Taylor et al v. Denka Performance Elastomer LLC et al

Filing 72

ORDER AND REASONS denying 53 Motion for Reconsideration, granting 60 Motion to Strike, and denying 54 Motion to Certify Class, as set forth in document. Signed by Judge Martin L.C. Feldman on 2/22/2018. (jls)

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’ Rule 54(b) motion to
reconsider the Court’s order denying motion for extension of time
to file motion for class certification; and defendant E. I. du
Pont de Nemours and Company’s motion to strike plaintiffs’ motion
for class certification and appointment of class counsel.

For the

reasons that follow, the plaintiffs’ motion is DENIED, and the
defendant’s motion, which is construed as a motion to dismiss class
allegations, is GRANTED.
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
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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
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

since

2010,

production
chloroprene

process,
has

chloroprene

been

is

classified

As part of

manufactured;
by

the

U.S.

Environmental Protection Agency 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 Schneider, Jr., Larry Sorapuru,
Sr., Kellie Tabb, and Robert Taylor, III are all individuals living
near PWF in Reserve, Edgard, and LaPlace, Louisiana.

On June 29,

2017, these individuals, individually and as representatives of a
putative

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
2

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 from the PWF.

It is alleged that 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.
Accordingly, the plaintiffs allege Louisiana state law 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. 1
The defendants jointly removed the lawsuit on August 9, 2017,
invoking this Court’s diversity jurisdiction.

The plaintiffs

timely moved to remand, arguing both that removal was procedurally
defective (because the defendants failed to sufficiently allege
their citizenship at the time of removal) and that the Court lacked
diversity jurisdiction over the lawsuit.
the

plaintiffs’

motion

to

remand

and,

The defendants opposed
in

response

to

the

plaintiffs’ argument that the allegations of citizenship were

The plaintiffs allege that they do not now seek to recover for
personal injury damages due to chloroprene exposure; rather, they
allege that they “seek to preserve” the right to bring claims to
recover for compensatory damages when evidence linking chloroprene
emissions to physical injury may be developed.
3
1

technically defective, the defendants additionally requested leave
to

file

an

amended

joint

notice

technically defective allegations.

of

removal

to

correct

any

On November 15, 2017, this

Court denied the plaintiffs’ motion to remand and granted the
defendants’ request for leave to file an amended notice of removal;
the amended notice of removal was filed that same day. 2
On December 12, 2017, the plaintiffs requested an extension
of the deadline to file a motion for class certification under
Local Rule 23.1(B).

The defendants opposed the motion to extend,

arguing that they removed the case on August 9, 2017, which created
a November 8, 2017 deadline for plaintiffs to move for class
certification; the defendants argued that the request for an
extension was untimely and that the plaintiffs failed to show good
cause to warrant an extension.

Applying this Court’s Local Rule

mandating that the deadline for seeking class certification is 91
days after a notice of removal is filed, and determining that the
plaintiffs failed to show good cause to excuse their failure to
meet the deadline, the Court denied the plaintiffs’ untimely
request

for

certification.

an

extension

to

file

their

motion

See Order and Reasons dtd. 1/9/18.

for

class

The plaintiffs

Meanwhile, the plaintiffs filed an unopposed motion for leave to
file a second amended and restated class action complaint; the
motion was granted.
4
2

now urge the Court to reconsider its January 9 Order and Reasons,
and

DuPont

moves

to

strike

the

plaintiffs’

motion

for

class

certification, which was filed the same day that plaintiffs filed
their motion to reconsider.
I.
A.
Rule 54(b) of the Federal Rules of Civil Procedure governs
the plaintiffs’ motion to reconsider this Court’s Order and Reasons
in which it denied the plaintiffs’ request for an extension of
time to seek class certification.

Rule 54(b) states:

(b) Judgement on Multiple Claims or Involving
Multiple Parties. When an action presents more than one
claim for relief whether as a claim, counterclaim,
crossclaim, or third-party claim or when multiple
parties are involved, the court may direct entry of a
final judgment as to one or more, but fewer than all,
claims or parties only if the court expressly determines
that there is no just reason for delay. Otherwise, any
order or other decision, however designated, that
adjudicates fewer than all the parties does not end the
action as to any of the claims or parties and may be
revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights
and liabilities.
A motion seeking reconsideration or revision of a district court
ruling is analyzed under Rule 59(e), if it seeks to alter or amend
a

final

judgment,

or

interlocutory order.

Rule

54(b),

if

it

seeks

to

revise

an

See Cabral v. Brennan, 853 F.3d 763, 766

(5th Cir. 2017)(determining that the district court’s erroneous
application of the “more exacting” Rule 59(e) standard to a motion
5

granting partial summary judgment was harmless error given that
the appellant was not harmed by the procedural error).
Rule 54(b) authorizes the district court to “revise[] at any
time” “any order or other decision...that does not end the action.”
Fed. R. Civ. P. 54(b); Austin v. Kroger Texas, L.P., 864 F.3d 326,
336 (5th Cir. 2017).
reconsider

and

reverse

Under this rule, the Court “is free to
its

decision

for

any

reason

it

deems

sufficient, even in the absence of new evidence or an intervening
change in or clarification of the substantive law.”

Austin, 864

F.3d at 336 (citing Lavespere v. Niagara Mach. & Tool Works, Inc.,
910 F.2d 167, 185 (5th Cir. 1990), abrogated on other grounds,
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 n.14 (5th Cir.
1994)(en banc)).

Compared to Rule 59(e), 3 “Rule 54(b)’s approach

to the interlocutory presentation of new arguments as the case
evolves [is] more flexible, reflecting the ‘inherent power of the
rendering district court to afford such relief from interlocutory
judgments as justice requires.’”

Id. at 337 (quoting Cobell v.

Jewell, 802 F.3d 12, 25-26 (D.C. Cir. 2015)(internal citations

Rule 59(e) “serve[s] the narrow purpose of allowing a party to
correct manifest errors of law or fact to present newly discovered
evidence,” and it is “an extraordinary remedy that should be used
sparingly.” Austin, 864 F.3d at 336 (quoting Templet v. HydroChem
Inc., 367 F.3d 473, 479 (5th Cir. 2004)).
6
3

omitted)(quoting Greene v. Union Mutual Life Ins. Co. of Am., 764
F.2d 19, 22 (1st Cir. 1985)(Breyer, J.)).
B.
The plaintiffs urge the Court to reconsider its order denying
their request for more time to move for class certification.

They

say reconsideration is warranted because the Court erred in issuing
its ruling the day before the noticed submission date and before
considering the plaintiffs’ motion for leave to file a reply; in
other words, the plaintiffs argue that the Court denied their
motion without the benefit of full briefing.

The defendants

counter that: (a) the plaintiffs identify no manifest error of law
or manifest injustice, (b) the plaintiffs chose to ignore authority
holding that an amended notice of removal does not restart the
Local Rule 23.1(B) clock, (c) the Local Rules do not give any party
a right to file a reply brief, (d) a district court has broad
discretion to accept or reject a proposed reply, and (e) the
plaintiffs’

proposed

reply

does

not

cite

any

binding

legal

authority directly adverse to the Court’s conclusion that an
amended notice of removal does not revive the 91 day deadline for
seeking class certification.

Because the plaintiffs fail to

identify any legal error in January 9, 2018 Order and Reasons, the
plaintiffs fail to persuade the Court to reconsider its ruling.

7

Even viewed through the “less stringent” lens of Rule 54(b),
the

plaintiffs

fail

to

persuade

the

Court

to

reconsider

its

determination that their request to extend the deadline within
which to seek class certification was untimely and unsupported by
good cause.

The plaintiffs characterize the Court’s ruling on the

issue of timeliness as “manifest error of law” and, they argue,
that their “inability to present that [timeliness] argument to the
Court prior to the ruling represents a manifest injustice, which
was then compounded when...the [p]laintiffs’ motion for leave to
file the reply memorandum was denied as moot.”

The plaintiffs

suggest that there is no danger here that the Court will be
considering rehashed arguments because what they seek instead is
“to have this Court give full effect to the Notice of Submission
and to issue an order taking into account [p]laintiffs’ briefing
on the timeliness issue.”
But the plaintiffs fail to identify anything resembling a
manifest error of law or an injustice.
extension

of

time,

the

plaintiffs

As movants seeking an
suggested

(without

any

supporting or persuasive analysis) that Rule 23.1(B)’s 91-day
deadline began to run from the day the defendants filed their
amended notice of removal.

The Court rejected the argument,

“[g]iven the plain language of the local rule, as reinforced by
the

case

literature[.]”

See

Order
8

and

Reasons

dtd.

1/9/18.

Notably, neither the motion to reconsider nor the proposed reply
offered in support of the motion for extension persuades the Court
that it erred in its calculation of the 91-day deadline, or that
it

misinterpreted

its

Local

Rule,

or

that

it

disregarded

controlling authority in determining that the plaintiffs’ motion
for extension to seek class certification was filed more than 91
days after the defendants removed this putative class action
lawsuit from state court. 4
II.
On the same date that the plaintiffs filed their motion to
reconsider,

the

plaintiffs

filed

their

motion

certification and appointment of class counsel.
strike the plaintiffs’ motion.

for

class

DuPont moves to

In opposing the motion to strike,

the plaintiffs correctly point out that DuPont offers no foundation
for striking the motion for class certification. 5

The plaintiffs

And, as to the issue of whether the plaintiffs showed good cause,
the plaintiffs merely disagree with the Court’s finding that they
did not show good cause to excuse their failure to seek class
certification within the deadline. Just as the plaintiffs have
failed to persuade the Court to reconsider its ruling on
timeliness, the plaintiffs likewise fail to persuade the Court to
reconsider its good cause determination. The plaintiffs offer no
persuasive reason why they could not file their motion for class
certification or motion for extension before the deadline.
5 Presumably, DuPont’s request to strike the plaintiffs’ motion for
class certification is premised upon Rule 12(f), which permits a
court to “strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.”
Without briefing directed at the issue, the Court is not persuaded
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4

are also correct in observing that, if the Court grants the only
relief

requested

certification),

by
the

DuPont

(striking

plaintiffs’

class

the

motion

allegations

for

class

themselves

technically remain pending. 6
Nevertheless, the defendants and the plaintiffs appear to
agree that until the plaintiffs’ class allegations are formally
dismissed, the allegations remain pending. As it stands, the Court
has ruled that the plaintiffs failed to timely move for class
certification, failed to show good cause to excuse such failure,
and failed to persuade the Court to reconsider its ruling; now,
the parties appear to invite the Court to determine the fate of
the plaintiffs’ class allegations.

What DuPont seeks to achieve

in moving to strike the plaintiffs’ motion for class certification
is in reality a dismissal of the class allegations.

Accordingly,

the Court construes the motion to strike as a motion to dismiss
class allegations.

Given that the penalty for failing to timely

seek class certification is the dismissal of class allegations,
see Cassidy v. Ford Motor Co., No. 15-2483, 2016 WL 301131, at *1
(E.D.

La.

May

25,

2016)(Engelhardt,

C.J.)(citing

cases),

the

that Rule 12(f) is the appropriate vehicle for striking a motion
for class certification.
6 No party moved to dismiss the class allegations, and on January
9, 2018 this Court merely decided the plaintiffs’ request for an
extension of the deadline to seek class certification.
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request to dismiss the plaintiffs’ class allegations shall be
granted.
Accordingly, for the foregoing reasons, the plaintiffs’ Rule
54(b) motion to reconsider the Court’s order denying motion for
extension of time to file for a motion for class certification is
DENIED.

IT IS FURTHER ORDERED: that DuPont’s motion to strike the

plaintiffs’ motion for class certification and appointment of
class counsel is construed as a motion to dismiss the plaintiffs’
class allegations, and the motion is GRANTED.

The plaintiffs’

class allegations are hereby dismissed, and the plaintiffs’ motion
for class certification is DENIED as untimely for the reasons
stated in this Order and Reasons and the Order and Reasons dated
January 9, 2018.

New Orleans, Louisiana, February 22, 2018

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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