Saunders v. Sappi N. Am., Inc.
| Decision Date | 16 December 2021 |
| Docket Number | 1:21-cv-00245-NT |
| Parties | NATHAN SAUNDERS, et al., Plaintiffs, v. SAPPI NORTH AMERICA, INC. f/k/a S.D. Warren Company, et al., Defendants. |
| Court | U.S. District Court — District of Maine |
ORDER ON PLAINTIFFS' MOTION TO REMAND
The Plaintiffs filed this proposed class action in the Maine Superior Court in Somerset County. Defendant Sappi North America, Inc., (“Sappi”) then removed the case to this Court pursuant to the Class Action Fairness Act (“CAFA”). Now before me is the Plaintiffs' motion to remand this case to the Somerset County Superior Court ( ). For the reasons stated below, I DENY the Plaintiffs' motion.
This case arises out of the alleged discharge, distribution disposal, and spraying of various chemicals-specifically per- and polyfluoroalkyl substances and their constituents (collectively, “PFAS”)- by the Defendants in Somerset and Kennebec Counties. First Am. Class Action Compl. (“FAC”) ¶¶ 1, 71-72, 80-83 (ECF No. 1-1). The Plaintiffs allege that this dispersal of PFAS has contaminated their property-including poisoning their well water and groundwater-and the property of other similarly situated individuals in these counties. FAC ¶¶ 2-5, 69-71 73-79, 84-85.
The two named plaintiffs in this case are Nathan Saunders and Judy Hook, both of whom are Maine citizens and who own and occupy property in Somerset and Kennebec Counties, respectively. FAC ¶¶ 2, 4. Mr. Saunders and Ms. Hook seek to represent a class of individuals allegedly harmed by this PFAS contamination, and they define their proposed class to include most of the individuals[1] who have “lived or owned property in Somerset County or Kennebec County, Maine, for a period of one (1) year or more at any time between 1967 and the present.” FAC ¶ 88.
The Plaintiffs allege that the seventeen companies that they have sued are in some way responsible for this dispersal of PFAS throughout Somerset and Kennebec Counties. In particular, the Plaintiffs allege that Defendants Sappi; S.D. Warren Company (“S.D. Warren”); Scott Paper Company (“Scott Paper”) Kimberly-Clark Corporation (“Kimberly-Clark”); Huhtamaki, Inc., (“Huhtamaki”); Northern S.C. Paper Corporation (“Northern Paper”); UPM-Kymmene, Inc. (“UPM”); Perry Videx, LLC (“Perry Videx”); Infinity Asset Solutions (“Infinity”); New Mill Capital LLC (“New Mill Capital”); Go Lab, Inc., (“Go Lab”), International Paper Company (“International Paper”); Verso Corporation (“Verso”); and Pixelle Specialty Solutions[2] (“Pixelle”) currently own and operate-or previously owned and operated-various paper mills or paper manufacturing plants (the “Mills”) in Somerset, Kennebec, Franklin, and Hancock Counties. FAC ¶¶ 8, 10, 15, 18, 23, 31, 35-36, 38-39, 40.
In the case of Defendants Sappi LTD and Huhtamaki Oyj, the Plaintiffs allege that their subsidiaries-Sappi and Huhtamaki, respectively-each currently own and operate one of these Mills.[3] FAC ¶¶ 6, 8, 10, 17-18, 23. Finally, the Plaintiffs allege that the seventeenth defendant, Pine Tree Waste, Inc., (“Pine Tree”) owned, controlled, and operated a landfill in Somerset County and contracted with the other Defendants to retain and dispose of biosolids containing PFAS from the Mills and elsewhere at this landfill. FAC ¶ 41.
For the most part, the Plaintiffs make general allegations pertaining to all of the Defendants, [4] alleging that they used PFAS in making treated paper products at the Mills; produced PFAS residuals or byproducts that were discharged into the surrounding groundwater and surface waters; and spread contaminants throughout Somerset and Kennebec Counties by disposing of biosolids containing PFAS in landfills, selling or distributing biosolids containing PFAS for fuel or fertilizer, and spraying fertilizer containing PFAS. FAC ¶¶ 66, 69, 71. In addition to outlining the operation of the Mills, the Plaintiffs specifically allege that Pine Tree disposed of 40, 000 cubic yards of biosolids containing PFAS from the Mills at its landfills from at least 1976 until 1984; that International Paper spread at least 93, 594 tons of biosolids containing PFAS throughout Maine from 1988 until 1998; that Verso deposited at least 46, 234 tons of biosolids containing PFAS throughout Kennebec County from 2013 to 2015; and that Kimberly-Clark and/or its subsidiary Scott Paper[5] deposited biosolids containing PFAS into a landfill in Kennebec County. FAC ¶¶ 13, 72, 81-83.
Of the seventeen defendants, only Go Lab and Pine Tree are Maine citizens, while the other fifteen are not. See FAC ¶¶ 6-7, 9, 11, 13, 16-17, 24-28, 30, 32-34, 41.
Congress enacted CAFA to expand federal jurisdiction over class actions, thereby changing the rules surrounding subject-matter jurisdiction and removal in class action cases in federal court. See Amoche v. Guarantee Tr. Life Ins. Co., 556 F.3d 41, 47-48 (1st Cir. 2009). It is now the case that the federal courts have jurisdiction over most class actions where any plaintiff is diverse from any defendant, so long as the amount in controversy exceeds $5, 000, 000 and the class action involves more than 100 plaintiffs. 28 U.S.C. § 1332(d)(2), (5)(B). As a result, class actions that meet these requirements but are brought in state court may be removed to federal court. 28 U.S.C. §§ 1441(a), 1453(b).
CAFA also establishes certain exceptions, which provide that once a class action is removed pursuant to CAFA, a district court may-or sometimes must- decline to exercise jurisdiction if particular criteria are met. Two of these exceptions- one mandatory and one discretionary-are at issue here. The first, the ‘local controversy' exception, ” Coll. of Dental Surgeons of P.R. v. Conn. Gen. Life Ins. Co., 585 F.3d 33, 42 (1st Cir. 2009), requires remand if its criteria are met, see 28 U.S.C. § 1332(d)(4)(A). “Rather than divesting a court of jurisdiction, the local-controversy exception ‘operates as a[ ] [mandatory] abstention doctrine.' ” Reece v. AES Corp., 638 Fed.Appx. 755, 767 (10th Cir. 2016) (quoting Graphic Commc'ns Local 1B Health & Welfare Fund “A” v. CVS Caremark Corp., 636 F.3d 971, 973 (8th Cir. 2011)); accord Hunter v. City of Montgomery, 859 F.3d 1329, 1334 (11th Cir. 2017). CAFA's “mandatory abstention provisions are ‘designed to draw a delicate balance between making a federal forum available to genuinely national litigation and allowing the state courts to retain cases when the controversy is strongly linked to that state.' ” Hollinger v. Home State Mut. Ins., 654 F.3d 564, 570 (5th Cir. 2011) (per curiam) (quoting Hart v. FedEx Ground Package Sys., Inc., 457 F.3d 675, 682 (7th Cir. 2006)). The second exception at issue here, “CAFA's discretionary exception, ” Dutcher v. Matheson, 840 F.3d 1183, 1194 (10th Cir. 2016), allows for remand but does not require it, see 28 U.S.C. § 1332(d)(3).
While the “burden of showing federal jurisdiction” at the removal stage “is on the defendant removing under CAFA, ” Amoche, 556 F.3d at 48, a plaintiff seeking remand bears the burden of “show[ing] that an exception to jurisdiction under CAFA applies, ” In re Hannaford Bros. Co. Customer Data Sec. Breach Litig., 564 F.3d 75, 78 (1st Cir. 2009); accord Kitchin v. Bridgeton Landfill, LLC, 3 F.4th 1089, 1093 (8th Cir. 2021) (). In order to meet this burden, multiple circuits have held that the plaintiff must prove the elements of CAFA's jurisdictional exceptions by a preponderance of the evidence. Reece, 638 Fed.Appx. at 768 (). And while some district courts have found a reasonable probability standard to be appropriate, “[u]nder either approach, ‘the movant must make some minimal showing of the citizenship of the proposed class.' ” Id. (quoting Preston v. Tenet Healthsystem Mem'l Med. Ctr., Inc., 485 F.3d 793, 802 (5th Cir. 2007)). “A complete lack of evidence does not satisfy this standard.” Mondragon v. Cap. One Auto Fin., 736 F.3d 880, 884 (9th Cir. 2013).
In August of 2021, after the Plaintiffs had filed the FAC in Somerset County Superior Court, Sappi removed this action pursuant to CAFA. Notice of Removal (ECF No. 1).[6] In response, the Plaintiffs filed a motion to remand this case to state court, invoking the local controversy and discretionary exceptions.[7] Pls.' Mot. (ECF No. 50). Sappi then filed a response opposing remand (“Sappi Opp'n”) (ECF No. 62), which Huhtamaki, Huhtamaki Oyj, Infinity, Perry Videx, Pine Tree, Go Lab, Pixelle, Verso, Northern Paper, and UPM adopted (ECF Nos. 63, 65-68, 70). International Paper filed a separate response in opposition (“International Paper Opp'n”) (ECF No. 64), which addresses many of the same arguments as Sappi's opposition. Kimberly-Clark then filed a response in which it adopted both Sappi's and International Paper's oppositions. Def. Kimberly-Clark's Opp'n to Pl.'s [sic] Mot. to Remand (ECF No. 69). S.D. Warren, Sappi LTD, Scott Paper, and New Mill Capital have not opposed the motion.
Before addressing the applicability of the local controversy and discretionary exceptions, I address the Plaintiffs' misleading and incorrect arguments about who bears the burden of establishing the propriety of remand. The Plaintiffs argue that a defendant bears the burden of proving a valid basis for removal. Pls.' Mot. 1-2. They then extrapolate from that correct statement of the law to argue that the Defendants also bear the burden to defeat the motion to remand. Pls.' Mot. 2-3. That is wrong. The issue here is no longer whether removal is proper.[8] The issue is whether remand is warranted, and...
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