State of Texas v. 3M Company

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

STATE OF TEXAS, §

§

Plaintiff, §

§

v. § Civil Action No. 3:25-CV-122-L

§

3M COMPANY; CORTEVA, INC.; §

DUPONT DE NEMOURS, INC.; and §

EIDP, INC. F/K/A E. I. DU PONT DE §

NEMOURS AND COMPANY, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Before the court is Plaintiff State of Texas’s (“Plaintiff” or “State of Texas”) Motion to

Remand to State Court (“Motion to Remand) (Doc. 14), filed February 5, 2025; Defendants EIDP,

Inc., f/k/a E.I. DuPont De Nemours and Company (“Old DuPont”), DuPont De Nemours and Co.

Inc. (“New DuPont”), and Corteva, Inc.’s (“Corteva”) (collectively, “DuPont Defendants”)

Motion to Dismiss Based on Personal Jurisdiction and Failure to State a Claim (“Dupont

Defendants’ Motion”) (Doc. 24), filed February 18, 2025; and Defendant 3M Company’s (“3M”)

Notice of Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(2) (“3M’s Motion”)

(Doc. 29), filed February 27, 2025. Having considered the Motions, pleadings, record, and

applicable law, the court, for the reasons herein stated, grants the Motion to Remand, declines to

rule on DuPont Defendants’ Motion; declines to rule on 3M’s Motion, and remands this action to

the 18th Judicial District Court of Johnson County, Texas. Further, the court denies Plaintiff’s

request for attorney’s fees and costs.

I. Background

On December 11, 2024, the State of Texas, through its Attorney General, Ken Paxton, filed

its Original Petition (“Petition”) against 3M, Corteva, New DuPont, and Old DuPont in the 18th

Judicial District Court of Johnson County, Texas. Doc. 1-5. Plaintiff alleges that Defendants

engaged in deceptive trade practices by not disclosing health and environmental risks associated

with their products, and falsely marketing them as “safe,” in violation of the Texas Deceptive

Trade Practices-Consumer Protection Act, Tex. Bus. & Com. Code §§ 17.41–17.63 (“DTPA”). Id.

at 1.

Plaintiff contends that for decades Defendants manufactured, marketed, and sold consumer

products containing per- and polyfluoroalkyl substances (“PFAS”), including perfluorooctane

sulfonic acid (“PFOS”) and perfluorooctanoic acid (“PFOA”). Id. Further, the State of Texas

contends that these products were marketed for their resistance to heat, oil, stains, grease, and

water, and were used in food packaging, carpeting, cookware, upholstery, cosmetics, and other

consumer goods under brand names like Teflon® and Scotchgard®. Id. at 2.

It argues that despite profiting from these sales, Defendants knew that PFAS posed risks to

human health and the environment. Id. at 12. Plaintiff contends that PFAS are “persistent,

bioaccumulative and toxic” (“PBT”), and human exposure may be linked to diseases such as

cancer and decreased vaccine response. Id. at 2. Further, the State of Texas argues that PFAS can

also accumulate in fish, game, plants, and drinking water, and have been found in human blood.

Id. Defendants were allegedly aware of these risks, knew their products could not contain PFAS,

and by the 1970s, knew that PFAS chemistry was accumulating in the blood of most Americans.

Id. at 2. Plaintiff contends that despite knowing this, Defendants concealed these risks from

consumers and the State, and for decades, affirmatively claimed their products were “safe.” Id. at

7.

Specifically, Plaintiff alleges that Old DuPont began using PFOA and other PFAS in

products like Teflon® and Stainmaster® in 1951, and it purchased PFOA from 3M. Id. at 7.

Similarly, the State of Texas argues that 3M has known for decades that PFAS in its products, like

PFOS, are toxic and harm the environment and human health. Id. at 21. It argues that despite this,

3M advertised brands like Scotchgard as consumer-friendly and safe for families. Id. Plaintiff

argues that as early as 1960, 3M understood its PFAS waste could leach into groundwater and

pollute domestic wells. Id. at 22.

The State of Texas is seeking monetary relief of $1,000,000 or more, including civil

penalties, attorney’s fees, and costs, as well as non-monetary injunctive relief. The requested

injunctions include prohibiting Defendants from misrepresenting the safety or health risks of their

chemicals, failing to disclose human health risks, selling products known to create health concerns

due to PFAS, causing goods in the stream of commerce to include harmful PFAS chemicals, and

advertising products as safe for household use if they contain chemicals known to create health

risks. Plaintiff also seeks civil penalties of up to $10,000 per DTPA violation, prejudgment and

postjudgment interest, court costs, investigation costs, and reasonable attorney’s fees.

On January 16, 2025, 3M removed this action to “the U.S. District Court for the Northern

District of Texas, Dallas Division, under the Class Action Fairness Act of 2005, 28 U.S.C. §

1332(d), and, independently and alternatively, under 28 U.S.C. § 1332(a), contending that there is

diversity of citizenship among the real parties in interest to this suit.” Doc. 1 at 1. The DuPont

Defendants consented to removal. Plaintiff disagrees that this action should not have been removed

to federal court. It contends that there is no diversity of citizenship because the State is the real

party in interest, and this action cannot be brought pursuant to the Class Action Fairness Act

because there is no “class.”

II. Legal Standard

A federal court has subject matter jurisdiction over civil cases “arising under the

Constitution, laws, or treaties of the United States” and over civil cases in which the amount in

controversy exceeds $75,000, exclusive of interest and costs, and in which diversity of citizenship

exists between the parties. 28 U.S.C. §§ 1331, 1332. Federal courts are courts of limited

jurisdiction and must have statutory or constitutional power to adjudicate a claim. Kokkonen v.

Guardian Life Ins. Co., 511 U.S. 375, 377 (1994) (citations omitted); Home Builders Ass’n of

Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Absent jurisdiction conferred

by statute or the Constitution, they lack the power to adjudicate claims and must dismiss an action

if subject matter jurisdiction is lacking. Id.; Stockman v. Federal Election Comm’n, 138 F.3d 144,

151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir.

1994)). A federal court must presume that an action lies outside its limited jurisdiction, and the

burden of establishing that the court has subject matter jurisdiction to entertain an action rests with

the party asserting jurisdiction. Kokkonen, 511 U.S. at 377 (citations omitted). “[S]ubject-matter

jurisdiction cannot be created by waiver or consent.” Howery v. Allstate Ins. Co., 243 F.3d 912,

919 (5th Cir. 2001).

Federal courts may also exercise subject matter jurisdiction over a civil action removed

from a state court. Unless Congress provides otherwise, a “civil action brought in a State court of

which the district courts of the United States have original jurisdiction, may be removed by the

defendant or defendants, to the district court of the United States for the district and division

embracing the place where such action is pending.” 28 U.S.C. § 1441(a).

A federal court has an independent duty, at any level of the proceedings, to determine

whether it properly has subject matter jurisdiction over a case. Ruhgras AG, 526 U.S. at 583

(“[S]ubject-matter delineations must be policed by the courts on their own initiative even at the

highest level.”); McDonal v. Abbott Labs., 408 F.3d 177, 182 n.5 (5th Cir. 2005) (A “federal court

may raise subject matter jurisdiction sua sponte.”) (citation omitted).

Diversity of citizenship exists between the parties only if each plaintiff has a different

citizenship from each defendant. Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d

1254, 1258 (5th Cir. 1988). Otherwise stated, 28 U.S.C. § 1332 requires complete diversity of

citizenship; that is, a district court cannot exercise jurisdiction if any plaintiff shares the same

citizenship as any defendant. See Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 857 (5th Cir.

2003) (citation omitted). “[T]he basis upon which jurisdiction depends must be alleged

affirmatively and distinctly and cannot be established argumentatively or by mere inference.”

Getty, 841 F.2d at 1259 (citing Illinois Cent. Gulf R.R. Co. v. Pargas, Inc., 706 F.2d 633, 636 n.2

(5th Cir. 1983)). Failure to allege adequately the basis of diversity mandates remand or dismissal

of the action. See Stafford v. Mobil Oil Corp., 945 F.2d 803, 805 (5th Cir. 1991). A notice of

removal “must allege diversity both at the time of the filing of the suit in state court and at the time

of removal.” In re Allstate Ins. Co., 8 F.3d 219, 221 (5th Cir. 1993) (quotation marks and citations

omitted). Such failure, however, is a procedural defect and may be cured by filing an amended

notice. Id. n.4.

Any doubts as to the propriety of the removal should be construed strictly in favor of

remand. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). “The

burden of establishing subject matter jurisdiction in federal court rests on the party seeking to

invoke it.” St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (footnote

omitted). Accordingly, if a case is removed to federal court, the defendant has the burden of

establishing subject matter jurisdiction; if a case is initially filed in federal court, the burden rests

with the plaintiff to establish that the case “arises under” federal law, or that diversity exists and

that the amount in controversy exceeds the jurisdictional threshold. As this case was removed to

federal court, the burden rests with 3M.

III. Analysis

Plaintiff contends that the Texas Attorney General and its Consumer Protection Division

are empowered to bring actions against “bad actors” who harm the State pursuant to the DTPA.

Doc. 15 at 1 (citing Tex. Bus. & Com. Code § 17.47). The State of Texas argues that it is the real

party in interest and that the action should be remanded to state court. 3M disagrees and contends

that the consumers, not the State of Texas, are the real parties in interest and that the action was

properly removed to federal court.

A. The State of Texas Is the Real Party in Interest.

First, Plaintiff argues that because the State of Texas is not a “citizen” of Texas, there is no

diversity jurisdiction. Id. at 10. Plaintiff contends that Texas is the real party in interest because it

is seeking to regulate its economy and marketplace. Id. Moreover, Plaintiff argues that the State of

Texas is the real party in interest because it seeks to enforce the laws of Texas and obtain penalties

and injunctive relief against 3M. Id. at 11. Plaintiff contends that 3M’s nominal party argument is

contrary to case law. Id. Further, the State of Texas argues that it is Black letter law that a state is

not a citizen for purposes of diversity jurisdiction. Id. (citing Postal Telegraph Cable Co. v.

Alabama, 155 U.S. 482 (1894); Moor v. Alameda County, 411 U.S. 693, 717 (1973); and Grace

Ranch, LLC v. BP America Production Co., 989 F.3d 301, 307 (5th Cir. 2021)).

Further, Plaintiff contends that the court should award attorney’s fees and costs for 3M

improperly removing this action to federal court. Doc. 15 at 17. Plaintiff argues that because

removal was improper, the court is authorized to order payment of costs, attorney’s fees, and

expenses. Id (citations omitted).

In response, 3M contends that this case satisfies the jurisdictional requirements for

diversity jurisdiction pursuant to section 1332(a). Doc. 26 at 4 (citing 28 U.S.C. § 1332(a)). 3M

argues that the question “turns on whether Texas is the real party in interest.” Id. at 5. It contends

that Texas consumers are the real parties in interest. Id. 3M argues that the State of Texas is seeking

redress, monetary damages, and restitution to compensate identifiable persons for actual damages.

Id. at 7 (citation and quotation marks omitted).

3M contends that the court in Bara held that the attorney general pursues claims on behalf

of the consumers who were allegedly injured. Id. (quoting Bara v. Major Funding Corp.

Liquidating Tr., 876 S.W.2d 469, 472 (Tex. App.—Austin 1994, writ denied) (quotation marks

omitted)). Further, it argues that the court concluded that when a state is merely asserting personal

claims of its citizens, it is not the real party in interest. Id. at 8 (citing Mitchell v. Sec. Am., Inc.,

2012 WL 13026946, at *2 (N.D. Tex. Feb. 13, 2012)). 3M argues that the injunction requested by

Plaintiff only benefits Texas consumers who have purchased and continue to use goods that

contain PFOS and PFOA. Id. (citation omitted).

As previously stated, federal courts are courts of limited jurisdiction and must have

statutory or constitutional power to adjudicate a claim. Kokkonen, 511 U.S. at 377 (citations

omitted). For this action to remain in federal court pursuant to diversity jurisdiction, there must be

complete diversity. See 28 U.S.C. § 1332. Federal case law makes it unequivocally clear that when

a state is a party to an action, the court has no “federal jurisdiction on the basis of diversity of

citizenship because a state is not a citizen for purposes of diversity jurisdiction.” Louisiana v.

Union Oil Co. of California, 458 F.3d 364, 366 (5th Cir. 2006) (citation and quotation marks

omitted)). If the State is a nominal party, its citizenship may be disregarded. Id. (citations omitted).

In other words, if the State has no real interest, its citizenship is not relevant for purposes of

determining whether diversity of citizenship exists because the action may proceed without it.

As lead counsel for 3M and former Fifth Circuit Judge Gregg Costa aptly stated in Grace

Ranch, L.L.C., the “State has a real interest if the relief sought is that which inures to it alone[,] so

that a judgment for the plaintiff will effectively operate in the State’s favor.” Grace Ranch, L.L.C.,

989 F.3d at 309 (citations and internal quotation marks omitted). Conversely, the State is a nominal

party if its sole stake in the suit is a general interest in ensuring compliance with the State’s laws.

Id. (citations and quotation marks omitted). This is true even when the nominal party is an agent

of the state instead of the state itself. See Robertson v. Wolf River Lumber Co., 269 F. 606, 607

(5th Cir. 1921). “Whether a party is [formal or] ‘nominal’ for removal purposes depends on

whether, in the absence of the [party], the Court can enter a final judgment consistent with equity

and good conscience, which would not be in any way unfair or inequitable.” Union Oil, 458 F.3d

at 366-67 (citations omitted). As explained later, the court cannot enter a judgment in the absence

of the State of Texas.

The State of Texas is the real party in interest because the DTPA explicitly grants the

Attorney General and the Consumer Protection Division of the Attorney General’s office to bring

suits against persons engaging “in any act or practice declared to be unlawful” on behalf of the

State of Texas. Tex. Bus. & Com. Code § 17.47(a); see also In re Davis, 194 F.3d 570, 578 (5th

Cir. 1999) (“[A]n entity is the real party in interest when it is statutorily authorized to bring suit to

enforce a claim.”) (citing Wright & Miller, supra at § 1550; Estate of Johnson v. Bellville

Hosp. 56 F.R.D. 380, 384 (S.D.Tex.1972)). The DTPA provides as follows:

Whenever the consumer protection division has reason to believe that any person

is engaging in, has engaged in, or is about to engage in any act or practice declared

to be unlawful by this subchapter, and that proceedings would be in the public

interest, the division may bring an action in the name of the state against the person

to restrain by temporary restraining order, temporary injunction, or permanent

injunction the use of such method, act, or practice.

Tex. Bus. & Com. Code § 17.47(a).

Further, the Attorney General and the Consumer Protection Division of the Attorney

General’s office are the only entities that may bring suit under this section. If individual

consumers wish to seek relief under the DTPA, they must sue under Section 17.50 of the

Texas Business and Commerce Code, not Section 17.47. Tex. Bus. & Com. Code § 17.50. In its

Petition, Plaintiff cites Section 17.47 as the basis for jurisdiction. Doc. 1-5 at 3. Plaintiff is seeking

injunctive relief and civil penalties, and any “civil penalties will, by law, be transferred to the State

treasury.” Doc. 15 at 10 (citing Tex. Gov. Code § 402.007(a)).

Additionally, it is clear to the court based on Plaintiff’s Petition that it is not a nominal

party because it is seeking redress for the alleged injury, loss, damage, and adverse effects directly

or indirectly affecting people in the State of Texas. Doc. 1-5 at 7. Despite Plaintiff seeking to

ensure compliance with the laws of the State of Texas, it is not a nominal party because compliance

is not its sole stake in the litigation. See Grace Ranch, L.L.C., 989 F.3d at 309. That Plaintiff is

seeking redress for Defendants’ alleged deceptive practices on behalf of people in Texas does not

make the people of Texas the real parties in interest.

The court concludes that the State of Texas is the real party in interest in this litigation. As

a result, the court does not have jurisdiction over this case pursuant to Section 1332.

B. The Class Action Fairness Act Is Not Applicable to This Action.

3M contends that all of the requirements for jurisdiction under the Class Action Fairness

Act (“CAFA”) are met here, and state courts in Texas have recognized that actions brought by the

attorney pursuant to the DPTA “qualify as de facto class actions.” Doc. 1 at 2 (quoting Thomas v.

State, 226 S.W.3d 697, 707 (Tex. App.—Corpus Christi-Edinburg 2007, pet. dism’d); Avila v.

State, 252 S.W.3d 632, 646 (Tex. App.—Tyler 2008, no pet.)).

In response, Plaintiff argues that this case is not a class action as defined by the CAFA.

Doc. 15 at 8. The State of Texas contends that 3M’s argument that this action is a class action in

disguise or a de facto class action ignores the plain reading of statutory text and Fifth Circuit case

law. Id. Further, it argues that pursuant to CAFA, a class action is a civil action brought pursuant

to Rule 23 or a similar state statute authorizing an action to be brought by one or more

representative persons as a class action. Id. (quoting 28 U.S.C. §1332(d)(1)(B) (quotation marks

omitted)). Plaintiff states that the Thirteenth Court of Appeals clarified that “the DTPA, unlike the

insurance code, does not provide for the use of class actions by the Attorney General.” Id. at 9-10

(quoting Molano v. State 262 S.W. 3d 554, 561 (Tex. App.—Corpus Christi 2008, no pet.)).

Plaintiff argues that 3M cannot establish the requirements pursuant to the CAFA for removal to

this court; as a result, this court does not have jurisdiction. Id. at 10.

Title 28 U.S.C. § 1332(d)(1)(B) defines class action for the purposes of diversity

jurisdiction 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.” 28 U.S.C. § 1332(d)(1)(B). Under the CAFA, a federal

district court has original subject matter jurisdiction over a class action in which: (1) there are 100

or more proposed class members; (2) at least some of the members of the proposed class have a

different citizenship from the defendant; and (3) the aggregated claims of the proposed class

members exceed the sum or value of $5,000,000. Id.

This suit is brought pursuant to Section 17.47 of the Texas Business and Commerce Code,

not Federal Rule of Civil Procedure 23 or a similar Texas statute. For parties seeking a class

certification pursuant to Rule 23, they must establish each of the following:

(1) numerosity, i.e., a class so large that joinder of all members is

impracticable; (2) commonality, i.e., that there are questions of law or fact common

to the class; (3) typicality, i.e., that the named plaintiffs' claims or defenses are

typical of those of the class; and (4) adequacy of representation, i.e., that the

representatives will fairly and adequately protect the interests of the class.

Cleven v. Mid-Am. Apartment Communities, Inc., 20 F.4th 171, 180 (5th Cir. 2021) (emphasis in

original) (citing Ackal v. Centennial Beauregard Cellular L.L.C., 700 F.3d 212, 215-16 (5th Cir.

2012)). Section 17.47 of the Texas Business and Commerce Code does not contain language

similar to Rule 23. As stated previously, “the [consumer protection] division [of the Attorney

General’s Office] may bring an action in the name of the state against the person to restrain by

temporary restraining order, temporary injunction, or permanent injunction the use of such method,

act, or practice.” Tex. Bus. & Com. Code § 17.47(a). The DTPA does not “authoriz[e] an action

to be brought by 1 or more representative persons as a class action.” 28 U.S.C. § 1332(d)(1)(B).

“[T]o maintain a class action, the class sought to be represented must be adequately defined

and clearly ascertainable.” Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 639 (5th

Cir. 2012) (cleaned up). In its Petition, Plaintiff does not allege that it is representing an adequately

defined and clearly ascertainable class of people. Despite 3M’s contentions, the cases it cites do

not create an automatic class action suit anytime the State files a suit under the DTPA. As the

Thirteenth Court of Appeals correctly stated, “[w]hile the courts in Bara and Thomas characterize

suits filed by the Attorney General under section 17.47 as de facto class actions, this

characterization neither transforms the nature of a DTPA action nor authorizes the Attorney

General to sue on behalf of private individuals.” Molano, 262 S.W.3d at 560. Likewise, these

individual nonbinding rulings do not transform the DTPA into a class action.

In Thomas, the Attorney General attempted to restore money or property acquired through

unlawful practices on behalf of affected consumers, despite not being individually named or

identified in the lawsuit. Id. at 226 S.W.3d 697. Further, unlike in this action, the class members

could be easily identified, and their harm could be traced. In Bara, the court answered the narrow

issue before it, which was “whether an action brought by the attorney general pursuant to DTPA

section 17.47 in response to consumer complaints tolls the running of the statutes of limitations on

the consumers’ individual claims.” Bara, 876 S.W.2d at 471. Unlike in Bara, the consumers who

have been affected by Defendants’ alleged deceptive practices are not identified and are not clearly

ascertainable.

Further, as stated above, Section 1332(d)(1)(B) permits class actions that are authorized by

a “State statute or rule of judicial procedure.” 28 U.S.C. § 1332(d)(1)(B). It does not permit class

actions when the outcome of the action can affect multiple individuals, thereby making it a “de

facto” class action. The court is not persuaded by 3M’s de facto argument. The court has an

emphatic duty “to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). It is clear

that Rule 23 provides only three ways to bring a class action suit pursuant to the CAFA. Neither

Rule 23 nor Section 14.27 authorizes de facto class action suits. Taking Plaintiff’s well-pleaded

facts in the Petition as true and viewing them in the light most favorable to it, the court

determines that this lawsuit is not a “class action” as defined in the CAFA statute.

Further, because the court does not have jurisdiction to entertain this action, it will not

address the merits of DuPont Defendants’ Motion and 3M’s Motion. Accordingly, the court

declines to address the DuPont Defendants’ Motion (Doc. 24); and declines to address 3M’s

Motion (Doc. 29).

IV. Attorney’s Fees

Plaintiff seeks attorney’s fees and costs incurred for obtaining a remand of this action to

state court pursuant to 28 U.S.C. § 1447(c). Section 1447(c) provides that “[a]n order remanding

the case may require payment of just costs and any actual expenses, including attorney fees,

incurred as a result of the removal.” 28 U.S.C. § 1447(c). There is no “automatic entitlement to an

award of attorney’s fees.” Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 292 (5th Cir. 2000). Bad

faith is not “a prerequisite to awarding attorney fees and costs.” Id. (citation omitted). “Absent

unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the removing

party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively

reasonable basis exists, fees should be denied.” Martin v. Franklin Capital Corp., 546 U.S. 132,

141 (2005) (citations omitted). In this regard, the court must decide “whether the defendant had

objectively reasonable grounds to believe the removal was legally proper” at the time of removal,

“irrespective of the fact that it might ultimately be determined that removal was improper.” Valdes,

199 F.3d at 293.

Plaintiff contends that:

Remedial measures are appropriate here where 3M’s attempt to have this

case consolidated in the AFFF MDL (its true motivation for removal) have failed

and where its legal arguments for removal lack support in either the statute or

caselaw. The State has invested dozens of hours of attorney time responding to

3M’s attempt and it should be compensated for its actual expenses.

The State contacted 3M, as well as the remaining Defendants, to inform

them that removal was improper under either purported theory asserted. Despite

being aware removal was entirely improper, based in no small part on their prior

failed efforts to remove PFAS-related matters to district courts throughout this

country, 3M would not consent to a remand. As explained above, 3M’s removal

had no objective basis in law. The position maintained by 3M is contrary to

established precedent and this removal effort was nothing more than an attempt to

transfer this matter to the AFFF MDL in order to slow its resolution. The JPML

saw through 3M’s blatant attempt of obfuscate the basis of this Petition and we

have no doubt that this Court will do the same. As removal of this case was

objectively unfounded, the State respectfully requests that the Court award

attorneys’ fees and costs associated with the unnecessary litigation that 3M has

caused.

Doc. 15 at 18.

In response, 3M argues that if the court remands this action, it should deny Plaintiff’s

request for attorney’s fees because the basis for removal was reasonable and compelling. Doc. 26

at 24. Specifically, 3M argues that:

As explained above, ample case law and the State’s own allegations support

3M’s position that the State is not the real party in interest. But if the Court

disagrees with 3M’s reading, the absence of “any binding precedent specifically

addressing” the question of traditional diversity jurisdiction over section 17.47

actions warrants the same conclusion the court reached in Google: that removal was

not objectively unreasonable. 2023 WL 113732, at *6 n.4; see Camsoft, 638 F.

App’x at 264 (affirming denial of fees when “federal jurisdiction over [certain]

claims was unsettled”).

The same is true of removal under CAFA. A plain reading of the law’s text

strongly supports jurisdiction here. As the State concedes, AU Optronics is not

directly on point. See State Br. 9. The Fifth Circuit has never considered CAFA

jurisdiction over section 17.47 claims or the laws of a state that does allow class

actions. Judges outside of the Circuit agree that attorney-general-led suits can

qualify as CAFA class actions. See, e.g., Comcast, 705 F. Supp. 2d at 452; CVS

Pharmacy, 646 F.3d at 183 (Gilman, J., dissenting). And there is a consensus

among Texas courts that section 17.47 is a de facto class action employing many

class action procedures. Again, because the issue is “unsettled,” Camsoft, 638 F.

App’x at 264, 3M’s removal on CAFA grounds was not objectively unreasonable,

cf. Valdes, 199 F.3d at 293-94 (removal objectively reasonable when bulk of Texas

case law supported defendant’s position).

Id. at 24-25 (citations omitted).

Based on the court’s review of the facts and circumstances, an award of attorney’s fees is

not warranted. The law regarding whether actions filed by the State of Texas or its Attorney

General pursuant to Section 17.47 may be removed to federal court is not settled. Plaintiff and 3M

cite to federal district courts and intermediate state appellate courts, which are not binding on this

court. See Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (“A decision of a federal district court

Judge is not binding precedent in either a different judicial district, the same judicial district, or

even upon the same judge in a different case.”). It was objectively unreasonable for 3M to believe

that the court had jurisdiction over this action. While this case should not have been removed, the

court, in exercising its discretion, determines that the interests of justice are not served by

awarding attorney’s fees to Plaintiff under these circumstances. See CamSoft Data Systems, Inc.

Southern Electronics Supply, Inc., 638 F. App’x 255, 261, 267 (Sth Cir. 2015) (“[D]istrict court

Jurisdiction under § 116 was clearly unsettled at the time this case was removed to federal court.

[W]e conclude that the district court did not abuse its discretion when it concluded that the

defendants were objectively reasonable when they removed the case to federal court.”).

Accordingly, the court will not permit an award of attorney’s fees and costs and denies Plaintiffs

request.

V. Conclusion

For the reasons stated herein, the court grants the Motion to Remand (Doc. 14), declines

to rule on the DuPont Defendants’ Motion (Doc. 24); declines to rule on 3M’s Motion (Doc. 29);

and remands this action to the 18th Judicial District Court of Johnson County, Texas. The clerk

of court shall effect the remand in accordance with the usual procedure. Further, for the reason

previously stated, the court denies Plaintiff's request for attorney’s fees and costs.

It is so ordered this 24th day of September, 2025.

United States District Judge

Memorandum Opinion and Order — Page 15