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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1387%3A3. Public record. Not legal advice.