Jim Aana; et al. vs. Pioneer Hi-Bred International, Inc.

Filing 173

ORDER DENYING PLAINTIFFS' RENEWED MOTION FOR REMAND re: 129 . Signed by JUDGE LESLIE E. KOBAYASHI on 4/26/2013. ~ Order follows hearing held 4/15/2013. Minutes: doc no. 167 ~ (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JIM AANA, et al., on behalf
of themselves and all others
similarly situated,

)
)
)
)
Plaintiffs,
)
)
)
vs.
)
)
PIONEER HI-BRED
INTERNATIONAL, INC., a DuPont )
)
Business and Iowa
Corporation, GAY & ROBINSON, )
)
INC., a Hawaii corporation;
)
ROBINSON FAMILY PARTNERS, a
)
general partnership
registered in Hawaii; and DOE )
)
DEFENDANTS 1-10,
)
)
Defendants.
_____________________________ )

CIVIL NO. 12-00231 LEK-BMK

ORDER DENYING PLAINTIFFS’ RENEWED MOTION FOR REMAND
Before the Court is Plaintiffs’ Renewed Motion for
Remand (“Motion”), filed on February 7, 2013.

Defendants Pioneer

Hi-Bred International, Inc. (“Pioneer”), Gay & Robinson, Inc.,
and Robinson Family Partners (together, “Robinson Defendants)
(all three collectively, “Defendants”), filed their memorandum in
opposition on March 25, 2013, and Plaintiffs filed their sealed
reply on April 1, 2013.

On March 14, 2013, the Court granted

Defendants leave to file their sealed surreply.
on for hearing on April 15, 2013.

This matter came

Appearing on behalf of

Plaintiffs were Gerard A. Jervis, Esq., and Patrick Kyle Smith,
Esq., and appearing on behalf of Defendants were Michael M.

Purpura, Esq., Michael J. Scanlon, Esq., and Adam D. Friedenberg,
Esq.

After careful consideration of the Motion, supporting and

opposing memoranda, and the arguments of counsel, Plaintiffs’
Motion is HEREBY DENIED for the reasons set forth below.
BACKGROUND
Plaintiffs filed their Complaint on December 13, 2011
in the Circuit Court of the Fifth Circuit, State of Hawai`i (“the
State Court”).

[Dkt. no. 1, Exh. A.]1

Pioneer is an Iowa

corporation with its principal place of business in Iowa.

It

conducts farming operations on property leased from the Robinson
Defendants, citizens of Hawai`i.

[Second Am. Compl. at ¶ 10.]

Plaintiffs are residents of Waimea, Kauai.

[Comp. at ¶ 4.]

The Complaint alleged six claims for relief against
Defendants: negligence (Counts 1-3), strict liability (Count 4),
trespass (Count 5), and nuisance (Count 6).
¶¶ 71-128.]

[Compl. at

All claims are based on the allegation that farming

activities conducted by Pioneer (on land Pioneer leased from the
Robinson Defendants)) caused dust and dangerous pesticides to
blow into the Waimea community and environment.

[Id. ¶ 72.]

The

Complaint alleged one claim of relief against the Robinson

1

Prior to filing the Complaint, Plaintiffs informed Pioneer
that they may file suit because of the dust produced by its
farming operations. [Dkt. No. 19.] On March 14, 2011, the
parties agreed to mediation. Defendant Gay & Robinson was not a
party to those proceedings. The mediation was ultimately
unsuccessful and the instant suit was filed.
2

Defendants for “Landlord Liability for Acts of Tenant” (Count 7).
As landlords of Pioneer, Plaintiffs claimed that the Robinson
Defendants should be held “jointly and severally liable for
negligence, negligence per se, strict liability, nuisance and
trespass committed by Pioneer.”
A.

[Id. at ¶ 136.]

Removal
On May 4, 2012, Defendants filed their Notice of

Removal of Mass Action pursuant to 28 U.S.C. §§ 1332, 1441, and
1446, as well as under the Class Action Fairness Act, 28 U.S.C.
§ 1453 (“CAFA”).

[Dkt. no. 1 (Notice of Removal).]

Defendants

asserted that removal was proper under CAFA as there were more
than 100 plaintiffs, the amount allegedly in controversy is more
than $5 million, and Pioneer is diverse from all Plaintiffs.
[Notice of Removal at ¶¶ 12-20.]
B.

First Motion to Remand
Plaintiffs filed a Motion to Remand on May 25, 2012.

[Dkt. no. 9.]

Plaintiffs argued that the instant case is not a

mass action, that the “local controversy” and “interests of
justice” exceptions apply, and that Defendants’ removal was
untimely.
On July 24, 2012, Magistrate Judge Barry M. Kurren
issued his Findings and Recommendation that Plaintiff’s Motion to
Remand Be Denied.

2012 WL 3542503.

The magistrate judge found

that the case did constitute a mass action under 28 U.S.C. §
3

1332.

Plaintiffs did not dispute that the amount in controversy

exceeds $5,000,000 or that there are more than 100 plaintiffs.
The magistrate judge rejected Plaintiffs’ argument that
28 U.S.C. § 1332(d)(11)(B)(ii)(1), which excludes cases in which
“all of the claims in the action arise from an event or
occurrence in the State in which the action was filed, and that
allegedly resulted in injuries in that State or in States
continuous to that State[,]” applies to the instant case.

The

magistrate judge noted that the Ninth Circuit has held that the
exclusion applies only where all claims arise from a single event
or occurrence.

[Id. at *2 (citing Nevada v. Bank of America

Corp., 672 F.3d 661, 668 (9th Cir. 2012)).]

In the instant case,

however, Plaintiffs’ Complaint alleges that Pioneer’s failed to
prevent soil erosion and routinely allowed pesticides and dust to
drift into the neighboring community for over a decade.
The magistrate judge likewise found that the local
controversy exception in 28 U.S.C. § 1332(d)(4)(A) inapplicable,
finding that, based upon the allegations in the Complaint, the
Robinson Defendants’ conduct does not form a “significant basis”
of Plaintiffs’ claims such that the exception should apply.

The

magistrate judge noted that the mere fact that Plaintiffs sought
joint and several liability did not establish a significant
basis, and that Plaintiffs’ claims essentially rest on Pioneer’s
conduct.

[Id. at *3.]

The magistrate judge also found that the

4

interests of justice exception did not apply because it is
undisputed that all Plaintiffs are citizens of Hawai`i, and the
primary defendant, Pioneer, is a citizen of a different state
(Iowa).

Thus, neither prerequisite of the interests of justice

exception was met.

[Id.]

Thus, the magistrate judge recommended denying Plaintiffs’
motion for remand.

Plaintiffs did not object to the magistrate

judge’s Findings and Recommendation, and this district court
adopted the Findings and Recommendations on August 16, 2012.
2012 WL 363150.2
C.

Plaintiffs did not appeal.

Amended Complaint
On August 22, 2012, Defendants moved to dismiss Count 7

of the original Complaint (the sole count against the Robinson
Defendants).

[Dkt. no. 32.]

On November 16, 2012, after

briefing on that motion was concluded, but before a hearing was
held, Plaintiffs filed a motion for leave to amend the Complaint.
[Dkt. no. 88.]

The Court granted Plaintiffs leave to file the

Second Amended Complaint on January 7, 2013.

[Dkt. no. 112.]

Defendants’ motion to dismiss was denied without prejudice as
moot thereafter.

[Dkt. no. 114.]

Plaintiffs filed their Second Amended Complaint on
February 6, 2012 (“Amended Complaint”).

2

2012.

[Dkt. no. 128.]

The

This case was reassigned to this Court on November 27,
[Dkt. no. 97.]
5

Amended Complaint alleges: (1) negligence against all Defendants
for failure to use due care (Count 1); (2) negligence for failure
to investigate and warn against all Defendants (Count 2); (3)
negligence per se against all Defendants (Count 3); (4) strict
liability against Pioneer (Count 4); (5) trespass against all
Defendants (Count 5); (6) nuisance against all Defendants (Count
6); (7) negligent and intentional misrepresentation against all
Defendants (Count 7); and (8) landlord liability for the acts of
a tenant against the Robinson Defendants (Count 8).

I.

Motion
Plaintiffs base their renewed Motion on the new

substantive allegations in the Second Amended Complaint.

In the

instant Motion, Plaintiffs first argue that CAFA is not intended
to apply to local controversies that concern damages and claims
that arise in the same state.

Specifically, Plaintiffs argue

that CAFA’s local controversy exception should apply in the
instant case.

[Mem. in Supp. of Motion at 4 (citing 28 U.S.C.

§ 1332(d)(4)(A)(i)).
Plaintiffs emphasize that the purpose of the exception
is to keep actions “with a truly local focus” in state courts
that “have a strong interest in adjudicating such disputes.”
[Mem. in Supp. of Motion at 5 (quoting S. REP No. 109-14, at 39
(2005)).]

Plaintiffs argue that this is such a case: the claims
6

concern Waimea residents, Waimea property, Waimea injuries,
Hawai`i statutes and ordinances, a Hawai`i corporation, and one
out-of-state company doing business in Waimea.

Thus, the case is

of purely local concern and should be adjudicated in state court.
[Id.]
Plaintiffs argue that their claims satisfy the first
and third prongs of CAFA’s local controversy exception: as to the
first prong, relating to the citizenship of the plaintiff class,
it is undisputed that all of the 152 Plaintiffs are citizens of
Hawai`i.

[Id. at 6 (citing Notice of Removal at 10).]

As to the

third prong, relating to where the principal injuries complained
of occurred, the Plaintiffs claims all involve harm to Waimea
residents’ property.

[Id.]

As to the second prong of the local controversy
exception, Plaintiffs argue that it is satisfied because the
Robinson Defendants are “significant” in the instant suit.

In

determining whether a defendant is significant for CAFA purposes,
Plaintiffs emphasize, the Court must look only to the complaint.
[Id. at 7 (citing Coleman v. Estes Exp. Lines, Inc., 631 F.3d
1010, 1015 (9th Cir. 2011)).]

Here, Plaintiffs first note that

the Robinson Defendants are citizens of Hawai`i for purposes of
jurisdiction.

[Id. at 7-8.]

Second, Plaintiffs argue that

significant relief is sought against the Robinson Defendants: all
Plaintiffs have claims against the Robinson Defendants and seek

7

significant relief from them, including damages, injunctive
relief, and punitive damages.

[Id. at 8 (citing Coleman v. Estes

Express Lines, Inc., 730 F. Supp. 2d 1141, 1153 (C.D. Cal. 2010),
aff’d 631 F.3d 1010 (9th Cir. 2011) (quoting Evans v. Walter
Indus., Inc., 449 F.3d 1159, 1167 (11th Cir. 2006))).]
Further, Plaintiffs argue, the Robinson Defendants’
acts and omissions form a significant basis of the Plaintiffs’
claims.

The alleged conduct of the Robinson Defendants impacted

all Plaintiffs, rather than a small subset of Plaintiffs.
at 9-10.]

[Id.

Plaintiffs note that the Second Amended Complaint

contains a number of allegations of actionable conduct by the
Robinson Defendants against all Plaintiffs, including that they
manage and oversee the fields in a way that exacerbates the
migration of pollutants, that they failed to follow appropriate
soil conservation practices, that their historic use of pesticide
on the land gives rise to a duty to implement measures to prevent
migration of dust, that they failed to investigate Pioneer’s
farming practices and the danger associated with Pioneer’s
pesticides, that they failed to require Pioneer to implement
measures to mitigate harm, and that they had sufficient knowledge
of and control over the fields to prevent the Plaintiffs’
injuries.

[Id. at 10-12.]
Plaintiffs also emphasize that the Robinson Defendants

violated Hawai`i law and local Kauai Ordinance 808.

8

Specifically, Plaintiffs argue that the Robinson Defendants owed
Plaintiffs a duty pursuant to Kauai Ordinance 808, which requires
that all “grubbing” and “grading” activities (or activities that
remove vegetation) in Kauai incorporate Best Management Practices
to the maximum extent practicable to prevent damage by
sedimentation to streams, watercourses, natural areas, and the
property of others.

[Id. at 12 (citing Kauai County Rev. Code of

Ordinance 808, §§ 22-7.4, 22-7.5).]

As such, Plaintiffs claim

that the Robinson Defendants had a duty to ensure that Best
Management Practices were implemented to prevent any discharge of
dust and pesticides and avoid harm to the Waimea community and
environment.

[Id.]

Plaintiffs argue that, after leasing the

land to Pioneer, the Robinson Defendants never ensured that the
conservation measures called for in Pioneer’s 2002 Conservation
Plan (made pursuant to Ordinance 808) were carried out, despite
the fact that they knew prior to leasing the property that there
was a danger of fugitive dust harming Plaintiffs.
13.]

[Id. at 12-

As such, Plaintiffs argue, the claims against the Robinson

Defendants satisfy the “significant basis” prong of the local
controversy exception.
Because Plaintiffs argue that CAFA’s local controversy
exception applies in the instant case, Plaintiffs urge the Court
to remand the case back to the State Court.
II.

Memorandum in Opposition

9

In their memorandum in opposition, Defendants argue
that this district court already denied Plaintiffs’ first motion
to remand on July 24, 2012, and that Plaintiffs have not
demonstrated that there are any new material facts, intervening
change of law, or manifest error of law or fact such that the
prior decision should be revisited.

[Mem. in Opp. at 1-2.]

Defendants emphasize that jurisdiction over removed
actions is evaluated at the time of removal.

Subsequent

amendments do not permit a renewed motion to remand.

[Id. at 11-

13 (citing Rockwell Int’l Corp. v. United States, 549 U.S. 457,
473-74 & n.6 (2007); St. Paul Mercury Indemnity Co. v. Red Cab
Co., 303 U.S. 283, 293 (1938); Freeport-McMoRan, Inc. v. K N
Energy, Inc., 498 U.S. 426, 428 (1991) (per curiam) (“[T]he
well-established rule [is] that diversity of citizenship is
assessed at the time the action is filed.

We have consistently

held that if jurisdiction exists at the time an action is
commenced, such jurisdiction may not be divested by subsequent
events.”); United Steel, Paper & Forestry, Rubber, Mfg., Energy,
Allied Indus. & Serv. Workers Int’l Union, AFL-CIO, CLC v. Shell
Oil Co., 602 F.3d 1087, 1091-92 (9th Cir. 2010)).]

As such,

Defendants argue that, once Plaintiffs had alleged their way into
federal court, they were not free to amend their way out.

[Id.

at 13.]
Defendants further argue that the Ninth Circuit’s

10

opinion in Coleman did not authorize serial remand motions, as
the Plaintiffs argue in their Motion.

Rather, the Coleman court

observed in dicta that there can be “different pleading
requirements in state and federal courts” such that a “complaint,
as originally drafted, will not answer the questions that need to
be answered before the federal court can determine whether the
suit comes within the local controversy exception to CAFA
jurisdiction.”

Thus, where such questions need to be answered,

the Court may require or permit a plaintiff to file an amended
complaint addressing relevant CAFA criteria.
Coleman, 631 F.3d at 1020-21).]

[Id. at 15 (quoting

Defendants argue that this is

not, however, the issue in this case: the Hawai`i Rules of Civil
Procedure follow the Federal Rules, so there were no different
pleading requirements in the state and federal courts.

[Id. at

16 (citing Pavsek v. Sanvold, 127 Hawai`i 390, 403, 279 P.3d 55,
68 (Haw. Ct. App. 2012) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)).]

Further, the original Complaint did not

fail to provide sufficient information for a CAFA determination;
rather, the court engaged in a detailed analysis of the case and
ultimately concluded that the local controversy exception did not
apply.

[Id. (citing dkt. no. 23 at 6-7).]

Defendants note that

Plaintiffs did not contest or appeal this ruling.

Further,

Defendants argue that the Second Amended Complaint did not
clarify anything for purposes of the CAFA analysis; it merely

11

refashioned Plaintiffs’ claims against the Robinson Defendants
for the express purpose of re-litigating the issue of remand.
[Id. at 17.]
Defendants next argue that, even were the instant
Motion procedurally proper, the local controversy exception is
nevertheless inapplicable, as this district court previously
determined.

Specifically, Defendants argue that the claims made

in the Second Amended Complaint do not establish conduct by the
Robinson Defendants that “forms a significant basis for the
claims asserted by . . . plaintiff[s].”
U.S.C. § 1332(d)(4)(A)(i)(II)(bb)).]

[Id. at 18 (quoting 28

Defendants note as a

preliminary matter that the local controversy exception is narrow
and the burden of proof is on Plaintiffs to prove that an
exception under CAFA applies.

[Id. at 19 (citing Serrano v. 180

Connect, Inc., 478 F.3d 1018, 1023-24 (9th Cir. 2007); Opelousas
Gen. Hosp. Auth. v. FairPay Solutions, Inc., 655 F.3d 358, 360
(5th Cir. 2011)).]

Defendants emphasize that Plaintiffs must

demonstrate both that a Hawai`i citizen defendant (1) is a
defendant “from whom significant relief is sought” and (2) “whose
alleged conduct forms a significant basis for the claims
asserted.”

[Id. at 19-20 (quoting 28 U.S.C.

§ 1332(d)(4)(A)(i)(II)).]
As to the second requirement, the mere fact that relief
is sought against the local defendant for the conduct of other

12

defendants is insufficient to satisfy the “significant basis”
requirement.

[Id. at 20 (citing Evans v. Walter Industries,

Inc., 449 F.3d 1159, 1167 n.7 (11th Cir. 2006)).]

Defendants

note that this district court previously found that the local
controversy exception does not apply to this case.
22.]

[Id. at 21-

Defendants argue that the new allegations in the Second

Amended Complaint do not alter this district court’s prior
finding.

Defendants argue that the allegations against the

Robinson Defendants are insignificant in comparison to the claims
against Pioneer: in each of the allegations against the Robinson
Defendants, Pioneer is the main actor, and the allegations would
not exist absent Pioneer’s actions.

[Id. at 22-24.]

Defendants therefore ask the Court to deny Plaintiffs’
Motion.
III. Reply
In their reply, Plaintiffs emphasize that Defendants
incorrectly suggest that Plaintiffs are suing the Robinson
Defendants solely to avoid federal court.

[Reply at 1-6.]

Plaintiffs note that Magistrate Judge Kurren, in granting them
leave to file the Second Amended Complaint, stated “I can’t say
that the claim [against the Robinson Defendants] is futile.”
[Id. at 6 (quoting January 7, 2013 Transcript of Plaintiffs’
Motion for Leave to Amend, attached to Reply as Exhibit 2, at
24:14-25:15).]

13

Plaintiffs argue that, contrary to Defendants’
assertions, Coleman allows amendment to satisfy CAFA’s local
controversy exception.

Plaintiffs argue that Coleman states that

a district court may allow amendment where the original complaint
does not answer whether the conduct of in-state defendants meets
CAFA’s requirements.
1020-21).]

[Id. at 7 (citing Coleman, 631 F.3d at

Plaintiffs argue that this is such a case.
Plaintiffs further argue that United Steel supports

their position.

In that case, Plaintiffs note, the Ninth Circuit

recognized “exceptions to the general rule of ‘once jurisdiction,
always jurisdiction--such as when a case becomes moot in the
course of litigation or when there was no jurisdiction to begin
with because the jurisdiction allegations were frivolous from the
start.”

[Id. at 8 (quoting United Steel, 602 F.3d at 1092).]

Plaintiffs emphasize that the applicability of the CAFA local
controversy exception is a jurisdictional issue; this Court is
required to dismiss the case should the exception apply and, as
such, federal jurisdiction did not exist at the time of removal.
[Id. at 9 (citing 28 U.S.C. § 1332(d)(4)(A)(I)).]
Plaintiffs further argue that the local controversy
exception applies because the conduct of the Robinson Defendants
is significant.

Plaintiffs state that “it is important to

recognize that Waimea soils are particularly susceptible to wind
and water erosion because of the historic farming practices used

14

by the Robinson [Defendants] in the cultivation of sugar cane
near Waimea.”

[Id. at 12.]

Further, the Robinson Defendants had

a duty to implement Conservation Plans for their lands pursuant
to Ordinance 808.

[Id.]

Plaintiffs note that one plaintiff,

Klayton Kubo, has stated that he complained to the Robinson
Defendants as early as 2000 about Pioneer’s operations on the
Robinson land, but that the Robinson Defendants did nothing.
[Id. at 12-13 (quoting Reply, Exh. 3 (February 7, 2013 Deposition
Excerpt of Klayton Kubo)).]
Plaintiffs therefore argue that the local controversy
exception to CAFA applies, and that this Court should grant
remand and return the case to the Fifth Circuit.
DISCUSSION
28 U.S.C. § 1332(d) provides district courts with
jurisdiction over certain class actions and mass actions.

CAFA

provides that “a mass action shall be deemed to be a class
action” removable under CAFA so long as the rest of CAFA’s
jurisdictional requirements are met.

28 U.S.C. § 1332(d)(11)(A);

Tanoh v. Dow Chemical Co., 561 F.3d 945, 952 (9th Cir. 2009).

A

mass action is “any civil action . . . in which monetary relief
claims of 100 or more persons are proposed to be tried jointly on
the ground that the plaintiffs’ claims involve common questions
of law or fact . . . .”

28 U.S.C. § 1332(d)(11)(B)(I).

Under CAFA, only “minimal diversity” is required to

15

vest a federal court with diversity jurisdiction.

See Serrano v.

180 Connect, Inc., 478 F.3d 1018, 1024 (9th Cir. 2007).

A court

may exercise diversity jurisdiction in a CAFA case even if every
plaintiff’s citizenship is not different from every defendant’s
citizenship.

Instead of requiring complete diversity, CAFA

requires only that the aggregate amount in controversy exceed $5
million and that any class member have citizenship different from
any defendant.

28 U.S.C. § 1332(d)(2); Tanoh, 561 F.3d at 952.

Even if a removing party in a CAFA case establishes
minimal diversity, a plaintiff is entitled to remand by showing
that an exception to federal jurisdiction applies.

Here,

Plaintiffs rely on the “local controversy” exception.

Plaintiffs

seeking to establish that a class action is a “local controversy”
must satisfy the criteria set forth in either subsection (A) or
subsection (B) of 28 U.S.C. § 1332(d)(4).

Plaintiffs argue that

they satisfy subsection (A).
Under this exception, “[a] district court shall decline
to exercise jurisdiction” under CAFA “over a class action 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;

16

(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.
28 U.S.C. § 1332(d)(4)(A)(i).

CAFA’s local controversy exception

is intended to be a “narrow” one which applies only to “truly
local” controversies.

Coleman v. Estes Express Lines, Inc., 730

F. Supp. 2d 1141, 1152 (C.D. Cal. 2010), aff’d, 631 F.3d 1010
(9th Cir. 2011).

A plaintiff seeking remand bears the burden of

proving that the local controversy exception applies.

Coleman,

631 F.3d at 1013.
In the instant case, Defendants argue that the Robinson
Defendants’ alleged conduct does not form a “significant basis”
for the claims asserted by Plaintiffs.

[Mem. in Opp. at 21-22.]

See also Coleman, 730 F. Supp. 2d at 1153–58.

The Court is

limited to the allegations of the Second Amended Complaint in
evaluating whether the significant basis factor has been
satisfied.

Coleman, 631 F.3d at 1017.
The “significant basis” prong is fulfilled “[i]f the

local defendant’s alleged conduct is a significant part of the
alleged conduct of all the Defendants.”

Coleman, 730 F. Supp. 2d

at 1157 (quoting Kaufman v. Allstate N.J. Ins. Co., 561 F.3d 144,

17

156 (3d Cir. 2009)).

The “local defendant’s alleged conduct must

be an important ground for the asserted claims in view of the
alleged conduct of all the Defendants.”
561 F.3d at 157) (emphasis in original).

Id. (quoting Kaufman,
Factors the Court may

consider in determining whether a local defendant’s alleged
conduct forms a significant basis of the class claims include:
1) the relative importance of each of the claims
to the action; 2) the nature of the claims and
issues raised against the local defendant; 3) the
nature of the claims and issues raised against all
the [d]efendants; 4) the number of claims that
rely on the local defendant’s alleged conduct; 5)
the number of claims asserted; 6) the identity of
the [d]efendants; 7) whether the [d]efendants are
related; 8) the number of members of the putative
classes asserting claims that rely on the local
defendant’s alleged conduct; and 9) the
approximate number of members in the putative
class.
Id. (quoting Kaufman, 561 F.3d at 157 n.13).
Here, Plaintiffs argue that the allegations made
against the Robinson Defendants in the Second Amended Complaint
support a finding that the Robinson Defendants’ conduct forms a
significant basis of Plaintiffs’ claims.

Specifically,

Plaintiffs argue that the Robinson Defendants’ historic farming
activities contributed to making the land “particularly
susceptible to erosion,” that the Robinson Defendants failed to
investigate the farming practices of their tenants, and that the
Robinson Defendants have failed to control and mitigate soil
erosion and migration of pollutants, notwithstanding an

18

obligation to do so under Kauai Ordinance 808.

[Mem. in Supp. of

Motion at 10-12.]
Notwithstanding these allegations, the Robinson
Defendants’ conduct is not a significant basis for Plaintiffs’
claims because the Second Amended Complaint still essentially
“hinges” on the actions of Pioneer.

See Aana v. Pioneer Hi-Bred

Int’l, Inc., 2012 WL 3542503, at *3 (D. Hawai`i July 24, 2012).
The harm Plaintiffs complain of--the migration of dust and
pollutants from Pioneer’s farming activities--is caused by the
farming activities undertaken by Pioneer, not the Robinson
Defendants.

Without a finding of liability on the part of

Pioneer, there would be no nuisance for which the Robinson
Defendants might be held liable.

In light of this, the Court

simply cannot find that the allegations against the Robinson
Defendants are significant in comparison to the conduct of
Pioneer, the non-local defendant.

See Kaufman, 561 F.3d at 156.

Nor is the Court persuaded that, based upon the allegations in
the Second Amended Complaint, the Robinson Defendants had a
significant role in the conduct giving rise to the case.

As

such, the Court FINDS that the claims against the Robinson
Defendants do not form a significant basis for the claims
asserted by Plaintiffs.

The Motion is therefore DENIED.
CONCLUSION

On the basis of the foregoing, Plaintiffs’ Renewed

19

Motion for Remand, filed on February 7, 2013, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 26, 2013.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

JIM AANA, ET AL. V. PIONEER HI-BRED INTERNATIONAL, INC., ET AL;
CIVIL NO. 12-00231 LEK-BMK; ORDER DENYING PLAINTIFFS’ RENEWED
MOTION FOR REMAND

20