Reece v. Aes Corp.
| Decision Date | 09 February 2016 |
| Docket Number | No. 14-7010,14-7010 |
| Court | U.S. Court of Appeals — Tenth Circuit |
| Parties | WILLIAM REECE; DIANE REECE; HERMAN TOLBERT; BENNETT TANKSLEY; SUSAN HOLMES; CHARLES TACKETT, as individuals and as representatives for those seeking redress for damages, Plaintiffs - Appellants, v. AES CORPORATION, a Delaware corporation; AES SHADY POINT, INC., a Delaware corporation; AES SHADY POINT, LLC, a Delaware limited liability company; MMHF, LLC, an Oklahoma limited liability company, a/k/a Making Money Having Fun, LLC, a/k/a Clean Hydro Reclamation, a/k/a Clean Hydro Evacuation, LLC; THUMBS UP RANCH, LLC, an Oklahoma limited liability company; DARYL J. JACKSON, individually, d/b/a Daryl Jackson Trucking; KEVIN J. JACKSON, an individual; KENNETH JACKSON, an individual; CHAD JACKSON, an individual; MOUNTAIN MINERALS, INC., a Delaware corporation; BRAZIL CREEK MINERALS, INC., an Oklahoma corporation; GCI MINING, an Oklahoma corporation, d/b/a George Colliers, Inc.; ASH GROVE RESOURCES, LLC, a Kansas limited liability company; FARRELL-COOPER MINING COMPANY, an Arkansas corporation; COAL CREEK MINERALS, LLC, a Delaware limited liability company; MCCORKLE TRUCK LINE, INC., an Oklahoma corporation; STAR BULK, a Texas corporation, a/k/a PX Transportation, Inc.; SEECO, INC., an Arkansas corporation, a/k/a SWN Production Company, a/k/a Southwest Energy Production Company, Inc., a/k/a Southwest Oil & Gas Company; XTO ENERGY, INC., a Delaware corporation; R&J TRUCKING, INC., an Oklahoma corporation; CHESAPEAKE OPERATING, INC., an Oklahoma corporation; PETROHAWK OPERATING COMPANY, a Texas corporation; STEPHENS PRODUCTION COMPANY, an Arkansas corporation; HIGHLAND OIL & GAS, LLC, a Delaware limited liability company; CHOLLA PETROLEUM, INC., a Texas corporation; HANNA OIL & GAS COMPANY, an Arkansas corporation; ROSS PRODUCTION COMPANY, an Arkansas corporation, a/k/a Ross Production Co., a/k/a McCord Oil Company, a/k/a Ross Explorations, Inc.; SHIELDS OPERATING, INC., an Arkansas corporation; BP AMERICA PRODUCTION COMPANY, a Delaware corporation; HOGBACK EXPLORATION, INC., an Arkansas corporation; SEDNA ENERGY, INC., an Arkansas corporation; GRACO FISHING & RENTAL TOOLS, INC., an Oklahoma corporation; TXD TRANSPORT, LP, a foreign limited partnership; BEAR PRODUCTIONS, INC., an Oklahoma corporation; BIG MAC TANK TRUCKS, LLC, a Delaware limited liability company, a/k/a Oklahoma Big Mac Tank Trucks, LLC; B&B GAS WELL SERVICES, LLC, an Oklahoma limited liability company; MIKE KREBBS CONSTRUCTIONS, INC., an Oklahoma corporation; BEAR TRANSPORTS, LLC, an Oklahoma limited liability company, Defendants - Appellees, and BISHOP TRUCKING, an Oklahoma corporation, Defendant. |
(E.D. Okla.)
ORDER AND JUDGMENT*Before HOLMES, MATHESON, and McHUGH, Circuit Judges.
Plaintiffs-Appellants William and Diane Reece, Herman Tolbert, Bennett Tanksley, Susan Holmes, and Charles Tackett (collectively, "Plaintiffs") filed a petition in the District Court for LeFlore County, Oklahoma, asserting a putativeclass action.1 They alleged that several companies (collectively, "Defendants") were responsible for environmental pollution stemming from the generation and disposal of coal-combustion waste ("CCW") and fluid waste from oil and gas drilling ("produced fluid waste" or "PFW"). Defendants removed the case to the United States District Court for the Eastern District of Oklahoma under the Class Action Fairness Act ("CAFA"). Plaintiffs filed two motions to remand, and the district court denied them both. Furthermore, after affording Plaintiffs two opportunities to cure factual deficiencies in their complaint, the district court dismissed their complaint for failure to state plausible claims for strict liability, negligence per se, and negligence.
On appeal, Plaintiffs challenge the district court's denial of their two motions for remand and also its dismissal of their amended complaint. Because we agree with the district court's disposition of the remand motions and conclude that Plaintiffs failed to adequately allege the element of injury in their amended complaint, we affirm the district court's judgment.
This case involves a putative class action alleging a variety of tort claims against several companies involved in the generation, transportation, and disposal of CCW and PFW near Bokoshe, Oklahoma.
Plaintiffs, the putative class representatives, filed their lawsuit in the District Court for LeFlore County, Oklahoma in October 2011. The petition alleged that "the transport, storage and disposal of waste materials from a coal-burning power plant and oil and gas drilling operations ha[d] resulted in millions of tons of waste material being transported and deposited in a huge pile at [a waste disposal facility] which present[ed] serious public health and environmental risks." Aplee. Supp. App. at 460-61 (Petition, dated Oct. 6, 2011). The petition included claims for strict liability, nuisance, trespass, negligence, negligence per se, and unjust enrichment against four groups:
Approximately one year later, on October 4, 2012, Plaintiffs filed a First Amended Petition; it asserted essentially the same causes of action, but also added as defendants various "Oil Producers" who were involved in the generationof the PFW disposed of at the MMHF facility.6 In their amended petition, Plaintiffs defined the putative class as consisting of "all citizens and/or residents and/or property owners of the State of Oklahoma within":
Aplt. App. at 94-95 (First Am. Petition, filed Oct. 4, 2012).
Defendants removed the case to the United States District Court for the Eastern District of Oklahoma pursuant to CAFA, 28 U.S.C. § 1332(d)(2). Plaintiffs subsequently filed a motion for remand, claiming that their case fell within the "local controversy" and "home state" exceptions articulated in 28 U.S.C. § 1332(d)(4), which require the court to refrain from exercising jurisdiction. Plaintiffs also argued that the court should decline to exercise jurisdiction under the permissive "interests of justice" exception of 28 U.S.C. § 1332(d)(3). Under all three of these exceptions, Plaintiffs were obliged to demonstrate, inter alia, that a certain portion of the class members are Oklahoma citizens. See 28 U.S.C. § 1332(d)(3) (); id. § 1332(d)(4)(A)(i)(I) (); id. § 1332(d)(4)(B)(requiring under the home-state exception that "two-thirds or more of the members of all proposed plaintiff classes" be citizens of the forum state).
The court held an evidentiary hearing on the motion, but Plaintiffs did not introduce substantive evidence or witness testimony regarding citizenship of the proposed class members, instead relying on their amended petition's class definition and "summary exhibits . . . based upon data that[] [had] been collected" from various local and federal sources that purported to compare—as to the class area—the percentage of Oklahoma class members against the percentage of non-Oklahoma class members in that same area. Aplt. App. at 339-40, 369-78 (). Plaintiffs did not introduce the underlying records or other data that formed the basis of the proffered charts.
The district court denied the motion for remand, finding that Plaintiffs had not met their burden of proving by a preponderance of the evidence that any of the exceptions applied. The court faulted Plaintiffs for failing to introduce any substantive evidence and instead relying on demonstrative exhibits that represented "a conclusion by counsel . . . as to what certain other public documents purportedly show" without any testimony "as to what specific records were inspected, how the calculations were made, or the like." Id. at 460-61 (Order, dated Apr. 2, 2013). The court also concluded that, with respect to the class definition itself, there were "simply too many variables . . . to assume" that the class met the citizenship threshold for any of the exceptions. Id. at 465. Inparticular, the court noted that the class definition included Oklahoma residents and property owners—two groups that could include people who were not Oklahoma citizens. The court also observed that the absence of limitations on the temporal period that encompassed the proposed class complicated the citizenship calculus and interjected an additional element of...
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