClerico, J.). “ [N] o antiremoval presumption attends cases invoking CAFA, ” however. Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct. 547, 554 (2014). In determining whether remand is appropriate, the court looks “to the complaint as filed at the time that the case was removed when deciding whether remand is appropriate.” Brown v. Saint-Gobain Performance Plastics Corp., 2016 DNH 213, 5-6 (internal quotations omitted).

         II. Background

         Jean Dowling and her fellow plaintiffs filed their first action in this court on December 5, 2016. They brought a proposed class action against Saint-Gobain seeking to recover under theories of negligence, trespass, strict liability, and nuisance for contamination of surface and groundwater with perfluorooctanoic acid (“PFOA”) and other manufactured compounds from Saint-Gobain's plant in Merrimack, New Hampshire.[2] The court consolidated that action with three other actions against Saint-Gobain arising from the same alleged contamination.[3] The Dowling plaintiffs objected to consolidation for trial, but did not oppose consolidation for pretrial purposes.[4]

         After consolidation, the court ordered the collective plaintiffs to file one consolidated complaint.[5] Following some postural skirmishing by the parties, the court also appointed interim class counsel to facilitate the process.[6] After the complaint was filed and following a preliminary pretrial conference, the Dowling plaintiffs voluntarily dismissed their claims against Saint-Gobain with the stated intention of refiling those claims in state court.[7] In doing so, they assured the court that they would structure the state-court complaint to avoid this court's subject-matter jurisdiction under CAFA, such that the action would not simply return to this court following a brief sojourn in the Superior Court.

         The Dowling plaintiffs filed two new actions in Hillsborough County Superior Court.[8] Through those complaints, fewer than 60 individuals brought claims against Saint-Gobain, its Merrimack plan's General Manager, Gwenael Busnel, and its facility manager, Chris Gilman, substantively similar to those previously dismissed. Though generally structured as an action brought by individuals, each complaint contained several references to “class members.”[9] Plaintiffs' counsel, furthermore, signed the complaint as “Attorneys for Plaintiffs and the putative class.”[10]

         Construing the complaints as proposed class actions, Saint-Gobain removed the actions to this court, citing this court's jurisdiction under CAFA.[11] The Dowling plaintiffs then moved for leave to amend their complaints to remove the arguable class-based allegations and for this court to remand the actions to the Superior Court.

         III. Analysis

         Under CAFA, district courts have “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 defendants, as the parties invoking this court's jurisdiction under CAFA, bear the burden of establishing that it applies. Amoche, 556 F.3d at 48. Similarly, “the burden is on the plaintiff[s] to show that an exception to jurisdiction under CAFA applies.” In re Hannaford Bros. Co. Customer Data Sec. Breach Litig., 564 F.3d 75, 78 (1st Cir. 2009).

         CAFA defines a “class action” as “any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action.” 28 U.S.C. § 1332(d)(1)(B). Neither complaint invokes Rule 23 or the equivalent state-law analogue, Rule 16 of the Civil Rules of the Superior Court. The court is thus hard-pressed to conclude that the plaintiffs' proposed actions fall within this category. It need not rely solely on the lack of invocation of a relevant rule in drawing that conclusion, however. If it did so, “a plaintiff could avoid federal jurisdiction for a lawsuit that resembles a class ...


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