Opposition Brief — Harvey v. United States (No. 07-268)

Supreme Court of the United states

FLORENCE HARVEY; ULYSSES GAUTHREAUX;

LIONEL ALBERT; ERNESTINE ALBERT; AND ALL

OTHER SIMILARLY SITUATED PERSONS,

Petitioners,

Vv.

MOSAIC FERTILIZER, LLC,

Respondent.

.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

7

OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

*

CHARLES 8. MCCOWAN, JR. (#9167)

Counsel of Record for Respondent,

Mosaic Fertilizer LLC

KEAN, MILLER, HAWTHORNE,

D’ARMOND, MCCOWAN & JARMAN, L.L.P.

P. O. Box 3513

Baton Rouge, LA 70821

225.387.0999

BRADLEY C. MYERs (#1499)

LANA D. CrumP (#23707)

MARK A. MARIONNEAUX (#21743)

SHANNAN SWEENEY RIEGER (#17165)

KEAN, MILLER, HAWTHORNE,

D’ARMOND, MCCOWAN & JARMAN, L.L.P.

P. O. Box 3613

Baton Rouge, LA 70821

225.387.0999

Additional Counsel for Respondent,

Moeaic Fertilizer LLC

COCELE LAW BRIG? PRENTING CO. (800) 275-6954

OR CALL COLLECT (482) 342-9631

QUESTIONS PRESENTED FOR REVIEW

Respondent takes issue with Petitioners’ state-

ment of the questions presented for review. The

questions presented for review are:

1. Does the CAFA amendment to 28 U.S.C.

§ 1332, which is found in subsection

(dX2), irreconcilably conflict with 28

U.S.C. § 1332(a) such that it must be in-

terpreted as providing the exclusive

means for removal of state class actions,

therefore precluding removal of class ac-

tions under traditional diversity, 28

U.S.C. § 1332(a)?

2. In determining whether the amount in

controversy threshold required by 28

U.S.C. § 1332(a) for an individual class

member’s claim is met, is it appropriate

for a district court to look to the state

substantive law on damages recoverable

by the class member?

li

LIST OF PARTIES TO THE PROCEEDING

Respondent also points out to the Court that

following the removal of the underlying matter to

federal court, the matter was consolidated with two

other pending actions, Vivian Folse, et al. v. Mosaic

Fertilizer, LLC, et al., C.A. No. 06-9512, United States

District Court, Eastern District of Louisiana and

Charlotte Anderson, et al. v. Mosaic Fertilizer, LLC,

C.A. No. 07-1465, United States District Court,

Eastern District of Louisiana. The Plaintiffs in these

two consolidated matters do not seek remand.

CORPORATE DISCLOSURE STATEMENT

Respondent, Mosaic Fertilizer LLC, provides the

following Corporate Disclosure Statement pursuant

to Supreme Court Rule 29.6:

Mosaic Fertilizer LLC is owned by The Mo-

saic Company, Mosaic Global Operations Inc.

and Phosphate Acquisition Partners L.P. The

Mosaic Company is the only publicly traded

company owning ten percent (10%) or more

of Mosaic Fertilizer ULC.

lil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW............ i

LIST OF PARTIES TO THE PROCEEDING ........ ii

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

REE I AATEC E ED bitin hcciraticintierncsbcvnveccnseneinstes iii

TABLE OF AUTHORITIEG ...ccccocccecsescessccsesovevesesees vi

STATEMENT REGARDING CONSTITUTIONAL

PROVISIONS, TREATIES, STATUTES, OR-

DINANCES AND REGULATIONS INVOLVED

Se ee ialibebeisiteeirs vndcrciciieinvtioniamianhtvcettiicatineie 1

STATEMENT REGARDING ORDER AND REA-

SONS OF DISTRICT COURT ATTACHED TO

PETITIONERS’ APPENDIX IS INACCURATE

FNP SE ERIE TE eben cscctideretnienitetsttnniinebnedniereie 5

STATEMENT OF THE CASE ............cccsssssessesseesess 6

SPEER tecieantninsintcienintiiniubisusinebetnianigueciimsionsen 10

I. THERE IS NO COMPELLING REASON

TO GRANT THE WRIT OF CERTIORARI... 10

A. 28 U.S.C. §1332, as Amended by

CAFA, Does not Limit Removal of

State Putative Class Actions to Those

that Meet the Parameters Set Forth in

Be UE iis © BC tecivwrccnctcsntsceeecesens 11

(1) Applicable Rules of Statutory Con-

IO sscvccnntinttinseniuncieninicnersiediinvaiin 11

lv

TABLE OF CONTENTS -— Continued

Page

(2) Applying the Above Statutory Con-

struction Rules, It is Clear That

CAFA did not Supplant or Restrict

the Traditional Diversity Jurisdic-

tion Conferred Under 28 U.S.C.

© Fister acccdnnene anions 13

B. The District Court Based its Finding of

Original Jurisdiction on 28 U.S.C.

§ 1332(a) and not on a State Law.......... 20

(1) Federal Courts Must Apply the

Forum State’s Rules Regarding the

Applicable Measure of Damages,

Including Special and Punitive

IE i sicsiciniesccnpanicanndaanccebibiabants 21

(2) The District Court’s Ruling is Con-

sistent with this Court’s Allapattah

RNIN iss isstccsndicsanndennoeaciniacess taselinipiin 22

(3) The District Court’s Ruling is Also

Consistent with Syngenta ................ 24

(4) The District Court Properly Looked

to Louisiana Law in Determining

the Amount in Controversy.............. 25

C. In the Alternative, if this Court Con-

cludes that Removal of a Class Action

is not Proper Under 28 U.S.C.

§ 1332(a), this Court Should Remand

to the District Court for a Determina-

tion of Whether Removal was Proper

Under 28 U.S.C. § 1332(d)(2)...........00c0e 27

Vv

TABLE OF CONTENTS - Continued

tT ant esi cinta adhinidineeiinenineniie 28

APPENDIX

A. Order and Reasons of District Court....... App. 1

vi

TABLE OF AUTHORITIES

Page

CASES

Davis v. Michigan Dept. of Treasury, 489 U.S.

803, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989)......... 12

Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58

S.Ct. 817, 82 L.Ed. 1188 (1938).................. 21, 25, 26

Exxon Mobil Corp. v. Allapattah Services, Inc.,

545 U.S. 546, 125 S.Ct. 2611, 162 L.Ed.2d

Se sinivnaitenpsisctiisinsiatnlabciitintbeliasiiiisimttaptidiiiadibiti passim

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d

Fee ME itinisitscsndiciinsebisdeiiandnibiiaisitandtinidniintidatiidediidammanibaied 12

Galt G/S v. JSS Scandinavia, 142 F.3d 1150

RN, 23

Grant v. Chevron Phillips Chemical Co. L.P,,

309 F.3d 864 (5th Cir. 2002)............. 9, 22, 23, 25, 26

Horton v. Liberty Mut. Ins. Co., 367 U.S. 348,

81 S.Ct. 1570, 6 L.Ed.2d 890 (1961) ................ 21, 25

In re: Abbott Laboratories, 51 F.3d 524 (5th Cir.

ASR Hae ee SEPA ORR Mie ea ERR Rane Tree 23, 26

Markham v. Cabell, 326 U.S. 404, 66 S.Ct. 193,

ate ST ei inidecdvdiicnsnnteheniincstiuncbdbcibuiiiensss 13, 15

Morton v. Mancari, 417 U.S. 535, 94 S.Ct.

2AT4E, 41 L.Ed. 2d BOO (1GTS)..nccccccccccccccececssceescesorees 12

National Ass’n of Home Builders v. Defenders

of Wildlife, __. U.S. __, 127 S.Ct. 2518, __

Rc. - CONT D i:doveisricesedecquvinainrctenmnetamadseipinsiinsins 12

Vil

TABLE OF AUTHORITIES — Continued

Page

Syngenta Crop Protection, Inc. v. Henson, 537

U.S. 28, 123 S.Ct. 366, 154 L.Ed.2d 368

CRIED nts besnnsvnsentiinicteliintatnindtiatelsteitaetecsialeehia caine passim

United States v. Borden Co., 308 U.S. 188, 60

S.Ct. 182, 84 L.Ed. 181 (1939) .........cccccscecscoccerssseee 12

Vance v. W. A. Vandercook Co., 170 U.S. 468, 18

S.Ct. 646, 42 L.Ed. 1111 (1SG6)..........ccccsccccseovevecsees 22

STATUTES

Be es SP SIO earcnsva sodtwedassiiitntiobauedidieiinaiasiliiaias passim

BF Ge AEDs EE wincacininscosiniincienuiatvsetcadeoianiecnemianen 23

eae EE sicvacssisiiivccssncstechonsteunenbiibaacscennaal passim

ee Rahs Se ND veieisciicsstantiocnmmtiniriemeemnell 2,17

Bae Sats Ue IE ssicocchadueidevesicaesicinideiidaancidataiameadaan 5, 24

Louisiana Code of Civil Procedure article

____k | A POEM RNID PERRO CN PNT ft passim

MISCELLANEOUS

Uniform Statute & Rule Construction Act

(1995), §10, 14 Uniform Laws Annotated

CEI cniissicdecescihiovesbcsadiasenketeicouescseuamemiubestia Mcmateges. 11

2A Sutherland Statutory Construction § 46:5

CPE FI) osnntsiccessiiniscssiciiicacendgiaaiiaabibedimamaiibadiniiiamhlsinadesiaats 20

Fredman, Plaintiff’s Paradise Lost: Diversity

of Citizenship and Amount in Controversy

Under the Class Action Fairness Act of 2005,

39 Loy. L.A. L. Rev. 1025 (2006)......ccccsscsessceserseeeees 14

vill

TABLE OF AUTHORITIES — Continued

14 B. Wright & A. Miller, Federal Practice &

a Oa cdaptinvensaintéedions 22

1

STATEMENT REGARDING CONSTITUTIONAL

PROVISIONS, TREATIES, STATUTES,

ORDINANCES AND REGULATIONS

INVOLVED IN THE CASE

Respondent takes issue with Petitioners’ state-

ment regarding the laws involved in this matter. The

following laws are pertinent to this matter:

I, 28 U.S.C. § 1441(a):

Except as otherwise expressly provided by Act of

Congress, any civil action brought in a State court of

which the district courts of the United States have

original jurisdiction, may be removed by the defen-

dant or the defendants, to the district court of the

United States for the district and division embracing

the place where such action is pending. For purposes

of removal under this chapter, the citizenship of

defendants sued under fictitious names shall be

disregarded.

II. 28 U.S.C. § 1332(a):

The district courts shall have original jurisdiction of

all civil actions where the matter in controversy

exceeds the sum or value of $75,000, exclusive of

interest and costs, and is between —

(1) citizens of different States;

(2) citizens of a State and citizens or subjects of a

foreign state;

2

(3) citizens of different States and in which citizens

or subjects of a foreign state are additional parties;

and

(4) a foreign state, defined in section 1603(a) of this

title, as plaintiff and citizens of a State or of different

States.

For the purposes of this section, section 1335, and

section 1441, an alien admitted to the United States

for permanent residence shall be deemed a citizen of

the State in which such alien is domiciled.

Til. 28 U.S.C. § 1332(d)(2):

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.

IV. 28 U.S.C. § 1453:

(a) Definitions. — In this section, the terms “class”,

” “

“class action”, “class certification order”, and “class

3

member” shall have the meanings given such terms

under section 1332(d)(1).

(b) Im general. —Aclass action may be removed to

a district court of the United States in accordance

with section 1446 (except that the 1-year limitation

under section 1446(b) shall not apply), without regard

to whether any defendant is a citizen of the State in

which the action is brought, except that such action

may be removed by any defendant without the con-

sent of all defendants.

(c) Review of remand orders. —

(1) Im general. — Section 1447 shall apply to any

removal of a case under this section, except that

notwithstanding section 1447(d), a court of appeals

may accept an appeal from an order of a district court

granting or denying a motion to remand a class action

to the State court from which it was removed if

application is made to the court of appeals not less

than 7 days after entry of the order.

(2) Time period for judgment. — If the court of

appeals accepts an appeal under paragraph (1), the

court shall complete all action on such appeal, includ-

ing rendering judgment, not later than 60 days after

the date on which such appeal was filed, unless an

extension is granted under paragraph (3).

(3) Extension of time period. — The court of

appeals may grant an extension of the 60-day period

described in paragraph (2) if —

4

(A) all parties to the proceeding agree to such

extension, for any period of time; or

(B) such extension is for good cause shown and in

the interests of justice, for a period not to exceed 10

days.

(4) Denial of appeal. — If a final judgment on the

appeal under paragraph (1) is not issued before the

end of the period described in paragraph (2), includ-

ing any extension under paragraph (3), the appeal

shall be denied.

(d) Exception. — This section shall not apply to any

class action that solely involves —

(1) a claim concerning a covered security as defined

under section 16(f3) of the Securities Act of 1933 (15

U.S.C. 77p(fX3)) and section 28(f)(5XE) of the Securi-

ties Exchange Act of 1934 (15 U.S.C. 78bb(f5)(E));

(2) a claim that relates to the internal affairs or

governance of a corporation or other form of business

enterprise and arises under or by virtue of the laws of

the State in which such corporation or business

enterprise is incorporated or organized; or

(3) aclaim that relates to the rights, duties (inclua-

ing fiduciary duties), and obligations relating to or

created by or pursuant to any security (as defined

under section 2(a)(1) of the Securities Act of 1933 (15

U.S.C. 77b(aX(1)) and the regulations issued there-

under).

V. 28 U.S.C. § 1651:

(a) The Supreme Court and all courts estab-

lished by Act of Congress may issue all

writs necessary or appropriate in aid of

their respective jurisdictions and agree-

able to the usages and principles of law.

(b) An alternative writ or rule nisi may be

issued by a justice or judge of a court

which has jurisdiction.

VI. Louisiana Code of Civil Procedure

article 595(A):

A. The court may allow the representative parties

their reasonable expenses of litigation, including

attorney’s fees, when as a result of the class action a

fund is made available, or a recovery or compromise

is had which is beneficial, to the class.

+

STATEMENT REGARDING ORDER

AND REASONS OF DISTRICT COURT

ATTACHED ‘TO PETITIONERS’ APPENDIX

IS INACCURATE AND INCOMPLETE

The Order and Reasons attached as Exhibit A to

Petitioners’ Appendix is not accurate and is incom-

plete. The Order and Reasons attached to the Peti-

tioners’ Appendix contains some language that is not

found in the actual Order and Reasons entered by the

district court. In addition, the Order and Reasons

submitted by Petitioners omitted the three footnotes

which are found in the actual Order and Reasons of

6

the district court. One of those footnotes is critical to

this Court’s determination as it clearly provides that

the district court did not make a determination as to

whether the matter was properly removed under the

alternative basis alleged — 28 U.S.C. § 1332(d)\(2).

Accordingly, in order to present the court with an

accurate reflection of the underlying court’s Order

and Reasons, Respondent has included the district

court’s Order and Reasons in an Appendix attached to

this brief.

&

vv

STATEMENT OF THE CASE

On the evening of October 11, 2006, there was an

equipment failure on a process heat exchanger in the

Ammonia Production Unit at Respondent Mosaic

Fertlizer LLC’s (Mosaic’s) St. James, Louisiana

fertilizer facility. The following day two class action

lawsuits were filed in the 23rd Judicial District Court,

St. James Parish, State of Louisiana arising out of the

incident. Both class actions were removed to the United

States District Court for the Eastern District of Louisi-

ana and were consolidated. In addition, a multi-plaintiff

action was filed. That action was also removed to

federal court. All three matters were consolidated. The

instant action, the second class action filed, is the only

— one in which remand is sought.

The Petitioners herein, all residents of St. James

Parish, Louisiana, allege that they and others simi-

larly situated suffered both personal injury and

7

property damage arising out of a “large explosion” on

October 11, 2006 from Mosaic’s St. James facility.

The Petitioners allege that the proposed class con-

sists of “all persons who or which on October 12, 2006

[sic], were present and/or owned property in the

effected vicinity in St. James Parish and who or

which experienced fear or fright with property dam-

ages and/or minor medical treatment as a result of

the explosion at the Mosaic Fertilizer, LLC, Faustina

Plant.” Petitioners sought relief against Respondent

for “judgment unto plaintiffs for damages, cost,

interest, and attorneys fees as may be allowed by law

under any theory of law as expressly pled herein or as

may be applicable to the facts pled herein or as they

may develop and be presented during the trial of this

matter.”

Respondent removed the case on the grounds

that the district court had subject matter jurisdiction

over the matter under both the traditional diversity

jurisdiction statute, 28 U.S.C. § 1332(a), and under

the additional grant of jurisdiction provided by CAFA

in 28 U.S.C. § 1332(d). The Petitioners then filed a

motion to remand the case to state court.

In its opinion, the district court addressed

whether or not it had traditional diversity jurisdiction

over the matter. Having found that complete diversity

existed, the district court turned to the issue of

whether or not “the amount in controversy for at least

one plaintiff exceeds $75,000.” The district court

stated:

8

It is facially apparent from the petition that

the claim of at least one named plaintiff is

likely to exceed $75,000. Harvey alleges that

she was at home in her trailer when the ex-

plosion occurred. The explosion rocked her

trailer and caused her such fear and surprise

that she required emergency medical treat-

ment for “uncontrolled” blood pressure and

pulse. One of the concrete piers supporting

her trailer is askew. Gauthreaux became

afraid when he heard the explosion, which

caused a large window in his home to break

and other damage. The Alberts were at home

when the explosion occurred. They allege

damage to their home, including a cracked

driveway and cracked living room floor and

personal fear and fright. When awardable

attorney's fees are attributed to Harvey,

Gauthreaux, and the Alberts in calculating

the amount in controversy, any one of their

claims likely exceeds the jurisdictional

threshold. Moreover, the plaintiffs have not

filed stipulations or affidavits of the parties

or counsel that their claims fall below the ju-

risdictional amount.’

' See Order and Reasons of district court (page 3) attached

as Exhibit A to the Respondent’s Appendix. It should be noted

that the Appendix attached to Petitioners’ brief does not include

the actual Order and Reasons of the district court. The Order

and Reasons attached to Petitioners’ Appendix contains lan-

guage that is not found in the actual Order and Reasons entered

by the district court and omits the three footnotes found in the

actual Order and Reasons. Accordingly, this Court should not

rely upon the Order and Reasons attached to Petitioners’ brief.

9

Under the authority of Grant v. Chevron Phillips

Chemical Co. L.P., 309 F.3d 864 (5th Cir. 2002), the

district court properly considered awardable attor-

neys’ fees to the class representatives under Louisi-

ana class action law in its analysis. Id. at 870. After

consideration of the claims of the named class repre-

sentatives, including attributable attorneys’ fees, the

district court concluded that any one of the class

representative’s claims alone exceeded the jurisdic-

tional threshold amount of $75,000.00. Accordingly,

the district court concluded that it had original

jurisdiction over this matter under 28 U.S.C.

§ 1332(a) and therefore the removal was proper under

28 U.S.C. §1441(a). Based upon that finding, the

district court properly denied Petitioners’ motion to

remand. The district court did not address the addi-

tional grant of jurisdiction under 28 U.S.C.

§ 1332(d)(2) (CAFA) since it was satisfied with juris-

diction under traditional diversity, 28 U.S.C.

§ 1332(a).’

Plaintiffs filed a writ of mandamus to the Fifth

Circuit Court of Appeals raising the same issues that

they have raised in their Petition for Certiorari to

this Court. The Fifth Circuit denied the writ without

opinion.

* See Order and Reasons attached as Exhibit A to Respon-

dent’s Appendix, n. 1.

10

ARGUMENT

I. THERE IS NO COMPELLING REASON TO

GRANT THE WRIT OF CERTIORARI.

This case does not involve an important question

of federal law that has not been, but should be, settled

by this Court. Rather, the district court utilized

traditional rules of statutory construction authorized

by this Court to conclude that, based upon the clear

and unambiguous terms found in 28 U.S.C. § 1332(a)

and § 1332(d)(2), original jurisdiction exists over this

matter. Therefore, there was no question that the

removal was proper. Accordingly, in a situation such

as this where the statutory basis upon which the

class action was removed clearly supports the federal

district court’s exercise of jurisdiction over the re-

moved matter, there is no serious question of federal

law which needs to be settled by this Court.

In addition, the lower courts did not decide an

important federal question in a way that conflicts

with any relevant decision of this Court. To the

contrary, in the course of evaluating whether removal

of this matter to federal court was proper, the lower

courts employed the procedure authorized by this

Court for determining whether original subject mat-

ter jurisdiction existed. The lower court’s position is

not in conflict with this Court’s decision in Syngenta

Crop Protection, Inc. v. Henson, 537 U.S. 28, 123 S.Ct.

366, 154 L.Ed.2d 368 (2002). Unlike the district court

in Syngenta, which relied on the All Writs Act as the

sole basis for asserting jurisdiction over the removed

11

action, the district court in this matter relied on the

specific grant of original jurisdiction provided for in

28 U.S.C. § 1332(a) as the basis for asserting jurisdic-

tion over the removed matter. Further, in the course

of determining whether the named class representa-

tives’ claims exceeded the jurisdictional amount

required by 28 U.S.C. § 1332(a), the district court

employed the procedure authorized by this Court — it

looked to state substantive law, including Louisiana

Code of Civil Procedure article 595(A). Accordingly,

the action by the district court is clearly not in con-

flict with Syngenta or any other decision of this

Court. The Writ should therefore be denied.

A. 28 U.S.C. § 1332, as Amended by CAFA,

Does not Limit Removal of State Puta-

tive Class Actions to Those that Meet

the Parameters Set Forth in 28 U.S.C.

§ 1332(d)(2).

(1) Applicable Rules of Statutory Con-

struction

“The text of a statute or rule is the primary,

essential source of its meaning.” Uniform Statute &

Rule Construction Act (1995), § 10, 14 Uniform Laws

Annotated (2005). In construing jurisdictional stat-

utes, this Court has instructed that the statute’s text

should be examined in light of the context, structure,

and related statutory provisions. Exxon Mobil Corp. v.

Allapattah Services, Inc., 545 U.S. 546, 558, 125 S.Ct.

2611, 2620, 162 L.Ed.2d 502 (2005). As recognized by

12

this court, “[t]he meaning — or ambiguity — of certain

words or phrases may only become evident when

placed in context.... It is a ‘fundamental canon of

statutory construction that the words of a statute

must be read in their context and with a view to their

place in the overall statutory scheme.’” National

Ass’n of Home Builders v. Defenders of Wildlife, __

U.S. __, 127 S.Ct. 2518, 2534, _._ LEd2d __

(2007), quoting FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 132-133, 120 S.Ct. 1291, 146

L.Ed.2d 121 (2000); Davis v. Michigan Dept. of Treas-

ury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d

891 (1989).

Further, with regard to two statutory provisions

that address the same situation, this Court has

instructed that: “The courts are not at liberty to pick

and choose among congressional enactments, and

when two statutes are capable of co-existence, it is

the duty of the courts, absent a clearly expressed

congressional intention to the contrary, to regard each

as effective.” Morton v. Mancari, 417 U.S. 535, 551,

94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974). Also,

“[w]Jhen there are two acts upon the same subject, the

rule is to give effect to both if possible.” Jd., citing

United States v. Borden Co., 308 U.S. 188, 198, 60

S.Ct. 182, 188, 84 L.Ed. 181 (1939).

With regard to an amendment, this Court has

instructed that when “Congress amends only one

section of a law, leaving another untouched, the two

were designed to function as parts of an integrated

whole” and the courts “should give each as full a play

13

as possible.” Markham uv. Cabell, 326 U.S. 404, 411,

66 S.Ct. 193, 196, 90 L.Ed. 1969 (1945).

(2) Applying the Above Statutory Con-

struction Rules, It is Clear That

CAFA did not Supplant or Restrict

the Traditional Diversity Jurisdic-

tion Conferred Under 28 U.S.C.

§ 1332(a).

Applying the principles of statutory construction,

it is clear that there is no support for Petitioner’s

position that 28 U.S.C. § 1332(d) provides the exclu-

sive manner by which state court class actions may

be removed to federal court after February 18, 2005.

There is no ambiguity in 28 U.S.C. § 1332, as

amended by CAFA. The provisions of 28 U.S.C.

§ 1332(a) and § 1332(d)(2) do not conflict with one

another and can be read harmoniously to allow for

removal of class actions under either or both subsec-

tions.

The context, structure and related statutes

clearly indicate that the effect of CAFA, in particular

the amendment to 28 U.S.C. § 1332 which added

subsection (d), was to expand the original] jurisdiction

of federal courts to include class actions that fall

within the parameters set forth in 28 U.S.C.

§ 1332(d)(2). The clear language of 28 U.S.C. § 1332,

as amended by CAFA, does not indicate that Con-

gress intended to prevent federal courts from exercising

original jurisdiction over class actions that fall within

the parameters of the traditional diversity jurisdiction

14

provision found in 28 U.S.C. § 1332(a). CAFA simply

does not supplant or restrict the traditional diversity

jurisdiction conferred under 28 U.S.C. § 1332(a).

Rather, 28 U.S.C. § 1332, as amended by CAFA,

provides parties seeking a federal forum “with an

alternative to the traditional diversity-jurisdiction

route.” Fredman, Plaintiff’s Paradise Lost: Diversity

of Citizenship and Amount in Controversy Under the

Class Action Fairness Act of 2005, 39 Loy. L.A. L. Rev.

1025 (2006). After the passage of CAFA, “the tradi-

tional path to diversity jurisdiction remains a viable

option for some class actions.” Jd. at p. 1055.

(a) The Statutory Scheme Does not

Support Petitioner’s Position.

The general statute that governs removal of

cases to federal district courts is found in 28 U.S.C.

§ 1441(a), which provides that “any civil action

brought in a State court of which the district courts of

the United States have original jurisdiction, may be

removed” to federal district court. Accordingly, if the

federal district court has original jurisdiction over the

matter that is to be removed, removal is authorized.

Congress sets forth in 28 U.S.C. § 1332 the situations

where the federal courts will be deemed to have

original jurisdiction. One of these situations is the

traditional diversity jurisdiction set forth in subsec-

tion (a) while the other is the recently added CAFA

diversity jurisdiction set forth in subsection (d)(2).

15

There is absolutely nothing in the language of

subsection (d\2) in 28 U.S.C. § 1332 that indicates

that its provisions preclude a class action from being

removed based on the original jurisdiction provided

for complete diversity in subsection (a). Reading 28

U.S.C. § 1441(a) together with 28 U.S.C. § 1332, it is

clear that, in passing CAFA, Congress intended to,

and in fact did, set forth an additional basis upon

which a federal court is considered to have original

jurisdiction and did not intend to narrow the scope of

subsection (a). As this Court instructed in Markham,

supra at 411, when Congress amends one section of a

law and leaves another untouched, courts should

consider that the two sections “were designed to

function as parts of an integrated whole” and each

section should be given “as full a play as possible.”

Giving subsection (a) and subsection (d)(2) “as full a

play as possible,” a class action which meets the

criteria of subsection 28 U.S.C. §1332(a) may be

removed to federal court based upon the original

jurisdiction provided for in that subsection, even after

CAFA.

The fallacy in Petitioners’ argument is revealed

when one considers the scenario where a class action

does not meet the criteria set forth in 28 U.S.C.

§ 1332(d2) (such as the $5,000,000.00 amount at

controversy threshold) for original jurisdiction to

exist over the class action, but the class action meets

the criteria set forth in 28 U.S.C. § 1332(a) for origi-

nal jurisdiction to exist over the class action. In that

situation, 28 U.S.C. § 1332(d)(2) would clearly not be

16

applicable and there would be no possibility of a

conflict between 28 U.S.C. § 1332(d)(2) and 28 U.S.C.

§ 1332(a). Obviously, if one of the allegedly conflicting

provisions does not even apply to the factual situation

presented, there is no conflict and therefore, the other

provision clearly applies.’

Petitioners have not cited to any language in the

CAFA amendments or in 28 U.S.C. § 1332 that sup-

ports their argument that the only means for removal

of class actions after the effective date of CAFA, is

under 28 U.S.C. § 1332(d\(2). Rather, Petitioners have

simply argued that since there happens to be a new

provision under 28 U.S.C. § 1332 that allows certain

class actions to be removed, that provision is the only

means by which a class action may be removed. This

argument is unfounded.

* Indeed, in this particular case, Petitioners have argued

that the amount in controversy in this matter does not meet the

$5,000,000.00 threshold required by 28 U.S.C. § 1332(dX2). For

the purpose of argument, if Petitioners are correct with regard

to that contention (which is denied), then 28 U.S.C. § 1332(dX2)

is not applicable and for purposes of the case presented to this

Court, there is no conflict between 28 U.S.C. § 1332(dX2) and 28

U.S.C. § 1332(a).

17

(b) 28 U.S.C. § 1453 Does Not Indi-

cate That Class Actions Are

Limited to Removal Under 28

U.S.C. § 13382(d)(2).

Contrary to Petitioner’s contention, 28 U.S.C.

§ 1453 does not contain language that indicates that

removal of a class action is limited to those class

actions that fall within the parameters of 28 U.S.C.

§ 1332(d)(2). First, 28 U.S.C. § 1453 does not author-

ize any removals. Indeed, unlike 28 U.S.C. § 1332, 28

U.S.C. § 1453 does not confer original jurisdiction

over any particular type of action. Rather, this statute

simply sets forth procedural rules to be utilized in

effectuating the removal of “class actions.”

Petitioners incorrectly rely on the reference in 28

U.S.C. § 1453(a) to the definition of the terms “class”

and “class action” found in 28 U.S.C. § 1332(d)(1) in

support of their argument. Other than adopting the

definitions for those terms that are found in 28 U.S.C.

§ 1332(d\1), 28 U.S.C. § 1453 does not depend on 28

U.S.C. § 1332 in any other manner and certainly does

not set forth a mandate regarding when a federal

court will have jurisdiction over class actions. Accord-

ingly, this statute does not support Petitioners’ posi-

tion.

18

(c) The Word “Shall” in 28 U.S.C.

§ 1832(d)(2) does not Indicate

That Class Actions are Limited

to Removal Under 28 U.S.C.

§ 1332(d)(2).

Petitioners also argue that Congress’ use of the

mandatory word “shall” in 28 U.S.C. § 1332(d)\(2)

indicates that the district court was limited to apply-

ing that section for removal of this action. Petitioners

overlook the fact that the term “shall” is also found in

28 U.S.C. § 1332(a). Reading each of these subsec-

tions together, it is clear that Congress used the term

“shall” in both subsections to indicate that there can

be no question that a district court has original

jurisdiction over any matter that falls within the

parameters set forth in each of those subsections. The

language of these subsections does not indicate that

Congress intended to limit removal of class actions to

those that fit within the parameters of 1332(d)(2).

(d) The Historical and Statutory

Notes are Irrelevant.

Petitioners incorrectly refer the Court to portions

of the Historical and Statutory Notes regarding the

enactment of CAFA. As this Court recognized in

Exxon Mobil Corp. v. Allapattah Services, Inc., 545

U.S. 546, 558, 125 S.Ct. 2611, 2620, 162 L.Ed.2d 502

(2005), if the language in the statute at issue is

unambiguous, a court cannot rely on extraneous

matters to “adopt an artificial construction that is

narrower than what the text provides.” 545 U.S. at

19

558. Petitioners have not established that the statu-

tory provisions at issue are ambiguous. Therefore,

Petitioners’ reliance upon this extraneous matter is

clearly inappropriate.

In the alternative, even if the extraneous matter

cited by Petitioners could be considered (which is

denied), there is nothing in the notes cited by Peti-

tioners that supports their position that Congress

intended for the CAFA amendment to 28 U.S.C.

§ 1332, which added subsection (d), to provide the

exclusive manner for removing class actions filed on

or after that date. Further, the legislative history of

CAFA is replete with statements that CAFA was

intended to expand federal jurisdiction, not contract

~~

(e) “The Specific Prevails over

the General” Rule Relied on

by Plaintiffs is not Applicable

Where There is no Irreconcil-

able Conflict.

Petitioners have incorrectly applied the “funda-

mental rule of statutory interpretation” — that “the

specific supersedes the general”. Petitioners have

omitted a critical element that must exist before that

rule comes into play. This rule of statutory interpreta-

tion provides: “Where there is inescapable conflict

“ See, e.g., S. Rep. No. 109-14, 2005 U.S.C.C.A.N. 3, 41,

2005 WL 627977.

20

between general and specific terms or provisions of a

statute, the specific will prevail.” 2A Sutherland

Statutory Construction § 46:5 (7th Ed.). Accordingly,

before the specific will be found to supersede the

general, there must be a finding that a conflict exists

between the two provisions at issue and that conflict

must be one that is considered to be irreconcilable.

As noted above, there is no conflict between 28

U.S.C. §1332(a) and 28 U.S.C. § 1332(d2), much

less an irreconcilable one. Utilizing the rules of

statutory interpretation adopted by this Court, the

two subsections at issue can be read in harmony to

allow for removal of class actions based on either the

traditional diversity jurisdiction provision found in

subsection (a) or based on the CAFA diversity juris-

diction provision found in subsection (d)(2).

Indeed, this Court recognized in Allapattah that

CAFA did not eliminate the use of 28 U.S.C. § 1332(a)

as a basis for removing a class action to federal court.

In the context of discussing supplemental jurisdiction

under 28 U.S.C. § 1367, this Court recognized that even

after the passage of CAFA, there could be class actions

that do not fall within CAFA’s ambit that could be

removed to federal court. 545 U.S. at 571-572.

B. The District Court Based its Finding

of Original Jurisdiction on 28 U.S.C.

§ 1332(a) and not on a State Law.

Contrary to Petitioners’ argument, the district court

did not find that Louisiana Code of Civil Procedure

21

article 595(A) created federal subject matter jurisdic-

tion over this matter. Rather, in the course of determin-

ing the amount in controversy as to the named class

representatives’ claims, the district court appropriately

looked to Louisiana substantive law and considered the

attorneys fees that were recoverable by the named class

representatives under Louisiana Code of Civil Proce-

dure article 595(A). The district court’s ruling is consis-

tent with principles established by this Court.

(1) Federal Courts Must Apply the Fo-

rum State’s Rules Regarding the

Applicable Measure of Damages,

Including Special and Punitive

Damages.

Under Erie Railroad Co. v. Tompkins, 304 U.S.

64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), Louisiana law

will provide the rule of decision in this case, so it was

entirely appropriate for the district court to look to

Louisiana law in determining the amount in contro-

versy for the named class representatives’ claims.

Further, this Court has instructed that while the

determination of the value of the matter in controversy

for purposes of establishing federal jurisdiction is a

federal question to be decided under federal standards,

“the federal courts must, of course, look to state law to

determine the nature and the extent of the right to be

enforced in a diversity case.” Horton v. Liberty Mut.

Ins. Co., 367 U.S. 348, 352-353, 81 S.Ct. 1570, 1573, 6

L.Ed.2d 890 (1961). “This includes applying the

forum state’s rules regarding the applicable measure

22

of damages and the availability of special and puni-

tive damages.” 14 B. Wright & A. Miller, Federal

Practice & Procedure § 3702 citing, Vance v. W.A.

Vandercook Co., 170 U.S. 468, 472, 18 S.Ct. 645, 647,

42 L.Ed. 1111 (U.S. 1898).

The district court clearly did not err in consider-

ing the attorneys fees that were recoverable by the

named class representatives under Louisiana Code of

Civil Procedure article 595(A) in the course of deter-

mining whether the amount in controversy require-

ment of 28 U.S.C. § 1332(a) had been satisfied.

(2) The District Court’s Ruling is Con-

sistent with this Court’s Allapat-

tah Opinion.

The district court’s approach is also consistent

with this Court’s ruling in Allapattah, supra, as well

as the United States Court of Appeals for the Fifth

Circuit’s ruling in Grant v. Chevron Phillips Chemical

Co. L.P., 309 F.3d 864 (5th Cir. 2002), cert. denied, 538

U.S. 945, 123 S.Ct. 1634, 155 L.Ed.2d 486 (2003).° In

* Grant involved a class action lawsuit filed under Louisi-

ana law seeking tort damages resulting from an industrial

accident at a chemical plant. The case was removed on the basis

of diversity of citizenship jurisdiction, and remand was denied

after the court found that the Louisiana class action attorney’s

fee statute allowed attorney’s fees to be awarded and mandated

that, if awarded, they must be attributed to the named class

representative’s claim.

23

Allapattah, supra, this Court held that the supple-

mental jurisdiction statute, 28 U.S.C. § 1367, allows a

district court to exercise supplemental jurisdiction

over the claims of class members who do not meet the

minimum amount in controversy as long as the district

court has jurisdiction over the claims of at least one of

the class representatives. In Grant, the Fitth Circuit,

applying this same principle, held that “when there is

state statutory authority for the court to award attor-

ney’s fees to class representatives, ‘either with manda-

tory or discretionary language, such fees may be

included in the amount in controversy.” Grant, 309

F.3d at 874, quoting Galt G/S v. JSS Scandinavia,

142 F.3d 1150, 1156 (9th Cir. 1998). The Grant court

concluded that Louisiana Code of Civil Procedure

article 595(A) provides the statutory authority for a

court to award attorney’s fees to the named class

representative. Id. at 876. Therefore, in determining

the amount in controversy for the named class repre-

sentatives’ claims, it is proper to consider the attor-

neys fees that the named class representatives would

have aright to recover as a result of article 595(A).

* Grant was decided before this Court’s ruling in Allapat-

tah, but the Fifth Circuit in Grant, relied upon principles that

were first expressed by the Fifth Circuit in Jn re: Abbott Labora-

tories, 51 F.3d 524 (5th Cir. 1995). This Court’s rationale in

Allapattah, supra, is consistent with the rationale of Abbott.

24

(3) The District Court’s Ruling is Also

Consistent with Syngenta.

Petitioners’ lengthy discussion of Syngenta Crop

Protection, Inc. v. Henson, 537 U.S. 28, 123 S.Ct. 366,

154 L.Ed.2d 368 (2002) misses the mark. The case

here has nothing to do with the All Writs Act, 28

U.S.C. § 1651, and, unlike the district court in Syn-

genta, the district court in this case did not look

beyond the diversity jurisdiction statute, 28 U.S.C.

§ 1332, to find subject matter jurisdiction. As Peti-

tioners note in their brief at p. 12, Syngenta, recog-

nized that, based upon the plain terms of 28 U.S.C.

§ 1441(a), in order properly to remove an action

pursuant to § 1441(a), “petitioners must demonstrate

that original subject-matter jurisdiction lies in the

federal courts.” 537 U.S. 28, 33, 123 S.Ct. 366, 370. In

Syngenta, the removing parties failed to rely on a

specific statutory grant of original jurisdiction. Pre-

sumably because the removing parties in Syngenta

could not establish that the claims fell within the

grant of original jurisdiction found in 28 U.S.C.

§ 1332 for diversity cases, they attempted to use the

All Writs Act, found in 28 U.S.C. § 1651, as a basis for

establishing original jurisdiction for purposes of

removal under 28 U.S.C. § 1441(a). The problem with

that was that there is no specific language in the All

Writs Act that creates original jurisdiction over a

matter. In contrast, Respondents in this matter relied

upon a clear and specific grant of original jurisdiction

over the claims at issue in 28 U.S.C. § 1332(a) as the

basis for establishing that removal of this matter

25

under 28 U.S.C. § 1441(a) was proper. Accordingly,

Petitioners’ reliance on Syngenta is misplaced.

(4) The District Court Properly Looked

to Louisiana Law in Determining

the Amount in Controversy.

Utilizing the procedure established by this Court

in Erie, supra, Horton, supra, and Allapattah, supra,

and by the Fifth Circuit in Grant, the district court in

this matter properly looked to Louisiana law to

evaluate whether one of the requirements of

§ 1332(a), the amount in controversy, was satisfied as

to the named class representatives’ claims. The

district court’s ruling here is, for all salient purposes,

the same as the Fifth Circuit’s ruling in Grant, supra.

This Court denied the application for a writ of certio-

rari in Grant, supra, and there is no reason here to do

differently.

Petitioners are incorrect in taking the position

that Louisiana Code of Civil Procedure article 595(A)

is procedural and that the Fifth Circuit’s decision in

Grant, supra, is in conflict with Syngenta, supra. The

Fifth Circuit’s holding in Grant, supra, does not vest

the Louisiana Legislature with the authority under

the United States Constitution to enact procedural

statutes that vest federal courts with original subject

matter jurisdiction. As stated above, Grant, supra,

simply recognized that, in determining the amount in:

controversy for the named class representatives’

claims, it was proper for the district court to consider

26

the attorneys fees that the named class representa-

tives would have a right to recover under Louisiana

law. That right is statutorily found in Louisiana Code

of Civil Procedure article 595(A). The Fifth Circuit

correctly rejected any argument that this right to

attorneys fees was procedural in nature because it

happens to be found in the Louisiana Code of Civil

Procedure. The Fifth Circuit looked to the nature of

the right and held: “[DJespite its location in the

LCCP, art. 595(A) is obviously substantive on its

face, specifying entitlement to costs and fees, not

when or how to plead them, whether a motion is

required, or the like.” Jd. at 875, n.37 (emphasis

added); see also, Abbott, supra. Accordingly, as a

substantive right under Louisiana law, the district

court, sitting in diversity, was bound to apply that

law. Erie, supra.

Grant is not in conflict with Syngenta. Grant did

not expand the scope of original jurisdiction by au-

thorizing state legislatures to create federal subject

matter jurisdiction. Grant simply applied longstand-

ing federal jurisprudence in finding that Louisiana

Code of Civil Procedure article 595(A) is indeed a

substantive statute and applied that statute to deter-

mine the amount in controversy for purposes of estab-

lishing original jurisdiction under 28 U.S.C. § 1332(a).

Contrary to Petitioner’s position, the district court in

Grant, as well as the district court in this matter, did

not rely on a state statute to create original jurisdiction

in the federal courts. Rather, the district courts relied

on the grant of original jurisdiction provided for in 28

27

U.S.C. § 1332(a) “he court’s reference to Louisiana

code of Civil Pro ure article 595(A) was simply for

the purpose of determining the amount in contro-

versy. Accordingly, the Fifth Circuit’s decision in

Grant and the district court’s decision in this matter,

are not in conflict with Syngenta and are in accord

with the jurisprudence of this Court.

C. Im the Alternative, if this Court Con-

cludes that Removal of a Class Action

is not Proper Under 28 U.S.C.

§ 1332(a), this Court Should Remand to

the District Court for a Determination

of Whether Removal was Proper Un-

der 28 U.S.C. § 13832(d)(2).

Finally, in the alternative, if this Court should

find that the only basis upon which a state class

action, such as the one at issue, may be removed after

CAFA is on the basis provided for in 28 U.S.C.

§ 1332(d\(2) (which is denied), this matter should be

remanded to the district court for a determination of

whether removal was proper under 28 U.S.C.

§ 1332(d)(2). See Supreme Court Rule 10. This matter

was removed to federal court based upon both 28

U.S.C. §1332(a) and 28 U.S.C. § 1332(d)(2)." In

footnote 1 of the district court’s Order and Reasons,

the court states: “The court does not address Mosaic’s

alternative basis of jurisdiction under the Class

” See Respondent’s Notice of Removal attached as Exhibit B

to Petitioners’ Appendix.

28

Action Fairness Act (CAFA), 28 U.S.C. § 1332(d).”

Accordingly, while there is ample support in the

Petitioner’s complaint, in the record, and in the

relevant jurisprudence to support a finding that the

aggregate of the class members’ claims exceeds

$5,000,000.00, the district court did not make a

determination with regard to that basis for removal.

Therefore, in the event that this Court should con-

clude that, under CAFA, the exclusive means for

removing state class actions is under 28 U.S.C.

§ 1332(d)(2) (which is denied), this Court should

remand the matter to the district court for a determi-

nation of whether the removal was proper under that

provision.

CONCLUSION

The Petitioners have not established a compel-

ling reason for this Court to grant a writ of certiorari

in this matter. The underlying decisions of the district

court and the Fifth Circuit do not raise an important

* See Order and Reasons of district court (page 2, note 1)

attached as Exhibit A to the Respondent’s Appendix. It should be

noted that the Appendix attached to Petitioners’ brief does not

include the actual Order and Reasons of the district court. The

Order and Reasons attached to Petitioners’ Appendix contains

language that is not found in the actual Order and Reasons

entered by the district court and omits the three footnotes found

in the actual Order and Reasons. Accordingly, this Court should

not rely upon the Order and Reasons attached to Petitioners’

brief.

29

question of federal law that needs to be settled by this

Court. The district court properly utilized the tradi-

tional rules of statutory construction adopted by this

Court and interpreted the jurisdictional provisions

found in 28 U.S.C. § 1332(a) and § 1332(d)(2). Those

provisions are not ambiguous, are not in conflict with

each other, and can be read harmoniously to allow for

removal of class actions under either the complete

diversity provision found in 28 U.S.C. § 1332(a) or

under the CAFA diversity jurisdiction provision found

in 28 U.S.C. § 1332(d)(2). Accordingly, a writ of certio-

rari is not warranted.

Petitioners also have not established that the

position taken by the district court is in conflict with

any decision of this Court. The district court properly

relied on the specific grant of original jurisdiction

provided for in 28 U.S.C. § 1332(a) as the basis for

asserting jurisdiction over the removed matter. In the

course of determining whether the named class

representative’s claim exceeded the jurisdictional

amount required by 28 U.S.C. § 1332(a), the district

court employed the procedure authorized by this

Court. It looked to state substantive law, including

Louisiana Code of Civil Procedure article 595(A).

Such action is clearly in accord with this Court’s prior

decisions. Accordingly, there is no compelling reason

to grant the writ of certiorari in this matter.

Finally, in the alternative, if this Court should

find that the only basis upon which a state class

action, such as the one at issue, may be removed after

CAFA is on the basis provided for in 28 U.S.C.

30

§ 1332(d)(2) (which is denied), this matter should be

remanded to the district court for a determination of

whether the matter was properly removed under 28

U.S.C. § 1332(d)(2). While there is ample support in the

Petitioner’s complaint, in the record, and in the relevant

jurisprudence to support a finding that the aggregate of

the class members’ claims exceeds $5,000,000.00, the

district court did not make a determination with regard to

that basis for removal. Accordingly, in the alternative, this

Court should remand the matter to the district court for

a determination of whether the removal was proper

under that provision.

The Petition for Writ of Certiorari should be denied.

CHARLES S. McCowan, JR. (#9167)

Counsel of Record for Respondent,

Mosaic Fertilizer LLC

KEAN, MILLER, HAWTHORNE, D’ARMOND,

McCowan & JARMAN, L.L.P.

P. O. Box 3513

Baton Rouge, LA 70821

225.387.0999

BRADLEY C. MYERS (#1499)

LANA D. CrumP (#23707)

MarK A. MARIONNEAUX (#21743)

SHANNAN SWEENEY RIEGER (#17165)

KEAN, MILLER, HAWTHORNE,

D’ARMOND, McCowan & JARMAN, L.L.P.

P. O. Box 3513

Baton Rouge, LA 70821

225.387.0999

Additional Counsel for Respondent,

Mosaic Fertilizer LLC

App. 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

FLORENCE HARVEY ETAL. CIVIL ACTION

VERSUS NO: 06-9510

MOSAIC FERTILIZER, L.L.C. SECTION: “S” (5)

ORDER AND REASONS

IT IS HEREBY ORDERED that the motion to

remand of Florence Harvey, Ulysses Gauthreaux, and

Lionel and Ernestine AJbert is DENIED. (Document

#7.)

I. BACKGROUND

Florence Harvey, Ulysses Gauthreaux, and

Lionel and Ernestine Albert filed a “Class Action

Petition for Damages” in the 23rd Judicial District

Court for the Parish of St. James, State of Louisiana,

against Mosaic Fertilizer, L.L.C. a/k/a Mosaic

Faustina Fertilizer Plant (Mosaic or Faustina), on

behalf of themselves and others similarly situated in

sustaining damage as a result of an explosion and

release of hazardous substances from the Mosaic

facility in St. James Parish. On October 11, 2006,

workers at the Faustina facility were processing

product when hydrogen gas leaked and ignited. The

plaintiffs allege a claim of negligence for the acts of

others, pursuant to La. Civil Code art. 2317.

Mosaic, a Delaware corporation with its principal

place of business in Florida, removed the case to

App. 2

federal court, asserting diversity jurisdiction.’ The

plaintiffs filed a motion to remand the case to state

court.

II. DISCUSSION

Mosaic contends that the amount in controversy

for at least one plaintiff exceeds $75,000.”

Motions to remand to state court are governed by

28 U.S.C. § 1447(c), which provides in relevant part:

“If at any time before the final judgment it appears

that the district court lacks subject matter jurisdic-

tion, the case shall be remanded.” “District courts

have original jurisdiction over civil actions where the

amount in controversy exceeds $75,000, and there is

diversity between all parties.” Luckett v. Delta Air-

lines, Inc., 171 F.3d 295, 298 (5th Cir. 1999). Under

Louisiana law, a plaintiff is prohibited, except in

circumstances not relevant here, from alleging a

specific dollar amount of damages. Grant v. Chevron

Phillips Chemical Co., L.P., 309 F.3d 864, 868 (5th

Cir. 2002). However, the plaintiff may recover an

award in damages more than he demands. Id. at 869.

In such situations, the removing defendant must

prove by a preponderance of the evidence that the

' The court does not address Mosaic’s alternative basis of

jurisdiction under the Class Action Fairness Act (CAFA), 28

U.S.C. § 1332(d).

* The plaintiffs do not argue that diversity of citizenship is

lacking.

App. 3

amount in controversy exceeds $75,000. Id. at 868.

“The removing party may satisfy this burden in

either of two ways: “(1) by demonstrating that it is

‘facially apparent’ from the petition that the claim

likely exceeds $75,000 or (2) by setting forth the facts

in controversy — preferably in th: removal petition,

but sometimes by affidavit — that support a finding of

the requisite amount.” Jd.

In Louisiana cases, “the federal district court’s

jurisdictional-amount calculus must include attor-

neys fees when an applicable Louisiana statute

allows the award of such fees. Jd. All awardable

attorney’s fees in a class action’ are attributed to the

class representatives to the exclusion of other mem-

bers of the class. Jd. at 870-71. “[CJalculation of the

anticipated recovery of the class representatives — the

only one that matters for purposes of § 1332 — must

include those potential attorney’s fees in addition to

damages.” Id. at 873.

It is facially apparent from the petition that the

claim of at least one named plaintiff is likely to

exceed $75,000. Harvey alleges that she was at home

in her trailer when the explosion occurred. The explo-

sion rocked her trailer and caused her such fear and

* La. Code Civ. Proc. art 595(a) provides:

The court may allow the representative parties their

reasonable expenses of litigation, including attorney’s

fees, when as a result of the class action a fund is

made available, or a recovery or compromise is had

which is beneficial, to the class.

App. 4

surprise that she required emergency medical treat-

ment for “uncontrolled” blood pressure and pulse.

One of the concrete piers supporting her trailer is

askew. Gauthreaux became afraid when he heard the

explosion, which caused a large window in his home

to break and other damage. The Alberts were at home

when the explosion occurred. They allege damage to

their home, including a cracked driveway and cracked

living room floor, and personal fear and fright. When

awardable attorney’s fees are attributed to Harvey,

Gauthreaux, and the Alberts in calculating the

amount in controversy, any one of their claims likely

exceeds the jurisdictional threshold. Moreover, the

plaintiffs have not filed stipulations or affidavits of

the parties or counsel that their claims fall below the

jurisdictional amount.

Accordingly, there is diversity jurisdiction, and

the motion to remand is denied.

New Orleans, Louisiana,

this 19th day of March, 2007.

/s/ Mary Ann Vial Lemmon

MARY ANN VIAL LEMMON

UNITED STATES DISTRICT JUDGE