Petition for Writ of Certiorari — John C. Kitchin, Jr., et al., Petitioners v. Bridgeton Landfill, LLC, et al.

No. 21-

In the

Supreme Court of the United States

_________________________

JOHN C. KITCHIN, JR., NORTH WEST AUTO BODY CO.,

AND MARY MENKE, ON BEHALF OF THEMSELVES AND

ALL OTHERS SIMILARLY SITUATED,

Petitioners,

V.

BRIDGETON LANDFILL, LLC, REPUBLIC SERVICES, INC.,

ALLIED SERVICES, LLC, AND ROCK ROAD INDUSTRIES,

INC.,

Respondents.

_________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

_________________________

PETITION FOR A WRIT OF CERTIORARI

_________________________

RYAN A. KEANE

STEVEN W. DUKE

Keane Law LLC

7777 Bonhomme Ave.

Suite 1600

St. Louis, MO 63105

CELESTE BRUSTOWICZ

VICTOR COBB

Cooper Law Firm, L.L.C.

508 St. Philip St.

New Orleans, LA 70116

STUART BANNER

Counsel of Record

UCLA School of Law

Supreme Court Clinic

405 Hilgard Ave.

Los Angeles, CA 90095

(310) 206-8506

banner@law.ucla.edu

ANTHONY D. GRAY

Johnson Gray, LLC

319 N. 4th St., Ste. 212

St. Louis, MO 63102

i

QUESTION PRESENTED

Under the Class Action Fairness Act’s “local controversy” exception, a federal district court must decline jurisdiction over a class action in which, among

other requirements, there is a local defendant

“whose alleged conduct forms a significant basis for

the claims asserted by the proposed plaintiff class.”

28 U.S.C. § 1332(d)(4)(A)(i)(II)(bb).

The question presented is whether this requirement can be satisfied where the local and non-local

defendants engaged in the same alleged conduct (as

the Sixth, Ninth, and Tenth Circuits hold), or

whether the alleged conduct of the local defendant

must be different from that of the non-local defendants (as the Fifth and Eighth Circuits hold).

ii

CORPORATE DISCLOSURE STATEMENT

Petitioner North West Auto Body Co. has no parent corporation. No company owns 10% or more of its

stock.

RELATED PROCEEDINGS

U.S. Court of Appeals for the Eighth Circuit:

Kitchin v. Bridgeton Landfill, LLC, No. 19-2072 (July 8, 2021)

U.S. District Court, Eastern District of Missouri:

Kitchin v. Bridgeton Landfill, LLC, No. 4:18-CV-672CDP (May 8, 2019)

iii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

CORPORATE DISCLOSURE STATEMENT ........... ii

RELATED PROCEEDINGS ...................................... ii

TABLE OF AUTHORITIES ..................................... iv

OPINIONS BELOW.................................................... 1

JURISDICTION .......................................................... 1

STATUTES INVOLVED ............................................. 1

STATEMENT .............................................................. 3

1. CAFA’s local controversy exception ..................... 4

2. The facts of this case ............................................ 7

3. The district court decision ................................. 10

4. The court of appeals decision ............................ 12

REASONS FOR GRANTING THE WRIT ............... 14

I. There is a 3-2 circuit split on whether a

local defendant’s alleged conduct can be

a “significant basis” for the plaintiffs’

claims where it is the same conduct as

that of the non-local defendants. ...................... 14

A. The majority view is that it can. .................. 15

B. The minority view is that it cannot. ............. 17

II. The decision below is wrong. ............................. 20

III. This case is a perfect vehicle for deciding

this important question. .................................... 24

CONCLUSION ......................................................... 27

APPENDICES

A. Court of appeals opinion ..................................... 1a

B. District court opinion ........................................ 20a

C. Court of appeals order denying panel

rehearing and rehearing en banc ..................... 51a

iv

TABLE OF AUTHORITIES

CASES

Aarstad v. BNSF Ry. Co., 2020 WL 1673100

(D. Mont. 2020) ...................................................... 24

Adame v. Comprehensive Health Mgmt., Inc.,

2019 WL 1276192 (C.D. Cal. 2019) ....................... 23

Allen v. Boeing Co., 821 F.3d 1111 (9th Cir.

2016) ................................................................ 16, 25

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..................... 23

Atwood v. Peterson, 936 F.3d 835 (8th Cir.

2019) (per curiam) ............................... 13, 18, 19, 23

Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007) ..................................................................... 23

Benko v. Quality Loan Serv. Corp., 789 F.3d

1111 (9th Cir. 2015) ............................................... 16

Bowen v. Massachusetts, 487 U.S. 879 (1988) ........ 22

Bradford v. Bank of America Corp., 2015 WL

5311089 (C.D. Cal. 2015) ...................................... 24

Brown v. Paducah & Louisville Ry., Inc.,

2013 WL 5273773 (W.D. Ky. 2013) ....................... 25

Brown v. Saint-Gobain Performance Plastics

Corp., 2016 WL 6996136 (D.N.H. 2016) ............... 25

Cedar Lodge Plantation, L.L.C. v. CSHV

Fairway View I, L.L.C., 768 F.3d 425 (5th

Cir. 2014) ............................................................... 25

Christmas v. Union Pac. R. Co., 698 F. Appx.

887 (9th Cir. 2017) ................................................ 17

Clark v. WorldMark, 2019 WL 1023887 (E.D.

Cal. 2019) ............................................................... 24

Coffey v. Freeport McMoran Copper & Gold,

581 F.3d 1240 (10th Cir. 2009) ............................. 17

Coleman v. Estes Express Lines, Inc., 631

F.3d 1010 (9th Cir. 2011) .......................... 12, 16, 19

v

Davis v. Omega Refining, LLC, 2015 WL

3650832 (E.D. La. 2015) ........................................ 25

FERC v. Mississippi, 456 U.S. 742 (1982) .............. 21

Home Depot U.S.A., Inc. v. Jackson, 139 S.

Ct. 1743 (2019) ........................................................ 5

Hostetler v. Johnson Controls, Inc., 2016 WL

3662263 (N.D. Ind. 2016) ...................................... 25

Ictech-Bendeck v. Progressive Waste Sols. of

La., Inc., 367 F. Supp. 3d 555 (E.D. La.

2019) ...................................................................... 25

Keltner v. SunCoke Energy, Inc., 2015 WL

3400234 (S.D. Ill. 2015) ......................................... 25

Mason v. Lockwood, Andrews & Newnam,

P.C., 842 F.3d 383 (6th Cir. 2016), cert.

denied, 137 S. Ct. 2242 (2017) ............ 15, 16, 23, 25

MD Haynes, Inc. v. Valero Marketing and

Supply Co., 2017 WL 1397744 (S.D. Tex.

2017) ...................................................................... 25

Millman v. United Technologies Corp., 2017

WL 1165081 (N.D. Ind. 2017) ............................... 25

Opelousas Gen. Hosp. Auth. v. FairPay Sols.,

Inc., 655 F.3d 358 (5th Cir. 2011) (per

curiam) ................................................. 13, 15, 18, 23

Reece v. AES Corp., 638 F. Appx. 755 (10th

Cir. 2016) ............................................................... 25

Romano v. Northrop Grumman Corp., 2017

WL 6459458 (E.D.N.Y. 2017) ................................ 25

Rowell v. Shell Chemical LP, 2015 WL

3505118 (E.D. La. 2015) ........................................ 25

Smith v. Honeywell Int’l, Inc., 2013 WL

2181277 (D.N.J. 2013) ........................................... 25

Standard Fire Ins. Co. v. Knowles, 568 U.S.

588 (2013) .............................................................. 21

vi

Thompson v. Louisiana Regional Landfill

Co., 365 F. Supp. 3d 725 (E.D. La. 2019) ............. 25

Woods v. Standard Ins. Co., 771 F.3d 1257

(10th Cir. 2014) ..................................................... 17

STATUTES

28 U.S.C.

§ 1254(1) ................................................................... 1

§ 1332(d)(2)(A) ......................................................... 4

§ 1332(d)(4) .......................................................... 4, 5

§ 1332(d)(4)(A)(i)(I) .................................................. 4

§ 1332(d)(4)(A)(i)(II) ................................................ 4

§ 1332(d)(4)(A)(i)(II)(bb) .............................. 3, 20, 22

§ 1332(d)(4)(A)(i)(III) ............................................... 4

§ 1332(d)(4)(A)(ii) .................................................... 4

LEGISLATIVE MATERIAL

S. Rep. No. 14, 109th Cong., 1st Sess.

(2005) ..................................................... 4, 5, 6, 7, 21

1

PETITION FOR A WRIT OF CERTIORARI

John C. Kitchin, Jr., North West Auto Body Co.,

and Mary Menke respectfully petition for a writ of

certiorari to review the judgment of the United

States Court of Appeals for the Eighth Circuit.

OPINIONS BELOW

The opinion of the court of appeals is published at

3 F.4th 1089 (8th Cir. 2021). The opinion of the district court is published at 389 F. Supp. 3d 600 (E.D.

Mo. 2019).

JURISDICTION

The judgment of the court of appeals was entered

on July 8, 2021. The court of appeals denied panel

rehearing and rehearing en banc on August 12,

2021. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTES INVOLVED

28 U.S.C. § 1332(d)(2) provides:

The district courts shall have original jurisdiction of

any civil action in which the matter in controversy

exceeds the sum or value of $5,000,000, exclusive of

interest and costs, and is a class action in which—

(A) any member of a class of plaintiffs is a citizen of

a State different from any defendant;

(B) any member of a class of plaintiffs is a foreign

state or a citizen or subject of a foreign state and

any defendant is a citizen of a State; or

(C) any member of a class of plaintiffs is a citizen of

a State and any defendant is a foreign state or a

citizen or subject of a foreign state.

2

28 U.S.C. § 1332(d)(4) 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;

(II) 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

(cc) who is a citizen of the State in which the

action was originally filed; and

(III) 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; or

(B) 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.

3

STATEMENT

This case raises an important question that often

arises when defendants seek to remove class actions

to federal court under the Class Action Fairness Act

of 2005. The statute directs federal district courts to

“decline to exercise jurisdiction” where, among other

requirements, there is at least one defendant who is

a citizen of the state in which the suit was originally

filed, and this local defendant’s “alleged conduct

forms a significant basis for the claims asserted by

the

proposed

plaintiff

class.”

28

U.S.C.

§ 1332(d)(4)(A)(i)(II)(bb). These cases often involve

multiple defendants, including one local defendant

and one or more non-local defendants. The local defendant is often a corporate subsidiary or an agent of

a non-local defendant, which is typically an out-ofstate corporation.

The lower courts have struggled to apply this

statute to the recurring fact pattern in which the alleged conduct of the local defendant is the same as

the alleged conduct of the non-local defendant. For

example, where the local defendant is a whollyowned subsidiary of the non-local defendant, the

complaint often alleges that both entities engaged in

the same misconduct and that both are liable. In

such a complaint, does the local defendant’s “alleged

conduct form[ ] a significant basis” for the plaintiffs’

claims? Or, in order to satisfy this requirement,

must the complaint distinguish between the conduct

of the local defendant and that of the non-local defendant?

As the court of appeals recognized below, there is

a circuit split on this question. This case provides an

excellent opportunity to resolve it.

4

1. CAFA’s local controversy exception

Under the Class Action Fairness Act of 2005

(“CAFA”), the federal district courts have jurisdiction over certain class actions in which any member

of the plaintiff class is a citizen of a state different

from any defendant. 28 U.S.C. § 1332(d)(2)(A). But

CAFA includes a “local controversy” exception, under

which district courts must decline to exercise jurisdiction over class actions that satisfy several requirements. § 1332(d)(4). (The name of the exception

does not appear in the statute but is nevertheless

widely used. It comes from the Senate Report explaining the exception’s scope and purpose. See S.

Rep. No. 14, 109th Cong., 1st Sess. 39 (2005).)

To fall within the local controversy exception, a

class action must satisfy each of these requirements:

• More than two thirds of the proposed plaintiff

class are citizens of the state in which the suit

was filed. 28 U.S.C. § 1332(d)(4)(A)(i)(I).

• There is at least one defendant from whom

significant relief is sought, whose alleged conduct forms a significant basis for the claims

asserted by the proposed plaintiff class, and

who is a citizen of the state in which the suit

was filed. § 1332(d)(4)(A)(i)(II).

• The plaintiffs’ principal injuries occurred in

the state in which the suit was filed.

§ 1332(d)(4)(A)(i)(III).

• No other class action has been filed in the past

three years asserting the same factual allegations

against

the

same

defendants.

§ 1332(d)(4)(A)(ii).

5

If a class action satisfies these requirements, the district court “shall decline to exercise jurisdiction.”

§ 1332(d)(4).

The local controversy exception implements the

intent of Congress “that class actions with a truly

local focus should not be moved to federal court under this legislation because state courts have a

strong interest in adjudicating such disputes.” S.

Rep. No. 14, at 39. The purpose of CAFA was to correct the anomaly that allowed plaintiffs to defeat

federal jurisdiction over truly nationwide class actions by naming a single non-diverse defendant. Id.

at 10; see Home Depot U.S.A., Inc. v. Jackson, 139 S.

Ct. 1743, 1752 (2019) (Alito, J., dissenting). Without

an exception for local controversies, however, CAFA

would have created a mirror-image anomaly, by allowing defendants to remove essentially local suits to

federal court based on the presence of a single diverse defendant. Congress therefore included in CAFA a list of criteria to distinguish local from nationwide controversies. As the Senate Report explained,

“the purpose of each of these criteria is to identify a

truly local controversy—a controversy that uniquely

affects a particular locality to the exclusion of all

others.” S. Rep. No. 14, at 39.

The Senate Report explained that one of the criteria is that “there must be at least one real local defendant.” Id. at 40. That is, there must be a local defendant “whose alleged conduct forms a significant

basis for the claims asserted by the class.” Id. Plaintiffs may not turn national controversies into local

ones merely by naming a nominal or peripheral local

defendant. Rather, “the Committee intends that the

6

local defendant must be a primary focus of the plaintiffs’ claims—not just a peripheral defendant.” Id.

The Senate Report provided two hypothetical examples of class actions, one that falls within the local controversy exception and one that does not.

The first hypothetical case was a class action

against a Florida cemetery for improper burial practices, in which 90% of the plaintiffs live in Florida,

and the defendants are the local cemetery and its

out-of-state parent corporation. “This is precisely the

type of case for which the Local Controversy Exception was developed,” the Senate Report explained.

“Although there is one out-of-state defendant (the

parent company), the controversy is at its core a local one, and the Florida state court where it was

brought has a strong interest in resolving the dispute. Thus, this case would remain in state court.”

Id. at 41.

The second hypothetical case was a class action

brought in Florida by local residents against an outof-state automobile manufacturer and a few in-state

dealers, alleging that a certain model of vehicle was

defective. “This case would not fall within the Local

Controversy Exception for two reasons,” the Report

explained. “First, the automobile dealers are not defendants whose alleged conduct forms a significant

basis of the claims or from whom significant relief is

sought by the class,” because the manufacturer, not

the dealers, was principally at fault. Id. Second, the

injuries caused by the alleged misconduct “were incurred in all fifty states. The fact that the suit was

brought as a single-state class action does not mean

that the principal injuries were local.” Id. This case

would therefore be removable to federal court. Id.

7

CAFA’s local controversy exception thus reflects

the judgment of Congress that minimal diversity

alone is not enough for federal courts to exercise jurisdiction over class actions. Rather, CAFA shifted “a

larger number of class actions into federal courts,

while continuing to preserve primary state court jurisdiction over primarily local matters.” Id. at 6. The

local controversy exception was “intended to ensure

that state courts can continue to adjudicate truly local controversies in which some of the defendants

are out-of-state corporations.” Id. at 28.

2. The facts of this case

For nearly half a century, two landfills near St.

Louis have stored thousands of tons of highly toxic

radioactive waste that was produced in the 1940s

and 1950s. 1 The waste contains dangerous radioactive isotopes of radium, uranium, thorium, and other

elements. Exposure to the waste causes cancer and

other fatal illnesses. It also causes genetic mutations

that can be passed down for generations. The waste

will remain radioactive for a very long time to come.

One of its principal components, radium-226, has a

half-life of 1,600 years. Other isotopes present in the

waste have half-lives that are even longer.

At first, the waste was stored at other sites. In

1973, the waste was dumped in two privately-owned

landfills, the Bridgeton and West Lake Landfills,

both of which are in Bridgeton, Missouri. These

landfills were not designed or licensed to store radioactive waste. They are simply large holes in the

ground, with no liners preventing the waste from

1 The facts are taken from petitioners’ complaint. At this stage

they must be accepted as true.

8

seeping into the soil and the water. As a result, the

soil now has a concentration of radium-226 that is

ten thousand times higher than normal. Beneath the

landfills, meanwhile, there is a smoldering subsurface fire that is getting close to the radioactive

waste. The fire has the potential to cause the expulsion of toxic radioactive gases.

Over the years, radioactivity has spread from the

landfills to the surrounding properties. Radioactive

contamination has been found in the neighboring

community in the soil, in the surface water, in the

trees, and in the air.

Petitioners are residents of Bridgeton who live

and work near the landfills. John Kitchin, Jr., purchased his property in 1995. App. 23a. It is the location of his family’s auto body business, the North

West Auto Body Company. Id. Kitchin discovered in

2017 that his property is contaminated with radioactive material. Id. His business has lost significant

revenue because of the contamination. Id. He expects to continue to lose revenue and to incur costs

for relocating the business. Id. Mary Menke owns a

home in Bridgeton. Id. at 24a. She learned in 2018

that her property is also contaminated with radioactive material.

Kitchin and Menke often experience offensive

odors coming from the landfills. Id. Samples taken

on and around their properties confirm that there is

a highly elevated level of radioactivity with the same

characteristics as the radioactive waste in the landfills. Id.

Respondents are a set of four nested corporations

and LLCs that owned and operated the two landfills

when the complaint was filed and for many years be-

9

fore. The parent entity is Republic Services. The other three respondents—Rock Road Industries, Bridgeton Landfill, and Allied Services—were whollyowned subsidiaries of Republic Services. Rock Road

Industries and Bridgeton Landfill owned the landfills. Republic Services and Allied Services operated

the landfills. Rock Road Industries was a citizen of

Missouri; it was a Missouri corporation whose principal place of business was the two landfills in

Bridgeton. The other three entities were citizens of

Delaware.

Petitioners filed this suit as a class action in Missouri state court. The proposed class includes two

subclasses. The “property damage subclass” comprises all owners of real property within an 11square-mile region surrounding the landfills. The

“medical monitoring subclass” comprises all the residents of the same region. The region is entirely located within Missouri. All members of both proposed

classes are Missouri citizens. This is because the radioactive contamination caused by the landfills has

not crossed state lines and is not likely to do so in

the future.

The suit is based entirely on Missouri law. The

complaint includes counts for trespass (because the

radioactive material has migrated onto the plaintiffs’

property), nuisance (because the landfills unreasonably interfere with the plaintiffs’ use and enjoyment

of their property), negligence (because of respondents’ negligent operation of the landfills), and strict

liability in tort (because storing radioactive waste is

an abnormally dangerous activity). The complaint

seeks damages and an injunction requiring respond-

10

ents to clean up the landfills and to provide medical

and environmental monitoring.

Under Missouri law, the respondents are jointly

and severally liable for the harms they have caused.

Moreover, the respondents are not independent

firms; one respondent owns the other three. For

these reasons, the complaint does not try to apportion blame among the respondents. Rather, the complaint alleges that they all engaged in the same conduct, that they were all responsible for the operation

of the landfills, and that they are all liable for the

injuries to health and property that resulted. Id. at

8a-9a, 48a.

Respondents removed the case to federal district

court on three grounds. Two of these grounds—the

Price-Anderson Act and CERCLA—are no longer

present in this case, because the district court rejected them and respondents did not appeal these portions of the district court’s decision. Id. at 28a-43a.

Respondents’ third basis for removal was the Class

Action Fairness Act.

3. The district court decision

The district court remanded the case to the state

court. App. 20a-50a. The district court held that it

was required to decline jurisdiction because the case

falls within the local controversy exception to the

Class Action Fairness Act. Id. at 43a-49a.

The district court found that when the complaint

was filed, one of the defendants, Rock Road Industries, satisfied the requirement that there be one local significant defendant. Id. at 46a-48a. (After the

complaint was filed but before seeking removal, respondents hastily merged Rock Road Industries into

11

Bridgeton Landfill, in an apparent effort to get this

case into federal court by eliminating the local defendant. The district court rebuffed this stratagem

on the ground that the citizenship of the defendants

is determined at the time the complaint is filed. Id.

at 46a.)

The district court found that the plaintiffs seek

“significant relief” from Rock Road Industries and

that the conduct of Rock Road Industries forms a

“significant basis” for the plaintiffs’ claims. Id. at

46a-48a. The district court observed that “[t]here is

nothing in the amended petition to indicate that

Rock Road Industries is a nominal defendant or that

its subsidiary status undercuts the substantial monetary relief sought by plaintiffs.” Id. at 47a.

The district court held:

Here, plaintiffs’ amended petition alleges the

same claims against all defendants. It claims

that the defendants all engaged in the same

conduct, including knowingly and improperly

accepting radioactive wastes; improperly dumping and spreading such wastes over several

acres of the Landfill; and causing radioactive

contaminants to be dispersed, resulting in

damage to neighboring properties and communities. Plaintiffs also claim that all defendants

maintained daily control over the management,

operation, and environmental decisions of the

Landfill, thereby making them all responsible

for the damages alleged. The conduct of Rock

Road Industries is the same conduct alleged

against the other defendants. There is no need

or requirement for me to conduct a “mini-trial”

to adduce evidence as to the specific conduct of

12

each of the defendants. Rock Road Industries’

status as a subsidiary is irrelevant since the

conduct alleged is the same for all defendants.

The amended petition’s allegations indicate

that Rock Road Industries’ conduct forms a significant basis of all claims asserted.

Id. at 48a (citations omitted).

The district court accordingly granted petitioners’

motion to remand the case to the state court. Id. at

50a.

4. The court of appeals decision

The Court of Appeals for the Eighth Circuit reversed. Id. at 1a-19a. The court held that the complaint did not adequately allege that the conduct of

Rock Road Industries, the local defendant, formed “a

significant basis” for the claims asserted by the

plaintiffs. Id. at 8a-12a.

The court of appeals began by noting that “CAFA

itself does not describe the type or character of conduct that would form a ‘significant basis’ of plaintiffs’

claims.” Id. at 9a (citation omitted). The court observed that all courts agree that the statute calls for

a comparison of the local defendant’s alleged conduct

with that of the other defendants. Id. at 9a-10a. But

the court of appeals acknowledged that “courts applying this approach have split regarding what it requires.” Id. at 10a.

On one side of the split, “[s]ome courts, like the

district court here, have adopted the view that allegations that the local and nonlocal defendants ‘all

engaged in the same conduct’ suffice to show that

the local defendant’s conduct meets the significantbasis requirement.” Id. (citing Coleman v. Estes Ex-

13

press Lines, Inc., 631 F.3d 1010, 1020 (9th Cir.

2011)).

On the other side of the split, the court continued,

was the Eighth Circuit itself, in Atwood v. Peterson,

936 F.3d 835 (8th Cir. 2019) (per curiam). App. 10a.

“In Atwood,” the court explained,

we joined a number of courts taking the opposite view and found that a complaint that did

“not allege any substantive distinctions between the conduct” of the local and nonlocal defendants failed to “indicate whether the local

defendants’ alleged conduct is an important

ground for the asserted claims in view of the alleged conduct of all the Defendants.”

Id. (quoting Atwood, 936 F.3d at 840) (citation and

internal quotation marks omitted). The court noted

that the Fifth Circuit had taken the same view. App.

10a (citing Opelousas Gen. Hosp. Auth. v. FairPay

Sols., Inc., 655 F.3d 358, 359, 362-63 (5th Cir. 2011)

(per curiam)).

The court of appeals thus held that the district

court erred in finding “that Plaintiffs’ allegations of

how Defendants ‘all engaged in the same conduct’

suffice to satisfy the significant-basis requirement.”

App. 11a. “If nothing in the complaint distinguishes

the conduct of Rock Road Industries from the conduct of the other defendants,” the court concluded,

“then the allegations in the complaint do not satisfy

the significant-basis requirement.” Id. (citation,

brackets, and internal quotation marks omitted).

“Such collective allegations leave doubt about the

comparative significance of Rock Road Industries’

conduct, preventing remand under the local-

14

controversy exception.” Id. at 11a-12a (citation and

internal quotation marks omitted).

Judge Stras concurred in the judgment. Id. at

18a-19a. He would have decided the case on the

ground that the citizenship of the defendants should

be assessed at the time of removal, not at the time

the complaint was filed. Id. (The panel majority did

not reach this question. Id. at 8a n.2.) Judge Stras

concluded that because respondents merged Rock

Road Industries into Bridgeton Landfill before removing the case to federal court, the case lacks a local defendant. Id. at 19a.

The court of appeals denied panel rehearing and

rehearing en banc. Id. at 51a.

REASONS FOR GRANTING THE WRIT

The Court should grant certiorari for all the conventional reasons. The circuits are split three to two

on the question presented. The decision below is incorrect. The issue recurs frequently. And this case is

an ideal vehicle for resolving the split.

I. There is a 3-2 circuit split on whether

a local defendant’s alleged conduct

can be a “significant basis” for the

plaintiffs’ claims where it is the same

conduct as that of the non-local defendants.

The decision below further entrenches a 3-2 circuit split as to whether the statute’s “significant basis” requirement can be satisfied where the local and

non-local defendants engaged in the same alleged

conduct. On one side of the split, the Sixth, Ninth,

and Tenth Circuits hold that it can. On the other

15

side of the split, the Fifth and Eighth Circuits hold

that it cannot.

A. The majority view is that it can.

Three circuits—the Sixth, Ninth, and Tenth—take

the view that a local defendant’s alleged conduct can

be “a significant basis for the claims asserted by the

proposed plaintiff class” even if it is the same conduct as that of the non-local defendants.

In Mason v. Lockwood, Andrews & Newnam, P.C.,

842 F.3d 383 (6th Cir. 2016), cert. denied, 137 S. Ct.

2242 (2017), the defendants were alleged to have

been negligent in designing the water system in

Flint, Michigan. The complaint alleged “a single

claim of professional negligence” against local and

non-local corporate defendants. Id. at 396. The claim

was that the local corporation had been created by

the non-local corporation to conduct its work in

Michigan and that both corporations were negligent.

Id. The Sixth Circuit concluded that the alleged conduct of the local corporation satisfied the statutory

requirement, because it was an “important and integral part of plaintiffs’ professional negligence claim,”

even though the complaint did not distinguish between the conduct of the local and non-local corporations. Id. (internal quotation marks omitted).

Judge Kethledge dissented in Mason. He preferred to follow the other side of the circuit split and

require plaintiffs to allege different conduct on the

part of the local and non-local defendants. Id. at 400

(Kethledge, J., dissenting) (citing Opelousas Gen.

Hosp. Auth. v. FairPay Sols., Inc., 655 F.3d 358, 362

(5th Cir. 2011) (per curiam)). As Judge Kethledge

put it, “nothing in the complaint distinguishes the

16

conduct of [the local defendant] from the conduct of

the other defendants.” Id. (citation and internal quotation marks omitted). “The complaint therefore contains no information about the conduct of [the local

defendant] relative to the conduct of the other defendants, and thus does not establish that [the local

defendant’s] conduct forms a significant basis of the

plaintiffs’ claims.” Id. (citation, brackets, and internal quotation marks omitted).

The Ninth Circuit likewise holds that a local defendant’s conduct can be a significant basis for the

plaintiffs’ claims even if it is the same conduct as

that of a non-local defendant. In Coleman v. Estes

Exp. Lines, Inc., 631 F.3d 1010 (9th Cir. 2011), the

plaintiffs alleged the same conduct on the part of a

local subsidiary corporation, Estes West, and its nonlocal parent corporation, Estes Express. The Ninth

Circuit held that the complaint “sufficiently alleges

conduct of Estes West that forms a significant basis

for the claims asserted on behalf of the class under

subsection (bb).” Id. at 1020. The plaintiffs made

identical allegations against Estes Express and Estes West, “but the allegations against Estes Express

in no way make the allegations against Estes West,

the actual employer, insignificant.” Id. See also Allen

v. Boeing Co., 821 F.3d 1111, 1121 (9th Cir. 2016)

(rejecting the argument that “Plaintiffs have not alleged that Landau’s conduct forms a ‘significant basis’ for their claims, as required by subsection (bb),

because they have not distinguished Landau’s acts

from Boeing’s acts”); Benko v. Quality Loan Serv.

Corp., 789 F.3d 1111, 1119 (9th Cir. 2015) (“significant basis” requirement satisfied where local defendant alleged to be responsible for 15-20% of

17

wrongdoing); Christmas v. Union Pac. R. Co., 698 F.

Appx. 887, 889 (9th Cir. 2017).

The Tenth Circuit has reached the same conclusion. In Woods v. Standard Ins. Co., 771 F.3d 1257,

1266 (10th Cir. 2014), the Tenth Circuit found that a

local defendant did not satisfy the “significant basis”

requirement where she was merely “an isolated role

player in the alleged scheme implemented by” the

non-local defendants. But the Tenth Circuit contrasted these facts with those of one of its prior cases, in which it noted that the local defendant would

satisfy the requirement. Id. at 1267-68 (citing Coffey

v. Freeport McMoran Copper & Gold, 581 F.3d 1240,

1242-45 (10th Cir. 2009)). As the court described the

prior case, the defendants were a local company and

its non-local corporate parent, and “all class members were seeking to hold the [local] company jointly

and severally liable for all of plaintiffs’ damages.”

Woods, 771 F.3d at 1267. In these circumstances, the

Tenth Circuit explained, the local company “was a

significant local defendant for the purposes of the

local controversy exception of CAFA.” Id. at 1267

(emphasis added).

If our case had arisen in the Sixth, Ninth, or

Tenth Circuits, the outcome would have been different. In each of these circuits, the same conduct on

the part of local and non-local defendants can be

enough to satisfy the “significant basis” requirement

of CAFA.

B. The minority view is that it cannot.

The Fifth and Eighth Circuits take the opposite

view. In these circuits, a local defendant’s conduct

cannot be a “significant basis” for the plaintiffs’

18

claims if it is the same as the conduct of a non-local

defendant.

In Opelousas Gen. Hosp. Auth. v. FairPay Sols.,

Inc., 655 F.3d 358, 359-60 (5th Cir. 2011) (per curiam), the plaintiffs alleged that the local defendant

engaged in a racketeering enterprise with two nonlocal defendants to misappropriate funds from the

plaintiff hospitals and that all the defendants were

jointly and severally liable. The Fifth Circuit held

that the plaintiffs failed to establish that the conduct

of the local defendant formed a significant basis for

their claims, because the “complaint contains no information about the conduct of [the local defendant]

relative to the conduct of the other defendants.” Id.

at 361. The court further explained: “The complaint

makes no effort to quantify or even estimate the alleged illegal underpayments made by [the local defendant] versus those made by” the other defendants. Id. at 362. “The complaint therefore does not

allege facts describing [the local defendant’s] conduct

so as to establish that [the local defendant’s] conduct

forms a significant basis of the plaintiff’s claims.” Id.

This was the decision Judge Kethledge urged the

Sixth Circuit to follow in his dissent in Mason.

The Eighth Circuit has now reached the same

holding twice. In Atwood v. Peterson, 936 F.3d 835,

837 (8th Cir. 2019) (per curiam), the non-local defendant was Walgreens, while the local defendants

were the managers of the many Walgreens stores in

Arkansas. The complaint alleged that the defendants

collectively implemented a price discrimination

scheme that violated Arkansas law. Id. The Eighth

Circuit held that the plaintiffs had not satisfied the

“substantial basis” requirement, because “the com-

19

plaint does not allege any substantive distinctions

between the conduct of the district managers and the

conduct of Walgreens.” Id. at 840. The Eighth Circuit

recognized that its decision created a conflict with

the Ninth Circuit, but the court concluded that “we

respectfully disagree with the rulings to the contrary

in Coleman v. Estes Express Lines, Inc., 631 F.3d

1010 (9th Cir. 2011).” Atwood, 936 F.3d at 841.

In the decision below, the Eight Circuit relied on

Atwood to hold once again that the “substantial basis” requirement cannot be satisfied where the local

and non-local defendants engaged in the same conduct. App. 10a-12a. The Eighth Circuit recognized

that “[s]ome courts, like the district court here, have

adopted the view that allegations that the local and

nonlocal defendants ‘all engaged in the same conduct’ suffice to show that the local defendant’s conduct meets the significant-basis requirement.” Id. at

10a. But the Eighth Circuit concluded: “In Atwood,

however, we joined a number of courts taking the

opposite view.” Id.

Respondents acknowledged this split in their

briefing in the Eighth Circuit. Resp. 8th Cir. Br. 21.

They observed that the Eighth Circuit “in Atwood

expressly disagreed with the broad interpretation

followed by other circuits.” Id. at 22.

We urged the Eighth Circuit to bring the courts of

appeals into closer alignment by rehearing this case

en banc, but the court declined. App. 51a. As a result, the split cannot be resolved without this Court’s

intervention.

20

II. The decision below is wrong.

The majority view is the correct one. A local defendant’s alleged conduct can be “a significant basis

for the claims asserted by the proposed plaintiff

class,” 28 U.S.C. § 1332(d)(4)(A)(i)(II)(bb), even if it

is the same alleged conduct as that engaged in by a

non-local defendant.

The text of the statute commands this result. If

two people engage in the same conduct, the conduct

of both can be a significant basis for a claim. The

word “significant” does not mean “different from

than that of anyone else.” It simply means “important.” If John and Paul together steal Ringo’s

drums by engaging in identical conduct, John’s conduct and Paul’s conduct would both be significant

bases for Ringo’s claim of theft. The statute requires

the local defendant’s conduct to be “a significant basis” for the plaintiffs’ claim, not “a more significant

basis” or “a different basis” than the conduct of other

defendants. There is nothing in the statutory text to

support an additional requirement that the local defendant’s conduct must somehow be different from

the non-local defendant’s conduct.

The purpose of this statutory provision points in

the same direction. The provision is meant to distinguish real defendants, the ones who actually harmed

the plaintiffs, from nominal or peripheral defendants

added for the purpose of blocking removal. In our

case, Rock Road Industries owned the landfills that

leaked radioactive waste onto plaintiffs’ properties.

Rock Road Industries is a real defendant, regardless

of whether its conduct was the same as or different

from the conduct of the other defendants.

21

The purpose of CAFA as a whole also points in the

same direction. The objective of CAFA was to ensure

that federal courts hear “interstate cases of national

importance.” Standard Fire Ins. Co. v. Knowles, 568

U.S. 588, 595 (2013) (citation and internal quotation

marks omitted). But some class actions are of local,

not national, importance, even if they happen to involve a defendant incorporated in another state. This

is why Congress crafted the local controversy exception—“to ensure that state courts can continue to adjudicate truly local controversies in which some of

the defendants are out-of-state corporations.” S. Rep.

No. 14, 109th Cong., 1st Sess. 28 (2005).

In this case, a group of neighbors seeks to abate a

noxious land use in the neighborhood. This case is a

paradigmatic local controversy. See FERC v. Mississippi, 456 U.S. 742, 768 n.30 (1982) (“regulation of

land use is perhaps the quintessential state activity”). Indeed, this case closely resembles the hypothetical case discussed in the Senate Report, involving improper burial practices at a Florida cemetery

owned by an out-of-state corporation. S. Rep. No. 14,

at 41. As the Report explains, “[a]lthough there is

one out-of-state defendant (the parent company), the

controversy is at its core a local one, and the Florida

state court where it was brought has a strong interest in resolving the dispute. Thus, the case would

remain in state court.” Id. The result should be the

same here.

The majority view is also more consistent with the

practicalities of litigation. A district court typically

decides whether a removed case should be remanded

to state court before there has been any discovery.

The plaintiffs may not yet know precisely which de-

22

fendants committed which wrongful acts. This uncertainty is even more likely where, as here, the defendants are a set of nested corporate entities rather

than a group of individuals. At this very early stage

of litigation, it would make no sense to require plaintiffs to make fine distinctions between the conduct

committed by various defendants.

Nor would it make sense, at this preliminary

stage, for the parties to conduct discovery and introduce evidence regarding differences among the conduct of the defendants, just to figure out which court

system should host the litigation. As Justice Scalia

once observed, “[n]othing is more wasteful than litigation about where to litigate.” Bowen v. Massachusetts, 487 U.S. 879, 930 (1988) (Scalia, J., dissenting). The district court below was right to say that

“[t]here is no need or requirement for me to conduct

a ‘mini-trial’ to adduce evidence as to the specific

conduct of each of the defendants.” App. 48a. For

this reason, the statute requires that the local defendant be one “whose alleged conduct”—not whose

proven conduct—“forms a significant basis for the

claims asserted by the proposed plaintiff class.” 28

U.S.C. § 1332(d)(4)(A)(i)(II)(bb) (emphasis added).

The Fifth and Eighth Circuits appear to have

been led astray by the worry that the majority view

might allow plaintiffs to use a pleading trick to get

cases remanded to state court. The supposed trick

would work like this: In a case where all the real defendants are non-local, the plaintiffs’ complaint

would include a nominal local defendant and allege

in a conclusory way that the local defendant engaged

in the same conduct as the real defendants, without

providing any more detail. The Fifth and Eighth Cir-

23

cuits seem to have worried that if such a conclusory

allegation constitutes a significant basis for the

plaintiffs’ claims, plaintiffs will be able to evade the

“significant basis” requirement in virtually every

case. See Opelousas, 655 F.3d at 363; Atwood, 936

F.3d at 840-41. Judge Kethledge expressed the same

concern in dissent in the Sixth Circuit. Mason, 842

F.3d at 400 (Kethledge, J., dissenting).

This worry is unfounded. District courts routinely

distinguish between plausible and conclusory allegations in every conceivable kind of case. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). There is no reason

to think they cannot do the same here.

In this case, for example, it is crystal-clear that

Rock Road Industries is not a nominal defendant

plucked from thin air to satisfy the local controversy

exception. Rather, Rock Road Industries owned the

landfills that have leaked radioactive waste

throughout the neighborhood for decades. The conduct of Rock Road Industries forms at least as significant a basis for this lawsuit as the conduct of any

other defendant.

The district courts in the circuits that take the

majority view have had no trouble distinguishing

plausible allegations like the one in this case from

conclusory allegations. They routinely deny motions

to remand where the allegations regarding the local

defendant’s conduct are merely conclusory. See, e.g.,

Adame v. Comprehensive Health Mgmt., Inc., 2019

WL 1276192, *4 (C.D. Cal. 2019) (holding that because the complaint includes only “bare and conclusory allegations … [p]laintiff has not met her burden

of proving that Easy Choice’s or WHPOC’s specific

24

conduct forms a significant basis for her asserted

claim.”); Clark v. WorldMark, 2019 WL 1023887, *5

(E.D. Cal. 2019) (“Without more detail, the Court is

unable to determine whether the in-state Defendant’s conduct is a significant basis for the claims in

this case.”); Bradford v. Bank of America Corp., 2015

WL 5311089, *4 (C.D. Cal. 2015) (“These bare allegations are insufficient to prove the elements of the

local controversy exception.”).

The Eighth Circuit thus erred in holding that a local defendant’s conduct cannot satisfy the “significant basis” requirement where the complaint does

not differentiate between the local defendant’s conduct and the conduct of the other defendants. The

court’s error provides another reason to grant certiorari.

III. This case is a perfect vehicle for

deciding this important question.

There could be no better vehicle than this case for

resolving the circuit split. In the court of appeals, respondents abandoned all grounds for removal other

than CAFA. There are no factual disputes or threshold issues standing in the way of a decision. If this

case falls within the local controversy exception, it

must be remanded to state court. If the case doesn’t

fall within the local controversy exception, it belongs

in federal district court.

This issue is important because disputes over the

local controversy exception often arise in class actions, especially cases involving environmental contamination, where the harm is typically local but the

defendants who caused the harm often include outof-state corporations. See, e.g., Aarstad v. BNSF Ry.

25

Co., 2020 WL 1673100 (D. Mont. 2020) (asbestos);

Ictech-Bendeck v. Progressive Waste Sols. of La., Inc.,

367 F. Supp. 3d 555 (E.D. La. 2019) (air pollution);

Thompson v. Louisiana Regional Landfill Co., 365 F.

Supp. 3d 725 (E.D. La. 2019) (air pollution); Romano

v. Northrop Grumman Corp., 2017 WL 6459458

(E.D.N.Y. 2017) (hazardous chemicals); MD Haynes,

Inc. v. Valero Marketing and Supply Co., 2017 WL

1397744 (S.D. Tex. 2017) (contaminated water);

Millman v. United Technologies Corp., 2017 WL

1165081 (N.D. Ind. 2017) (contaminated soil and

groundwater); Mason v. Lockwood, Andrews &

Newnam, P.C., 842 F.3d 383 (6th Cir. 2016) (contaminated water); Allen v. Boeing Co., 821 F.3d 1111

(9th Cir. 2016) (contaminated groundwater); Reece v.

AES Corp., 638 F. Appx. 755 (10th Cir. 2016) (fluid

waste); Brown v. Saint-Gobain Performance Plastics

Corp., 2016 WL 6996136 (D.N.H. 2016) (contaminated water); Hostetler v. Johnson Controls, Inc., 2016

WL 3662263 (N.D. Ind. 2016) (contaminated

groundwater); Davis v. Omega Refining, LLC, 2015

WL 3650832 (E.D. La. 2015) (air and water pollution); Keltner v. SunCoke Energy, Inc., 2015 WL

3400234 (S.D. Ill. 2015) (air pollution); Rowell v.

Shell Chemical LP, 2015 WL 3505118 (E.D. La.

2015) (air pollution); Cedar Lodge Plantation, L.L.C.

v. CSHV Fairway View I, L.L.C., 768 F.3d 425 (5th

Cir. 2014) (underground sewage leaks); Smith v.

Honeywell Int’l, Inc., 2013 WL 2181277 (D.N.J. 2013)

(contaminated soil); Brown v. Paducah & Louisville

Ry., Inc., 2013 WL 5273773 (W.D. Ky. 2013) (hazardous chemicals).

Five circuits have already weighed in on this issue. Every conceivable argument on both sides has

26

been thoroughly aired. There is no wisdom to be

gained by waiting for the circuit split to grow larger.

Meanwhile, the split is undermining the national

uniformity that was the goal of the Class Action

Fairness Act. The radioactive waste leaking from respondents’ landfills is approximately twenty miles

west of downtown St. Louis, where it was produced.

Had the waste been trucked just a mile or two in the

opposite direction, it would have landed in Illinois, in

the Seventh Circuit, where the outcome of this case

might well have been different. And had the waste

been driven three hours to the southeast, it would

have reached Kentucky, in the Sixth Circuit, where

the outcome definitely would have been different.

This divergence in results, based on the fortuity of

where the case happens to be litigated, is what Congress was trying to avoid by enacting the Class Action Fairness Act.

27

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

STUART BANNER

RYAN A. KEANE

STEVEN W. DUKE

Counsel of Record

Keane Law LLC

UCLA School of Law

7777 Bonhomme Ave.

Supreme Court Clinic

Suite 1600

405 Hilgard Ave.

St. Louis, MO 63105

Los Angeles, CA 90095

(310) 206-8506

banner@law.ucla.edu

CELESTE BRUSTOWICZ

VICTOR COBB

ANTHONY D. GRAY

Cooper Law Firm, L.L.C.

Johnson Gray, LLC

508 St. Philip St.

319 N. 4th St., Ste. 212

New Orleans, LA 70116

St. Louis, MO 63102