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Taylor v. Denka Performance Elastomer LLC

United States District Court, E.D. Louisiana

February 22, 2018

ROBERT TAYLOR, JR., ET AL.
v.
DENKA PERFORMANCE ELASTOMER LLC, ET AL.

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN, UNITED STATES DISTRICT JUDGE.

         Before the Court is the plaintiffs' Rule 54(b) motion to reconsider the Court's order denying motion for extension of time to file motion for class certification; and defendant E. I. du Pont de Nemours and Company's motion to strike plaintiffs' motion for class certification and appointment of class counsel. For the reasons that follow, the plaintiffs' motion is DENIED, and the defendant's motion, which is construed as a motion to dismiss class allegations, is GRANTED.

         Background

         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; since 2010, chloroprene has been classified by the U.S. Environmental Protection Agency 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 Schneider, Jr., Larry Sorapuru, Sr., Kellie Tabb, and Robert Taylor, III are all individuals living near 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 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.[1]

         The defendants jointly removed the lawsuit on August 9, 2017, invoking this Court's diversity jurisdiction. The plaintiffs timely moved to remand, arguing both that removal was procedurally defective (because the defendants failed to sufficiently allege their citizenship at the time of removal) and that the Court lacked diversity jurisdiction over the lawsuit. The defendants opposed the plaintiffs' motion to remand and, in response to the plaintiffs' argument that the allegations of citizenship were technically defective, the defendants additionally requested leave to file an amended joint notice of removal to correct any technically defective allegations. On November 15, 2017, this Court denied the plaintiffs' motion to remand and granted the defendants' request for leave to file an amended notice of removal; the amended notice of removal was filed that same day.[2]

         On December 12, 2017, the plaintiffs requested an extension of the deadline to file a motion for class certification under Local Rule 23.1(B). The defendants opposed the motion to extend, arguing that they removed the case on August 9, 2017, which created a November 8, 2017 deadline for plaintiffs to move for class certification; the defendants argued that the request for an extension was untimely and that the plaintiffs failed to show good cause to warrant an extension. Applying this Court's Local Rule mandating that the deadline for seeking class certification is 91 days after a notice of removal is filed, and determining that the plaintiffs failed to show good cause to excuse their failure to meet the deadline, the Court denied the plaintiffs' untimely request for an extension to file their motion for class certification. See Order and Reasons dtd. 1/9/18. The plaintiffs now urge the Court to reconsider its January 9 Order and Reasons, and DuPont moves to strike the plaintiffs' motion for class certification, which was filed the same day that plaintiffs filed their motion to reconsider.

         I.

         A.

         Rule 54(b) of the Federal Rules of Civil Procedure governs the plaintiffs' motion to reconsider this Court's Order and Reasons in which it denied the plaintiffs' request for an extension of time to seek class certification. Rule 54(b) states:

(b) Judgement on Multiple Claims or Involving Multiple Parties. When an action presents more than one claim for relief whether as a claim, counterclaim, crossclaim, or third-party claim or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

         A motion seeking reconsideration or revision of a district court ruling is analyzed under Rule 59(e), if it seeks to alter or amend a final judgment, or Rule 54(b), if it seeks to revise an interlocutory order. See Cabral v. Brennan, 853 F.3d 763, 766 (5th Cir. 2017)(determining that the district court's erroneous application of the “more exacting” Rule 59(e) standard to a motion ...


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