Taylor et al v. Denka Performance Elastomer LLC et al

Filing 110

ORDER and REASONS AS TO C.A. 18-5739 ONLY - IT IS ORDERED that the plaintiff's motion to remand is GRANTED and the request for fees and costs is DENIED. The case is hereby remanded to the 40th Judicial District Court for St. John the Baptist Parish. Signed by Judge Martin L.C. Feldman on 10/15/2018. (Reference: 18-5739) (1cc 40th JDC, St. John the Baptist Parish)(cbs) Modified text on 10/16/2018 (cbs).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ROBERT TAYLOR, JR., ET AL

CIVIL ACTION

v.

NO. 17-7668
c/w 18-5739 *

DENKA PERFORMANCE ELASTOMER LLC, ET AL

SECTION "F"

ORDER AND REASONS
Before the Court is the plaintiff’s motion to remand on the
ground

that

Additionally,

the
the

Court

lacks

plaintiff

subject

requests

matter

jurisdiction.

reasonable

costs

and

attorney's fees incurred as a result of the removal, under 28
U.S.C. § 1447(c). For the following reasons the motion, as to
remand, is GRANTED, and the request for costs and fees is DENIED.
Background
This environmental tort litigation arises from the production
of neoprene, which allegedly exposes those living in the vicinity
of the manufacturing plant to concentrated levels of chloroprene
well above the upper limit of acceptable risk, resulting in a risk
of cancer more than 800 times the national average.

Several

residents living in what environmentalists and the media have

This order applies to Lydia Gerard v. Denka Performance
Elastomer LLC, Civil Action No. 18-5739.
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*

dubbed “Cancer Alley” filed this lawsuit seeking injunctive relief
in

the

form

of

abatement

of

chloroprene

releases

from

their

industrial neighbor, the Pontchartrain Works facility, the only
facility in the United States still manufacturing a synthetic
rubber called neoprene, which is made from chloroprene, and which
the Environmental Protection Agency has classified as a “likely
human carcinogen.”
The plaintiff in the present motion, Lydia Gerard, is a
resident of Reserve, Louisiana. On April 10, 2018, the plaintiff
filed a petition for damages in the 40th Judicial District Court
for St. John the Baptist Parish in which she seeks damages from
defendants Denka Performance Elastomer LLC (“DPE”) and E.I. du
Pont de Nemours and Company (“DuPont”) caused by their alleged
excessive emissions of chloroprene. With her petition for damages,
the

plaintiff

filed

a

binding

pre-removal

stipulation

(“stipulation”) which stipulated, inter alia, that she would not
accept or seek to recover any portion of a judgment or award in
excess of $50,000.
On June 8, 2018, DuPont filed its notice of removal to this
Court based on diversity of citizenship jurisdiction under 28
U.S.C. § 1332(a). DPE consented and the matter was consolidated
with Taylor et al v. Denka Performance Elastomer et al, Civil

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Action No. 17-7668. The plaintiff now moves to remand her lawsuit
back to state court.
I.
Once a case has been removed, the removing party bears the
burden of proving that the court has jurisdiction to hear the case.
Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir. 1993).
Should there be any doubt as to the propriety of removal, it should
resolved in favor of remand. Gutierrez v. Flores, 543 F.3d 248,
251 (5th Cir. 2008). If the matter is removed based on diversity
of citizenship, the amount in controversy must exceed $75,000.00,
complete diversity must exist, and “none of the parties in interest
properly joined and served as defendants is a citizen of the State
in which such action is brought.” 28 U.S.C. § 1441(b).
The parties do not dispute that complete diversity exists in
this matter and, thus, the only question presented is whether the
plaintiff’s stipulation is sufficiently binding to limit her total
recovery to an amount less than $75,000.00.
Under Louisiana law, plaintiffs in state courts may not plead
a specific value of damages. La. Code Civ. P. 893. So, if a case
filed in a Louisiana state court is removed to federal court on
the basis of diversity, the removing defendant must prove by a
preponderance of the evidence that the amount in controversy
exceeds $75,000.00. De Aguilar v. Boeing Co., 47 F.3d 1404, 1412
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(5th Cir. 1995). A defendant may meet this burden by showing that
it is facially apparent that the amount in controversy exceeds
$75,000.00. Id.; See Williams v. Axial Corp., No. 2:15-cv-440,
2015 WL 5638080, at *2 (W.D. La. Sept. 24, 2015).
If a defendant meets this burden, remand is still proper if
the plaintiff demonstrates to a “legal certainty” that its recovery
will not exceed the jurisdictional amount. De Aguilar, 47 F.3d at
1412. A plaintiff may meet this burden by citing in her petition
to a state law that limits recovery above a certain amount, or,
absent such a statute, a plaintiff may file a binding stipulation
or affidavit about the damages value. Id. A plaintiff’s filing
after the defendant has removed the case is irrelevant. Id. (citing
In re Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992) (per curiam).
II.
The plaintiff moves to remand the action to state court on
the grounds that this Court lacks subject matter jurisdiction under
28 U.S.C. § 1332(a). Specifically, the plaintiff contends that
because

she

filed

with

her

petition

a

binding

pre-removal

stipulation which waives her rights to any damages in excess of
$50,000.00, the amount in controversy will not, and does not,
exceed $75,000.00. The plaintiff adds that the stipulation is broad
and candidly

renounces

“any

right

to

enforce

or

collect

any

judgment or award in excess of $50,000.00.” She contends that her
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language “enforce . . . any judgment” necessarily includes a
judgment for injunctive relief, should that injunctive relief be
valued in excess of $50,000.00.
The

defendants

counter

that

the

Court

has

jurisdiction

because the stipulation only applies to damages and not equitable
relief. The defendants contend that the plaintiff ignores the value
of injunctive relief a court may award and the value of such
injunctive relief places the amount in controversy above the
$75,000.00 jurisdictional minimum.
Here, the plaintiff attached her damages stipulation to her
state court petition and filed before the defendants filed their
notice of removal. Thus, if the plaintiff can establish to a legal
certainty that her total recovery is less than $75,000.00, the
analysis ends, and the case must be remanded.
First, the Court considers whether the plaintiff’s claim is
one for monetary damages, injunctive relief, or both. In her prayer
for relief, the plaintiff requests:
a) All damages as are just and reasonable under the
circumstances, including but not limited to the compensation
for reasonable and justified fear of cancer due to chloroprene
exposure;
b) Judicial interest from the date of the judicial
demand;
c) Such other and further relief which the Court deems
necessary and proper at law and in equity and that may be
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just and reasonable under the circumstances of this matter;
but as Plaintiff has stipulated,
d) The value of Plaintiff’s claims is less than
$50,000.00, including penalties and attorney fees, but
exclusive of interest and costs. Plaintiff and undersigned
counsel stipulate that they will not amend these pleadings to
seek greater than $50,000.00, including penalties and
attorney fees, but exclusive of interest and costs. Plaintiff
and undersigned counsel further stipulate that they renounce
any right to enforce any judgment amount for Plaintiff’s
claims over and above $50,000.00, exclusive of interest and
costs.

The plain language of the petition demonstrates that the plaintiff
specifically requests both monetary damages and, if the Court deems
necessary and proper, injunctive relief. All limited in amount.
The plaintiff contends that her stipulation is broad enough
and sufficiently binding to include limitations on both monetary
damages and injunctive relief in excess of $75,000.00. The Court
agrees. Clauses (a)-(c) of the plaintiff’s prayer for relief are
immediately followed by the limitation “as the Plaintiff has
stipulated,”

and

stipulation.

This

a

reference
statement,

in

clause

therefore,

(d)

to

the

clarifies

attached
that

her

requests for relief are to be limited by her stipulation.
The defendants submit that the stipulation only applies to
compensatory

damages,

and

not

injunctive

relief,

because

it

explicitly states in paragraph one, “[t]he total monetary award
sought by Plaintiff . . . [does] not exceed the sum of $50,000.00,
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including penalties and attorneys’ fees.” The defendants ignore,
however, that paragraph four of the stipulation explicitly states
that the plaintiff “renounce[s] any right to enforce or collect
any judgment or award in excess of $50,000.00, including all
penalties and attorneys’ fees, but exclusive of interest and
costs.”

The

Court

sufficiently

broad

restricting

her

injunctive

relief,

is
in

from

satisfied
scope

and

collecting
that

exceeds

that

this

binding
any
a

stipulation

on

the

judgment,
value

of

is

plaintiff,

inclusive

of

$50,000.00.

Consequently, the Court finds that the plaintiff has established
to a legal certainly that the stipulation restricts recovery in
excess of the jurisdictional $75,000.00 amount in controversy.
III.
The plaintiff also requests reasonable costs and attorney's
fees incurred as a result of the removal, under 28 U.S.C. §
1447(c).
The propriety of removal is central to the determination
whether to impose fees. See Miranti v. Lee, 3 F.3d 925, 928 (5th
Cir. 1993. The Supreme Court explained in Martin v. Franklin
Capital Corp., 126 S.Ct. 704, 711 (2005), that “the standard for
awarding fees should turn on the reasonableness of the removal.”
Absent unusual circumstances, courts may award attorney's fees
under § 1447(c) only where the removing party lacked an objectively
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reasonable

basis

for

seeking

removal.

Conversely,

when

an

objectively reasonable basis exists, fees should be denied. Id.
It certainly does not appear that the defendants’ removal of
this suit was in bad faith. The defendants reasonably argued that
the plaintiff’s petition included the possibility of injunctive
relief and that the stipulation was not inclusive of that relief.
Although the Court disagrees, the Court is not persuaded that they
lacked an objectively reasonable basis for removal.
Accordingly, IT IS ORDERED: that the plaintiff’s motion to
remand is GRANTED and the request for fees and costs is DENIED.
The case is hereby remanded to the 40th Judicial District Court
for St. John the Baptist Parish.

New Orleans, Louisiana, October 15, 2018

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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