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Butler v. Denka Performance Elastomer LLC

United States District Court, E.D. Louisiana

January 3, 2019

JUANEA L. BUTLER, individually and as representative of all others similarly situated

         SECTION "F"



         Before the Court is the plaintiff's motion to remand for lack of subject matter jurisdiction. For the reasons that follow, the motion is DENIED.


         This environmental tort litigation arises from the production of neoprene, which allegedly exposes those near 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. People living and working in what environmentalists and the media have dubbed “Cancer Alley” have filed several lawsuits seeking, in some cases, damages, along with injunctive relief in the form of abatement of chloroprene emissions 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.” This is one of several lawsuits that have been filed in state court and removed to this Court. Juanea L. Butler, on behalf of a putative class, sued Denka Performance Elastomer LLC, E.I. DuPont de Nemours and Company, the State of Louisiana through the Department of Environmental Quality, and the State of Louisiana through the Department of Health. Ms. Butler seeks to proceed individually and as representative of a class of persons defined as:

(1) Those persons who, at any time from January 1, 2011 through the present, have lived, worked, attended school, and/or actually resided within a geographical boundary of St. John the Baptist Parish (hereinafter referred to as “St. John”), starting at the northwest corner of zip code 70084, then proceeding eastward along I-10 through zip code 70084 and the southside part of zip code 70068, to the northeast corner of the class boundary where Interstate-10 meets the St. John line within zip code 70068 of St. John, then proceeding southward within St. John along the St. John boundary line over the Mississippi River and through zip code 70057 in St. John to LA Hwy. 3127 within zip code 70049, to the southwest corner of the class boundary where LA Highway 3127 meets the St. John parish line within zip code 70049, then proceeding northward within St. John along the St. John parish line, through zip codes 70049, 70090 70051, and 70084 to I-10 within zip code 70084 (hereinafter referred to as “defined areas”); and
(2) Who experienced one or more of the following physical symptoms: headaches; sinus problems; dizziness; insomnia; trouble breathing; respiratory irritation, or other respiratory problems; chest pains; acute cardiac palpitations; acute gastrointestinal disorder; acute bronchitis; acute onset of asthma; exacerbation of preexisting asthma; fatigue; nausea; skin rash; temporary hair loss; chronic coughing; chronic nasal discharge; chronic cardiovascular disorder; chronic throat irritation; chronic eye irritation; chronic thyroid disorder; anxiety; and depression, resulting from their exposure to chloroprene or other chemical substance released from the Pontchartrain Works Facility.

         Plaintiffs, who live, work, or attend school within 5.5 miles of the PWF, allege that they are regularly exposed to unsafe levels of chloroprene emitted from the facility, which exposes them to a high risk for developing cancer.[1] Ms. Butler and the putative class seek damages in addition to declaratory relief, as well as an injunction, enjoining Denka from emitting chloroprene at a level exceeding .2 micrograms per cubic meter.

         Ms. Butler alleges that Denka and DuPont could have prevented the excessive chloroprene emissions but negligently failed to do so, failed to disclose or warn the community of the high risk of exposure, and failed to timely install necessary equipment to reduce emissions; that Denka/DuPont had material safety data sheets related to the harmful effects of exposure; and that the ultrahazardous activity calls for absolute liability pursuant to Louisiana Code of Civil Procedure article 2315. Ms. Butler also alleges that, to the extent the claims for such remedies become mature, Denka and DuPont would be liable for damages caused by their conduct, including but not limited to the cost of testing class members for exposure to chloroprene, the cost of research to determine the carcinogenicity of exposure to chloroprene emissions, medical monitoring for development of cancer and other maladies due to chloroprene, treatment of physical symptoms, compensation for reasonable and justified fear of cancer due to chloroprene exposure.[2]

         Denka and DuPont removed the case to this Court, invoking this Court's jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d). Ms. Butler now moves to remand.



         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). Ordinarily, any doubt as to the propriety of removal should be resolved in favor of remand. Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008). However, “no antiremoval presumption attends cases invoking [the Class Action Fairness Act], which Congress enacted to facilitate adjudication of certain class actions in federal court.” Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct. 547, 554 (2014)(citation omitted).

         “Congress enacted [the Class Action Fairness Act] to encourage federal jurisdiction over interstate class action lawsuits of national interest.” Preston v. Tenet Healthsystem Mem'l Med. Ctr., Inc., 485 F.3d 793, 797 (5th Cir. 2007). Because this case was removed pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d), the Court has diversity jurisdiction if there is minimal diversity (if “any member of a class of plaintiffs is a citizen of a State different from any defendant”), a class of 100 or more members, and more than $5, 000, 000 in ...

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