United States District Court, E.D. Louisiana
DONNA C. JACKSON, ET AL.
DENKA PERFORMANCE ELASTOMER LLC; E.I. DUPONT DE NEMOURS AND COMPANY; ET AL.
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE
the Court is the plaintiff's motion to remand on the
ground that the Court lacks subject matter jurisdiction.
Additionally, the plaintiff requests reasonable costs and
attorney's fees incurred as a result of the removal,
under 28 U.S.C. § 1447(c). For the following reasons the
motion to remand is GRANTED and the request for costs and
fees is DENIED.
environmental tort litigation arises from the production of
neoprene, which allegedly exposes those living in the
vicinity of the manufacturing plant 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. Several residents living in what
environmentalists and the media have dubbed “Cancer
Alley” filed the first of several lawsuits seeking
injunctive relief in the form of abatement of chloroprene
releases from their industrial neighbor, the Pontchartrain
Works facility; the only facility in the United States still
manufacturing a synthetic rubber called neoprene, which is
made from chloroprene, which the Environmental Protection
Agency has classified as a “likely human
plaintiffs in the present case, led by Donna Jackson, are
residents of St. John the Baptist Parish. On May 29, 2018,
Plaintiffs filed a Petition for Damages in the 40th Judicial
District for St. John the Baptist Parish, seeking damages
from defendants Denka Performance Elastomer LLC
(“DPE”), E.I. du Pont de Nemours and Company
(“DuPont”), the Dow Chemical Company
(“Dow”), and DowDuPont, Inc.
(“DowDuPont”) caused by their alleged excessive
emissions of chloroprene. With their petition for damages,
the plaintiffs filed a binding pre-removal stipulation
(“stipulation”) which stipulated that they would
not accept or seek to recover any portion of a judgment or
award in excess of $50, 000.00.
16, 2018, DuPont, DowDuPont, and Dow removed the matter to
this Court based on diversity of citizenship jurisdiction
under 28 U.S.C. § 1332(a). DPE consented to the removal
and the plaintiffs now move to remand.
case has been removed, the removing party bears the burden of
proving that the court has jurisdiction to hear the case.
Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815
(5th Cir. 1993). Should there be any doubt as to the
propriety of removal, it should be resolved in favor of
remand. Gutierrez v. Flores, 543 F.3d 248, 251 (5th
Cir. 2008). If the matter is removed based on diversity of
citizenship, the amount in controversy must exceed $75,
000.00, complete diversity must exist, and “none of the
parties in interest properly joined and served as defendants
is a citizen of the State in which such action is
brought.” 28 U.S.C. § 1441(b).
parties do not dispute that complete diversity exists in this
matter and, thus, the only question presented is whether the
plaintiffs' stipulation is sufficiently binding to limit
each plaintiff's total recovery to an amount less than
Louisiana law, plaintiffs in state courts may not plead a
specific value of damages. La. Code Civ. P. 893. So, if a
case filed in Louisiana state court is removed to federal
court on the basis of diversity, the removing defendant must
prove by a preponderance of the evidence that the amount in
controversy exceeds $75, 000.00. De Aguilar v. Boeing
Co., 47 F.3d 1404, 1412 (5th Cir. 1995). A defendant may
meet this burden by showing that it is facially apparent that
the amount in controversy exceeds $75, 000.00. Id.;
See Williams v. Axial Corp., No. 2:15-cv-440, 2015
WL 5638080, at *2 (W.D. La. Sept. 24, 2015).
defendant meets this burden, remand is still proper if the
plaintiff demonstrates to a “legal certainty”
that its recovery will not exceed the jurisdictional amount.
De Aguilar, 47 F.3d at 1412. A plaintiff may meet
this burden by citing in her petition to a state law that
limits recovery above a certain amount, or, absent such a
statute, a plaintiff may file a binding stipulation or
affidavit about the damages value. Id. A
plaintiff's filing after the defendant has removed the
case is irrelevant. Id. (citing In re Shell Oil
Co., 970 F.2d 355, 356 (7th Cir. 1992) (per curiam).
plaintiffs move to remand the action to state court on the
grounds that this Court lacks subject matter jurisdiction
under 28 U.S.C. § 1332(a). Specifically, the plaintiffs
contend that because they filed with their petition a binding
pre-removal stipulation which waives their rights to any
damages in excess of $50, 000.000, the amount in controversy
will not exceed $75, 000.00. The plaintiffs further submit