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Taylor v. Denka Performance Elastomer LLC

United States District Court, E.D. Louisiana

October 28, 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 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, as to remand, is GRANTED, and the request for costs and fees is DENIED.

         Background

         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 this lawsuit 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, and which the Environmental Protection Agency has classified as a “likely human carcinogen.”

         The plaintiff in the present motion, Lydia Gerard, is a resident of Reserve, Louisiana. On April 10, 2018, the plaintiff filed a petition for damages in the 40th Judicial District Court for St. John the Baptist Parish in which she seeks damages from defendants Denka Performance Elastomer LLC (“DPE”) and E.I. du Pont de Nemours and Company (“DuPont”) caused by their alleged excessive emissions of chloroprene. With her petition for damages, the plaintiff filed a binding pre-removal stipulation (“stipulation”) which stipulated, inter alia, that she would not accept or seek to recover any portion of a judgment or award in excess of $50, 000.

         On June 8, 2018, DuPont filed its notice of removal to this Court based on diversity of citizenship jurisdiction under 28 U.S.C. § 1332(a). DPE consented and the matter was consolidated with Taylor et al v. Denka Performance Elastomer et al, Civil Action No. 17-7668. The plaintiff now moves to remand her lawsuit back to state court.

         I.

         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 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).

         The parties do not dispute that complete diversity exists in this matter and, thus, the only question presented is whether the plaintiff's stipulation is sufficiently binding to limit her 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 a 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 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).

         II.

         The plaintiff moves 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 plaintiff contends that because she filed with her petition a binding pre-removal stipulation which waives her rights to any damages in excess of $50, 000.00, the amount in controversy will not, and does not, exceed $75, 000.00. The plaintiff adds that the stipulation is broad and candidly renounces “any right to enforce or collect any judgment or award in excess of $50, 000.00.” She contends that her ...


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