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Taylor v. Denka Performance Elastomer LLC

United States District Court, E.D. Louisiana

January 9, 2018


         SECTION "F"



         Before 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.


         This 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.

         The 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.

         Robert 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.

         The 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.

         The 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 extension.



         Local 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.


         Without 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 ...

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