United States District Court, D. New Hampshire
Jean Dowling et al.
Saint-Gobain Performance Plastics Corp. et al.
N. LAPLANTE UNITED STATES DISTRICT JUDGE.
of the plaintiffs' motions to remand these environmental
trespass actions to state court 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. §
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.
Applicable legal standard
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.
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
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. The court consolidated that action with
three other actions against Saint-Gobain arising from the
same alleged contamination. The Dowling plaintiffs objected
to consolidation for trial, but did not oppose consolidation
for pretrial purposes.
consolidation, the court ordered the collective plaintiffs to
file one consolidated complaint. Following some postural
skirmishing by the parties, the court also appointed interim
class counsel to facilitate the process. 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. 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
Dowling plaintiffs filed two new actions in Hillsborough
County Superior Court. 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.” Plaintiffs' counsel, furthermore,
signed the complaint as “Attorneys for Plaintiffs and
the putative class.”
the complaints as proposed class actions, Saint-Gobain
removed the actions to this court, citing this court's
jurisdiction under CAFA. 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.
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).
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 ...