Acosta et al v. Denka Performance Elastomer LLC et al
ORDER AND REASONS denying 12 Motion to Remand to State Court. Signed by Judge Martin L.C. Feldman on 11/19/2020. (cwa)
Case 2:20-cv-02323-MLCF-DMD Document 36 Filed 11/19/20 Page 1 of 12
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ACOSTA, ET AL.
DENKA PERFORMANCE ELASTOMER LLC, ET AL.
ORDER AND REASONS
Before the Court is the plaintiffs’ motion to remand this
action to state court.
For the reasons that follow, the motion is
The plaintiffs in this environmental tort action allege that
the production of neoprene at the Pontchartrain Works Facility in
St. John the Baptist Parish negligently produces elevated levels
of chloroprene, which in turn causes the plaintiffs a variety of
maladies, including an increased risk of cancer.
- the business entities responsible for operating the plant at
regulating them - removed the action to this Court, and the
plaintiffs now urge the Court to remand it for lack of federal
subject matter jurisdiction.
Case 2:20-cv-02323-MLCF-DMD Document 36 Filed 11/19/20 Page 2 of 12
Repackaged allegations and new plaintiffs notwithstanding,
this case bears unmistakable similarity to the “Butler” action
this Court previously dismissed for failure to state a claim.
Butler v. Denka Performance Elastomer LLC, 2019 WL 1160814 (E.D.
La. Mar. 13, 2019).*
Whatever the preclusive implications of that
dismissal, the Court’s present task is limited to evaluating the
narrow issue presented by the plaintiffs’ motion: whether the Court
possesses subject matter jurisdiction to decide this case at all.
As explained below, the focal point in the Court’s analysis
of that question is the impropriety of the plaintiffs’ joinder of
the Louisiana Department of Health and the Louisiana Department of
Environmental Quality as defendants.
Because “a state is not a
citizen for purposes of diversity jurisdiction,” “there can be no
federal jurisdiction on the basis of diversity of citizenship” in
an action that properly includes a state – or state agency – as a
See Tex. Dep’t of Housing & Community Affairs v. Verex
Assurance, Inc., 68 F.3d 922, 926 (5th Cir. 1995).
largely the same reasons provided in the aforementioned “Butler”
decision, the plaintiffs’ joinder of arms of the state of Louisiana
was indeed “improper” under binding precedent, and accordingly
Indeed, that case and this case were filed by the same
plaintiffs’ counsel and feature a substantial degree of overlap.
Case 2:20-cv-02323-MLCF-DMD Document 36 Filed 11/19/20 Page 3 of 12
does not preclude the Court’s exercise of diversity jurisdiction
in this case.
On a motion to remand, “[t]he removing party bears the burden
of showing that federal jurisdiction exists and that removal was
proper.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d
720, 723 (5th Cir. 2002).
Because the plaintiffs do not challenge
the procedural propriety of the defendants’ removal, their motion
jurisdiction exists” over the plaintiffs’ action.
that decisive question, the parties disagree.
The defendants assert that federal diversity jurisdiction
applies under 28 U.S.C. § 1332(a), and the Court now proceeds to
consider whether they have met their burden in demonstrating as
28 U.S.C. § 1332(a) sets forth the basic parameters of federal
As relevant here, it vests the federal
district courts with original jurisdiction over civil actions
“between citizens of different states” involving an amount in
controversy of more than $75,000.
See § 1332(a)(1).
That is the
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The lawyer’s version is of course more complex. Two doctrines
jurisdiction to cases where all plaintiffs are diverse from all
§ 1441(b)(2), which bars the removal of “[a] civil action otherwise
removable solely on the basis of [diversity jurisdiction]” where
any of the “properly joined . . . defendants is a citizen of the
State in which such action is brought.”
See, e.g., Lincoln Prop.
Co. v. Roche, 546 U.S. 81, 84 (2005) (“Defendants may remove an
action on the basis of diversity of citizenship [only] if there is
complete diversity between all named plaintiffs and all named
defendants, and no defendant is a citizen of the forum State.”).
improper joinder rule.
In observance of § 1441(b)(2) - and to
disregarded in determining whether there is complete diversity of
Guillory v. PPG Indus., Inc., 434 F.3d 303, 313
(5th Cir. 2005). As the Fifth Circuit has explained, “a nondiverse
defendant has been improperly joined if the plaintiff has failed
to state a claim against that defendant on which relief may be
Case 2:20-cv-02323-MLCF-DMD Document 36 Filed 11/19/20 Page 5 of 12
Int’l Energy Ventures Mgmt., LLC v. United Energy Grp.,
818 F.3d 193, 202 (5th Cir. 2016).
To determine whether a
plaintiff has failed to state a claim against a defendant for
purposes of this inquiry, a “court may conduct a Rule 12(b)(6)type
complaint to determine whether the complaint states a claim under
state law against the in-state defendant.” Smallwood v. Ill. Cent.
R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc).
Notwithstanding the plaintiffs’ inapposite arguments to the
contrary (addressed infra Part II), in light of the clear-cut law
detailed above, the Court’s jurisdictional inquiry at this stage
is essentially fourfold.
As an initial matter, the Court must determine whether the
plaintiffs’ joinder of the Louisiana Department of Health and the
Louisiana Department of Environmental Quality was “improper.”
not, the Court’s analysis ends then and there.
If so, the Court
may proceed to a more traditional diversity-jurisdiction analysis.
That analysis requires the Court to make three more inquiries:
First, does the amount in controversy exceed $75,000 per
See, e.g., Mississippi ex rel. Hood v. AU
Optronics Corp., 571 U.S. 161, 165 (2014) (“§ 1332(a) . . .
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requires each plaintiff’s claim to exceed the sum or value
Second, disregarding improperly joined defendants, are all
plaintiffs diverse from all defendants?
See Lincoln Prop.,
546 U.S. at 84; Guillory, 434 F.3d at 313.
And third, disregarding improperly joined defendants, are
none of the defendants citizens of the forum state of
See Lincoln Prop., 546 U.S. at 84; Guillory,
434 F.3d at 313.
Because the answer to all three of these questions is yes,
Court’s diversity jurisdiction, and the plaintiffs’ motion to
remand must accordingly be denied.
The Court expands on each of these findings below.
The Plaintiffs Improperly Joined the State Defendants
In the largely identical “Butler” action, a group of similarly
situated plaintiffs (also represented by plaintiffs’ counsel here)
substantially the same defendants, including the state agencies
On March 13, 2019, this Court dismissed
Case 2:20-cv-02323-MLCF-DMD Document 36 Filed 11/19/20 Page 7 of 12
those claims for failure to state a plausible claim for relief
under Rule 12(b)(6).
See Butler, 2019 WL 1160814.
In the present motion, the plaintiffs simply (and tellingly)
provide little to no reason for doubting the Court’s findings
Therefore, as in Butler, the plaintiffs fail to state a
plausible claim for relief against either state defendant, and as
a result, their joinder of both state defendants is “improper”
under the binding law of this circuit.
For that reason, the
plaintiffs’ joinder of the state defendants must be disregarded
for purposes of the Court’s jurisdictional analysis.
434 F.3d at 313.
Disregarding the Improperly Joined Defendants,
Jurisdiction Exists over the Plaintiffs’ Action
Considering only the plaintiffs and the three properly joined
Performance Elastomers, LLC, and Denka Performance Elastomer, LLC
- the remaining analysis is straightforward.
Observing that the redline attached as Exhibit 1 to DuPont’s
opposition confirms that the plaintiffs’ complaint in this action
breaks little new ground, the Court incorporates by reference the
“Rule 12(b)(6)-type analysis” it performed in Butler.
Smallwood, 385 F.3d at 573. Here still, as there, the plaintiffs’
decision to “seek damages from the State for exposure to emissions
from a private defendant’s manufacturing facility ventures into
absurdity.” Butler, 2019 WL 1160814, at *6.
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The Amount in Controversy Exceeds $75,000 per Plaintiff
The removing defendants have demonstrated a strong likelihood
that the plaintiffs’ claims exceed $75,000 in value.
to alleging that they have already suffered a wide range of
potentially severe physical and emotional effects (including a
heightened risk of cancer), the plaintiffs also seek the Court’s
permanent enjoinment of the defendants’ “unreasonably dangerous
Accordingly, when taken as a whole, it is “facially
apparent” that the value of the plaintiffs’ claims exceeds $75,000
See Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880,
883 (5th Cir. 2000).
As a result, because the defendants have shown “that the
amount in controversy exceeds the jurisdictional amount, [their]
removal is proper,” as the plaintiffs have not “shown that it is
legally certain that [their] recovery will not exceed the [required
See De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th
Cir. 2005) (emphasis added).
Complete Diversity Exists Among the Properly Joined Parties
Taking as true the plaintiffs’ allegations that they are each
jurisdiction on grounds of incomplete diversity unless at least
one of the three properly named defendants is also a citizen of
Case 2:20-cv-02323-MLCF-DMD Document 36 Filed 11/19/20 Page 9 of 12
As such, the Court must determine the citizenship of
each properly joined defendant.
E.I. DuPont de Nemours & Company:
DuPont is a Delaware
corporation which famously maintains its corporate headquarters in
That is not disputed.
Elastomer LLC: The remaining defendants are limited liability
As the Fifth Circuit has stated, “the citizenship of
a LLC [sic] is determined by the citizenship of all of its
Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080
(5th Cir. 2008).
As a consequence, a limited liability company is
a citizen of every state in which its members are citizens.
Here, the plaintiffs do not – and, in fact, cannot – contest
that DuPont Performance Elastomers is a wholly owned subsidiary of
DuPont. As such, because its sole member is a citizen of Delaware,
DuPont Performance Elastomer is too a citizen of Delaware.
defendants’ claim that Denka is a citizen of Japan and Delaware,
because its two members are Denka USA LLC (a limited liability
See CONTACT DUPONT, investors.dupont.com/contact/default.aspx.
Case 2:20-cv-02323-MLCF-DMD Document 36 Filed 11/19/20 Page 10 of 12
company whose lone member is a corporate citizen of Japan) and
maintains its corporate “nerve center” in Delaware).
Accordingly, complete diversity exists among the plaintiffs
and the properly joined defendants.
No Remaining Defendants Are Citizens of the Forum State
For the foregoing reasons, neither DuPont, Dupont Performance
Elastomers, nor Denka Performance Elastomer are citizens of the
forum state of Louisiana.
Consequently, the defendants’ removal
of this action from Louisiana state court to Louisiana-based
subject matter jurisdiction are inapposite and unavailing.
In their motion, the plaintiffs first assert that the Court’s
“constitutional basis” for claiming jurisdiction is “blatant[ly]
See Mot. at 3–9.
This plainly incorrect statement
betrays a fundamental misunderstanding of the nature of Article
III and federal jurisdiction.
Indeed, while it is true that the
Constitution is the ultimate source of all federal judicial power,
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Article III, Section 2 affirmatively extends the judicial power
“to controversies . . . between citizens of different states.”
Moreover, “[w]ithin constitutional bounds, Congress decides what
cases the federal courts have jurisdiction to consider.”
v. Russell, 551 U.S. 205, 212 (2007).
By enacting 28 U.S.C.
§ 1332(a), Congress decided, “[w]ithin constitutional bounds,”
jurisdiction over cases just like this one.
Decades of binding
caselaw confirms as much.
The plaintiffs’ Eleventh Amendment arguments are similarly
Indeed, even if the plaintiffs were barred from suing
arms of their own state government in federal court by the Eleventh
Amendment and its attendant doctrines of state sovereign immunity,
the plaintiffs’ ability to bring federal suit against improperly
joined defendants has no logical bearing on the jurisdictional
The plaintiffs’ motion challenges the defendants’ removal of
an action that pits twenty-three natural citizens of Louisiana
against three corporate citizens of Japan and Delaware, and two
administrative agencies of Louisiana.
Because the defendants are
correct that the state-agency defendants were improperly joined
Case 2:20-cv-02323-MLCF-DMD Document 36 Filed 11/19/20 Page 12 of 12
perhaps to artificially forestall this Court’s jurisdiction over
a case that is strikingly similar to a case this Court previously
dismissed with prejudice, those agencies must be disregarded for
purposes of the narrow jurisdictional inquiry necessitated by this
The removing defendants have persuasively met their burden of
demonstrating a sound basis for the Court’s exercise of their
asserted ground for federal subject matter jurisdiction: diversity
jurisdiction under 28 U.S.C. § 1332(a).
Accordingly, IT IS ORDERED: that the plaintiffs’ motion to
remand is DENIED.
New Orleans, Louisiana, November 19, 2020
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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