United States District Court, E.D. Louisiana
ROBERT TAYLOR, JR., ET AL.
DENKA PERFORMANCE ELASTOMER LLC, ET AL.
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE.
the Court is the plaintiffs' motion for an extension of
time to file a motion for class certification. For the
reasons that follow, the plaintiffs' motion is DENIED.
litigation arises from the defendants' production of
neoprene at their St. John the Baptist Parish facility, which
allegedly exposes those living in the vicinity to
concentrated levels of chloroprene well above the upper limit
of acceptable risk, resulting in a risk of cancer more than
800 times the national average.
Pontchartrain Works facility (PWF), located in LaPlace,
Louisiana, is the only facility in the United States that
continues to manufacture a synthetic rubber known as
neoprene. The neoprene production works at PWF were owned and
operated from 1969 through November 2015 by E.I. du Pont de
Nemours and Company (DuPont). DuPont still owns the land, but
the production works are now owned and operated by Denka
Performance Elastomer LLC (DPE). As part of the neoprene
production process, chloroprene is manufactured; chloroprene
has been classified by the U.S. Environmental Protection
Agency since 2010 as a likely human carcinogen.
Taylor, Jr., Kershell Bailey, Shondrell P. Campbell, Gloria
Dumas, Janell Emery, George Handy, Annette Houston, Rogers
Jackson, Michael Perkins, Allen Schnyder, Jr., Larry
Sorapuru, Sr., Kellie Tabb, and Robert Taylor, III are all
individuals living in the communities surrounding the PWF in
Reserve, Edgard, and LaPlace, Louisiana. On June 29, 2017,
these individuals, individually and as representatives of a
putative class of similarly situated plaintiffs, sued Denka
Performance Elastomer LLC and E.I. DuPont De Nemours and
Company in the Louisiana 40th Judicial District Court in St.
John the Baptist Parish. The plaintiffs allege that DuPont
has emitted chloroprene for many years at levels resulting in
concentrations many times the upper limit of acceptable risk,
and DPE continues to do so. In April 2017, the EPA released a
redacted inspection report showing more than 10, 000
violations by Denka related to emissions of chloroprene from
the PWF. It is alleged that the the top six census tracts in
the nation with the highest NATA-estimated cancer risks are
the census tracts in the vicinity of the PWF. Accordingly,
the plaintiffs allege Louisiana state law claims of nuisance,
trespass, negligence, and strict and absolute liability; they
seek injunctive relief and damages resulting from alleged
exposure to chloroprene released from the PWF.
defendants jointly removed the lawsuit on August 9, 2017,
invoking this Court's diversity jurisdiction. In
response, plaintiffs moved to remand. Defendants then moved
for leave to file an amended joint notice of removal in
connection with the plaintiffs' motion to remand on
October 20, 2017. This Court denied the plaintiffs'
motion to remand and granted the defendants' request for
leave to file an amended notice of removal on November 15,
2017. The amended notice of removal was filed that day.
plaintiffs now move for an extension of the deadline to file
a motion for class certification under Local Rule 23.1(B).
The defendants oppose the motion to extend, arguing that the
initial notice of removal renders the extension untimely and
that the plaintiffs have shown no good cause to warrant an
Rule 23.1(B) is an extension of Federal Rule of Civil
Procedure 23(c)(1), which provides that class action
certification must be determined “at an early
practicable time.” Escoe v. State Farm Fire &
Cas. Co., No. 07-1123, 2007 WL 2903048, at *1 (E.D. La.
Sept. 27, 2007). Specifically, Local Rule 23.1(B) requires a
plaintiff to move for class certification “[w]ithin 91
days of filing his complaint in a class action or filing of a
notice of removal of the class action from state court,
whichever is later, ” unless the court extends the
deadline for good cause shown. Courts adhere to the plain
text of the Rule, construing it to create a deadline of 91
days after the original complaint or notice of removal is
filed, notwithstanding any amendments filed thereafter.
See Lowery v. Divorce Source, Inc., No. 15-1120,
2015 WL 5321758, at *1, *5 (E.D. La. Sept. 11, 2015) (holding
that original complaint and not amended complaint created the
deadline); McGuire v. Gulf Stream Coach, Inc., No.
06-5659, 2007 WL 1198935, at *1-2 (E.D. La. Apr. 20, 2007)
(holding that the notice of removal created the deadline);
Dickerson v. City of Gretna, No. 05-6667, 2007 WL
1098787, at *1, *3-4 (E.D. La. Mar. 30, 2007) (calculating
the deadline for Local Rule 23.1(B) from the date of the
initial complaint rather than subsequent amendments); see
also Sellers v. El Paso Indus. Energy, L.P., 08-403, p.
13 (La.App. 5 Cir. 2/10/09); 8 So.3d 723, 730 (reasoning that
recognizing amendments to the complaint as extensions of the
filing deadline for a similar state rule would allow a
plaintiff to “circumvent the timeliness
provision”) (citing Howard v. Gutierrez, 474
F.Supp.2d 41, 54 (D.D.C. 2007), reconsideration
denied, 503 F.Supp.2d 392 (D.D.C. 2007)); cf.
Escoe, 2007 WL 2903048, at *1-2 (the amended complaint
applied to the calculation of the deadline because the
amended complaint was the first instance in the lawsuit in
which class action allegations appeared). Although the Fifth
Circuit has not yet addressed whether an amended notice of
removal restarts the Local Rule 23.1(B) clock, courts have
used the original notice of removal as triggering the
deadline. See McGuire, 2007 WL 1198935, at *1-2;
Lauer v. Chamale Cove, No. 06-1423, 2007 WL 203974,
at *1-2 (E.D. La. Jan. 24, 2007). Given the plain language of
the local rule, as reinforced by the case literature, it
follows that an amended notice of removal does not revive the
deadline for seeking class certification.
good cause shown, district courts in this circuit generally
deny class certification or extensions for seeking class
certification when the request is made beyond the deadline
created by Local Rule 23.1(B). See Lowery, 2015 WL
5321758, at *5 (citing McGuire, 2007 WL 1198935, at
*1; Lauer, 2007 WL 203974, at *1); Restreppo v.
Al-Mona, Inc., No. 11-1422, 2012 WL 1941926, at *2 (E.D.
La. May 29, 2012) (citing Buckley v. Donohue Indus.,
Inc., 100 F. App'x 275, 278 (5th Cir. 2004);
Townsend v. Hibernia Nat'l Bank, No. 93-1798,
1994 WL 24233, at *2 (E.D. La. Jan. 20, 1994)). “If a
Plaintiff fails to move for class certification within the
91-day period stipulated by Local Rule 23.1(B), absent a
showing of good cause, courts will dismiss or strike class
allegations.” Thigpen v. Fla. Gas Transmission Co.,
L.L.C., No. 14-1415, 2015 WL 1292821, at *2 (E.D. La.
Mar. 23, 2015) (collecting cases). Consistent with this
strict policy, “plaintiffs with a potential deadline
extension should still act ...