Lee–Bolton v. Koppers Inc.

• Citation: 848 F.Supp.2d 1342
• Decision Date: 13 September 2011
• Docket Number: Case No. 1:10–CV–253–SPM/GRJ.
• Parties: Lisa LEE–BOLTON, et al., Plaintiffs, v. KOPPERS INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Florida

848 F.Supp.2d 1342

Lisa LEE–BOLTON, et al., Plaintiffs,

v.KOPPERS INC., et al., Defendants.

Case No. 1:10–CV–253–SPM/GRJ.

United States District Court,

N.D. Florida,

Gainesville Division.

Sept. 13, 2011.

Paul Stuart Rothstein, Paul S. Rothstein PA, Gainesville, FL, for Plaintiffs.

Benjamin Harvey Hill, III, Casey G. Reeder, Dennis Parker Waggoner, Hill Ward & Henderson PA, Tampa, FL, Brent Robert Austin, David A. Kanter, Megan Colleen Millirons, Paul Keller Freeborn, Wildman Harrold Allen Etc., Chicago, IL, Kelly Lynn Wilson–Timmins, Boehm Brown Fischer Etc., Maitland, FL, Randy Fischer, Boehm Brown Fischer Etc., Ocala, FL, for Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

STEPHAN P. MICKLE, Senior District Judge.

THIS CAUSE comes before the Court for consideration of the Magistrate Judge's Report and Recommendation (doc. 58), which recommends that the Plaintiffs' Motion to Remand to State Court (doc. 30) be denied. Plaintiff has been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). Plaintiffs filed objections (doc. 64) and a reply in support of those objections (doc. 73). Pursuant to Title 28, United States Code, Section 636(b)(1), I find that the Report and Recommendation is correct and should be adopted.

Plaintiffs raised objections to the Report and Recommendation, all of which should be denied. First, Plaintiffs object to the Magistrate Judge's findings regarding the number of putative class members. However, the Court finds that the Report and Recommendation makes an accurate accounting of the potential class members. Since that number exceeds 100, as requiredby the Class Action Fairness Act of 2005 (“CAFA”), this prong of determining whether this case was properly removed to this Court has been met.¹ Plaintiffs also object to the Report and Recommendation on the grounds that the $5,000,000 jurisdictional threshold has not been met for proper removal under CAFA. This Court finds that the Magistrate Judge's method for determining the aggregate amount in controversy is accurate. As the amount in controversy exceeds $5,000,000, this prong of determining whether removal to this Court was proper has also been met.

Accordingly, it is hereby ORDERED AND ADJUDGED as follows:

1. The Magistrate Judge's Report and Recommendation (doc. 58) is adopted and incorporated by reference into this order.

2. Plaintiffs' Motion to Remand (doc. 30) is denied.

REPORT AND RECOMMENDATION

GARY R. JONES, United States Magistrate Judge.

Pending before the Court on an Order of Reference (Doc. 32) is Plaintiffs' Motion To Remand. (Doc. 30.) Defendants Koppers Inc. (“Koppers”), Beazer East, Inc. (“Beazer”), and Koppers Holdings, Inc. (“Koppers Holdings”) have collectively filed a single response in opposition to the motion. (Doc. 39.) Defendant McClellan Logging, Inc. (“McClellan”) also has filed a response in opposition to Plaintiff's motion. (Doc. 41.) Accordingly, the motion is ripe for consideration. For the reasons discussed below, Plaintiffs' motion is due to be denied.

I. BACKGROUND AND FACTS

This case concerns the alleged contamination of properties located near a wood treatment facility (the “Koppers Site”) in the city of Gainesville, Florida allegedly caused by the discharge of toxic chemicals from the facility into the surrounding soil and groundwater. Plaintiffs, landowners in the area bordering the Koppers Site, have filed a Class Action Complaint alleging that “the activities of Defendants and/or their predecessor entities whose conduct in connection with a longstanding toxic wood treatment facility ... caused the contamination of properties surrounding” the Koppers Site. (Doc. 1 Exh. A.) The Class Action Complaint includes claims for equitable and injunctive relief, violation of the Florida Water Quality Assurance Act (“WQAA”), negligence, negligence per se, strict liability for ultrahazardous activities, nuisance and trespass.

Plaintiffs originally filed the class action complaint on November 18, 2010 in the Circuit Court for the Eighth Judicial Circuit in and for Alachua County, Florida. Defendants Koppers Holdings, Beazer East, and Koppers (collectively, “Koppers Defendants”) removed the case to this Court on December 23, 2010 under the Class Action Fairness Act of 2005 (“CAFA”). In their Notice of Removal, the Koppers Defendants contend that removal under CAFA was proper because there are more than 100 potential class members of the putative class defined in the Plaintiffs' Class Action Complaint and the amount in controversy involved in this action is in excess of CAFA's $5,000,000 jurisdictional threshold. (Doc. 1.) The Koppers Defendants also contend that even if the requirements for removal under CAFA were not satisfied removal, nonetheless, was proper based upon diversity jurisdiction under 28 U.S.C. § 1332(a). The Koppers Defendants contend that even though Defendant McClellan is a Florida corporation—and thus not diverse from the Florida Plaintiffs—the citizenship of Defendant McClellan should be ignored because Defendant McClellan was fraudulently joined.

Plaintiffs timely filed a Motion To Remand (Doc. 30) requesting the Court to remand this action to state court because the total number of potential class members is less than CAFA's 100 member minimum threshold and because the amount in controversy does not satisfy CAFA's $5,000,000 threshold. Plaintiffs also contend that removal based upon diversity jurisdiction was improper because McClellan was not fraudulently joined in this action.

II. DISCUSSION

A. Removal under CAFA

CAFA was enacted by Congress in 2005 to “address inequitable state court treatment of class actions and to put an end to certain abusive practices by plaintiffs' class counsel” and did so by enlarging the universe of cases that can be removed pursuant to 28 U.S.C. § 1441 to include proposed class actions. Lowery v. Alabama Power Co., 483 F.3d 1184, 1193 (11th Cir.2007); 14C Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Joan E. Steinman., Federal Practice and Procedure § 3724 (4th ed.2009). In enacting CAFA Congress “perceived that state courts were overly friendly toward class certification, provided insufficient notice to class members, and favored some plaintiffs over others in making class awards.” Id. at *1.

CAFA bestows subject-matter jurisdiction on a federal court, thus, allowing for the removal of class action suits if: (i) the number of proposed class members is not less than 100; (ii) minimal diversity exists in that a member of the proposed class is a citizen of a state different from any defendant; and (iii) the aggregate amount in controversy, excluding interest and costs, exceeds $5,000,000. 28 U.S.C. § 1332(d)(11). The party removing an action under CAFA bears the burden of establishing that CAFA's requirements have been met by a preponderance of the evidence, meaning that the removing party must show that it is more likely than not that CAFA's requirements have been met. Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir.2010).

Satisfying CAFA is not the only requirement. As the parties removing the action the Koppers Defendants also bear “the burden of establishing both federal jurisdiction and compliance with the procedures for removal set out in 28 U.S.C. § 1446, as a matter of fact and law.” Englemann v. Hartford Cas. Ins. Co., No. 8:09–cv–2274–T–30EAJ, 2009 WL 5176551, at *1 (M.D.Fla. Dec. 23, 2009). The traditional procedural rules governing removal under 28 U.S.C. § 1446 still apply to CAFA removals and must also be satisfied even if CAFA's requirements are otherwise met. 28 U.S.C. § 1453(b). There is no issue in this case that the removal complied with the procedural rules for removal and that the removal occurred within 30 days of receipt of the complaint as required by 28 U.S.C. § 1446(b).¹

CAFA's minimal diversity requirement also is not seriously in dispute. Each Koppers Defendant is a foreign corporation and Plaintiffs are residents of Florida, thus, satisfying CAFA's minimal diversity requirement.

Thus, the two issues the Court must consider in determining whether removal was proper under CAFA are: whether the Koppers Defendants have met their burden of demonstrating that the class member numerosity requirement of CAFA has been met and whether the Koppers Defendants have met their burden of demonstrating that the amount in controversy is in excess of $5,000,000. The Court will address each issue in turn.

B. Removal by the Koppers Defendants Under CAFA

1. Number of Potential Class Members

28 U.S.C. § 1332(d)(11) provides that a defendant may remove a putative class action under CAFA only if the number of proposed class members is not less than 100. Section 1332(d)(1)(B) defines the term “class members” as “the persons (named or unnamed) who fall within the definition of the proposed or certified class in a class action.” 28 U.S.C. § 1332(d)(1)(B). Plaintiffs' Class Action Complaint defines the putative class in this action as:

All persons and legal entities that appear on a recorded deed as the owners, as of November 18, 2010, of property that: a. is located in the Affected Area; b. is designated as available for residential use according to the records of the Alachua County Property Appraiser; and c. is or has been affected by those toxic and dangerous chemicals and/or hazardous substances used at the Koppers Site. Excluded from the Class are the following: A. The Defendants, and any parents, subsidiary, or affiliate organizations, and the officers, directors, agents, servants or employees of same and the members of the immediate family of any such person; B. All persons and entities who timely opt out of this proceeding.; C. All persons who have given valid releases releasing the Defendants from the claims asserted in this complaint; D. All persons who, prior to the date of the filing of this complaint, have filed a non-class action claim against the...