UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Jean Dowling et al.

v. Civil No. 18-cv-180-JL Opinion No.

Saint-Gobain Performance Plastics Corp. et al.

MEMORANDUM ORDER

Resolution of the plaintiffs’ motions to remand these

environmental trespass actions to state court1 turns on whether

the plaintiffs pleaded proposed class actions in their state-

court complaints. After voluntarily dismissing their class-

based claims in this court, the plaintiffs refiled their claims

in Hillsborough Superior Court against Saint-Gobain Performance

Plastics Corp. and two of its employees, Gwenael Busnel and

Chris Gilman. The defendants timely removed the actions, citing

this court’s jurisdiction under the Class Action Fairness Act

(“CAFA”),

(d)(2).

The plaintiffs move to remand both actions to the Superior

Court. They argue that the court lacks jurisdiction under CAFA

because they plead claims only on behalf of the named

plaintiffs, not any proposed class, and that any class-related

1 Document no. 29. Unless otherwise noted, all citations to the docket refer to civil action no. 18-cv-180. language in their complaints constitutes mere scrivener’s error.

Because the court declines to construe the complaints as

proposed class action complaints, it lacks subject-matter

jurisdiction over the Dowling plaintiffs’ actions. Accordingly,

their motions to remand are granted.

Applicable legal standard

With certain exceptions not relevant here, a defendant may

remove to this court “[a]ny civil action brought in a State

court of which the district courts of the United States have

original jurisdiction . . . .” 28 U.S.C. 1441(a). “The party

invoking federal jurisdiction has the burden of establishing

that the court has subject matter jurisdiction over the case.

This is true generally for defendants removing to federal

court.” Amoche v. Guarantee Tr. Life Ins. Co.,

(1st Cir. 2009).

As a general matter, “[r]emoval statutes should be strictly

construed against removal and doubts resolved in favor of

remand.” Kelleher v. Marvin Lumber & Cedar Co.,

(DiClerico, J.). “[N]o antiremoval presumption attends cases

invoking CAFA,” however. Dart Cherokee Basin Operating Co., LLC

v. Owens,

(2014). In determining whether

remand is appropriate, the court looks “to the complaint as

filed at the time that the case was removed when deciding

2 whether remand is appropriate.” Brown v. Saint-Gobain

Performance Plastics Corp.,

(internal

quotations omitted).

Background

Jean Dowling and her fellow plaintiffs filed their first

action in this court on December 5, 2016. They brought a

proposed class action against Saint-Gobain seeking to recover

under theories of negligence, trespass, strict liability, and

nuisance for contamination of surface and groundwater with

perfluorooctanoic acid (“PFOA”) and other manufactured compounds

from Saint-Gobain’s plant in Merrimack, New Hampshire.2 The

court consolidated that action with three other actions against

Saint-Gobain arising from the same alleged contamination.3 The

Dowling plaintiffs objected to consolidation for trial, but did

not oppose consolidation for pretrial purposes.4

After consolidation, the court ordered the collective

plaintiffs to file one consolidated complaint.5 Following some

2 Civil Action No. 16-cv-528, doc. no. 2. 3 Civil Action No. 16-cv-528, doc. no. 13. In two of those cases, the court denied plaintiffs’ motion to remand the action under the “local controversy exception” to CAFA. Brown,

. 4 Civil Action No. 16-cv-528, doc. no. 10 at 7-9. 5 Civil Action No. 16-cv-242, doc. no. 55 at 4.

3 postural skirmishing by the parties, the court also appointed

interim class counsel to facilitate the process.6 After the

complaint was filed and following a preliminary pretrial

conference, the Dowling plaintiffs voluntarily dismissed their

claims against Saint-Gobain with the stated intention of

refiling those claims in state court.7 In doing so, they assured

the court that they would structure the state-court complaint to

avoid this court’s subject-matter jurisdiction under CAFA, such

that the action would not simply return to this court following

a brief sojourn in the Superior Court.

The Dowling plaintiffs filed two new actions in

Hillsborough County Superior Court.8 Through those complaints,

fewer than 60 individuals brought claims against Saint-Gobain,

its Merrimack plan’s General Manager, Gwenael Busnel, and its

facility manager, Chris Gilman, substantively similar to those

previously dismissed. Though generally structured as an action

brought by individuals, each complaint contained several

6 Civil Action No. 16-cv-242, doc. no. 76. 7 Civil Action No. 16-cv-242, doc. no. 97. The Dowling plaintiffs alone dismissed their claims. The other consolidated actions proceeded as Brown et al. v. Saint-Gobain Performance Plastics Corp. et al., Civil Action No. 16-cv-242. 8 Compl. (doc. no. 1-1); Civil Action No. 18-cv-181, doc. no. 1- 1.

4 references to “class members.”9 Plaintiffs’ counsel,

furthermore, signed the complaint as “Attorneys for Plaintiffs

and the putative class.”10

Construing the complaints as proposed class actions, Saint-

Gobain removed the actions to this court, citing this court’s

jurisdiction under CAFA.11 The Dowling plaintiffs then moved for

leave to amend their complaints to remove the arguable class-

based allegations and for this court to remand the actions to

the Superior Court.

Analysis

Under CAFA, district courts have “original jurisdiction of

any civil action in which the matter in controversy exceeds the

sum or value of § 5,000,000, . . . and is a class action in

which . . . any member of a class of plaintiffs is a citizen of

a State different from any defendant . . . .”

(d)(2)(A). The defendants, as the parties invoking this

court’s jurisdiction under CAFA, bear the burden of establishing

that it applies. Amoche,

. Similarly, “the

9 Compl. (doc. no. 1-1) ¶¶ 102, 105, 107, 108, 114; Civil Action No. 18-cv-181, doc. no. 1-1, ¶¶ 4-6, 85, 88, 90-91, 97. 10Compl. (doc. no. 1-1) at 50; Civil Action No. 18-cv-181, doc. no. 1-1, at 45. 11Notice of Removal (doc. no. 1) ¶¶ 3-14; Civil Action No. 18- cv-181, doc. no. 1, ¶¶ 3-14.

5 burden is on the plaintiff[s] to show that an exception to

jurisdiction under CAFA applies.” In re Hannaford Bros. Co.

Customer Data Sec. Breach Litig.,

(1st Cir.

2009).

CAFA defines a “class action” as “any civil action filed

under rule 23 of the Federal Rules of Civil Procedure or similar

State statute or rule of judicial procedure authorizing an

action to be brought by 1 or more representative persons as a

class action.”

(d)(1)(B). Neither complaint

invokes Rule 23 or the equivalent state-law analogue, Rule 16 of

the Civil Rules of the Superior Court. The court is thus hard-

pressed to conclude that the plaintiffs’ proposed actions fall

within this category. It need not rely solely on the lack of

invocation of a relevant rule in drawing that conclusion,

however. If it did so, “a plaintiff could avoid federal

jurisdiction for a lawsuit that resembles a class action in all

respects simply by omitting from the complaint the name of the

rule or statute under which she proceeds.” Williams v.

Employers Mut. Cas. Co.,

(8th Cir. 2017).

Here, the substance of the complaints also militates

against construing them as proposed class actions. As an

initial matter, they lack the hallmarks of class action

complaints: they do not define a proposed class, describe

questions of law and fact common to that class’s members, or

6 otherwise set forth facts or even bare allegations that the

action satisfies the numerosity, commonality, typicality, and

adequate representation requirements. See Fed. R. Civ.

P. 23(a); Superior Ct. Civ. R. 16(a). The complaints do, as the

defendants point out, contain a handful of references each to

“class members.”12 All of those references appear either in the

introduction13 or under the plaintiffs’ description of the

defendants,14 however. No class-related language appears in the

plaintiffs’ general allegations, their description of the

damages they allegedly suffered, or, perhaps most importantly,

their claims or prayer for relief. Nor is the court inclined to

conclude that the plaintiffs pleaded class allegations solely

because counsel signed the complaints on behalf of “Plaintiffs

and the putative class” where the complaints contain no

description of any such putative class.

As the defendants point out,15 the plaintiffs in this action

are the “masters of their complaints,” who may avoid removal by

crafting their pleadings accordingly. Standard Fire Ins. Co. v.

Knowles,

(2013). In doing so, they invoke

12 E.g., Compl. (doc. no. 1-1) ¶¶ 102, 105, 107, 108, 114. 13 Civil Action No. 18-cv-181, doc. no. 1-1, ¶¶ 3-5. 14Compl. (doc. no. 1-1) ¶¶ 102, 105, 107, 108, 114; Civil Action No. 18-cv-181, doc. no. 1-1, ¶¶ 85, 88, 90-91, 97. 15 E.g., Obj. to Remand Mot. (doc. no. 32-1) at 8-9.

7 several cases in which the plaintiffs sought to avoid removal

under CAFA as “mass actions” despite including more than

100 plaintiffs. See Ramirez v. Vintage Pharm., LLC,

(3d Cir. 2017); Corber v. Xanodyne Pharm., Inc.,

(9th Cir. 2014); Scimone v. Carnival Corp.,

(11th Cir. 2013) (collecting cases). A mass

action is a civil action “in which monetary relief claims of 100

or more persons are proposed to be tried jointly on the ground

that the plaintiffs’ claims involve common questions of law or

fact,” and who claim more than $75,000 in damages.

(d)(11)(B)(i). Those courts retained jurisdiction over

the plaintiffs’ mass action complaints under CAFA, concluding

generally that “plaintiffs have the ability to avoid” CAFA

jurisdiction under that provision “by filing separate complaints

naming less than 100 plaintiffs and by not moving for or

otherwise proposing joint trial in the state court.” Scimone,

. The defendants argue that, like in those

cases, the plaintiffs here inartfully failed to plead around

CAFA jurisdiction and so must litigate in this court.

This is not, however, a matter of counting named

plaintiffs. Here, the defendants would have the court read

class action allegations into complaints that neither describe

proposed classes nor request any relief on behalf of any such

class. During a March 22, 2018 telephone conference with all

8 counsel and the court, plaintiffs’ counsel represented that they

erred in proof-reading the complaints and only inadvertently

included the minimal class-based language. The court credits

those representations and is disinclined to force plaintiffs to

undertake the time and expense of prosecuting a class action

that they did not intend to file in the first place. The court

is also hard-pressed to believe that plaintiffs’ capable and

professional counsel, having made such representations to this

court, would attempt to litigate these complaints as class

actions in the Superior Court after remand.16

Conclusion

Because the court does not construe these complaints as

pleading proposed class actions, it lacks subject-matter

jurisdiction over the actions under CAFA. And, as the

plaintiffs correctly observe, it lacks diversity jurisdiction

under over the actions under

(a) because the

plaintiffs and two individual defendants are New Hampshire

16The plaintiffs also argue that they have not satisfied CAFA’s numerosity requirement. The CAFA jurisdiction invoked by the defendants “shall not apply to any class action in which . . . the number of members of all proposed plaintiff classes in the aggregate is less than 100.”

(d)(5)(B). Because the court concludes that the complaints do not constitute proposed class action complaints, it need not reach the question of whether the plaintiffs have proven this exception to CAFA jurisdiction.

9 citizens.17 “If at any time before final judgment it appears

that the district court lacks subject matter jurisdiction” over

a removed action, as it does here, “the case shall be remanded.”

(c). Accordingly, the plaintiffs’ motions to

remand these actions18 to the Superior Court is GRANTED.

“An order remanding the case may require payment of just

costs and any actual expenses, including attorney fees, incurred

as a result of the removal.”

(c). Because the

removal and motions to remand were occasioned by plaintiffs’

counsel’s admitted inartful pleading, which followed their

representations to this court and opposing counsel that their

state-court complaints would be pleaded to preclude CAFA

jurisdiction, their payment of just costs and actual expenses is

appropriate here. Accordingly, plaintiffs’ counsel shall bear

the costs and defendants’ attorney fees occasioned by removing

these actions and opposing the motions to remand them. Counsel

shall attempt to reach agreement on the precise amount of such

costs and file a stipulation with this court on or before

August 6, 2018.

17See Mot. to Remand (doc. no. 29) at 4; Reply (doc. no. 38) at 4-5. The defendants have not argued otherwise. 18Document nos. 29, 34. Because the court concludes that remand is appropriate based on the complaints as filed, it does not reach plaintiffs’ motions to amend the complaints. See document nos. 28, 35.

10 The case shall be remanded to Hillsborough County Superior

Court upon filing of that stipulation.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: July 6, 2018

cc: Kirk C. Simoneau, Esq. David P. Slawsky, Esq. Lawrence A. Vogelman, Esq. Patrick J. Lanciotti, Esq. Tate J. Kunkle, Esq. Lincoln D. Wilson, Esq. Douglas E. Fleming, III, Esq. Mark Cheffo, Esq. Nicholas F. Casolaro, Esq. Patrick Curran, Esq. Paul A. LaFata, Esq. Sheila L. Birnbaum, Esq. Bruce W. Felmly, Esq. Thomas B.S. Quarles, Jr., Esq. Chad W. Higgins, Esq. Christina Ann Ferrari, Esq. Christopher D. Hawkins, Esq. Katherine A. Joyce, Esq. Roy W. Tilsley, Jr., Esq.

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