Robertson, et al. v. Chevron USA, Inc., et al

Filing 53

ORDER AND REASONS re 30 MOTION to Remand - IT IS ORDERED that Plaintiffs Motion to Remand is DENIED. IT IS FURTHER ORDERED that Plaintiffs have until August 22, 2016, to file a supplemental memorandum identifying individual plaintiffs whose cl aims must be remanded because they do not exceed the $75,000 individual amount-in-controversy requirement. Defendants have until September 5, 2016, to file a response to Plaintiffs supplemental memorandum. The parties may conduct jurisdictional discovery through August 10, 2016, related to this issue. IT IS FURTHER ORDERED that Plaintiffs request for costs and attorney fees pursuant to 28 U.S.C. § 1447(c) is DENIED. Signed by Judge Susie Morgan on 7/8/2016.(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSEPH ROBERTSON, ET AL.,
Plaintiffs

CIVIL ACTION

VERSUS

NO. 15-874

CHEVRON USA, INC., ET AL.,
Defendant

SECTION: “E” (3)

ORDER AND REASONS
This case involves personal injury and property damage claims arising from alleged
exposure to contamination from oil field pipe. The case was originally filed in state court
and subsequently removed to federal court under the mass action provisions of the Class
Action Fairness Act (“CAFA”). 1 Plaintiffs, Joseph Robertson, et al., move to remand for
lack of subject-matter jurisdiction. 2 Defendants Exxon Mobil Corporation (“Exxon”) and
Mobil Exploration and Producing U.S., Inc. (“MEPUS”) oppose Plaintiffs’ motion, 3 as do
Defendants Joseph F. Grefer and Camille Grefer (“the Grefers”). 4 The Court initially
granted the motion to remand, but after reviewing the Court’s decision on appeal, the
Court of Appeals for the Fifth Circuit reversed and remanded the case for consideration
of Plaintiffs’ remaining jurisdictional arguments. 5 For the reasons that follow, Plaintiffs’
Motion to Remand is DENIED, and Plaintiffs’ request for costs and attorney’s fees
pursuant to 28 U.S.C. § 1447(c) is DENIED.

R. Doc. 1. See 28 U.S.C. §§ 1332, 1441, 1446, 1453.
R. Doc. 30.
3 R. Doc. 35.
4 R. Doc. 36.
5 See R. Doc. 52.
1

2

1

BACKGROUND
Joseph Robertson and 157 other plaintiffs filed suit in Civil District Court for the
Parish of Orleans on February 5, 2015; 33 additional plaintiffs were named in a
supplemental petition. 6
In their motion to remand, Plaintiffs argue that (1) Defendants failed to show that
the Court has jurisdiction over this matter under CAFA, (2) the local single event
exclusion applies, and (3) Plaintiffs’ action falls under CAFA’s mandatory abstention
provisions, namely the local controversy exception and the home state exception. 7
Plaintiffs also argue they are entitled to all costs and attorney’s fees incurred as a result of
the removal pursuant to 28 U.S.C. § 1447(c). 8
On April 20, 2015, this Court ordered Defendants to conduct any discovery related
to jurisdiction by May 22, 2015. 9 On June 1, 2015, Defendants Exxon and MEPUS filed
an opposition to the motion to remand, 10 as did the Grefers. 11 Plaintiffs filed a reply in
support of their motion to remand on June 12, 2015. 12
This Court issued an order on September 2, 2015, granting Plaintiff’s motion to
remand the case to state court, as the Court found Defendants failed to establish the
individual amount in controversy as required under 28 U.S.C. § 1332(a) and (d)(11)(B)(i).
On January 22, 2016, the Fifth Circuit reversed this Court’s finding that no plaintiff has
satisfied the individual amount-in-controversy requirement, and the Fifth Circuit

See R. Doc. 1-1.
R. Doc. 30.
8 Id.
9 R. Doc. 34.
10 R. Doc. 35.
11 R. Doc. 36.
12 R. Doc. 40.
6
7

2

remanded

the

case

to

this

Court

to

address

Plaintiffs’

remaining

jurisdictional arguments. 13
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. 14 “The removing
party bears the burden of showing that federal jurisdiction exists and that removal was
proper.” 15 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. 16 Remand is
proper if at any time before final judgment it appears the Court lacks subjectmatter jurisdiction. 17
CAFA vests federal district courts with original jurisdiction over “mass actions.” 18
A “mass action” under CAFA is a 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.” 19 A mass action is deemed a class action
removable under CAFA. 20 This Court has jurisdiction over mass actions where (1) there
are more than 100 plaintiffs; (2) minimal diversity exists between the parties; (3) the
amount in controversy exceeds $5 million; 21 and (4) the primary defendants are not

See R. Doc. 52.
See 28 U.S.C. § 1441(a).
15 See Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
16 Id.
17 See 28 U.S.C. § 1447(c) (“A motion to remand the case on the basis of any defect other than lack of subject
matter jurisdiction must be made within 30 days after the filing of the notice of removal . . . . If at any time
before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.”).
18 See 28 U.S.C. 1332(d)(11). See also Rainbow Gun Club, Inc. v. Denbury Onshore, L.L.C., 760 F.3d 405,
408 (5th Cir. 2014).
19 28 U.S.C. 1332(d)(11)(B)(i).
20 28 U.S.C. 1332(d)(11)(A).
21 28 U.S.C. § 1332(d)(2), (6). See also Hood ex rel. Miss. v. JP Morgan Chase & Co., 737 F.3d 78, 85 (5th
Cir. 2013).
13

14

3

states, state officials, or other governmental entities. 22 In addition, CAFA provides that a
court has jurisdiction “only over those plaintiffs whose claims in a mass action satisfy the
jurisdictional amount requirements under subsection (a)” 23 for diversity jurisdiction,
which requires the matter in controversy to exceed $75,000, exclusive of interest and
costs. 24 The removing party bears the burden of proving that the provisions of CAFA are
satisfied, 25 while “the party objecting to CAFA jurisdiction must prove that the CAFA
exceptions

to

federal

jurisdiction

divest[]

the

district

court

of

subject

matter jurisdiction.” 26
ANALYSIS
I.

Does This Case Satisfy CAFA’s Jurisdictional Requirements?
A. Minimal Diversity
To remove a mass action under CAFA, the case must have minimal diversity, which

is satisfied when at least one plaintiff and one defendant are citizens of different states. 27
Citizenship for purposes of diversity jurisdiction must exist at the time the action
commences. 28 “In cases removed from state court, diversity of citizenship must exist both
at the time of filing in state court and at the time of removal to federal court.” 29 Plaintiffs
argue Defendants fail to establish minimal diversity. 30
22 See Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 569 (5th Cir. 2011); 28 U.S.C. § 1332(d)(2), (5),
(11)(A).
23 28 U.S.C. § 1332(d)(11)(B)(i).
24 28 U.S.C. § 1332(a).
25 See Rainbow Gun Club, 760 F.3d at 409 n.3; Preston v. Tenet Healthsystem Memorial Medical Center,
Inc. (“Preston II”), 485 F.3d 804, 810 (5th Cir. 2007) (“CAFA contains a basic jurisdictional test for
removal, which requires the removing defendant to prove minimal diversity and an aggregated amount in
controversy of $5,000,000 or more.”).
26 Hollinger, 654 F.3d at 571. See also Rainbow Gun Club, 760 F.3d at 409 n.3.
27 See Hollinger, 654 F.3d at 569.
28 See Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 571 (2004) (“It has long been the case that
the jurisdiction of the court depends upon the state of things at the time of the action brought.”) (internal
quotations omitted); Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996).
29 Coury, 85 F.3d at 249.
30 R. Doc. 30-1 at 8–9.

4

In the notice of removal, the Grefers list each defendant’s state of incorporation
and principal place of business both at time of filing and time of removal. 31 It is clear that
at least one defendant is not a citizen of Louisiana. 32
The Grefers also state in the notice of removal that “[u]pon information and belief
at least one [p]laintiff is a citizen of Louisiana.” 33 To support their contention, the Grefers
cite Plaintiffs’ petition for damages, in which Plaintiffs aver that “Petitioners all live in or
formerly lived in, and/or work or formerly worked in, and/or own or formally [sic] owned
real property in Harvey, Parish of Jefferson, State of Louisiana. . . .” 34 Section 1332,
however, provides for jurisdiction over civil actions between “citizens of different
states.” 35 An allegation that a party is a “resident” of a particular state is insufficient
because Section 1332 “demands diverse citizenship, not diverse residency.” 36 The petition
fails to provide the state(s) of domicile or citizenship of any plaintiff. Nevertheless,
Plaintiffs do not dispute that they are Louisiana citizens; indeed, in their memorandum
in support of their motion to remand, Plaintiffs state, “Greater than two-thirds of the
Plaintiffs are citizens of Louisiana.” 37

R. Doc. 1 at ¶ 6–23.
See id. Chevron U.S.A. Inc., for example, “was [at the time Plaintiffs filed their original petition] and is
now a Pennsylvania corporation with its principal place of business in the State of California.” Id. at ¶ 6.
Thus, Chevron U.S.A. Inc. was a citizen of Pennsylvania and California, both at the time Plaintiffs filed their
original petition and at the time of removal.
33 R. Doc. 1 at ¶ 25.
34 R. Doc. 1-1 at 2 ¶ 5.A. Exxon and MEPUS also rely on this paragraph in their opposition to the motion to
remand to support their contention that at least some of the plaintiffs are citizens of Louisiana. See R. Doc.
35 at 5.
35 28 U.S.C. § 1332 (emphasis added).
36 Nadler v. Am. Motor Sales Corp., 764 F.2d 409, 413 (5th Cir. 1985). See also Preston v. Tenet
Healthsystem Memorial Medical Center, Inc. (“Preston I”), 485 F.3d 793, 797 (5th Cir. 2007) (“In
determining diversity jurisdiction, the state where someone establishes his domicile serves a dual function
as his state of citizenship.”); Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954) (“With respect to the diversity
jurisdiction of the federal courts, citizenship has the same meaning as domicile. . . . Residence alone is not
the equivalent of citizenship.”).
37 R. Doc. 30-1 at 20.
31

32

5

Accordingly, the Court finds Defendants have established minimal diversity for
purposes of removal under CAFA, as at least one plaintiff and one defendant are citizens
of different states. 38
B. Amount in Controversy
CAFA imposes two amount-in-controversy requirements. First, CAFA requires
that the aggregated amount in controversy exceed $5 million. 39 Second, under CAFA, a
court has jurisdiction “only over those plaintiffs whose claims in a mass action satisfy the
jurisdictional amount requirements under subsection (a),” which states that the matter
in controversy must exceed $75,000, exclusive of interest and costs. 40
Defendants seeking removal of a mass action have the burden of establishing by a
preponderance of the evidence 41 that the individual and aggregate amount-in-controversy
requirements are satisfied. 42 A defendant meets this burden if (1) it is apparent from the

Although Plaintiffs devote a section of their motion to remand to minimal diversity with a heading that
reads, “The Defendants fail to establish minimal diversity,” Plaintiffs actually raise the local controversy
exception to CAFA (discussed infra) rather than challenge whether Defendants established minimal
diversity, erroneously conflating the local-controversy exception with the minimal-diversity requirement.
See R. Doc. 30-1 at 9 (“Defendants posit that plaintiffs ‘have not alleged that over 2/3 of plaintiffs are
citizens of Louisiana.’ . . . Ultimately, if the defendant’s [sic] are contending that the original petition does
not allege or otherwise cannot show that plaintiffs meet the 2/3 citizenship requirement, then the
defendants would likewise not be able to establish initial diversity jurisdiction for CAFA and the matter
would have to be remanded.”).
39 28 U.S.C. § 1332(d)(2), (6); see also JP Morgan, 737 F.3d at 85.
40 28 U.S.C. § 1332(d)(11)(B)(i); 28 U.S.C. § 1332(a). See Miss. ex. rel. Hood v. AU Optronics Corp., 134
S.Ct. 736, 740 (2014) (“[W]hereas § 1332(a) ordinarily requires each plaintiff’s claim to exceed the sum or
value of $75,000 . . . , CAFA grants federal jurisdiction over class and mass actions in which the aggregate
amount in controversy exceeds $5 million. . . . Class and mass actions filed in state court that satisfy CAFA’s
requirements may be removed to federal court, . . . but federal jurisdiction in a mass action, unlike a class
action, ‘shall exist only over those plaintiffs’ whose claims individually satisfy the $75,000 amount in
controversy requirement.” (quoting 28 U.S.C. § 1332(d)(11)(B)(i)).
41 Although a removing defendant generally needs to provide only a plausible allegation that the amount in
controversy exceeds the jurisdictional threshold, See 28 U.S.C. § 1446(a), when the plaintiff contests the
defendant’s allegations in a motion to remand, as in this case, the defendant must establish the amount by
a preponderance of the evidence. See 28 U.S.C. § 1446(c)(2)(B). See also Dart Cherokee Basin Operating
Co., L.L.C. v. Owens, 135 S.Ct. 547, 553–54 (2014).
42 28 U.S.C. § 1332(d)(11)(B)(i); JP Morgan, 737 F.3d at 85 (“As the party seeking removal [of a mass action
under CAFA], Defendants bear the burden of proving both amounts in controversy.”). See also Manguno,
276 F.3d at 723 (“The removing party bears the burden of showing that federal jurisdiction exists and that
removal was proper.”). As this Court explained in Shanley, et al. v. Chalmette Refining, L.L.C., et al., No.
38

6

face of the petition that the claims satisfy the amount-in-controversy requirements, or
(2) the defendant sets forth summary judgment-type evidence that supports a finding of
the requisite amounts. 43 In addressing a removing defendant’s burden to establish the
amount in controversy, the Supreme Court has said, “[N]o antiremoval presumption
attends cases invoking CAFA, which Congress enacted to facilitate adjudication of certain
class actions in federal court.” 44
1. Aggregate Amount in Controversy
The aggregate amount-in-controversy requirement is met if (1) it is apparent from
the face of the petition that the claims are likely to exceed $5 million, or (2) the defendant
sets forth “summary judgment type evidence” of facts in controversy that support a
finding of the requisite amount. 45 The demonstration Defendants must make “concerns
what the plaintiff is claiming (and thus the amount in controversy between the parties),
not whether the plaintiff is likely to win or be awarded everything he seeks.” 46
Defendants argue it is apparent from the face of the petition that the aggregate
amount in controversy exceeds $5 million. 47 In Plaintiffs’ petition for damages, Plaintiffs
aver that the Grefers obtained compensatory damages of $56 million and punitive
damages of $1 billion “against the same Defendants named in this suit, for a part of the
same radioactive contamination complained of in this matter” and argue that Plaintiffs in
this case “are entitled to share in those damages.” 48 The Grefers cite this paragraph to

12-3045 R. Doc. 124, at *3, 4 (E.D. La. Oct. 3, 2014), CAFA has not altered the traditional rule regarding
removing defendants’ burden in establishing jurisdiction.
43 See Manguno, 276 F.3d at 723.
44 Dart Cherokee Basin, 135 S.Ct. at 554.
45 See Manguno, 276 F.3d at 723.
46 Berniard v. Dow Chem. Co., 481 F. App’x 859, 862 (5th Cir. 2010) (quoting Spivey v. Vertrue, Inc., 528
F.3d 982, 986 (7th Cir. 2008)).
47 R. Doc. 1 at ¶ 29.
48 R. Doc. 1-1 ¶ 47.

7

support their assertion that the amount in controversy satisfies CAFA’s requirements. 49
Exxon and MEPUS also cite this paragraph in their opposition as support and explain,
“Even if one ignores the punitive damages award from the Grefer verdict, $56 million
split amongst 191 plaintiffs averages over $293,000 per claimant, satisfying both the
aggregate and individual amount-in-controversy requirements under CAFA.” 50
Plaintiffs allege that the nearby cleaning of pipes used in the oil industry over a
period of several decades produced harmful radioactive dust, debris, and other residue
that injured their health and damaged their property. 51 Plaintiffs seek damages for
physical injuries; past, present, and future medical expenses; lost wages; anxiety and
emotional distress; increased risk of contracting disease, including cancer and leukemia;
aggravation of preexisting conditions or illnesses; fear of contracting cancer; property
damage; and diminution in property value. 52 Plaintiffs also seek punitive damages. 53
Plaintiffs, however, do not specify the monetary amount they seek, as Louisiana law
prohibits plaintiffs from alleging in their petition the amount of damages they seek. 54
Other courts have found similar allegations sufficient to establish that the amount
in controversy exceeds $5 million. For example, in DeHart v. BP America, the plaintiff
filed suit in state court on behalf of himself and a class of similarly situated individuals
claiming personal injury as a result of exposure to airborne radiation, dust/t-norms. 55
Individually, the plaintiff sought damages resulting from his alleged exposure to

R. Doc. 36 at 3–4 (citing Grefer v. Alpha Technical, 965 So.2d 511 (La. App. 4 Cir. 2007)).
R. Doc. 35 at 7.
51 R. Doc. 1-1.
52 R. Doc. 1-1 at ¶¶ 44–63.
53 R. Doc. 1-1 at ¶¶ 49–63.
54 LA. CODE CIV. PRO. art. 893. See also Perritt v. Westlake Vinyls Co., L.P., 562 F. App’x 228, 231 (5th Cir.
2014).
55 DeHart v. BP Am., Inc., No. 09-0626, 2010 WL 231744, at *1 (W.D. La. Jan. 14, 2010).
49

50

8

radiation, causing an alleged permanent neurological, psychological, and pathological
condition. In addition, the plaintiff and other class members sought damages for severe
“and possibly disabling” physical, mental, and emotional injuries associated with alleged
exposure to airborne radiation exposure, including damages for diagnostic studies and
future medical monitoring. 56 The court found it was facially apparent that the amount in
controversy exceeded $5 million based on the nature of the damages sought and the size
of the purported class, which consisted of about 118 people. 57 The court concluded that
“even a minimal award to each of the 118 potential plaintiffs . . . more likely than not
satisfies this court’s jurisdictional minimum in the aggregate.” 58
Similarly, this Court finds it is facially apparent that, based on the petition in this
case, the amount in controversy more likely than not exceeds $5 million in light of the
nature of the injuries alleged and the damages sought.
Even if it were not facially apparent the aggregate amount-in-controversy
requirement is satisfied, Defendants have established with competent summary
judgment-type evidence that the jurisdictional amount is satisfied. Defendants attached
to their opposition to the motion to remand Plaintiffs’ interrogatory answers, which
constitute summary judgment-type evidence. 59 Plaintiffs provided a list of each plaintiff’s
claimed damages, including cancer, wrongful death of a loved one, stroke, hair loss,
breathing problems, fear, and anxiety. 60 In LeBlanc v. Texas Brine, L.L.C., a removed
class action before another section of this Court, the class contained at least 150 members

Id. at *9.
Id.
58 Id.
59 See FED. R. CIV. P. 56(c)(1)(A).
60 R. Doc. 36-1.
56
57

9

who alleged injuries as a result of exposure to radioactive materials. 61 Plaintiffs sought
damages that “[ran] the gamut from medical monitoring, business interruption, lost
wages, property damage, evacuation expenses, property remediation, emotional injury,
and economic damages associated with mortgage obligations.” 62 The court concluded that
the amount-in-controversy requirement had been met under CAFA. The court explained
that, although the class size involved was “not particularly large when compared to other
classes, these cases do not involve a quickly controlled and temporary exposure to
harmless substances.” 63 The court also found persuasive that the damages to the class
continued to accrue at the time the court determined whether the amount in controversy
exceeded $5 million: “These damages began to accrue at the latest in August of 2012 and
continue to accrue at the time of this writing. The Court is persuaded that in light of the
ongoing and continuous nature of the damages, as well as the extremely broad scope of
damages sought by the class, the amount in controversy . . . exceeds $5,000,000.” 64
Plaintiffs in this case allege that damages have accrued since the 1950s and
continue to accrue. 65 Plaintiffs’ complaint alleges that Plaintiffs have been exposed to
contamination for decades and details the damages Plaintiffs seek, while Plaintiffs’
answers to interrogatories provides a list of injuries for which each plaintiff seeks
damages. The Court finds the aggregate amount in controversy among the 189 plaintiffs

LeBlanc v. Texas Brine, L.L.C., No. 12-2059, 2013 WL 682302, at *1 (E.D. La. Feb. 22, 2013).
Id. at *7.
63 Id.
64 Id.
65 R. Doc. 1-1 ¶ 8, 28, 38.
61

62

10

more likely than not exceeds $5 million in light of the nature of the injuries Plaintiffs
allege and of the damages Plaintiffs seek to recover. 66
2. Individual Amount in Controversy
On appeal, the Fifth Circuit concluded that “[w]hether or not the amount in
controversy is facially apparent from Plaintiffs’ complaint, Defendants submitted
evidence that satisfies their burden of showing that at least one plaintiff’s claim
exceeds $75,000.” 67
The Fifth Circuit has not yet addressed whether only one or at least 100 of the
plaintiffs must satisfy the individual amount-in-controversy requirement in order to
confer CAFA jurisdiction. 68 Several district courts in this circuit, however, have
determined that only one plaintiff must satisfy the $75,000 amount-in-controversy
requirement under CAFA. 69 Moreover, courts in this circuit have found the Eleventh
Circuit’s reasoning in Lowery v. Alabama Power Co. 70 persuasive. 71 In Lowery, the
Eleventh Circuit concluded that CAFA requires only one plaintiff’s claims to exceed
$75,000. Otherwise, as the court noted in dicta, the aggregate amount in controversy

66 See Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1336 (5th Cir. 1995) (making common-sense inferences
regarding the amount in controversy in light of the number of plaintiffs and defendants and the nature of
the damages sought).
67 R. Doc. 52 at 9.
68 See, e.g., JP Morgan, 737 F.3d at 86 n.4 (“As none of the plaintiffs here satisfies this requirement, we
need not resolve the issue of whether more than one plaintiff must satisfy the individual amount in
controversy requirement today.”).
69 See, e.g., Greco v. Jones, 992 F.Supp.2d 693, 696 (N.D. Tex. 2014) (“Unbridled by any precedent from
this Circuit to the contrary, the Court rejects Plaintiffs’ assertion that the $75,000 provision forecloses
jurisdiction over the entire case if the removing party does not prove that each Plaintiff asserts claims
greater than that amount.”); Hamilton v. Burlington Northern Santa Fe Ry. Co., No. 08-132, 2008 WL
8148619, at *6–8 (W.D. Tex. Aug. 8, 2008) (concluding that removing defendants need not establish that
each plaintiff satisfies the $75,000 threshold); Mississippi ex rel. Hood v. Entergy Mississippi, Inc., 2012
WL 3704935, at *9–12 (S.D. Miss. Aug. 25, 2012) (concluding that only after removal should the court
consider the individual amount-in-controversy requirement and remand any plaintiffs’ individual claims
that do not exceed $75,000).
70 483 F.3d 1184 (11th Cir. 2007).
71 See, e.g., Greco, 992 F.Supp.2d at 697; Entergy Mississippi, 2012 WL 3704935, at *9–11.

11

requirement ($5 million) would be surplusage, as 100 individual claims of more than
$75,000 each would total more than $7.5 million. 72 Thus, “[e]very civil action satisfying
the numerosity requirement [of 100 plaintiffs] and the $75,000 provision would exceed
$5,000,000 in the aggregate,” 73 and the aggregate amount-in-controversy requirement
would be meaningless. In the Fifth Circuit’s decision remanding this case, it endorsed the
Eleventh Circuit’s approach without deciding the issue:
We have previously left open the question of whether—because federal jurisdiction
exists only over those plaintiffs whose claims in a mass action satisfy the individual
jurisdictional amount requirements—the party asserting federal jurisdiction must
show at removal that at least 100 plaintiffs seek more than $75,000. The Eleventh
Circuit has rejected the view, not yet embraced by any circuit, that CAFA imposes
a threshold removability requirement that at least 100 plaintiffs satisfy the
individual jurisdictional amount. That court chiefly reasoned that such a
construction would negate the $5 million aggregate amount-in-controversy
requirement by making the aggregate requirement variable, but always greater
than $7.5 million. We have no reason to question the Eleventh Circuit’s sound
reasoning here because the district court decided only that Defendants had not
shown that any plaintiff’s claim exceeds $75,000 and Plaintiffs have not briefed
any argument for a greater threshold requirement. 74
This Court finds the Eleventh Circuit’s reasoning persuasive and, consistent with
several other district courts in this circuit, holds that a defendant need only establish at
least one plaintiff’s amount in controversy exceeds $75,000. Because Defendants have
shown that at least one plaintiff’s amount in controversy satisfies the jurisdictional
amount, Defendants have met their burden of showing the individual amount-incontroversy requirement is met.

See Lowery v. Alabama Power Co., 483 F.3d 1184, 1204 (11th Cir. 2007) (“If there are 100 individual
plaintiffs, as there must be under the numerosity requirement of § 1332(d)(11)(B)(i), and if their individual
claims cannot be removed unless the claims of each plaintiff exceed $75,000, then one need not even resort
to a calculator to deduce that the aggregate value of the claims of each of the 100 plaintiffs would be, at a
minimum, $7,500,000. This approach negates the need for the $5,000,000 aggregate amount in
controversy requirement of § 1332(d)(2), which is applied to mass actions through § 1332(d)(11)(A).”).
73 Id.
74 R. Doc. 52 at 8 n.2 (emphasis in original) (citations omitted) (internal quotation marks omitted).
72

12

The Court, however, has jurisdiction only over those plaintiffs whose claims exceed
the individual $75,000 amount-in-controversy requirement. The Senate Report on CAFA
states, “[I]t is the Committee’s intent that any claims that are included in the mass action
that standing alone do not satisfy the jurisdictional amount requirements of Section
1332(a) (currently $75,000), would be remanded to state court.” 75 In Miss. ex. rel. Hood
v. AU Optronics Corp., the Supreme Court explained as follows:
[W]hereas § 1332(a) ordinarily requires each plaintiff’s claim to exceed the sum or
value of $75,000 . . . , CAFA grants federal jurisdiction over class and mass actions
in which the aggregate amount in controversy exceeds $5 million. . . . Class and
mass actions filed in state court that satisfy CAFA’s requirements may be removed
to federal court, . . . but federal jurisdiction in a mass action, unlike a class action,
“shall exist only over those plaintiffs” whose claims individually satisfy the
$75,000 amount in controversy requirement. 76
In Hood ex rel. Miss. v. JP Morgan Chase & Co., the Fifth Circuit found that none of the
plaintiffs satisfied the individual amount in controversy requirement. 77 Nevertheless, the
court reiterated that, if one plaintiff’s amount in controversy exceeded $75,000 and as a
result the court had jurisdiction, the court still would not have supplemental jurisdiction
over the other individual plaintiffs who did not meet the individual amount-incontroversy requirement: “Even assuming arguendo that one of the plaintiffs did satisfy
the individual amount in controversy requirement, the exercise of supplemental
jurisdiction here would be an end-run around CAFA, which contains the explicit statutory
requirement that ‘jurisdiction shall exist only over those plaintiffs whose claims in a mass
action satisfy’ the $75,000 requirement.” 78 Thus, this Court has jurisdiction under CAFA
over a mass action in which there is minimal diversity, more than 100 plaintiffs, and an

S. Rep. No. 109-14, at 46–47 (2005).
AU Optronics Corp., 134 S.Ct. at 740 (quoting 28 U.S.C. § 1332(d)(11)(B)(i)) (emphasis added).
77 JP Morgan, 737 F.3d at 87–88.
78 JP Morgan, 737 F.3d at 88 n.9.
75

76

13

aggregate amount in controversy of $5 million, but this Court has jurisdiction only over
those plaintiffs in the mass action whose amount in controversy exceeds $75,000.
The Court must determine whether Plaintiffs or Defendants have the burden to
establish which of the individual plaintiffs, if any, do not meet the $75,000 amount-incontroversy requirement. The District Court for the Southern District of Mississippi
described the determination of CAFA jurisdiction over mass actions as a “two-step
process.” 79 First, the Court determines whether the threshold jurisdictional requirements
under CAFA are met, including whether there is minimal diversity, whether the aggregate
amount in controversy is met, and whether there are 100 or more plaintiffs whose claims
rest on common issues of law and fact. 80 Second, the Court remands the claims of
individual plaintiffs that do not satisfy the $75,000 individual amount-in-controversy
requirement. 81 The district court in Mississippi concluded, in light of the plain language
of the statute, that the $75,000 individual amount-in-controversy requirement is an
exception to CAFA jurisdiction, rather than a threshold requirement. 82 Under this
interpretation, after the removing defendants establish the threshold jurisdictional
requirements under CAFA, the plaintiffs would have the burden of showing which
claims should be remanded because they fail to meet the individual amount-incontroversy requirement. 83

Entergy Mississippi, 2012 WL 3704935, at *9.
Id. (citing Lowery, 483 F.3d at 1202–03).
81 Id.
82 See id. at *10.
83 Hollinger, 654 F.3d at 571 (“This court has held that the party objecting to CAFA jurisdiction must prove
that the CAFA exceptions to federal jurisdiction divest[] the district court of subject matter jurisdiction.”);
Rainbow Gun Club, 760 F.3d at 409 n.3 (“Generally, the party seeking removal has the burden of proving
that the provisions of CAFA are satisfied. The party seeking remand, however, has the burden of proving
the applicability of any exceptions to CAFA jurisdiction.”).
79

80

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Similarly, in Hamilton v. Burlington Northern Santa Fe Railway Co., the District
Court for the Western District of Texas found the defendants made a “prima facie case for
removal pursuant to CAFA’s mass action provisions because the aggregated claims are
worth more than $5,000,000.” 84 The court then placed the burden on the plaintiffs to
identify the individual claims that must be remanded because they fall below the
$75,000 threshold. 85
The Court agrees with this interpretation of the statutory provisions. Plaintiffs
must identify which claims of individual plaintiffs, if any, should be remanded because
the plaintiff fails to meet the individual amount-in-controversy requirement. The Court
will allow Defendants to conduct jurisdictional discovery through August 10, 2016, and
will give the parties an opportunity to provide supplemental briefing on this issue.
II.

Does an Exception or Exclusion to CAFA Apply?
A. The Local Single Event Exclusion
Plaintiffs argue this case is not a “mass action” under CAFA because of the local

single event exclusion. 86 This exclusion provides: “the term ‘mass action’ shall not include
any civil action 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 contiguous to that State.” 87
The parties dispute who has the burden to establish the applicability or
inapplicability of the exclusion. 88 In Rainbow Gun Club, Inc. v. Denbury Onshore, L.L.C.,

See Hamilton, 2008 WL 8148619, at *8.
Id. (“Plaintiffs have the burden of identifying individual claims that must be remanded because they fall
below the $75,000 threshold specified in § 1332(d)(11)(B)(i). As Plaintiffs have identified no specific claim
that falls below this amount, no remand is warranted on these grounds at the present time.”).
86 R. Doc. 30-1 at 13–16. See generally Rainbow Gun Club, 760 F.3d at 408.
87 28 U.S.C. § 1332(d)(11)(B)(ii)(I).
88 See R. Doc. 30-1 at 13; R. Doc. 35 at 9; R. Doc. 36 at 9.
84
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the Fifth Circuit suggested, without deciding, that the party seeking remand must
establish the applicability of the exclusion:
The parties briefly dispute who has the burden of demonstrating the applicability
or inapplicability of the [local single event] exclusion. Generally, the party seeking
removal has the burden of proving that the provisions of CAFA are satisfied. The
party seeking remand, however, has the burden of proving the applicability of any
exceptions to CAFA jurisdiction. Because it does not affect the outcome, and
because the parties have presented no argument on this issue other than summary
assertions, we decline to address this dispute. 89
Other courts in this district have determined that a plaintiff seeking remand bears the
burden of establishing the applicability of the local single event exclusion. 90 In accordance
with the courts that have addressed this issue, the Court finds Plaintiffs bear the burden
of establishing the applicability of this exclusion.
The local single event exclusion applies to a single event or occurrence but one that
“need not be confined to a moment in time.” 91 In Rainbow Gun Club, the plaintiffs—
several individuals, groups, and trusts—entered into leases with the defendant allowing
the defendant to explore for oil, gas, and minerals. The plaintiffs argued the defendant’s
pattern of negligence led to the failure of a well. The court concluded the district court
lacked jurisdiction because the defendant’s pattern of negligent acts was an “event or
occurrence” under the CAFA exclusion. The Fifth Circuit explained that an event or
occurrence under the exclusion can include a pattern of conduct “in which the pattern is

Rainbow Gun Club, 760 F.3d at 409 n.3 (citations omitted).
See, e.g., Hamilton, 2008 WL 8148619, at *8 (“Because the ‘local occurrence rule’ is an exception to
CAFA’s mass action jurisdictional provisions, Plaintiffs have the burden of proof on the issue.”) (citing
Frazier v. Pioneer Americas, L.L.C., 455 F.3d 542, 546 (5th Cir. 2006) (“Here, longstanding § 1441(a)
doctrine placing the burden on plaintiffs to show exceptions to jurisdiction buttresses the clear
congressional intent to do the same with CAFA. This result is supported by the reality that plaintiffs are
better positioned than defendants to carry this burden. . . . We hold that plaintiffs have the burden to show
the applicability of the §§ 1332(d)(3)–(5) exceptions when jurisdiction turns on their application.”)); Greco,
992 F. Supp. 2d at 701 (“Plaintiffs bear the burden of proving the applicability of this [event or occurrence]
jurisdictional exception.”).
91 Rainbow Gun Club, 760 F.3d at 409.
89

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consistent in leading to a single focused event that culminates in the basis of the asserted
liability.” 92 The court further explained that “there was an ongoing pattern of conduct that
was contextually connected, which when completed created one event consistent with the
ordinary understanding and the legislative history of the exclusion.” 93 Thus, the failure of
the well, a single event or occurrence, “resulted from a number of individual negligent
acts related to each other, all of which came together to culminate in the single event.” 94
In addition to Rainbow Gun Club, Plaintiffs rely on Armstead v. Multi-Chem
Group, L.L.C., in which the Western District of Louisiana found that the underlying single
event precluded the action from constituting a “mass action” under CAFA. 95 The plaintiffs
in Armstead alleged an explosion and fire led to the release of hazardous fumes that
penetrated nearby neighborhoods. 96 In concluding the exclusion applied, the court noted,
“[A]ll injuries alleged . . . were incurred in, and resulted from, personal and property
exposure to the hazardous fumes released . . . as a result of that one explosion and fire.” 97
In this case, Plaintiffs argue the alleged injuries resulted from pipe-cleaning
operations conducted over 34 years by several different defendants. 98 Unlike in Rainbow
Gun Club and Armstead, Plaintiffs do not allege the operations culminated in one single
event that led to Plaintiffs’ injuries. Instead, they allege, for example, the landowners
maintained an attractive nuisance, failed to timely warn Plaintiffs that there were
radioactive materials on the property, and failed to prevent Plaintiffs from using the
Id. at 412.
Id. at 413.
94 Id. See also Allen v. Boeing Co., 784 F.3d 625, 633 (9th Cir. 2015) (analyzing and applying the Fifth
Circuit’s decision in Rainbow Gun Club); Armstead v. Multi-Chem Group, L.L.C., 2012 WL 1866862, at
*7–8 (W.D. La. May 21, 2012) (concluding that injuries allegedly suffered from exposure to hazardous
fumes resulted from a “singular injury-producing incident,” an explosion and fire).
95 R. Doc. 30-1 at 15–16; Armstead, 2012 WL 1866862, at *9.
96 Armstead, 2012 WL 1866862, at *9.
97 Id. (emphasis added).
98 R. Doc. 1-1 at ¶¶ 5, 8, 10.
92
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property for recreation and farming. 99 Plaintiffs allege the oil companies failed to properly
supervise the operations of the pipe contractors, failed to test their pipe for hazardous
materials, failed to remediate the property, and acted carelessly and negligently. 100
Plaintiffs also allege that, among other claims, the pipe contractors failed to clean up
contaminated soil and water, failed to properly test pipes for radiation, and failed to warn
Plaintiffs of radioactive materials. 101 Yet nothing in the petition, motion to remand, or
reply memorandum suggests that a single event led to the injuries alleged, and
Defendants maintain that no such single event occurred. Indeed, the Grefers note that the
alleged conduct is not a single even or occurrence because the allegations involve the
operations of five different pipe-cleaning defendants cleaning pipe for nineteen different
oil companies at various locations on separate properties owned by three different
landowners over the course of 34 years. 102 The Court finds the local single event exclusion
does not apply to this case.
B. The Local Controversy Exception
Plaintiffs argue the local controversy exception applies and as a result the Court
lacks jurisdiction over this matter. 103
The local controversy exception, found in 28 U.S.C. § 1332(d)(4)(A), applies when
an action meets four requirements: (1) more than two-thirds of the class members are
citizens of the state in which the action was originally filed; (2) at least one defendant
from whom “significant relief” is sought and whose conduct is a “significant basis” for the
claims is a citizen of the state in which the action was originally filed; (3) the principal

See R. Doc. 1-1 at ¶ 26.
See id. at ¶ 30.
101 See id. at ¶ 34.
102 R. Doc. 36 at 4–5.
103 R. Doc. 30-1 at 8–9.
99

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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 (4) in the three-year
period preceding the filing of the class or mass action, no other class action has been filed
“asserting the same or similar factual allegations against any of the defendants” on behalf
of any person. 104 To establish the local controversy exception applies, Plaintiffs have the
burden of showing the four prongs are satisfied. 105 “[T]he exception is intended to be
narrow, with all doubts resolved in favor of exercising jurisdiction over the case.” 106
1. Whether more than two-thirds of the class members are citizens of
Louisiana.
Plaintiffs maintain that “[g]reater than two-thirds of the Plaintiffs are citizens of
Louisiana.” 107 Plaintiffs, however, fail to allege or provide the state of citizenship or
domicile of each plaintiff. Plaintiffs attach to their motion to remand an affidavit from the
class action manager at Ates Law Firm that says of the 190 claimants, 108 “147 currently
live in Louisiana; 27 are deceased; however I have confirmed that their residence at the
time of their deaths was in Louisiana” and the remaining 16 Plaintiffs live in states other
than Louisiana. 109 Plaintiffs also provide the current addresses of each plaintiff in their
answers to Defendants’ interrogatories. 110 Nevertheless, Section 1332 provides for
jurisdiction over actions between “citizens of different states.” 111 An allegation that a party
is a “resident” of a particular state is insufficient because Section 1332 “demands diverse

See 28 U.S.C. § 1332(d)(4)(A).
Opelousas Gen. Hosp. Auth. v. FairPay Sols., Inc., 655 F.3d 358, 360 (5th Cir. 2011) (“The plaintiffs bear
the burden of establishing that they fall within CAFA’s local controversy exception.”).
106 Id. (internal quotation marks omitted).
107 R. Doc. 30-1 at 20–22.
108 Note that while Plaintiffs consistently mention that there are 190 claimants, Defendants consistently
mention that there are 191. CM/ECF reflects that there are 191 Plaintiffs. Regardless, the difference does
not affect the analysis.
109 R. Doc. 30-5 at 2.
110 See R. Doc. 36-1 at 4–18.
111 28 U.S.C. § 1332 (emphasis added).
104
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citizenship, not diverse residency.” 112 Accordingly, Plaintiffs have failed to meet their
burden under the first prong of the local controversy exception.
2. Whether at least one defendant from whom “significant relief” is sought
and whose conduct is a “significant basis” for the claims is a citizen of
Louisiana.
To satisfy the second prong of the local controversy exception, Plaintiffs need not
provide a “definitive analysis of the measure of damages caused by each defendant,” but
they must provide “detailed allegations or extrinsic evidence detailing the local
defendant’s conduct in relation to the out-of-state defendants.” 113 Nevertheless, Plaintiffs
fail to even identify which defendant they argue satisfies this prong. Plaintiffs instead
state, “Each of the named defendants have been involved in previous litigation over this
incident and independently acted so as to form a significant basis for the claims asserted
by the plaintiffs.” 114 Plaintiffs provide no support for this statement in their motion to
remand or reply, and Plaintiffs also fail to provide evidence that these “significant
defendants” are citizens of Louisiana, where the action was originally filed. Accordingly,
Plaintiffs have failed to satisfy the second prong of the exception.
3. Whether the principal injuries resulting from the alleged conduct or any
related conduct of each defendant were incurred in Louisiana.
Plaintiffs have satisfied the third prong of the exception, as the principal injuries
resulting from the alleged conduct of each defendant were incurred in Louisiana. 115
Plaintiffs allege the injuries for which they seek redress resulted from contamination of
property in Harvey, Louisiana, 116 and Plaintiffs’ answers to Defendants’ interrogatories

Nadler, 764 F.2d at 413.
Opelousas General Hosp., 665 F.3d at 363.
114 R. Doc. 30-1 at 26.
115 See R. Doc. 36-1 at 4–18.
116 R. Doc. 1-1 at ¶ 5.A, ¶ 7.
112
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support their allegation that the injuries were suffered in Louisiana. 117 Accordingly, the
third prong is satisfied.
4. Whether any other class action has been filed in the three years
preceding the filing of this mass action asserting the same or similar
factual allegations against any of the defendants on behalf of any person.
Plaintiffs fail to satisfy the fourth prong, as a class action was filed asserting similar
factual allegations against some of the same defendants during the three-year period
preceding the filing of this action. In 2014, a class of about 465 plaintiffs filed a suit,
Bernard, et al., v. Gefer, et al., against at least ten of the same defendants in this case. 118
The plaintiffs in Bernard alleged personal injuries and property damages resulting from
alleged exposure to naturally occurring radioactive material. 119 The case, which was
removed to this district pursuant to CAFA, involved the same tract of land at issue in this
case. 120 As a result, Plaintiffs have not satisfied the fourth prong of the local
controversy exception. 121
Because Plaintiffs have not satisfied three of the four prongs, Plaintiffs have failed
to meet their burden of establishing the applicability of the local controversy exception.
C. The Home State Exception
Plaintiffs argue CAFA’s home-state exception precludes the Court from exercising
jurisdiction over this matter. 122

R. Doc. 36-1.
Bernard, et al. v. Grefer, et al., No. 14-887 R. Doc. 1-1 (E.D. La. April 16, 2014).
119 Id. See also Bernard v. Gefer, 2015 WL 3485761 (E.D. La. June 2, 2015).
120 See Bernard, No. 14-887 R.Doc. 1-1 at ¶ 10.
121 See generally Caruso v. Allstate Ins. Co., 469 F. Supp. 2d 364, 370–71 (E.D. La. 2007) (“Since [similar
class actions] were filed during the three-year period before the instant action, their existence is fatal to
plaintiffs’ argument that this lawsuit falls under CAFA’s ‘local-controversy’ exception.”).
122 R. Doc. 30-1 at 28–29.
117

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The home state exception requires district courts to decline to exercise jurisdiction
over an action in which “two-thirds or more of the members of all proposed plaintiff
classes in the aggregate, and the primary defendants, are citizens of the State in which the
action was originally filed.” 123 Plaintiffs bear the burden of showing the home state
exception applies. 124
As previously discussed, Plaintiffs fail to establish the citizenship of each plaintiff.
Even if Plaintiffs were to establish that at least two-thirds of the plaintiffs are citizens of
Louisiana, they nevertheless have not demonstrated the applicability of this exception.
Plaintiffs argue the Grefers, both of whom are citizens of Louisiana, are “included in the
group of ‘primary defendants.’” 125 While that may be true, Plaintiffs fail to show that the
oil companies, which are foreign citizens, are not primary defendants. 126 Plaintiffs argue
they have “no obligation to rank each individual defendant’s liability against the other
defendants and exclude some as ‘primary’ and others as ‘non-primary.’” 127 Several courts
have concluded, however, that under this exception all primary defendants must be
citizens of the state in which the action was originally filed. 128 Plaintiffs have the burden
of proving by a preponderance of the evidence that the home state exception to CAFA
jurisdiction applies 129; accordingly, Plaintiffs must establish that all primary defendants
28 U.S.C. § 1332(d)(4)(B).
Hollinger, 654 F.3d at 571.
125 R. Doc. 30-1 at 28.
126 In the Petition for Damages, Plaintiffs allege the following, indicating that the oil companies may be
primary defendants: “These acts and/or omissions of the Oil Companies are a substantial, contributing
cause of the Petitioners’ injuries and damages. These acts and/or omissions, therefore, are a direct cause of
the injuries, damages, and losses suffered by the Petitioners.” R. Doc. 1-1 at ¶ 32.
127 R. Doc. 30-1 at 29.
128 See Rasberry v. Capitol Cnty. Mut. Fire. Ins. Co., 609 F. Supp. 2d 594, 606 (E.D. Tex. 2009)) (noting
that “all primary defendants must be citizens of the state in which the action was originally filed”) (emphasis
in original); DeHart, 2010 WL 231744, at *13 (same); Vodenichar v. Halcon Energy Properties, Inc., 733
F.3d 497, 506 (3d Cir. 2013) (“[B]y using the word ‘the’ before the words ‘primary defendants’ rather than
the word ‘a,’ the statute requires remand under the home state exception only if all primary defendants are
citizens of [the state in which the action was originally filed].”).
129 Hollinger, 654 F.3d at 570–71.
123

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are citizens of Louisiana. Because Plaintiffs have failed to do so, the home state exception
does not divest this Court of jurisdiction.
III.

Are Plaintiffs Entitled to Costs and Attorney Fees?
Plaintiffs seek costs and attorney’s fees incurred as a result of the removal pursuant

to 28 U.S.C. § 1447(c). 130 The Supreme Court held in Martin v. Franklin Capital Corp.,
that “absent unusual circumstances, attorney’s fees should not be awarded [under
§ 1447(c)] when the removing party has an objectively reasonable basis for removal.” 131
In applying this holding, the Fifth Circuit noted that § 1447 does not have a strong
preference for or against fee awards. 132
The Fifth Circuit in Admiral Insurance Co. v. Abshire found the defendants’
removal may have been objectively unreasonable. 133 The court noted there was some
evidence in the record that the defendants removed with the purpose of prolonging the
litigation and imposing costs on the plaintiffs. 134 Nevertheless, the court determined that
“it is equally true that, given the complexity of the instant commencement question, an
award of fees might undermin[e] Congress’ basic decision to afford defendants a right to
remove as a general matter, when the statutory criteria are satisfied.” 135 Consequently,
the court affirmed the district court’s decision to decline to award attorney’s fees
under § 1447(c). 136

See R. Doc. 30-1 at 29–31.
Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005).
132 Admiral Ins. Co. v. Abshire, 574 F.3d 267, 280 (5th Cir. 2009).
133 See id.
134 Id.
135 Id. (internal citations and quotations omitted).
136 Id. at 281.
130
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The removal in this case was objectively reasonable, and the Court denies the
motion to remand. Awarding Plaintiffs costs and attorney’s fees under § 1447(c) would be
improper. Accordingly, Plaintiffs’ request for costs and attorney’s fees is denied.
CONCLUSION
For the foregoing reasons;
IT IS ORDERED that Plaintiffs’ Motion to Remand 137 is DENIED.
IT IS FURTHER ORDERED that Plaintiffs have until August 22, 2016, to file
a supplemental memorandum identifying individual plaintiffs whose claims must be
remanded because they do not exceed the $75,000 individual amount-in-controversy
requirement. Defendants have until September 5, 2016, to file a response to Plaintiffs’
supplemental memorandum. The parties may conduct jurisdictional discovery through
August 10, 2016, related to this issue.
IT IS FURTHER ORDERED that Plaintiffs’ request for costs and attorney fees
pursuant to 28 U.S.C. § 1447(c) is DENIED.
New Orleans, Louisiana, this 8th day of July, 2016.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

137

R. Doc. 30.

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