Taylor et al v. Denka Performance Elastomer LLC et al

Filing 51

ORDER AND REASONS denying 41 Motion for Extension of time to file for a motion for class certification. Signed by Judge Martin L.C. Feldman on 1/9/2018. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ROBERT TAYLOR, JR., ET AL.

CIVIL ACTION

v.

NO. 17-7668

DENKA PERFORMANCE ELASTOMER LLC, ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is the plaintiffs’ motion for an extension
of time to file a motion for class certification.

For the reasons

that follow, the plaintiffs’ motion is DENIED.
Background
This litigation arises from the defendants’ production of
neoprene at their St. John the Baptist Parish facility, which
allegedly exposes those living in the vicinity 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.
The Pontchartrain Works facility (PWF), located in LaPlace,
Louisiana, is the only facility in the United States that continues
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to manufacture a synthetic rubber known as neoprene.

The neoprene

production works at PWF were owned and operated from 1969 through
November 2015 by E.I. du Pont de Nemours and Company (DuPont).
DuPont still owns the land, but the production works are now owned
and operated by Denka Performance Elastomer LLC (DPE).
the

neoprene

chloroprene

production
has

been

process,

chloroprene

classified

by

the

As part of

is

manufactured;

U.S.

Environmental

Protection Agency since 2010 as a likely human carcinogen.
Robert Taylor, Jr., Kershell Bailey, Shondrell P. Campbell,
Gloria Dumas, Janell Emery, George Handy, Annette Houston, Rogers
Jackson, Michael Perkins, Allen Schnyder, Jr., Larry Sorapuru,
Sr., Kellie Tabb, and Robert Taylor, III are all individuals living
in the communities surrounding the PWF in Reserve, Edgard, and
LaPlace,

Louisiana.

individually

and

as

On

June

29,

representatives

2017,

these

of

putative

a

individuals,
class

of

similarly situated plaintiffs, sued Denka Performance Elastomer
LLC and E.I. DuPont De Nemours and Company in the Louisiana 40th
Judicial District Court in St. John the Baptist Parish.

The

plaintiffs allege that DuPont has emitted chloroprene for many
years at levels resulting in concentrations many times the upper
limit of acceptable risk, and DPE continues to do so.

In April

2017, the EPA released a redacted inspection report showing more
than 10,000 violations by Denka related to emissions of chloroprene
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from the PWF.

It is alleged that the the top six census tracts in

the nation with the highest NATA-estimated cancer risks are the
census tracts in the vicinity of the PWF.
plaintiffs

allege

Louisiana

state

law

Accordingly, the

claims

of

nuisance,

trespass, negligence, and strict and absolute liability; they seek
injunctive relief and damages resulting from alleged exposure to
chloroprene released from the PWF.
The defendants jointly removed the lawsuit on August 9, 2017,
invoking

this

Court’s

diversity

jurisdiction.

In

response,

plaintiffs moved to remand. Defendants then moved for leave to
file an amended joint notice of removal in connection with the
plaintiffs’ motion to remand on October 20, 2017. This Court denied
the plaintiffs’ motion to remand and granted the defendants’
request for leave to file an amended notice of removal on November
15, 2017. The amended notice of removal was filed that day.
The plaintiffs now move for an extension of the deadline to
file a motion for class certification under Local Rule 23.1(B).
The defendants oppose the motion to extend, arguing that the
initial notice of removal renders the extension untimely and that
the plaintiffs have shown no good cause to warrant an extension.

3

I.
A.
Local Rule 23.1(B) is an extension of Federal Rule of Civil
Procedure 23(c)(1), which provides that class action certification
must be determined “at an early practicable time.” Escoe v. State
Farm Fire & Cas. Co., No. 07-1123, 2007 WL 2903048, at *1 (E.D.
La. Sept. 27, 2007).

Specifically, Local Rule 23.1(B) requires a

plaintiff to move for class certification “[w]ithin 91 days of
filing his complaint in a class action or filing of a notice of
removal of the class action from state court, whichever is later,”
unless the court extends the deadline for good cause shown. Courts
adhere to the plain text of the Rule, construing it to create a
deadline of 91 days after the original complaint or notice of
removal is filed, notwithstanding any amendments filed thereafter.
See Lowery v. Divorce Source, Inc., No. 15-1120, 2015 WL 5321758,
at

*1,

*5

(E.D.

La.

Sept.

11,

2015)

(holding

that

original

complaint and not amended complaint created the deadline); McGuire
v. Gulf Stream Coach, Inc., No. 06-5659, 2007 WL 1198935, at *1-2
(E.D. La. Apr. 20, 2007) (holding that the notice of removal
created the deadline); Dickerson v. City of Gretna, No. 05-6667,
2007 WL 1098787, at *1, *3-4 (E.D. La. Mar. 30, 2007) (calculating
the deadline for Local Rule 23.1(B) from the date of the initial
complaint rather than subsequent amendments); see also Sellers v.
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El Paso Indus. Energy, L.P., 08-403, p. 13 (La. App. 5 Cir.
2/10/09); 8 So. 3d 723, 730 (reasoning that recognizing amendments
to the complaint as extensions of the filing deadline for a similar
state rule would allow a plaintiff to “circumvent the timeliness
provision”) (citing Howard v. Gutierrez, 474 F. Supp. 2d 41, 54
(D.D.C. 2007), reconsideration denied, 503 F. Supp. 2d 392 (D.D.C.
2007)); cf. Escoe, 2007 WL 2903048, at *1-2 (the amended complaint
applied to the calculation of the deadline because the amended
complaint was the first instance in the lawsuit in which class
action allegations appeared). Although the Fifth Circuit has not
yet addressed whether an amended notice of removal restarts the
Local Rule 23.1(B) clock, courts have used the original notice of
removal as triggering the deadline. See McGuire, 2007 WL 1198935,
at *1-2; Lauer v. Chamale Cove, No. 06-1423, 2007 WL 203974, at
*1-2 (E.D. La. Jan. 24, 2007). Given the plain language of the
local rule, as reinforced by the case literature, it follows that
an amended notice of removal does not revive the deadline for
seeking class certification.
B.
Without good cause shown, district courts in this circuit
generally deny class certification or extensions for seeking class
certification when the request is made beyond the deadline created
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by Local Rule 23.1(B). See Lowery, 2015 WL 5321758, at *5 (citing
McGuire, 2007 WL 1198935, at *1; Lauer, 2007 WL 203974, at *1);
Restreppo v. Al-Mona, Inc., No. 11-1422, 2012 WL 1941926, at *2
(E.D. La. May 29, 2012) (citing Buckley v. Donohue Indus., Inc.,
100 F. App’x 275, 278 (5th Cir. 2004); Townsend v. Hibernia Nat’l
Bank, No. 93-1798, 1994 WL 24233, at *2 (E.D. La. Jan. 20, 1994)).
“If a Plaintiff fails to move for class certification within the
91-day period stipulated by Local Rule 23.1(B), absent a showing
of good cause, courts will dismiss or strike class allegations.”
Thigpen v. Fla. Gas Transmission Co., L.L.C., No. 14-1415, 2015 WL
1292821,

at

*2

(E.D.

La.

Mar.

23,

2015)

(collecting

cases).

Consistent with this strict policy, “plaintiffs with a potential
deadline extension should still act prudently by filing a motion
for class certification before the deadline passes, so as to
preserve those rights.” Restreppo, 2012 WL 1941926, at *1 (citing
Price v. United Guar. Residential Ins. Co., No. 3:03-CV-2643-G,
2005 WL 265164, at *5 (N.D. Tex. Feb. 2, 2005)).
To be sure, the Court retains discretion to order an extension
of the deadline when the plaintiff demonstrates good cause. LR
23.1(B). This Court has defined good cause to mean the plaintiff’s
failure to meet the deadline despite due diligence. Lowery, 2015
WL 5321758, at *5; Restreppo, 2012 WL 1941926, at *1 (citing S&W
Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535
6

(5th Cir. 2003)). The good cause test is not met simply because
the

plaintiff

has

difficulty

making

a

claim

due

to

complex

discovery; certification of a class is separate and distinct from
the pleadings made on behalf of that class. Escoe, 2007 WL 2903048,
at *2; see also Stewart v. Project Consulting Servs., Inc., No.
99-3595,

2001

WL

1000732,

at

*1-2

(E.D.

La.

Aug.

29,

2001)

(granting a motion to dismiss the class action for failure to
certify the class within the deadline set by Local Rule 23.1(B)
despite the plaintiff’s intentions to compel discovery). Nor does
the

need

to

conduct

discovery

preceding

class

certification

constitute good cause. See Kramer v. New Orleans Saints, No. 012451, 2002 WL 1163619, at *1 (E.D. La. May 30, 2002).

Difficulties

identifying or even serving the class do not preclude counsel from
requesting an extension prior to the deadline. Lowery, 2015 WL
5321758, at *5; Restreppo, 2012 WL 1941926, at *1.
Courts liberally construe good cause when an extension is
filed before the deadline. Jones v. Yale Enforcement Servs., Inc.,
No. 14-2831, 2015 WL 10557394, at *1 (E.D. La. Feb. 27, 2015).
Conversely, courts view good cause narrowly when the deadline has
passed. See, e.g., Lowery, 2015 WL 5321758, at *5 (“Plaintiff
should have filed his Motion for Extension . . . regardless of the
difficulties he faced in filing for class certification. Plaintiff
failed to show good cause and due diligence. Nothing precluded
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Plaintiff from filing the motion for extension before the deadline.
Because the motion was untimely, it is denied.”).
II.
The plaintiffs first move to extend the deadline to file a
motion for class certification on the ground that their motion is
timely, arguing that the defendants’ amended joint notice of
removal on November 15, 2017, creates a deadline of February 14,
2018.

Perhaps

sensing

the

weakness

of

that

argument,

the

plaintiffs also contend that good cause supports the requested
extension

because

discovery

would

benefit

class

certification

issues. The defendants counter that the plaintiffs’ motion is
untimely, given that the original joint notice of removal on August
9, 2017, set a deadline of November 8, 2017, which passed before
the request was made. Defendants also argue that the need to
conduct discovery does not demonstrate good cause to extend the
deadline, nor does the plaintiffs’ failure to conduct discovery
justify the plaintiffs’ failure to request an extension before the
deadline.
A.

The deadline for a motion to certify the class is 91
days after the original notice of removal.

Although

the

plaintiffs

contend

that

Local

Rule

23.1(B)

permits the amended notice of removal to be used in calculating
the 91-day deadline, the plain language of the local rule and case
8

law

interpreting

it

strongly

suggest

otherwise:

the

original

notice of removal constitutes the proper date for determining the
deadline. See Lowery, 2015 WL 5321758, at *1, *5; McGuire, 2007 WL
1198935, at *1-2; Escoe, 2007 WL 2903048, at *2. Allowing amended
notices of removal to restart the clock would frustrate the Court’s
mandate

that

class

certification

be

determined

“at

an

early

practicable time,” create inconsistency with the case literature
regarding amended complaints, and contradict the plain language of
the local rule. Fed. R. Civ. P. 23(c)(1). Holding that the original
notice of removal starts the clock is a clear rule that sets a
hard and fast deadline.
Here, the original notice of removal, filed on August 9, 2017,
created a deadline of November 8, 2017, for plaintiffs to seek
class

certification,

or

at

least

request

an

extension.

The

plaintiffs submitted a motion to extend on December 6, 2017, nearly
one month later. Absent a showing of good cause, the plaintiffs’
motion to extend should be denied as untimely, and the class
allegations should be stricken or dismissed. Thigpen, 2015 WL
1292821, at *2; see Lowery, 2015 WL 5321758, at *1, *5 (holding
that an extension first requested approximately one month past the
deadline was denied as untimely); see also Beanal v. FreeportMcMoRan, Inc., 969 F. Supp. 362, 367 (E.D. La. 1997) (noting that

9

an extension first requested four days past the deadline was denied
as untimely).
B.

No good cause exists to support the motion to extend.

The plaintiffs claim that good cause warrants an extension
for class certification because further discovery would benefit
class certification issues. In particular, the plaintiffs allege
that the defendants have geographic information that would help
define the class, as well as scientific data that the defendants
will likely contest as irrelevant. Without citing any authority,
the plaintiffs generically assert that good cause exists because
“it will take time for the parties to exchange and review discovery
on these important matters and for other issues related to class
certification.”
However, the fact that discovery would be beneficial to a
class action determination does not excuse the plaintiffs from
seeking a timely extension of the deadline as Local Rule 23.1(B)
requires. See Lowery, 2015 WL 5321758, at *5; Restreppo, 2012 WL
1941926 at *1; Kramer, 2002 WL 1163619, at *1; Stewart, 2001 WL
1000732, at *1-2. The plaintiffs have failed to show how they acted
diligently

in

attempting

to

make

discovery

related

to

class

certification prior to the deadline. Because no good cause supports

10

an extension and the request itself is untimely, the motion to
extend must be denied.
Accordingly,

for

the

foregoing

reasons,

the

plaintiffs’

motion for extension of time to file for a motion for class
certification is DENIED.

New Orleans, Louisiana, January 9, 2018

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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