Keltner et al v. SunCoke Energy, Inc. et al

Filing 33

ORDER OF REMAND: Case remanded to Madison County, Illinois Circuit Court, Granting 19 MOTION to Remand Plaintiffs' Motion and Accompanying Memorandum of Law in Support of Motion to Remand filed by Shelby Siebert, Peggy Keltner, Melinda Duniphan, Jerome Johnson, Beverly Johnson Signed by Judge David R. Herndon on 5/26/2015. (dsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PEGGY KELTNER, JEROME and
BEVERLY JOHNSON, MELINDA
DUNIPHAN and SHELBY SIEBERT,
PlaintiffS,

No.

3:14-cv-01374-DRH-PMF

vs.
SUNCOKE ENERGY, INC., GATEWAY
ENERGY & COKE COMPANY, LLC and
UNITED STATES STEEL
CORPORATION
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
I. INTRODUCTION
Plaintiffs, Illinois citizens, filed this class action in state court asserting
claims for temporary nuisance, trespass, and negligence against defendants
SunCoke Energy, Inc (“SunCoke”), Gateway Energy Coke Company, LLC (“GECC”),
and United States Steel Corporation (“US Steel”). Plaintiffs’ complaint is based on
the defendants’ alleged contamination of their property through operation of a
GECC facility and Steel mill located in Granite City, Illinois. Plaintiffs claim that
operation of the Granite City facility regularly releases substantial amounts of
particles that leave a silty deposit on nearby residents’ properties and enter into
nearby homes.
There is no interstate component to the present action. Rather, the putative
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class representatives are Illinois citizens, asserting common law tort claims, against
an alleged source of pollution located in Illinois.
Defendants SunCoke and GECC removed the case, asserting the Class Action
Fairness Act of 2005 (“CAFA”) and federal question as the bases for jurisdiction
(Doc. 2). As to federal question jurisdiction, defendants’ removal papers note
plaintiffs’ complaint references a lawsuit initiated by the Environmental Protection
Agency against two of the defendants. The lawsuit involved conduct that allegedly
violated a permit issued to GECC under the federal Clean Air Act.
The plaintiffs have filed a motion to remand (Doc. 19). Plaintiffs do not
dispute that defendants have satisfied CAFA's requirements of diversity of
citizenship, a proposed class composed more than 100 members, and an amount
in controversy in excess of $5,000,000, but argue that this case falls within CAFA's
“local controversy exception.” 18 U.S.C. § 1332(d)(4)(A) (setting forth the local
controversy exception). With regard to original jurisdiction, plaintiffs assert that
they are only pursuing claims arising under state law.
SunCoke and GECC filed a response to plaintiffs’ motion to remand (Doc.
23). SunCoke and GECC focus on the issues pertaining to CAFA. 1 US Steel has also
filed a response (Doc. 25). US Steel’s responsive brief addresses federal question
jurisdiction. Plaintiffs have also filed a reply (Doc. 31).

II. REMOVAL - STANDARD
1

In a footnote, SunCoke and GECC maintain the Court has federal question jurisdiction for the
reasons provided in their removal papers and join in US Steel’s motion to remand.

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A defendant may remove a case filed in state court if the federal court would
have had original jurisdiction to hear the case when the plaintiff originally filed it.
28 U.S.C. § 1441(a); Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th
Cir. 2009). “The party seeking removal has the burden of establishing federal
jurisdiction, and federal courts should interpret the removal statute narrowly,
resolving any doubt in favor of the plaintiff's choice of forum in state court.” Schur,
577 F.3d at 758 (citing Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.
1993)).
III. FEDERAL QUESTION JURISDICTION
A. The Parties’ Arguments
In their notice of removal, SunCoke and GECC allege plaintiffs’ claims arise
under federal law because plaintiffs’ complaint references a lawsuit filed by the
Environmental Protection Agency related to emissions from the Granite City
Facility. SunCoke and GECC allege this lawsuit implicates the Clean Air Act and a
consent decree issued by the Southern District of Illinois (as a result of the
referenced lawsuit). In their motion to remand, the plaintiffs acknowledge the
complaint references the lawsuit and the resultant consent decree, but insist they
are not pursuing any claims for violations of the Clean Air Act or any other federally
based claims. Instead, the plaintiffs state they are only pursuing common law
claims of nuisance, trespass and negligence under state law.
In its responsive brief, US Steel insists federal question jurisdiction exists.
Although the briefing is not entirely clear and the argument is not fully developed,
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US Steel appears to be presenting three alternative arguments related to federal
question jurisdiction: (1) the face of the complaint asserts federally based claims
because plaintiffs’ causes of action do not expressly reference state law; (2)
nuisance claims involving ambient air necessarily arise under federal law; and/or
(3) plaintiffs’ claims are wholly displaced by the Clean Air Act. 2
The Court addresses the above arguments in turn below.
B. Federal Claims are Not Asserted on the Face of the Complaint
Federal question jurisdiction lies over state law claims that implicate
significant issues of federal law. Grable & Sons Metal Prods., Inc. v. Darue Eng'g &

Mfg., 545 U.S. 308, 312, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005). Federal question
jurisdiction does not merely exist when federal law applies; rather there must be an
actual dispute regarding federal law. Id. at 315 n. 3.
In order to determine the scope of Plaintiffs’ claims, the Court employs the
well-pleaded-complaint-rule:
Ordinarily, a court must determine the presence or absence of a
federal question by examining only the plaintiff's well-pleaded
complaint. This rule requires that a federal question appear on the
face of the complaint. The plaintiff, as the master of his own complaint,
may avoid federal jurisdiction by pleading only state-law claims.

Nelson v. Stewart, 422 F.3d 463, 466 (7th Cir. 2005) (internal citations omitted) 3

22

The Court notes US Steel devotes a portion of its responsive brief to providing the Court with a
“bird’s eye” view/history of the Granite City facility and addressing the procedural aspects of removal
(a matter US Steel acknowledges is not in issue in the instant case). US Steel, however, fails to fully
develop the arguments that are central to the issue of federal question jurisdiction. For this reason
alone US Steel has not met its burden of establishing that jurisdiction is proper. Nonetheless, the
Court addresses the arguments it is able to discern from the briefing provided.
3
An exception to the well-pleaded-complaint-rule is when federal law completely preempts a

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The plaintiffs’ complaint does not reference any law – state or federal.
Plaintiffs merely assert common law claims for nuisance, trespass and negligence
without further specification. Defendants assert because plaintiffs’ complaint fails
to characterize its causes of action as based on state rather than federal law, federal
question jurisdiction exists. For the purpose of addressing this argument, the Court
assumes without deciding that private citizens can assert nuisance claims against
private entities relating to localized pollution under federal common law.
Defendants have not identified any authority requiring the plaintiffs to bring
their common law claims under federal rather than state law. 4 Defendants argue,
nonetheless, the ambiguity in plaintiffs’ complaint must be resolved in favor of
applying federal law. Defendants’ argument is unpersuasive. Here, defendants have
the burden of establishing federal jurisdiction and the Court must resolve any
doubt in favor of applying state law. Schur, 577 F.3d at 758 (citing Doe v.

Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). Accordingly, the Court will
credit plaintiffs’ statement in their motion to remand that they are only asserting
state law claims. See Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913)
(stating “the party who brings a suit is master to decide what law he will rely on.”);
particular area and, regardless of any artful pleading on the part of the plaintiff, renders the
complaint necessarily federal in character. Bastien v. AT & T Wireless Services, Inc., 205 F.3d 983,
986 (7th Cir. 2000); See Hays v. Cave, 446 F.3d 712, 713 (7th Cir.2006) (stating “if federal law
creates the claim on which the plaintiff is suing, the fact that he has omitted from his complaint any
reference to federal law will not defeat removal”). The issue of complete preemption is discussed
more fully below.
4
US Steel contends cases involving ambient air are governed by federal common law. For reasons
discussed below, the Court finds the instant case is distinguishable from Michigan v. US Army Corps
of Engineers 758 F.3d 892 (7th Cir. 2014), On plaintiffs’ motion to remand, ambiguity must be
resolved in favor of applying state law. Accordingly, the Court finds Michigan v. US Army Corps of
Engineers does not require application of federal law in the instant case.

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See also Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 810 n. 6
(1986) (“Jurisdiction may not be sustained on a theory that the plaintiff has not
advanced.”); Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir.1996) (stating that “if
she can maintain her claims on both state and federal grounds, she may ignore the
federal question, assert only state claims, and defeat removal”). Further, the Court
finds the plaintiffs’ passing reference to the lawsuit initiated by the Environmental
Protection Agency and the resultant consent decree is insufficient to sustain federal
question jurisdiction.
B. Michigan v. US Army Corps of Engineers Does Not Require Application of
Federal Law
The Court next considers the defendants’ argument with regard to federal
common law and ambient air. Defendants urge Michigan v. US Army Corps of

Engineers 758 F.3d 892 (7th Cir. 2014), requires a finding of federal question
jurisdiction on the theory that plaintiffs’ claims arise under the federal common law
dealing with ambient air.
In Michigan v. US Army Corps of Engineers, the Seventh Circuit
acknowledged, in the context of an interstate nuisance involving governmental
entities and federal rights, there is a federal common law when dealing with air and
water in their ambient or interstate aspects. However, the Court notes that at least
four important factors were present in Michigan v. US Army Corps of Engineers
that are not present here. The first is the fact that the plaintiffs were governmental
entities (five states and an Indian tribe); the second was the interstate nature of the
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nuisance involved (the threat posed to Great Lakes by an invasive carp species); the
third was the fact that one of the defendants was an agency of the federal
government (the Army Corps of Engineers); and the fourth was the fact that the
plaintiffs were actually seeking to pursue federal common law claims.
In the instant case, private plaintiffs are asserting state common law claims
against private entities. Moreover, the alleged harm is local and does not – in any
way – involve an interstate nuisance. Given these significant differences, the Court is
not persuaded that Michigan v. US Army Corps of Engineers requires a finding of
federal question jurisdiction. As the Court must resolve any doubt in favor of
applying state law, the Court concludes Michigan v. US Army Corps of Engineers
does not mandate application of federal law in the instant case. 5
C. Defendants Have Failed to Establish Complete Preemption Over Plaintiffs’
State Law Claims
Finally, the Court considers the defendants’ argument as to whether federal
law wholly displaces plaintiffs’ state law claims. 6 Generally, the “well-pleaded
complaint” doctrine guides jurisdictional matters. Gully v. First Nat'l Bank, 299
U.S. 109, 112–13, 57 S.Ct. 96, 97–98, 81 L.Ed. 70 (1936). The “allegations of the
complaint determine whether the claim arises under state or federal law,” making
5

See also Michigan v. US Army Corps of Engineers, 667 F.3d 765, 770 (7th Cir. 2011) (discussing American Electric
Power and the federal common law “in areas within national legislative power” and discussing the need “for a federal
common law to govern interstate disputes over nuisances”) (emphasis added).
6
US Steel does not expressly reference complete preemption of plaintiffs’ state law claims. Instead,
US Steel asserts defendants are entitled to have the Court determine whether the “Clean Air Act has
displaced any federal common law claims in the Complaint” (Doc. 25 p. 5). However, the complaint
does not assert any federal common law claims. The only displacement finding that would authorize
removal is a finding that federal law wholly displaces plaintiffs’ state law claims through complete
preemption. Accordingly, the Court considers the question of complete preemption of plaintiffs’
state law claims.

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the plaintiff “master of his pleadings.” Bartholet v. Reishauer A.G., 953 F.2d 1073,
1075 (7th Cir. 1992); see also Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107
S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). Ordinarily, federal preemption is a
defense to a plaintiff's suit and, as such, does not authorize removal because it does
not appear on the face of the complaint. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58,
63, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987); Bartholet, 953 F.2d at 1075. An
exception to both rules exists “when a federal statute wholly displaces the state law
cause of action through complete pre-emption ... [such that] a claim which comes
within the scope of that cause of action, even if pleaded in terms of state law, is in
reality based on federal law.” Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 8, 123
S.Ct. 2058, 2063, 156 L.Ed.2d 1 (2003); see also Turek v. General Mills, Inc., 662
F.3d 423, 425 (7th Cir. 2011). In such a case, the “federal law so fills every nook
and cranny that it is not possible to frame a complaint under state law.” Bartholet,
953 F.2d at 1075.
In cases of complete preemption, a defendant may remove the claim to
district court pursuant to 28 U.S.C. § 1441(a) because the district court has
original jurisdiction of the claim as it “aris[es] under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331; Davila, 542 U.S. at 207, 124 S.Ct.
at 2495. As previously noted, a defendant bears the “burden of establishing federal
jurisdiction, and federal courts should interpret the removal statute narrowly,
resolving any doubt in favor of the plaintiff's choice of forum in state court.” Schur

v. LA Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009).
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Here, defendants briefly argue plaintiffs’ claims are wholly displaced by the
Clean Air Act and cite to American Electric Power Co. v. Connecticut, 131 S.Ct.
2527 (2011). In this case, the Supreme Court held federal common law was
preempted by the Clean Air Act. It specifically reserved the issue of state common
law for the court on remand. American Electric, 131 S.Ct. at 2540. 7
Additionally, the Court notes certain provisions in the Clean Air Act militate
against a finding of complete preemption. First, in enacting the Clean Air Act,
Congress found “that air pollution prevention (that is the reduction or elimination,
through any measures, of the amount of pollutants produced or created at the
source) and air pollution control at its source is the primary responsibility of States
and local governments.” 42 U.S.C. § 7401(a)(3). Second, Congress included two
specific savings clauses which indicate Congress intended to preserve the right to
bring suit under the law of any affected State: the citizen suit savings clause and the
states’ rights savings clause. These provisions indicate Congress intended to
preserve state law tort actions.
Finally, in the absence of Seventh Circuit authority to the contrary, the Court
is persuaded by the reasoning of the Third Circuit Court of Appeals on this matter.
7

On this issue, the Supreme Court stated as follows:
The plaintiffs also sought relief under state law, in particular, the law of each State
where the defendants operate power plants. The Second Circuit did not reach the
state law claims because it held that federal common law governed. In light of our
holding that the Clean Air Act displaces federal common law, the availability vel non
of a state lawsuit depends, inter alia, on the preemptive effect of the federal Act. None
of the parties have briefed preemption or otherwise addressed the availability of a
claim under state nuisance law. We therefore leave the matter open for consideration
on remand.

American Electric, 131 S.Ct. at 2540 (internal citations omitted).

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See Bell v. Cheswick Generating Station 734 F.3d 188 (3rd Cir. 2013). In Bell, the
putative class (at least 1,500 individuals who owned or inhabited residential
property within one mile of defendant’s coal-fired electrical generation facility)
complained of ash and contaminants settling on their property. The putative class
brought suit against the defendant under various state law tort theories. 8 The
district court dismissed the case finding the Clean Air Act preempted the plaintiffs’
state law tort claims and the plaintiffs appealed. On appeal, the Third Circuit
considered, “as a matter of first impression: whether the Clean Air Act Preempt[ed]
state law tort claims brought by private property owners against a source of
pollution located within the state.” Id. at 189. After conducting a thorough analysis,
the Third Circuit concluded “the Clean Air Act does not preempt state common law
claims based on the law of the state where the source of the pollution is located.
Accordingly, the suit here, brought by Pennsylvania residents under Pennsylvania
law against a source of pollution located in Pennsylvania, is not preempted.” Id. at
197. The Third Circuit also noted that the Supreme Court’s decision in American

Electric did not alter the court’s analysis. Id. n.7.
Based on the foregoing, the Court finds plaintiffs’ state common law causes of
action are not completely preempted by the Clean Air Act. Accordingly, this
argument does not provide a basis for federal question jurisdiction.
IV.

LOCAL CONTROVERSY EXCEPTION

8

The case was originally filed in state court and removed to federal court based on diversity of
citizenship. Bell v. Cheswick Generating Station, 903 F.Supp.2d 314, 315 (W.D. Pa. 2012).
Thereafter, the defendant sought dismissal for failure to state a claim.

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While plaintiffs concede this case comes under CAFA generally, they argue it
falls under the local controversy exception to CAFA. Under the local controversy
exception, a district court must decline to exercise jurisdiction 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;
(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[.]
28 U.S.C. § 1332(d)(4)(A)(i)(I)-(III). The local controversy exception is “designed to
draw a delicate balance between making a federal forum available to genuinely
national litigation and allowing the state courts to retain cases when the controversy
is strongly linked to that state.” Hart v. FedEx Ground Package Sys., Inc., 457 F.3d
675, 682 (7th Cir. 2006).
It is the plaintiffs who bear the burden of establishing, by a preponderance of
the evidence, that the local controversy exception applies and that the federal court
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must remand the action to the state court. In re Sprint Nextel Corp., 593 F.3d 669,
673, 673 (7th Cir. 2010); Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675,
676 (7th Cir. 2006).
In the instant case, the only element disputed by the parties is whether the
plaintiffs have established that greater than two-thirds of the proposed class
members are citizens of Illinois.
Citizenship means domicile, which is where the person (1) resides and (2)
intends to remain. Myrick v. Wellpoint, Inc., 764 F.3d 662, 664 (7th Cir. 2014). In
assessing the issue of citizenship, the court may not draw conclusions about the
citizenship of class members on things like their phone numbers and mailing
addresses.” In re Sprint Nextel Corp., 593 F.3d 669, 673, 674 (7th Cir. 2010). The
Seventh Circuit has explained such conclusions are nothing more than guesswork
and should not be relied upon. See Id. (drawing conclusions about citizenship
based on phone numbers and mailing addresses is “[s]ensible guesswork, based on
a sense of how the world works, but guess-work nonetheless”).
Instead, of engaging in this type of guesswork, the Seventh Circuit has
endorsed the following two approaches:
For starters, ... they might have submitted evidence that two-thirds of
the class members were indeed Kansas domiciliaries or businesses.
Given that there are probably hundreds of thousands of putative class
members, if not more, it would be infeasible to document each class
member's citizenship individually, but the district court could have
relied on evidence going to the citizenship of a representative sample.
This evidence might have included affidavits or survey responses in
which putative class members reveal whether they intend to remain in
Kansas indefinitely, or, if they are businesses, their citizenship under
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the relevant test. Given those results and the size of the sample and the
estimated size of the proposed class, the district court could then have
used statistical principles to reach a conclusion as to the likelihood
that two-thirds or more of the proposed class members are citizens of
Kansas. Statisticians and scientists usually want at least 95 percent
certainty, but any number greater than 50 percent would have allowed
the district court to conclude that the plaintiffs had established the
citizenship requirement by a preponderance of the evidence.
Alternatively, the plaintiffs might have defined their class as all Kansas
citizens who purchased text messaging from Sprint Nextel or an
alleged coconspirator....

Id. at 675-76 (assessing how plaintiffs might have established the citizenship
requirement with regard to CAFA’s “home state” exception).
The Seventh Circuit revisited this issue in Myrick v. WellPoint, Inc., 764 F.3d
662 (7th Cir. 2014). In Myrick, plaintiffs sought to certify a proposed class that
“would exceed 20,000 policyholders and group members.” Phillips v. Wellpoint,

Inc., 2010 WL 4877718, *2 (S.D. Ill. Nov. 23, 2010) (Gilbert, J.) (not reported). The
district court declined to certify the class and ruled in defendants’ favor on the
merits (for the second time). 9 On appeal, plaintiffs’ counsel contended, among
other things, that proving the citizenship of all class members for the purpose of
Myrick v. WellPoint, Inc., 764 F.3d 662 (7th Cir. 2014), is an appeal related to plaintiffs’ counsel’s
second attempt to certify a class. The same counsel, making the same substantive allegations,
previously attempted to certify a class. Cima v. WellPoint Health Networks, Inc., 250 F.R.D. 374
(S.D.Ill. 2008). The district court declined and later entered judgment against plaintiffs on the
merits. Because the initial action had not been certified as a class action, the district court’s
judgment bound only the named plaintiffs. Counsel then filed a new class action in state court which
was removed to the Southern District of Illinois. Phillips v. WellPoint, Inc., 2010 WL 4877718, 2010
U.S. Dist. LEXIS 123844 (S.D.Ill. Nov. 23, 2010) (Gilbert, J.). The district court again declined to
certify a class, Phillips v. WellPoint, Inc., 2012 WL 4904523, 2012 U.S. Dist. LEXIS 147736 (S.D.Ill.
Oct. 15, 2012) (Gilbert, J), and again ruled in defendants' favor on the merits, Phillips v. WellPoint,
Inc., 2012 WL 6111405, 2012 U.S. Dist. LEXIS 175405 (S.D.Ill. Dec. 10, 2012) (Gilbert, J). At that
time appeals were taken by plaintiff Bob Myrick concerning all issues and by plaintiff Charlotte
Philips concerning the district courts award of costs. Myrick v. WellPoint, Inc., 764 F.3d 662 (7th
Cir. 2014).
9

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establishing an exception to CAFA was too expensive. Responding to this argument,
the Seventh Circuit made the following observations:
Not that it would have been prohibitively costly to offer evidence.
Counsel for the proposed class assumed that there were only two
options: determine the citizenship of every policyholder (expensive) or
rely on assumptions (cheap). But there's at least one more option: take
a random sample of policyholders (100, say), ascertain the citizenship
of each of these on the date the case was removed, and extrapolate to
the class as a whole. If the sample yields a lopsided result (say, 90%
Illinois citizens or only 50% Illinois citizens) then the outcome is clear
without the need for more evidence. (The more lopsided the result, the
smaller the sample needed to achieve statistical significance.) If the
result is close to the statutory two-thirds line, then do more sampling
and hire a statistician to ensure that the larger sample produces a
reliable result. Nothing of the kind was done, however, and on an
empty record the district court was entitled to conclude that §
1332(d)(4) has not been satisfied.

Myrick, 764 F.3d at 665. Although the Appellate Court’s comments are dicta, they
offer additional guidance on issues presently before the Court.
In the instant case, the plaintiffs offer the following as support for their
position on the citizenship of the proposed class members: (1) By definition, 10 the
proposed class members must reside or have recently resided in Illinois; (2)
declarations from 181 putative class members, each attesting to the fact that they
currently reside and intend to remain in Illinois; and (3) a declaration from Dr.
Charles Cowan, an expert statistician, concluding that more than two-thirds of the
class members reside in Illinois and intend to remain there. As to the declaration
from Dr. Cowan, Dr. Cowan studied the class area and surveyed a random sample
10

Class members are limited to people that resided (termed “Occupants” in the class definition) in
the contaminated area of Madison County, Illinois for the past five years up to and including the
present.

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of class members. Dr. Cowan concluded that, with 95% certainty, more than
two-thirds of the class members reside in Illinois and intend to remain there. More
specifically, Dr. Cowan concluded that only 2.8 – 12.4% of putative class area
intend to move from Illinois.
Defendants contend the putative class member declarations represent a tiny
and potentially non-representative portion of the putative class members. In
addition, the defendants fault Dr. Cowan’s survey methodology. Defendants also
submit a competing declaration from Dr. Jessica B. Horewitz, an economist. In
reply, the plaintiffs note that Dr. Horewitz is an economist and contend she has
limited to no experience designing surveys and a limited understanding of
demographics. Plaintiffs also submit an additional report from Dr. Cowan
addressing the criticisms raised in Dr. Horewitz’s report.
The Court concludes the survey employed by Dr. Cowan was sufficiently
well-designed to yield data that satisfies the preponderance of the evidence
standard. Likewise, the putative class member declarations submitted by the
plaintiffs adequately support their position. Although the methodology employed by
Dr. Cowan is not without flaw and additional information may have been helpful,
the material presented by plaintiffs is sufficient to meet the preponderance of the
evidence standard. Accordingly, the Court finds that the plaintiffs have sufficiently
established that two-thirds of the proposed class members are Illinois citizens.
V.

CONCLUSION

The Court finds the plaintiffs’ claims are not wholly preempted under federal
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law and the defendants have otherwise failed to meet their burden with respect to
establishing federal question jurisdiction. Further, although the action was
properly removed under CAFA, the Court finds that plaintiffs have met their burden
with respect to the local controversy exception. As no other basis for subject matter
jurisdiction exists, this matter must be remanded. Therefore, the Court ORDERS

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as follows:
This motion to remand is GRANTED. The Court ORDERS this case
remanded to the Circuit Court for the Third Judicial Circuit, Madison County,
Illinois.
IT IS SO ORDERED.

Digitally signed
by David R.
Herndon
Date: 2015.05.26
13:36:52 -05'00'

Signed this 26th day of May 2015.

United States District Court

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