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Bernard v. Progressive Waste Solutions of La, Inc.

United States District Court, E.D. Louisiana

March 14, 2019

LARRY BERNARD, SR., ET AL., Plaintiffs
v.
PROGRESSIVE WASTE SOLUTIONS OF LA, INC., ET AL., Defendants

          ORDER AND REASONS

          SUSIE MORGAN UNITED STATES DISTRICT JUDGE

         Before the Court is a motion to remand, filed by Plaintiff Larry Bernard, Sr.[1] The motion is opposed.[2] For the reasons that follow, the motion is DENIED.

         BACKGROUND

         On August 10, 2018, in the Twenty-Fourth Judicial District Court for the Parish of Jefferson, Plaintiffs Larry Bernard, Sr., and Mona Bernard filed a class action petition, pursuant to Louisiana Code of Civil Procedure article 591 et seq., against Defendants 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.); Waste Connections, US, 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 caused the emission of noxious odors and gases into and unto their persons and properties.[6]

         On August 29, 2018, Waste Connections Defendants, removed the case to this Court, invoking this Court's jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”).[7] On October 1, 2018, Plaintiff Larry Bernard, Sr. filed the instant motion to remand the case to state court.[8] He argues CAFA's amount-in-controversy requirement is not met, that this case falls within CAFA's “local controversy exception, ” and that Jefferson Parish has not concurred in removal.[9] Defendants oppose.[10]

         Ictech-Bendeck v. Progressive Waste Solutions of La., Inc., another class action petition alleging damages from noxious odors and gases emanating from the Landfill, was filed in the Twenty-Fourth Judicial District Court for the Parish of Jefferson on July 25, 2018, sixteen days prior to the filing of the instant case.[11] Ictech-Bendeck was removed to this Court on August 17, 2018.[12] The defendants in the instant case are identical to the named defendants in Ictech-Bendeck, and the proposed plaintiff class in Ictech-Bendeck is nearly identical to the proposed plaintiff class in the instant case.[13]

         Thompson v. Louisiana Regional Landfill Company, another class action petition alleging similar factual allegations, was filed in the Twenty-Fourth Judicial District Court for the Parish of Jefferson on July 30, 2018, eleven days prior to the filing of the instant case, and removed to this Court on August 23, 2018.[14] All but one defendant in the instant case is also named in Thompson, and the proposed plaintiff class in Thompson is also nearly identical to the proposed class in the instant case.[15]

         The plaintiff in Thompson filed a motion to remand the case to state court, [16] raising many of the same arguments that Plaintiff Bernard raises in the instant motion. On March 14, 2019, the Court issued an Order and Reasons denying the motion, finding CAFA's amount-in-controversy requirement is satisfied and that the local controversy exception does not apply.[17]

         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.[18] 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.[19] Remand is proper if at any time before final judgment it appears the Court lacks subject-matter jurisdiction.[20]

         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.[21]

         When a party objects to the Court's jurisdiction under CAFA, that party “must prove that the CAFA exceptions to federal jurisdiction divest[] the ...


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