Olden v. Lafarge Corporation, Case Number 99-10176-BC (E.D. Mich. 10/24/2001), Case Number 99-10176-BC.

Decision Date24 October 2001
Docket NumberCase Number 99-10176-BC.
PartiesJULIE OLDEN, RICHARD HUNTER, and WILBUR BLEAU, Plaintiffs, v. LAFARGE CORPORATION, Defendant.
CourtU.S. District Court — Eastern District of Michigan
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS AND GRANTING PLAINTIFFS' MOTION TO CERTIFY CLASS ACTION

DAVID M. LAWSON, District Judge.

This matter is before the Court on the plaintiff's motion to certify a class action and the defendant's motion to dismiss. The named plaintiffs are property owners in the City of Alpena, Michigan who claim that their real and personal property have been damaged by toxic pollutants and air contaminants emitted by the defendant during the course of its cement manufacturing operation. Specifically, the plaintiffs allege that particulate entered the air and settled on the plaintiffs' persons and their property and caused an increased risk of suffering serious injury and property damage to plants and house siding. The plaintiffs have alleged various theories for recovery and seek damages and injunctive relief. They also have moved to have their case certified as a class action. The defendant opposes class certification and has moved to dismiss the complaint. The Court finds that class certification is appropriate; the plaintiffs have not alleged a valid claim sounding in trespass although plaintiffs' other theories are viable; the Court may exercise supplemental jurisdiction over all the class members; and that abstention is inappropriate. The Court therefore will grant the plaintiffs' motion for class certification, and grant in part and deny in part defendant's motion to dismiss.

I.

A cement plant now maintained by the defendant LaFarge Corporation has been in operation in the northeast section of the City of Alpena since about 1920. LaFarge, a Maryland corporation, has owned and operated the plant since 1987. The LaFarge plant, the largest cement plant in North America, is a major employer in the Alpena area and employs about four hundred workers. The one-square-mile facility turns limestone into cement and consists of a limestone rock quarry and a cement manufacturing plant.

The limestone rock quarry is over 100 feet deep. The manufacturing process begins when limestone rock is blasted loose from the side of the quarry and is then moved by truck to a primary and secondary crusher located in the quarry. From the secondary crusher, the crushed limestone moves by conveyor onto the secondary storage piles adjacent to the quarry. Another conveyor moves the crushed limestone to the cement kilns in the cement manufacturing facility.

The cement manufacturing facility consists of five cement kilns separated into two groups. The kilns, fired by coke fuel, fuse the crushed limestone into round nodules less than two inches in diameter called "clinker." The clinker is then cooled and stored in a storage structure about the size of two football fields. Next, the clinker moves through a grinding process reducing it to powder which is stored in silos.

A by-product of the cement manufacturing process is cement kiln dust (CKD). Some CKD is emitted into the air, causing a bad odor. In addition to covering vehicles, houses and flowers with a "white film," the CKD allegedly causes damage to vinyl siding and has killed rose bushes. The plaintiffs request injunctive relief and compensatory and exemplary damages for the loss of use and enjoyment of home and property, mental and emotional anguish, diminution of market value of their property, and injury to personal and real property.

LaFarge's operation is subject to regulation under the Clean Air Act (CAA), 42 U.S.C. § 7401, et seq., by the United States Environmental Protection Agency (EPA) and under the Natural Resources and

Environmental Protection Act, Mich. Comp. L. § 324.101, et seq., by the Michigan Department of Environmental Quality (MDEQ). In addition, LaFarge is subject to a Second Amended Consent Judgment entered in Alpena County, Michigan Circuit Court on September 28, 2000.

The consent judgment was entered in a state court law suit brought by the Michigan Attorney General seeking to compel compliance with the statutory air pollution control requirements applicable to the LaFarge Alpena facility. The purpose of the Second Amended Consent Judgment was to (1) settle the alleged air emission violations of Part 55 of Act 451 occurring at the LaFarge Alpena facility and cited in Letters of Violation between January 16, 1997 and July 28, 1999; (2) settle the alleged air emission violations of Section 111 of the federal CAA of 1990 occurring at the LaFarge Alpena Facility and cited in a Finding of Violation dated September 25, 1998; (3) require LaFarge to obtain and comply with the necessary air use permits for process equipment in compliance with the federal CAA, the Michigan State Implementation Plan, Part 55 of the Act 451 and rules promulgated thereunder, and/or Michigan Environmental Protection Act (MEPA); (4) collect a stipulated settlement penalty and set stipulated fines to ensure perform of the obligations set forth in this Second Amended Consent Judgment; (5) resolve all matters alleged in the Complaint and resolve any other cited violations of Permit to Install Nos. 126-86A, 158-90, and 356-88D identified in Letters of Violation issued to the LaFarge Alpena facility between January 16, 1997 and July 28, 1999; and (6) resolve any other violations which have or could have been asserted prior to entry of this Second Amended Consent Judgment relating to fugitive dust or hydrogen chloride emissions. The consent judgment recites the permits issued to LaFarge's Alpena facility, including an emissions permit for kiln groups 5 & 6, an air permit for the "Pug Mill," a raw grind permit, and a permit for the clinker conveying and storage system.

The plaintiffs allege four causes of action: trespass, nuisance, negligence/gross negligence, and a claim for court-ordered medical programs. The plaintiffs have filed a motion for class certification pursuant to Fed. R. Civ. P. 23. The defendants have filed a motion to dismiss on three grounds: lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1); failure to state a claim under Fed. R. Civ. P. 12 (b)(6); and abstention under the Burford doctrine.

II.

The defendant moves pursuant to Fed. R. Civ. P. 12(b)(1) to dismiss this case as a class action on the ground that the Court does not have subject matter jurisdiction over certain putative class members who cannot allege individual damages in excess of $75,000. A motion to dismiss under Fed. R. Civ. P. 12(b) must be granted when the complaint fails to plead a claim under "any arguable basis in law." GTE North, Inc. v. Strand, 209 F.3d 909, 915 (6th Cir. 2000). Subject matter jurisdiction based on diversity of citizenship requires complete diversity between the plaintiffs and the defendant, and an amount in controversy in excess of $75,000. 28 U.S.C. § 1332.

The parties agree that citizenship in this case is diverse.

The amount in controversy is assessed as of the time the complaint is filed. Rosen v. Chrysler Corp., 205 F.3d 918, 920-21 (6th Cir. 2000). Generally, the amount claimed by the plaintiff in his or her complaint determines whether the jurisdictional amount is satisfied. Id. If challenged by the defendant, the complaint will only be dismissed if "it appears to a legal certainty that the plaintiff in good faith cannot claim the jurisdictional amount." Massachusetts Cas. Ins. Co. v. Harmon, 88 F.3d 415, 416 (6th Cir. 1996).

"Legal certainty" does not mean absolute certainty, but it is more than moral certainty. Jeffries v. Silvercup Bakers, Inc., 434 F.2d 310, 311-12 (7th Cir. 1970) ("[I]t is not incumbent upon a plaintiff to show to an absolute certainty that he will obtain a verdict in excess of [$75,000]. Instead, before a suit will be dismissed for lack of jurisdiction, it must appear to a legal certainty that he will not recover that amount. Thus, it is sufficient if there is a probability that the value of the matter in controversy exceeds the jurisdictional amount."); Thomas v. Travelers Ins. Co., 258 F. Supp. 873, 876 (E.D. La. 1966) ("It might happen that the judge, on the trial or hearing of a case, would receive impressions amounting to a moral certainty that it does not really and substantially involve a dispute or controversy within the jurisdiction of the court. But upon such a personal conviction, however strong, he would not be at liberty to act, unless the facts on which the persuasion is based, when made distinctly to appear on the record, create a legal certainty of the conclusion based on them.").

The amount in controversy is measured by the object of the litigation. Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 347 (1977). In the case of injunctive relief, the amount in controversy is the "monetary value of the benefit that would flow to the plaintiff if the injunction were granted." Smith v. GTE Corp., 236 F.3d 1292, 1309 (llth Cir. 2001).

The parties agree that the named plaintiffs meet the jurisdictional amount required under 28 U.S.C. § 1332. The plaintiffs concede that not all members of the putative class have claims that exceed $75,000. Likewise, the plaintiffs and LaFarge acknowledge that aggregation of damages is :not proper in the instant case. Therefore, the only issue is whether the supplemental jurisdiction statute permits the Court to retain jurisdiction even though some of the class members have claims which total less than the jurisdictional amount. Exercising supplemental jurisdiction is proper when "the federal-law claims and state-law claims in the case derive from a common nucleus of operative fact and are `such that [the plaintiffs] would ordinarily be expected to try them all in one judicial proceeding." Soliday v. Miami County, Ohio, 55 F.3d 1158, 1165 (6th Cir. 1995) (internal quotes omitted).

In 1973, the...

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