United States District Court, E.D. Louisiana
LARRY E. SORAPURU JR., 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 Larry Sorapuru
are residents of St. John the Baptist Parish. On July 9,
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.
August 20, 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 lawsuit to state court.
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).
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 fail to 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.
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. Id. A plaintiff's filing after the