Galbraith v. City of Buffalo

ALES DISTR]

UNITED STATES DISTRICT COURT KO 3 FILED

WESTERN DISTRICT OF NEW YORK Ss PX

FEB 1 2 2024

c TH os

ROBERT GALBRAITH and MELISSA tewenae ons

MOSKO, DANA McWHITE and Is

KENNETH McWHITE, ANTWANETT

WILLIAMS, RAHWA GHIRMATZION,

REBECCA WHIPPLE and NOLAN 23-CV-814 (JLS)

WHIPPLE, SUSAN GILLICK,

FELICIA RICHARDSON and

RICHARD RICHARDSON, and

ABDUKADIR ABUDLLAHI, on behalf

of themselves and their respective

minor children, and on behalf of a class

of all persons similarly situated,

Plaintiffs,

v.

CITY OF BUFFALO,

BUFFALO WATER BOARD,

BUFFALO MUNICIPAL WATER

FINANCE AUTHORITY, BYRON W.

BROWN, in his official capacity as

Mayor of Buffalo, OLUWOLE A.

McFOY, in his official capacity as

Chairman of the Buffalo Water Board,

VEOLIA WATER NORTH AMERICA-

NORTHEAST, LLC, and VEOLIA

NORTH AMERICA, LLC,

Defendants.

DECISION AND ORDER

Plaintiffs filed this putative class action in Supreme Court, Erie County to

vindicate rights allegedly violated when Defendants stopped fluoridating Buffalo’s

drinking water. The question here is whether this action—removed to this Court

under the Class Action Fairness Act (““CAFA”)—should be remanded to state court.

Because the out-of-state Veolia Defendants are “primary defendants,” and because

an earlier “other” putative class action was “filed,” CAFA requires this Court to

deny Plaintiffs’ remand motion.

BACKGROUND

I. The Abdullahi and Galbraith Complaints

In January 2023, Buffalo residents Abdukadir Abdullahi, Melissa Mosko, and

Robert Galbraith filed a putative class action in New York state court against

Veolia North America, the City of Buffalo, the Buffalo Water Board, Buffalo Mayor

Byron Brown, and Buffalo Water Board Chairman Oluwole McFoy. See Dkt. 22-4

(“Abdullahi complaint”). The primary allegations in that complaint centered

around Defendants’ failure to fluoridate Buffalo’s drinking water. Id. In total, the

Abdullahi complaint listed twelve causes of action. Jd. The complaint remained

pending for approximately one year, until Plaintiffs voluntarily discontinued it in

January 2024. Dkt. 23-2.1

About six months after filing the Abdullahi complaint—and while the

Abdullahi complaint remained pending—Abdullahi, Mosko, and Galbraith filed a

new putative class action in state court with virtually identical claims. See Dkt. 1-2

(“Galbraith complaint”). This complaint, which is the one before this Court, also

' The first time the Abdullahi complaint was referenced in these proceedings was in

the Veolia Defendants’ opposition brief. See Dkt. 22-4 (the Abdullahi complaint).

Indeed, Plaintiffs’ motion to remand does not make any reference to the Abdullahi

complaint.

centers around Defendants’ failure to fluoridate Buffalo’s drinking water. Jd. This

second iteration included nine additional Buffalo resident plaintiffs: Dana McWhite,

Kenneth McWhite, Antwanett Williams, Rahwa Ghirmatzion, Rebecca Whipple,

Nolan Whipple, Susan Gillick, Felicia Richardson, and Richard Richardson. The

Galbraith complaint also included two additional defendants: the Buffalo Municipal

Water Finance Authority and Veolia Water North America—Northeast. Id.

The City of Buffalo, the Buffalo Water Board, the Buffalo Municipal Water

Authority, Mayor Byron Brown, and Chairman Oluwole McFoy (the “Buffalo

Defendants”) are all New York citizens. Dkt. 1-2, (4 830-48. Veolia Water North

America, LLC and Veolia Water North America-Northeast, LLC (the “Veolia

Defendants”) are not New York citizens. Rather, they are incorporated in Delaware

with their principal place of business in Massachusetts. See Dkt. 1, { 11; see also

Dkt. 1-2, at 44 (the Veolia Defendants “were and still are foreign corporation[s]

authorized to do business within the State of New York”).

The Abdullahi and Galbraith complaints are near duplicates. Each asserts

the same twelve causes of action. Indeed, most of the factual allegations are

identical. Each complaint alleges that Defendants stopped fluoridating Buffalo's

drinking water, made inaccurate representations about fluoride in the water, and

did not provide sufficient notice about halting fluoridation. Further, each complaint

shares the same purported class of Buffalo residents.

In the instant case, the Veolia Defendants timely filed a notice of removal,

pursuant to CAFA. Dkt. 1. Plaintiffs moved for remand, citing four CAFA

exceptions. See Dkt. 18-1, at 8. After the Veolia Defendants filed their opposition

brief, Dkt. 22, but before Plaintiffs filed their reply brief, Dkt. 23, the Abdullahi

complaint was voluntarily discontinued (nearly a year after it was initially filed).

On February 1, 2024, this Court held oral argument on Plaintiffs’ motion to

remand. Dkt. 24.

II. The Class Action Fairness Act

Congress enacted CAFA to expand federal jurisdiction, by permitting “a

defendant to remove a class action or mass action to federal court, notwithstanding

the absence of the complete diversity or federal question typically required for

removal.” Krasner v. Cedar Realty Trust, Inc., 86 F.4th 522, 526 (2d Cir. 2023).

CAFA grants federal courts “jurisdiction over only those class actions involving 100

or more class members, an aggregate amount in controversy greater than

$5,000,000, and minimal diversity, t.e., where at least one plaintiff and one

defendant are citizens of different states.” See id. (citing 28 U.S.C. §§ 1832(d)(2),

1332(d)(5) and Blockbuster, Inc. v. Galeno, 472 F.3d 58, 56 (2d Cir. 2006)). While

broadening federal courts’ authority to hear class actions, CAFA simultaneously

carved out exceptions to that authority, see Krasner, 86 F.4th at 526, which will be

discussed below as relevant here.

Class actions removed under CAFA may be remanded to originating state

courts under the general remand statute. See 28 U.S.C. § 1453(c)(1) (28 U.S.C.

section 1447 “shall apply to any removal of a case under this section”); Greenwich

Fin. Servs. Distressed Mortg. Fund 3 LLC v. Countrywide Fin. Corp., 603 F.3d 23,

26 (2d Cir. 2010). And “[t]he party opposing remand generally bears the burden of

showing that federal jurisdiction is proper.” Jd. (citing Blockbuster, Inc., 472 F.3d at

57-58). Once the general requirements of CAFA jurisdiction are established,

plaintiffs have the burden of demonstrating that remand is warranted based on one

of CAFA’s enumerated exceptions. See id.; see also Brook v. UnitedHealth Group

Inc., No. 06 Civ. 12954(GBD), 2007 WL 2827808, at *3 (S.D.N.Y. Sept. 27, 2007);

accord Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1021-22 (9th Cir. 2007); Hart v.

FedEx Ground Package Sys., Inc., 457 F.3d 675, 679-80 (7th Cir. 2006); Frazier v.

Pioneer Ams. LLC, 455 F.3d 542, 546 (5th Cir. 2006).

II. Plaintiffs’ Motion to Remand

Plaintiffs raise four CAFA exceptions: the local-controversy exception, the

home-state exception, the governmental entity exception, and the discretionary

“interests-of-justice” exception. They are discussed here.

First, the local-controversy exception provides:

A district court shall decline to exercise jurisdiction under paragraph

(2)--

(A)(i) over a class action in which--

(I) greater than two-thirds of the members of all proposed

plaintiff classes in the aggregate are citizens of the State

in which the action was originally filed;

(ID) at least 1 defendant is a defendant--

(aa) from whom significant relief is sought by

members of the plaintiff class;

(bb) whose alleged conduct forms a significant basis

for the claims asserted by the proposed plaintiff

class; and

(ce) who is a citizen of the State in which the action

was originally filed; and

(IID) principal injuries resulting from the alleged conduct

or any related conduct of each defendant were incurred in

the State in which the action was originally filed; and

(ii) during the 3-year period preceding the filing of that class

action, no other class action has been filed asserting the same or

similar factual allegations against any of the defendants on behalf

of the same or other persons[.]

28 U.S.C. § 1832(d)(4)(A) (emphasis added).

Plaintiffs highlight that greater than two-thirds of the proposed class consists

of New York citizens. Dkt. 18-1, at 14. Plaintiffs also note that several of the

Defendants from which Plaintiffs seek relief are New York citizens. Id. at 8.

Additionally, the conduct of the New York defendants forms a significant basis for

Plaintiffs’ claims, and the principal injuries occurred in New York. Jd. at 8, 21.

Plaintiffs also informed the Court that no other class action had been filed against

Defendants asserting similar allegations in the three years preceding the Galbraith

complaint. Id. at 8, 23. In their reply brief, Plaintiffs clarify that their position is

that the Abdullahi complaint is the “same action” as the Galbraith complaint and,

accordingly, does not impact this exception’s applicability. Dkt. 28, at 4.

Next, the home-state exception provides that a “court shall decline to exercise

[CAFA jurisdiction] .. . [when] two-thirds or more of the members of all proposed

plaintiff classes in the aggregate, and the primary defendants, are citizens of the

State in which the action was originally filed.” 28 U.S.C. § 1332(d)(4)(B) (emphasis

added). Because Plaintiffs maintain that two-thirds of the proposed class consists of

New York citizens, and that the primary defendants—the Buffalo Defendants—are

citizens of New York, Plaintiffs believe this Court must remand the matter to state

court. Dkt. 18-1, at 26.

Additionally, Plaintiffs suggest the governmental entity exception requires

remand because the primary defendants are “governmental entities against whom

the district court may be foreclosed from ordering relief.” Id. The governmental

entity exception to CAFA requires a federal court to remand when “the primary

defendants are States, State Officials, or other governmental entities against whom

the district court may be foreclosed from ordering relief[.]” 28 U.S.C. § 1832(d)(5)(A)

(emphasis added); see also Frazier, 455 F.3d at 546 (“The plain text of §

1332(d)(5)(A), using the definite article before the plural nouns, requires that all

primary defendants be states.”).

Lastly, Plaintiffs urge remand under the discretionary “interests-of-justice”

exception, because “this case is truly local in nature.” Dkt. 18-1, at 27 (citing 28

U.S.C. § 1332(d)(3)). The discretionary exception instructs that courts “may, in the

interests of justice and looking at the totality of the circumstances, decline to exercise

jurisdiction... over a class action where greater than one-third but less than two-

thirds of the members of all proposed plaintiff classes in the aggregate and the

primary defendants are citizens of the state in which the class action was originally

filed.” 28 U.S.C. § 1332(d)(3) (emphasis added). The statute outlines six factors a

court should consider when invoking this discretionary exception, including

whether, “during the 3-year period preceding the filing of that class action, 1 or

more other class actions asserting the same or similar claims on behalf of the same

or other persons have been filed.” Jd. § 1332(d)(8)(F).

ANALYSIS

The Galbraith complaint in this case meets CAFA’s numerosity, amount-in-

controversy, and minimal diversity requirements. Therefore, the only issue to

decide is whether any of the CAFA exceptions advanced by Plaintiffs requires

remand.

As explained further below, the plain meaning of CAFA’s text reveals two

fatal obstacles to remand. First, the Veolia Defendants are “primary defendants’—

and that bars the home-state exception, the governmental entity exception, and the

discretionary “interests-of-justice” exception. Second, the “other” prior putative

class action—the Abdullahi complaint—bars CAFA’s local-controversy exception.

These two obstacles resolve Plaintiffs’ motion and require this Court to retain

jurisdiction.”

I. CAFA’s Clear and Unambiguous Text is Dispositive

The statutory text that governs here is clear and dispositive. In BP p.l.c v.

Mayor of Baltimore, the Supreme Court reiterated that courts are to discern and

apply the “ordinary meaning” of statutory terms. 593 U.S. 230,__, 141 S. Ct. 1532,

1537 (2021). Courts have “no license to give statutory exemptions anything but a

fair reading.” Jd. at 1538 Gnternal citations and quotations omitted). The Supreme

Court reasoned that “[e]xceptions and exemptions are no less part of Congress’s

work than its rules and standards—and all are worthy of a court’s respect.” Id. at

2 Because of these conclusions, the Court need not explore any further reasons

against remand advanced by the Veolia Defendants.

1539. Indeed, “[t]hat a law might temper its pursuit of one goal by accommodating

others can come as no surprise. Often legislation becomes possible only because of

such compromises.” Id. Lawmakers frequently “tread in areas fraught with

competing social demands where everyone agrees trade-offs are required. Whatever

the reason for a legislative compromise, [courts] have no right to place [their]

thumbs on one side of the scale or the other.” Jd. (internal citation omitted).

Instead, courts should focus on the language Congress employed. Jd.

“TE]ven the most formidable’ policy arguments cannot ‘overcome’ a clear statutory

directive.” Id. at 1542 (quoting Kloeckner v. Solis, 568 U.S. 41, 56 n.4 (2012)). A

court’s task “is to discern and apply the law’s plain meaning as faithfully as [it] can,

not ‘to assess the consequences of each approach and adopt the one that produces

the least mischief.” Id. (quoting Lewis v. Chicago, 560 U.S. 205, 217 (2010)). To the

extent that experience “may prove these other measures insufficient, Congress is of

course free to revise its work anytime. But that forum, not this one, is the proper

place for such lawmaking.” Jd. at 1543.

In sum, “[t]he words of a governing text are of paramount concern and what

they convey, in their context, is what the text means.” Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts 56 (2012). “Words are to be

understood in their ordinary, everyday meanings—unless the context indicates that

they bear a technical sense.” Jd. at 69. And the “spirit of a statute [should not]

prevail over its letter.” Id. at 348. These basic principles apply fully here.

II. The Veolia Defendants are “Primary Defendants”

Three of Plaintiffs’ grounds for remand (the home-state, governmental entity,

and interests-of-justice exceptions) fail because the out-of-state Veolia Defendants—

non-New York citizens—are “primary defendants.”

A. Courts Apply the Plain Meaning of “Primary Defendant”

Congress “left the term [primary defendant] undefined in CAFA.” Sudholt v.

Country Mutual Ins. Co., 83 F.4th 621, 628 (7th Cir. 2023). The Second Circuit has

not addressed this issue. The Seventh Circuit observed “that the plain import of

‘primary defendant’ requires identifying the ‘gravamen of the complaint.” Jd.

(quoting Sabrina Roppo v. Travelers Com. Ins. Co., 869 F.3d 568, 585 (7th Cir.

2017)). The Sudholt court noted that the “controlling inquiry” required “an

assessment of the plaintiffs complaint as a whole—its factual allegations, claims,

and requests for relief—with an eye toward examining whether the defendant in

question is a principal focus of the class action.” Id.

The Eleventh Circuit’s discussion of the meaning of “primary defendant”

under CAFA also bears consideration. See Smith v. Marcus & Millichap, Inc., 991

F.3d 1145, 1162 (11th Cir. 2021) (citing Hunter v. City of Montgomery, Alabama,

859 F.3d 13829 (11th Cir. 2017)). That Court recognized that, in order to decide

whether a defendant is a “primary defendant,” a court must ask “whether, given the

claims asserted against the defendant, [the defendant] has potential exposure to a

significant portion of the class and would sustain a substantial loss as compared to

other defendants if found liable.” Hunter, 859 F.3d at 1336 (citing Vodenichar v.

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Halcon Energy Props., Inc., 733 F.3d 497, 505-06 (3d Cir. 2013)); see also Smith,

991 F.3d at 1162.

Further, the Third Circuit has construed the word “primary” to mean

“principal,” “fundamental,” or “direct.” Vodenichar, 733 F.3d at 504 (citing

Merriam-Webster’s Collegiate Dictionary 928 (10th ed. 2002)). The Vodenichar court

reasoned that, “courts tasked with determining whether a defendant is [a] ‘primary

defendant’ under CAFA should assume liability will be found and determine

whether the defendant is the ‘real target’ of the plaintiffs’ accusations.” Id. at 505.

Courts should also determine “if the plaintiffs seek to hold the defendant

responsible for its own actions, as opposed to seeking to have it pay for the actions

of others. Also, courts should ask whether, given the claims asserted against the

defendant, it has potential exposure to a significant portion of the class and would

sustain a substantial loss as compared to other defendants if found liable.” Jd. at

505-06.3

Plaintiffs posit that a primary defendant is a party who: (1) has the greater

3 This Court has also considered the meaning of “primary defendant.” See Green v.

Sheraton, LLC, No. 22-cv-46-JLS-JJM, 2022 WL 4072475, at *2 (W.D.N.Y. Jun. 9,

2022) (reviewing “primary defendant” under CAFA) accepted and adopted No. 22-

CV-46 (JLS) (JJM), 2022 WL 4019320, *1 (W.D.N.Y. Sept. 1, 2022) (Sinatra, J.).

“Primary defendants” are most often defined as “those parties that are allegedly

directly liable to the plaintiffs, while ‘secondary’ defendants are usually those

parties sued under theories of vicarious liability or joined for purposes of

contribution or indemnification[.]” Green, 2022 WL 4072475, at *2. Primary

defendants are those parties “having a dominant relation to the subject matter of

the controversy, in contrast to other defendants who played a secondary role by

merely assisting in the alleged wrongdoing, or who are only vicariously liable.” Id.

(citing McCracken v. Verisma Systems, Inc., No. 6:14-cv-06248(MAT), 2017 WL

2080279, at *3 (W.D.N.Y. May 15, 2017)).

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liability exposure; (2) is the most able to satisfy a potential judgment; (8) is sued

directly, as opposed to vicariously, or for indemnification or contribution; (4) is the

subject of a significant portion of the claims asserted by plaintiffs; or (5) is the only

defendant named in one particular cause of action. Dkt. 18-1, at 24 (citing

Sorrentino v. ASN Roosevelt Ctr., LLC, 588 F. Supp. 2d 350, 358 (E.D.N.Y. 2008)).

The Veolia Defendants agree that Plaintiffs’ definitions are appropriate, and any

one of the definitions is sufficient to “confer primary defendant status.” Dkt. 22, at

28-29.

B. The Veolia Defendants Fall Squarely Within These Definitions of

“Primary Defendant”

In Plaintiffs’ view, the Veolia Defendants are not primary defendants because

they are not the “real targets” of the lawsuit. Dkt. 23, at 15. Accordingly, the

Veolia Defendants played a “secondary role,” and the Buffalo Defendants “would be

expected to incur most of the loss if liability is found.” Jd. Plaintiffs argue that the

allegations against the Veolia Defendants are contingent upon threshold findings

related to the Buffalo Defendants and that the Veolia Defendants are private

parties that contracted with the Buffalo Defendants. See id. According to

Plaintiffs, characterizing the Veolia Defendants as primary under a broader

interpretation is “inconsistent with this ordinary meaning and with CAFA’s distinct

treatment of primary defendants.” Id. (citing Singh v. American Honda Finance

Corp., 925 F.3d 1053, 1068 (9th Cir. 2019) (defining “primary defendant” as the

“principal,” “fundamental,” or “direct” defendant)).

To further emphasize the Buffalo Defendants’ “primary” role, Plaintiffs

12

highlight public correspondence to the Buffalo Defendants, as well as local news

coverage of the allegations. See Dkt. 28, at 16. Specifically, Plaintiffs note that the

communications and coverage primarily question the Buffalo Defendants’ actions,

rather than those of the Veolia Defendants. See Dkt. 23-14 (Press Release, Buffalo

Water, Buffalo Water Receives Approval by New York State Department of Health

to Restore Fluoride to City of Buffalo); Dkt. 23-15 (Charlie Specht, Deja vu in City

Hall: One year later, still no fluoride in Buffalo’s Water, BUFFALO NEWS (Jan. 5,

2024), https://buffalonews.com/news/local/government-politics/deja-vu-in-city-hall-

one-year-later-still-no-fluoride-in-buffalos-water/article_de966298-ab17-11lee-b369-

2b4f2c325210.html); Dkt. 23-16 (Commce’n from the City of Buffalo Common Council

to Oluwole McFoy, Chairperson of the Buffalo Waterboard (Jan. 3, 2024)).

But the plain meaning of “primary defendants,” as used in CAFA, applies to

the Veolia Defendants here. Plaintiffs’ argument that the Buffalo Defendants are

“primary defendants” does not single-handedly relegate the Veolia Defendants to

“secondary defendant” status. In particular, Plaintiffs assert nine causes of action

against the Veolia Defendants. See Dkt. 1-2. Of these nine causes of action, three

are solely against the Veolia Defendants. Id. {| 305-12 (breach of contract against

the Veolia Defendants), 313-24 (negligent misrepresentation against the Veolia

Defendants), 325-32 (negligence against the Veolia Defendants). Plaintiffs seek to

recover injunctive relief, damages, and attorneys’ fees directly from the Veolia

Defendants, based on claims solely against Veolia. Jd. J{| 10, 312, 324, 332.

Indeed, the Veolia Defendants are a “principal focus of the class action.” See

13

Sudholt, 83 F.4th at 629. They also face “potential exposure to a significant portion

of the class and would sustain a substantial loss as compared to other defendants if

found liable.” See Hunter, 859 F.3d at 1336 Gnternal quotations and citations

omitted). And the complaint discernibly places the Veolia Defendants as “direct”

and “real targets” of Plaintiffs’ allegations. See Vodenichar, 733 F.3d at 505.

Plaintiffs cannot overcome their own definitions or those outlined by the

caselaw cited above. By any of these measures, the Veolia Defendants are “primary

defendants.” Because the Veolia Defendants are primary defendants and are not

New York citizens, the home-state, governmental entity, and interests-of-justice

exceptions are inapplicable.

II. The Abdullahi Complaint was an “Other Class Action” that was

“Filed”

Plaintiffs’ remaining ground for remand—the local-controversy exception—

fails because the Abdullahi complaint was another class action that was filed less

than three years before the Galbraith complaint.

A. Courts Apply the Plain Meaning of the Local-Controversy

Exception

CAFA’s local-controversy exception provides that a federal court “shall

decline” jurisdiction where: (1) more than two-thirds of the class members are

citizens of the state where the action is filed; (2) plaintiffs seek “significant relief”

from at least one local defendant who is a citizen of the state and whose alleged

conduct forms a “significant basis” for the claims asserted; (3) the “principal

injuries” were incurred in the state; and (4) no other class action “has been filed

14

asserting the same or similar factual allegations against any of the defendants on

behalf of the same or other persons” in the three years prior. See 28 U.S.C. §

13832(d)(4)(A).4 The final requirement is dispositive here.

In Dutcher v. Matheson, the Tenth Circuit conducted a plain meaning review

of CAFA’s use of “filed” within the local-controversy exception’s context. 840 F.3d

1188, 1193 (10th Cir. 2016). The Dutcher plaintiffs argued that the local-

controversy exception’s “no other class action” requirement does not contemplate

putative class actions where the class was not certified. Id. at 1192. The Tenth

Circuit disagreed. Id. at 1193. Because “the statute speaks of a case ‘filed’ as a

class action, [the court thought] the relevant temporal point to determine whether a

case is a class action is when the complaint seeking class-wide relief is filed, rather

than when the court makes a decision regarding class certification.” Jd. The court

noted that the statute “does not address whether any class action was certified[.]”

Id.

In Levine v. Entrust Group, the Northern District of California analyzed the

prohibition against a previously “filed” class action. No. C 12-03959 WHA, 2013 WL

1120695, at *4 (N.D. Cal. Mar. 18, 2013). The court observed that, although the

4 One court applying this very provision observed that CAFA was the product of

years of debate in Congress, resulting in “a complex and fragile balance of

compromises.” Schutte v. Ciox Health, LLC, 28 F.4th 850, 858 (7th Cir. 2022). The

Schutte court also noted that “[c]Jompromises draw unprincipled lines between

situations that strike an outside observer as all but identical. The limitation is part

of the price of the victory achieved, a concession to opponents who might have been

able to delay or block a bill even slightly more favorable to the proponents.” Id.

(internal quotations omitted). As such, like other statutory text, CAFA should be

enforced “as written.” Id. at 863.

15

action before the court was “local in nature, it [was] repetitive in the very abusive

sense that was of concern to Congress. That is, the same lawsuit has been filed and

re-filed in order to find a favorable courtroom.” Jd. Although service was not

effectuated in the previous class action, the court highlighted Congress’s use of the

word “filed,” and exclusion of the word “served,” within the local-controversy

exception. Jd. at *5. Accordingly, filing a lawsuit without service still constitutes

“filed” within the meaning of CAFA’s plain text. Id.

This case 1s like Davenport, where residents from Flint, Michigan brought a

putative class action in state court stemming from the Flint public water system

crisis. Davenport v. Lockwood, Andrews & Newnam, Inc., 854 F.3d 905, 907 (6th

Cir. 2017). In Davenport, the district court invoked the local-controversy exception

and remanded a putative class action to state court, despite acknowledging that

other class actions had been filed in the previous three years. Id. at 908. The Sixth

Circuit reversed. Jd. at 911.

The Sixth Circuit’s reasoning is instructive. Id. In that case, it was

undisputed that, before the Davenport plaintiffs filed their action, “Flint residents

filed other class actions against Veolia, LAN, and various other persons and entities

seeking damages for injuries allegedly caused by the lead contamination in Flint’s

water system.” Jd. at 908. There was also no dispute that those other class actions

“involve[d] similar factual allegations against many of the same defendants as

those” present in the class action before the court. Jd. at 909.

To determine whether those “other class actions” were fatal, the court looked

16

to the “statutory language as the starting point for interpretation and... the

ending point if the plain meaning of that language is clear.” Id. (internal citations

and quotations omitted). The court decided that the “plain language of CAFA

offer[ed] a simple answer to [its] inquiry. The local controversy exception will apply

only if no other similar class action was brought against any of the defendants in

the instant action during the three years preceding the filing of this case.” Id.

(citing 28 U.S.C. § 13832(d)(4)(A)Gi)). As such, based on the “clear and

unambiguous” statutory language, CAFA’s local-controversy exception did not

apply.® Id.

B. Plaintiffs’ Policy Arguments Fail As Well

Plaintiffs’ arguments in support of the local-controversy exception cannot

defeat CAFA’s clear and unambiguous text. So they ask this Court to rely, instead,

on policy arguments based on their view of congressional intent.

First, Plaintiffs argue that this complaint is the same “action” as the

5 To the extent that the Davenport district court and plaintiffs also secondarily

relied on policy considerations in lieu of a plain meaning reading of the text, the

Sixth Circuit noted that the “policy implications behind CAFA do not require that

we remand this case to state court.” Jd. at 910. The court accepted the premise

that Congress’s intent was to eliminate copycat, or near copycat, suits in multiple

forums. Jd. But there were also policy goals behind CAFA that support the plain-

language reading of the statute because it was enacted to broaden the availability of

diversity-jurisdiction for class-action lawsuits. Id.; see also S. REP. No. 109-14, at 35

(2005) as reprinted in 2005 U.S.C.C.A.N. 3, 34 (“[T]he overall intent of [CAFA] is to

strongly favor the exercise of federal diversity jurisdiction over class actions with

interstate ramifications.”). Indeed, Congress was concerned about what “appear[ed]

to be state court provincialism against out-of-state defendants” and the need “to

shore up confidence in the judicial system by preventing even the appearance of

discrimination in favor of local residents.” Davenport, 854 F.3d at 910 (referring to

portions of S. REP. No. 109-14).

17

Abdullahi complaint, so the exception’s final prong should not apply. To interpret

“other class action,” Plaintiffs resort to their views of CAFA’s overarching goals.

Dkt. 23, at 2. As Plaintiffs would have it, the Abdullahi complaint is not an “other

class action” because the relevant inquiry is “whether similar factual allegations

have been made against the defendants in multiple class actions—and hence they

are facing separate distinct lawsuits.” Id. at 3 (citing Vodenichar, 733 F.3d at 509).

Plaintiffs cite Vodenichar, where the Third Circuit determined that

“Congress wanted to ensure that defendants did not face copycat, or near copycat,

suits in multiple forums and hence excluded from the local controversy exception

cases where a defendant was named in multiple similar cases.” Vodenichar, 733

F.3d at 508. Based on this, Plaintiffs argue that Defendants do not face the risk of

“copycat, or near copycat, suits in multiple forums[.]” Dkt. 23, at 3. Plaintiffs

expand on their policy argument by asking this Court to “interpret the language in

a way that is consistent with the clear intent of CAFA[,]” and contending that

denial of their remand motion would be “plainly contradictory to Congress’s intent

in drafting the Local Controversy Exception to CAFA.” Id. at 7.

But it is not this Court’s place to override the clear text Congress enacted in

CAFA. Rather, the Court’s inquiry must start and end with the plain meaning of

CAFA’s clear and unambiguous text. The Abdullahi complaint is an “other class

action.”

Plaintiffs similarly argue that the Abdullahi complaint is the same action as

the Galbraith complaint because the Abdullahi complaint was never served.

18

Dutcher and Levine undercut that argument. In Dutcher, the plaintiffs argued that

a previous lawsuit was not a “class action” because the class was not certified. See

Dutcher, 840 F.3d at 1192. The Tenth Circuit was unmoved, looking to CAFA’s

specific use of “filed.” Jd. at 1193. The previous complaint in Dutcher was “filed” as

a class action, so it was irrelevant that the class was never certified because CAFA

did not address “whether any class action was certified over [the three year] time

frame[.]” Id.

And in Levine, the plaintiffs previously filed “almost identical putative class

actions” to the class action before the district court. Levine, 2013 WL 1126095, at

*4. Those previous class actions were filed, then voluntarily dismissed without

service. Id. The district court acknowledged that “service was not effectuated in

the earlier cases.” Id. at *5. But Congress used the word “filed” when it enacted

CAFA’s local-controversy exception. Id. Therefore, the Levine court determined

“Tfliled without service still constitutes filed.” Jd.6

CAFA’s local-controversy exception does not make any reference to “service.”

And when the Abdullahi complaint was filed, it was an “other class action” as

described in CAFA. Further, it makes no difference that the Abdullahi complaint

was voluntarily discontinued nearly one year after being filed.

6 Plaintiffs argue Levine is not relevant because plaintiffs’ counsel in that matter

admitted to forum shopping. Dkt. 23, at 6 (citing Levine, 20138 WL 1120695, at *4).

The Levine court accounted for this admission. Levine, 2013 WL 1120695, at *4.

But the court also emphasized that the lack of service of the previous class action

complaints did not alter its view that the local-controversy exception was

inapplicable. Id. at *5. Specifically, the court noted Congress used the word “filed”

and not the word “served.” Id.

19

Notably, Congress did address the differences between “filing” and “service”

nearby in CAFA. See 28 U.S.C. § 1332(d)(7). In subsection 1332(d)(7), Congress

outlined that citizenship for members of the proposed class “shall be determined...

as of the date of filing of the complaint or amended complaint, or, if the... [initial

pleading] is not subject to Federal Jurisdiction, as of the date of service by plaintiffs

of an amended pleading, motion, or other paper, indicated the existence of federal

jurisdiction.” Id. (emphasis added). Filing and service mean different things.

Plaintiffs rely on Vodenichar, where the procedural posture was distinct from

that here because the district court was involved in the transition from the first

case to the second case. Vodenichar, 733 F.3d at 509. In particular, during the first

filed action in Vodenichar, the parties collaborated to allow one another to assert

claims against “local defendants in a single forum[.]” Jd. The district court granted

the plaintiffs’ motion to dismiss the first complaint without prejudice—but

conditioned this on the parties’ participation “in ADR and to retain the discovery

that they had exchanged” to facilitate the ADR process and the second filed action.

Id. The Third Circuit determined the district court’s actions “showed that it

considered the second filed action a continuation of the first filed action and took

practical steps to ensure that the act of filing the second complaint did not delay the

parties’ ability to proceed.” Jd. No similar judicial involvement occurred here.

Plaintiffs cite two other cases—Kendrick and Bridewell-Sledge—which are

also distinguishable. The trial courts in each of those cases effectively consolidated

the old and new cases. See Kendrick v. Conduent State & Local Sols., Inc., 910 F.3d

20

1255, 1260-61 (9th Cir. 2018); Bridewell-Sledge v. Blue Cross, 798 F.3d 923, 924,

930 (9th Cir. 2018). Again, there was no consolidation in this case. The Abdullahi

complaint was filed and remained inactive until it was voluntarily dismissed long

after the Galbraith complaint was filed. Neither Plaintiffs nor any court made

efforts to consolidate the two cases, or transition from old to new cases.

What is also clear—besides the controlling text—is that Congress overtly

contemplated the role of “other class actions.” Compare 28 U.S.C. § 13832(d)(8)\(F)

(interests-of-justice exception) with 28 U.S.C. § 1332(d)(4)(A)(ii) (local-controversy

exception). In particular, Congress requires courts only to consider other relevant

class actions, when deciding if they should decline jurisdiction under the

discretionary interests-of-justice exception. Id. § 1332(d)(8). In contrast, within the

local-controversy exception, Congress expressly requires that “no other class action”

was “filed.” In short, Congressional purpose—from the text and from the statutory

structure—is clear.

Because of the prior filing of the other putative class action, CAFA’s local-

controversy exception does not apply.

21

CONCLUSION

None of Plaintiffs’ proffered exceptions applies. Thus, and for the reasons

discussed above, Plaintiffs’ motion to remand (Dkt. 18) is DENIED.

SO ORDERED.

Dated: February 12, 2024

Buffalo, New York

JOMWL. SINATRA, JR. ge □□

U ED STATES DISTRICT JUDGE——

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