Brinston v. Koppers Industries, Inc.
| Decision Date | 31 January 2008 |
| Docket Number | Case No. A-07-CA-902-SS. |
| Citation | 538 F.Supp.2d 969 |
| Parties | Leon BRINSTON, et al., Plaintiffs, v. KOPPERS INDUSTRIES, INC., et al., Defendants. |
| Court | U.S. District Court — Western District of Texas |
Dwight E. Jefferson, Grover G. Hankins, The Hankins Law Firm PLLC, Houston, TX, James L. Wright, Watts Law Firm, LLP, Austin, TX, for Plaintiffs.
Brent R. Austin, Leonard S. Kurfirst, Matthew J. Caccamo, Paul K. Freeborn, Robert L. Shuftan, Wildman, Harrold, Allen & Dixon LLP, Chicago, IL, Michael R. Klatt, Susan E. Burnett, Clark, Thomas, & Winters, Robert T. Stewart, Kelly, Hart & Hallman, P.C., Austin, TX, David E. Cowen, Douglas W. Poole, William R. Floyd, McLeod, Alexander, Powel & Apffel, P.C., Galveston, TX, for Defendants.
BE IT REMEMBERED on the 31st day of January 2008 the Court reviewed the file in the above-styled cause, specifically Plaintiffs' Motion to Amend Complaint [# 54], Defendant Koppers Industries, Inc. ("Koppers")'s Response thereto [# 68], Koppers' Motion to Dismiss [# 19], Koppers' Supplement to the Motion to Dismiss [# 23], Plaintiffs' Response to the Motion to Dismiss [# 57], Koppers' Motion for Summary Judgment [# 25], Plaintiffs' Response thereto [# 56], Koppers' Reply [# 66], Defendant Burlington Northern Santa Fe Railway Company ("Burlington")'s Motions to Join Koppers' Motions to Dismiss and for Summary Judgment [# 40, 41], Plaintiffs' Motion to Continue or Deny Motions Pursuant to Rule 56(f) [# 55], and Koppers' Response thereto [# 63]. Having reviewed these documents, the applicable law, and the case file as a whole, the Court now enters the following opinion and orders.
Plaintiffs filed suit against Burlington and Koppers in Burleson County, Texas on October 25, 2007, seeking to represent a class of "all persons who own property or lease property within 1 mile" of a wood treatment plant in Somerville, Texas and "who allegedly "have had their person and/or property contaminated with ... toxins released from the Somerville plant." Compl. ¶ 37. Burlington owned and operated the Somerville plant from 1905 until 1995, when Koppers purchased the plant. Mot. Remand. 2-3. Plaintiffs allege that, even after the sale of the plant to Koppers, Burlington has maintained continued responsibility for compliance with reporting duties imposed by the Texas Natural Resource Conservation Commission in connection with a previous investigation of contamination from the plant. Id. Plaintiffs contend both Burlington and Koppers have operated the plant in a manner that released dangerous chemicals into the environment around the plant and thereby injured the Plaintiffs' property. Plaintiffs seek compensatory damages, punitive damages, and an injunction shutting down the plant.
The named Plaintiffs in this suit are residents of Texas, with the exception of Plaintiff Smith, who is a resident of Oregon. Defendant Koppers is a Pennsylvania corporation, while Burlington, is a Texas corporation. On October 26, 2007, Koppers filed a notice of removal based on the Class Action Fairness Act ("CAFA"), which establishes federal jurisdiction over putative class actions in which (1) there are 100 or more members in the proposed class; (2) at least some members of the proposed class have a different citizenship from some defendants; and (3) the claims of the proposed class members exceed the sum or value of $5,000,000 in the aggregate. 28 U.S.C. § 1332(d)(2); see also 28 U.S.C. § 1453. Plaintiffs moved to remand based on the limited exceptions to CAFA jurisdiction, and the Court denied the motion to remand on December 19, 2007.
Defendants move for dismissal or, in the alternative, summary judgment on all Plaintiffs' claims for relief on several grounds. In particular, Defendants assert all Plaintiffs' claims arise out of an alleged permanent nuisance. Defendants argue Plaintiffs lack standing to bring claims based on a permanent nuisance, because those claims would have accrued to the owner of the property at the time the nuisance allegedly began in 1905. Moreover, Defendants argue the statute of limitations on the nuisance claims began to run at that time, or at the latest when the Plaintiffs discovered their injuries and brought suit on similar claims in 2005. Because the Texas statute of limitations for a nuisance claim is two years, Defendants argue any claims Plaintiffs have standing to bring are time-barred.
Plaintiffs assert they have been assigned the right to pursue the claims at issue and therefore have standing to sue. Plaintiffs further assert the discovery rule operates to toll the statute of limitations on their claims, and the lawsuit filed in 2005 further tolled the limitations period. Alternatively, Plaintiffs assert their claims are not governed by the doctrine of permanent nuisance, but are instead a temporary (if recurring) nuisance, for which a new statute of limitations begins to run with each new occurrence.
Plaintiffs have raised several procedural challenges in addition to their argument on the merits of their claims. First, Plaintiffs argue the Motion for Summary Judgment is premature under Federal Rule of Civil Procedure 56(f) and should therefore be dismissed. Second, Plaintiffs have moved to amend their complaint to withdraw both their class allegations and their request for injunctive relief. Plaintiffs contend the withdrawal of all class allegations negates federal jurisdiction under CAFA, and the case must therefore be remanded, as there is no other basis for federal jurisdiction.
Plaintiffs seek leave to amend their complaint to withdraw all class allegations and withdraw their claims for injunctive relief. The amended complaint asserts no new theories or causes of action. The amended complaint seeks property damages and punitive damages for each individual named Plaintiff, based on Defendants' alleged contamination of the soil and groundwater on Plaintiffs' property through Defendants' operation of the Somerville Plant.
Federal Rule of Civil Procedure 15(a)(2) dictates that the Court "should freely give leave [to amend] when justice so requires." Under this Rule, "a district court must possess a `substantial reason' to deny a request for leave to amend." Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir.2004) (quoting Lyn-Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 286 (5th Cir.2002)). Factors the Court may consider in denying leave to amend include 1) undue delay, 2) bad faith or dilatory motive, 3) repeated failure to cure deficiencies by previous amendments, 4) undue prejudice to the opposing party, and 5) futility of the amendment Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Though (as discussed below) this is not the first suit Plaintiffs have attempted to bring on these facts, there is no evidence in the instant record of undue delay, bad faith, or futility. This is Plaintiffs' first amended complaint in the above-styled cause.1 Accordingly, the Court GRANTS leave to amend.
Plaintiffs contend the amended complaint should be remanded to state court because this Court lacks jurisdiction over state law claims between non-diverse parties. It is true that federal removal jurisdiction in this case is predicated solely on the Class Action Fairness Act, CAFA, 28 U.S.C. § 1332(d). Plaintiffs' amended complaint asserts no class claims.
Nevertheless, the amendment does not divest the court of jurisdiction under CAFA. Garcia v. Boyar & Miller, P.C., No. 3:06-CV-1936-D, 2007 WL 1556961, *5, 2007 U.S. Dist. LEXIS 39072, *17-18 . The basis for federal jurisdiction under CAFA is established at the time of removal, and "once a federal court properly has jurisdiction over a case removed to federal, court, subsequent events generally cannot `oust' the federal court of jurisdiction." Braud v. Transp. Serv. Co., 445 F.3d 801, 808 (5th Cir.2006) (). Even the fact that a purported class is not actually appropriate for certification does not destroy CAFA jurisdiction, because jurisdiction is based on class allegations in the pleadings at the time of removal. Garcia, 2007 WL 1556961, *5, 2007 U.S. Dist. LEXIS 39072, *17-18. Moreover, the Fifth Circuit has explicitly stated that post-removal amendments made "solely to destroy" CAFA jurisdiction do not justify remand. Brawl, 445 F.3d at 808; see also Garcia, 2007, WL 1556961 at *5, 2007 U.S. Dist. LEXIS 39072 at *18. Accordingly, the Plaintiffs' motion to amend the complaint is GRANTED, but to the extent Plaintiffs seek a remand of the case to state court, their request is DENIED.
Plaintiffs next contend that the Court should not consider the merits of the pending Motion for Summary Judgment because it was filed before substantive discovery has been taken in the case, and additional discovery is necessary to determine whether and to what extent Defendants' fraudulent concealment triggered the Texas "discovery rule," tolling the statute of limitations on Plaintiffs' claims.
As Defendants point out, each of the Plaintiffs in the instant case participated in a lawsuit filed against these same entities in this Court on June 16, 2005. See Davis, et al. v. Koppers Indus., et al, No. A-05-CA-464-SS (W.D.Tex. Jun. 16, 2005). The complaint in the Davis case, like the instant complaint, was based on alleged contamination from the operation of the Somerville Plant. Furthermore, each individual plaintiff in the instant case was also a named plaintiff in the Davis case.
Under Texas law, "[t]he discovery rule defers the accrual of a cause of action until the plaintiff knows, or should know with the exercise of reasonable...
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