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Arlie v. Denka Performance Elastomer LLC

United States District Court, E.D. Louisiana

October 15, 2018


         SECTION "F"



         Before 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.


         This 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 carcinogen.”

         The plaintiffs in the present case, led by Leatrice Arlie, are residents of St. John the Baptist Parish. On June 19, 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.

         On July 26, 2018, DuPont, DowDuPont, and Dow removed the matter to this Court based on diversity of citizenship jurisdiction under 28 U.S.C. § 1332(a), and alternatively, under the mass action provisions of the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). The defendants also removed this action based on the Court's federal question jurisdiction under 28 U.S.C. § 1331. DPE consented to the removal. The plaintiffs now move to remand their case back to state court.


         Once a 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).

         Similarly, CAFA provides a federal court with subject matter jurisdiction over a “mass action” where monetary claims of 100 or more persons, involving common questions of law or fact, are proposed to be tried jointly. 28 U.S.C. § 1332(d)(11)(B)(i). Each individual plaintiff's claims must still meet the $75, 000.00 jurisdictional amount in controversy and an aggregate amount in controversy of $5 million must also be met. Id.; 28 U.S.C § 1332(d)(6). A court may not exercise supplemental jurisdiction over claims that don't meet the individual $75, 000.00 requirement even if other claims in the mass action do meet $75, 000.00. Hood ex rel. Miss v. JP Morgan Chase & Co., 737 F.3d 78, 88 n.9 (5th Cir. 2013).

         The 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 $75, 000.00.

         Under 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).

         If a 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. Id. A plaintiff's filing after the ...

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