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Ictech-Bendeck v. Progressive Waste Solutions of La, Inc.

United States District Court, E.D. Louisiana

March 14, 2019

ELIAS JORGE “GEORGE” ICTECH-BENDECK, Plaintiff
v.
PROGRESSIVE WASTE SOLUTIONS OF LA, INC., ET AL., Defendants

         SECTION: “E” (5)

          ORDER AND REASONS

          SUSIE MORGAN, UNITED STATES DISTRICT JUDGE.

         Before the Court is a motion to remand, filed by Plaintiff Elias Jorge “George” Ictech-Bendeck.[1] The motion is opposed.[2] For the reasons that follow, the motion is DENIED.

         BACKGROUND

         On July 25, 2018, in the Twenty-Fourth Judicial District Court for the Parish of Jefferson, Plaintiff Ictech-Bendeck filed a class action petition, pursuant to Louisiana Code of Civil Procedure article 591 et seq., against Defendants Waste Connections US, Inc.; Louisiana Regional Landfill Company (formerly known as, and named in the caption as, IESI LA Landfill Corporation);[3] Waste Connections Bayou, Inc. (formerly known as, and named in the caption as, Progressive Waste Solutions of LA, Inc.) (collectively, “Waste Connections Defendants”); Aptim Corporation; and Jefferson Parish.[4] Plaintiff alleges the Jefferson Parish Landfill in Waggaman, Louisiana (“the Landfill”) emitted noxious odors and gases into neighborhoods in the surrounding areas.[5] The proposed Plaintiff class is defined as:

All persons domiciled of and/or within the Parish of Jefferson, . . . who sustained legally cognizable damages in the form of nuisance, interference with the enjoyment of their properties and/or diminution in value of their properties as a result of the Defendant(s)' acts that cause the emission of noxious odors and gases into and unto their persons and properties.[6]

         On August 17, 2018, Defendant Waste Connections US, Inc., removed the case to this Court, invoking this Court's jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”).[7] On September 20, 2018, Plaintiff filed the instant motion to remand the case to state court.[8] He argues several statutory exceptions to this Court's jurisdiction under CAFA apply to this case.[9] Defendants oppose.[10] On October 31, 2018, the Court held a hearing on the instant motion.[11]

         STANDARD OF LAW

         Generally, a defendant may remove a civil action from state court to federal court if the federal court would have had original jurisdiction over the action.[12] Generally, “[t]he removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.”[13] When a party objects to the Court's jurisdiction under CAFA, that party “must prove that the CAFA exceptions to federal jurisdiction divest[] the district court of subject matter jurisdiction.”[14] To determine whether the Court has jurisdiction, the Court considers the claims in the state court petition as they existed at the time of removal.[15] Remand is proper if at any time before final judgment it appears the Court lacks subject-matter jurisdiction.[16]

         CAFA vests federal district courts with original jurisdiction over class actions in which the amount-in-controversy exceeds $5 million, and the class fits one of the following categories:

(A) any member of a class of plaintiffs is a citizen of a State different from any defendant;
(B) any member of a class of plaintiffs is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a State; or
(C) any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen or subject of a foreign state.[17]

28 U.S.C. § 1332(d) includes several statutory exceptions to jurisdiction. At issue in the instant motion are the “local controversy exception, ” codified at § 1332(d)(4)(A), and the “home state exception, ” codified at § 1332(d)(4)(B).

         ANALYSIS

         I. This case satisfies the jurisdictional requirements of § 1332(d)(2).

         CAFA defines a “class action” as “any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule or judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action.”[18] Plaintiff filed his petition as a class action petition pursuant to Louisiana Code of Civil Procedure Article 591 et seq.[19] Such actions are class actions for purposes of CAFA.[20]

         Plaintiff is a Louisiana domiciliary, and Defendant Waste Connections U.S. is a Delaware corporation with its principal place of business in Texas.[21] As a result, CAFA's requirement of minimal diversity of citizenship is met. Because of the potential size of the proposed plaintiff class and the damages requested, the Court finds the $5, 000, 000 amount-in-controversy requirement is met.[22] The Court finds this case meets the jurisdictional requirements of § 1332(d)(2).

         Although Plaintiff does not contest that the total amount-in-controversy exceeds $5, 000, 000, he offers to “stipulate to less than the $75, 000 jurisdictional amount in controversy” on an individual basis.[23] The statutory text of § 1332(d)(2) includes no individual amount-in-controversy requirement. Whether Plaintiff stipulates to less than $75, 000 in each individual class member's damages has no bearing on the Court's determination of whether the total amount-in-controversy requirement of $5, 000, 000 is met.

         II. The local controversy exception does not apply because, although the proposed class seeks significant relief from Jefferson Parish, Plaintiff has not met his burden of showing that Jefferson Parish's conduct, in relation to the conduct of all Defendants, forms a significant basis for the claims asserted.

         Under the local controversy exception, a district must decline jurisdiction if the following conditions are met:

(i) [the] class action [is one] in which-
(I) greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed;
(II) at least 1 defendant is a defendant-
(aa) from whom significant relief is sought by members of the plaintiff class; (bb) whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class; and (cc) who is a citizen of the State in which the action was originally filed; and
(III) principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed; and
(ii) during the 3-year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons.[24]

         “[T]he exception is intended to be narrow, ‘with all doubts resolved in favor of exercising jurisdiction over the case.'”[25]

         Plaintiff argues CAFA's local controversy exception precludes the Court from exercising jurisdiction over this case.[26] The proposed plaintiff class consists of citizens of Jefferson Parish who “sustained legally cognizable damages in the form of nuisance, interference with the enjoyment of their properties and/or diminution in value of their properties” as a result of the emissions from the Landfill.[27] Principal injuries from the alleged conduct occurred in Louisiana.[28] Plaintiff has alleged no other class action has been filed asserting the same or similar factual allegations against any of the defendants in the three years before the filing of this action, [29] and Defendants have not presented evidence to the contrary.[30]

         The only prong of the test Defendants argue Plaintiff has not satisfied is § 1332(d)(4)(A)(i)(II).[31] Jefferson Parish, as a political subdivision of the State of Louisiana, is a citizen of Louisiana.[32] The issues in this case are whether the proposed class seeks significant relief from Jefferson Parish and whether Jefferson Parish's alleged conduct forms a significant basis for the claims asserted.[33] Defendants argue Plaintiff has shown neither that members of the Plaintiff class seek significant relief from Jefferson Parish nor that Jefferson Parish's alleged conduct forms a significant basis for the proposed plaintiff class's claims.[34]

         A. Plaintiff's request for jurisdictional discovery is denied.

         At oral argument, Plaintiff's counsel referred to statements made by the President of Jefferson Parish and by Jefferson Parish's “chief landfill engineer.”[35] Counsel requested the Court either take judicial notice of the statements or grant Plaintiff leave to depose the President of Jefferson Parish.[36] In response, counsel for the Waste Connections Defendants argued jurisdictional discovery is not appropriate, as the Court may consider only evidence in the pleadings in determining whether the local controversy exception applies.[37] Defendants cited Coleman v. Estes Exp. Lines, Inc.[38] for the proposition that, in CAFA cases, jurisdictional discovery is permitted only for the “narrowly tailored factual questions” of citizenship and amount-in-controversy, but that discovery is not permitted to determine whether a defendant's conduct is significant or if a plaintiff seeks significant relief from a defendant.[39]

         In Coleman, the Ninth Circuit addressed whether a district court may look beyond the allegations of the complaint to determine whether the local controversy exception applies.[40] Based on the statutory language of the local controversy exception, particularly Congress' use of the phrases “from whom significant relief is sought” and “whose alleged conduct forms a significant basis for the claims asserted, ” the Ninth Circuit held that a district court must narrow its inquiry to “what is alleged in the complaint rather than on what may or may not be proved by evidence.”[41] The Ninth Circuit consulted the legislative history of CAFA.[42] The Senate Judiciary Committee issued a report accompanying CAFA stating:

The Committee understands that in assessing the various criteria established in all these new jurisdictional provisions, a federal court may have to engage in some fact-finding, not unlike what is necessitated by the existing jurisdictional statutes. The Committee further understands that in some instances, limited discovery may be necessary to make these determinations. However, the Committee cautions that these jurisdictional determinations should be made largely on the basis of readily available information. Allowing substantial, burdensome discovery on jurisdictional issues would be contrary to the intent of these provisions to encourage the exercise of federal jurisdiction over class actions.[43]

         The Coleman court interpreted the Committee's statement that jurisdictional discovery under CAFA is to be “not unlike what is necessitated by the existing jurisdictional statutes” to mean jurisdictional discovery is limited to the questions of citizenship and amount-in-controversy.[44] This holding is consistent with the Third Circuit's holding in Kaufman v. Allstate New Jersey Ins. Co.[45] The Sixth Circuit also has adopted Coleman's reasoning.[46]

         The Fifth Circuit has not addressed this issue. In Opelousas General Hospital Authority v. FairPay Solutions, Inc., the Fifth Circuit declined to address whether a district court may look beyond the pleadings to determine whether the local controversy exception applies because the issue was not raised before the district court.[47] Unlike in Opelousas, the issue is squarely before this Court, as Plaintiff has requested jurisdictional discovery on the significant conduct and significant basis prongs of the local controversy exception.

         If the Fifth Circuit has not addressed an issue, the Court may consult the decisions of other Courts of Appeal as persuasive authority.[48] The Court finds persuasive the Ninth Circuit's reasoning in Coleman, particularly in light of Congress' clear intent for the local controversy exception to be narrowly construed. The Court holds it may consider only the allegations in Plaintiff's state court petition in determining whether the local controversy exception applies. As a result, the Court denies Plaintiff's request for jurisdictional discovery.

         B. Plaintiff has shown the proposed plaintiff class seeks significant relief from Jefferson Parish.

         “A proposed plaintiff class seeks ‘significant relief' from a particular defendant when the relief sought from that defendant constitutes a significant portion of the entire relief sought by the class.”[49] “[W]hether a putative class seeks significant relief from an in-state defendant includes not only an assessment of how many members of the class were harmed by the defendant's actions, but also a comparison of the relief sought between all defendants and each defendant's ability to pay a potential judgment.”[50] “CAFA does not specifically provide a definition of ‘significant, '”[51] and the courts interpreting this provision have not set forth a numerical benchmark to use to determine whether relief is significant.

         It is rare that a court has found a defendant is not a significant defendant. In Phillips v. Severn Trent Envtl. Servs., Inc., the court stated that “[t]here are at least two factual situations where courts have found that a defendant is not a ‘significant' defendant. The first is when only a small portion of the class members have claims against that particular defendant.”[52] The second situation occurs in cases in which “the relief sought (or reasonably expected) from a particular defendant is ‘just small change' in comparison to what the class is seeking from the other co-defendants.”[53] In Phillips, the plaintiffs alleged their tap water was contaminated and sought relief from Plaquemines Parish and from a foreign corporation administering the water system.[54] They alleged Plaquemines Parish had “ultimate oversight and responsibility over the quality of the drinking water.”[55] Because all of the plaintiffs sought relief from Plaquemines Parish, the court found the case was not one in which only a small portion of the class members have claims against the local defendant.[56] Because the plaintiffs alleged Plaquemines Parish had ultimate responsibility over the quality of the drinking water, the court found the class was seeking more than “just small change” from the local defendant.[57] As a result, the court found the proposed class sought significant relief from Plaquemines Parish. Similarly, in this case, all class members have made claims against all defendants. This case is not one in which only a small portion of the class members have claims against the local defendant. Because the state court petition alleges Jefferson Parish owns the entire Landfill and hires contractors to operate different phases of the facility, [58] the class seeks more than just small change from Jefferson Parish. As a result, the proposed class seeks significant relief from Jefferson Parish.

         This conclusion is supported by the claims brought by the proposed class. Plaintiff defines the proposed class as citizens of Jefferson Parish who “sustained legally cognizable damages in the form of nuisance, interference with the enjoyment of their properties and/or diminution in value of their properties” as a result of the emissions from the Landfill.[59] The proposed class brings a claim for nuisance and interference with enjoyment under article 667 of the Louisiana Civil Code.

Article 667 provides,
Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.[60]

         Article 667, as one of the “vicinage” articles, “establish[es] certain limitations on the scope and extent of the right of ownership in immovable (real) property.”[61] The article is “an expression of the sic utere doctrine that limits the rights of proprietors in the use of their property.”[62] “The sic utere doctrine is an embodiment of the maxim ‘sic utere tuo, ut alienum non laedas'-'use your own property in ...


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