Case: 15-30920 Document: 00513326132 Page: 1 Date Filed: 12/31/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 31, 2015
No. 15-30920
Lyle W. Cayce
Clerk
JOSEPH ROBERTSON; LARRY HANKTON; SHARVONNE JOHNSON;
TOMMIE JONES; WENSANNER KING; ET AL,
Plaintiffs - Appellees
v.
EXXON MOBIL CORPORATION; MOBIL EXPLORATION AND
PRODUCING US, INCORPORATED; JOSEPH F. GREFER; CAMILLE
GREFER,
Defendants - Appellants
CHEVRON USA, INCORPORATED, individually and as the successor
corporation of Gulf Oil Exploration; Production, Company; BP
EXPLORATION; OIL, INCORPORATED, and/or BP Products North
America, Inc. and/or Amoco Oil Company; CONOCOPHILLIPS COMPANY;
ANADARKO U.S. OFFSHORE CORPORATION, formerly known as Kerr-
McGee Oil and Gas Corporation, formerly known as Kerr-McGee
Corporation; MARATHON OIL COMPANY; SEXTON OIL; MINERAL
CORPORATION; SHELL OFFSHORE, INCORPORATED; SHELL OIL
COMPANY; SWEPI, L.P., individually and as successor to Shell Western
E;P, Inc.; INTRACOASTAL TUBULAR SERVICES, INCORPORATED,
individually and as the successor corporation to Intracoastal Truck Linke,
Inc., Intracoastal Pipe Repair and Supply, Co., and Intracoastal Terminal,
Inc.; ALPHA TECHNICAL SERVICES, INCORPORATED; OFS,
INCORPORATED, individually and as the successor corporation to Oil Field
Sales and Service, Inc.; OILFIELD TESTERS, INCORPORATED,
individually and as successor to The Coupling House, Inc.; RATHBORNE
COMPANIES, L.L.C.; RATHBORNE LAND COMPANY, L.L.C.;
RATHBORNE PROPERTIES, L.L.C.; TUBULAR CORPORATION; JOHN
GANDY, INCORPORATED; EXCHANGE OIL; GAS CORPORATION;
AMOCO PRODUCTION COMPANY; AREO OIL AND GAS COMPANY; L B
FOSTER COMPANY; 51 OIL COMPANY; CERTAIN UNDERWRITERS AT
LLOYD'S, LONDON AND CERTAIN LONDON MARKET INSURANCE
Case: 15-30920 Document: 00513326132 Page: 2 Date Filed: 12/31/2015
No. 15-30920
COMPANIES; ROSE MARIE GREFER HAASE; HENRY GREFER;
RIVERSTONE INSURANCE, LIMITED, as successor in interest to certain
business of Sphere Drake; incorrectly identified as Sphere Drake Insurance,
Limited Insurance Limited, formerly known as Sphere Drake Insurance PLC;
TEXACO, INCORPORATED, Incorrectly identified as predecessor to the
Texas Company,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
This lawsuit alleging personal and property damages stemming from oil
pipe-cleaning operations was filed in Louisiana state court and removed to
federal court under the Class Action Fairness Act, 28 U.S.C. § 1332(d) (CAFA).
The district court allowed jurisdictional discovery and then ordered the case
remanded to state court on the ground that Defendants had not met their
burden of showing that at least one plaintiff satisfies the individual amount-
in-controversy requirement that CAFA applies to so-called “mass actions.”
Holding that Defendants did make that showing, we reverse.
I. FACTS AND PROCEEDINGS
Plaintiffs are 189 natural persons who live, work, or own real property
in a certain part of Harvey, Louisiana, or formerly did so. They allege that the
nearby cleaning of pipes used in the oil industry produced harmful radioactive
material that injured their health and property. Defendants are several oil
companies, contractors that cleaned pipes for those oil companies, and the
owners of property on which the pipe cleaning took place.
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Plaintiffs contend that the relevant pipe-cleaning operations began in
1958 and operated continuously through 1992. According to Plaintiffs, the
dirty pipes were covered with “pipe scale” that accumulates during drilling and
production operations and contains radioactive and otherwise hazardous
compounds known to present serious health risks. When the pipe-contractor
defendants removed that pipe scale, Plaintiffs submit, they produced
radioactive dust that became airborne and settled onto the Plaintiffs’
properties, where some of it was absorbed into the ground or surface water.
Plaintiffs allege that some of this material remains on their property despite
remediation efforts, and will continue to emit harmful radiation for thousands
of years. Plaintiffs contend that Defendants long knew or should have known
of these hazards, but that Plaintiffs were not on notice of them until 2001,
when landowner-defendants the Grefers posted a warning sign. Plaintiffs seek
compensation for a wide variety of harms—including physical injuries,
contracted diseases, medical expenses, lost wages, emotional distress, and
property damage and diminution of value—as well as punitive damages and
restitution of part of a nine-figure verdict awarded to the Grefers in a previous
lawsuit.
After Plaintiffs filed this lawsuit, Defendants removed it to federal court,
claiming that it is a removable “mass action” under CAFA. Plaintiffs then filed
a motion to remand, arguing that Defendants had not met their burden of
proving CAFA’s basic jurisdictional requirements and that, in the alternative,
three exclusions or exceptions to CAFA jurisdiction applied. The district court
granted that motion, concluding that neither Plaintiffs’ complaint nor
Defendants’ evidence shows that any plaintiff’s claim satisfies CAFA’s $75,000
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individual amount-in-controversy requirement. We granted Defendants’
petition for permission to appeal pursuant to 28 U.S.C. § 1453. 1
II. STANDARD OF REVIEW
This court reviews de novo a district court’s order remanding to state
court a lawsuit that had been removed under CAFA. Admiral Ins. Co. v.
Abshire, 574 F.3d 267, 272 (5th Cir. 2009); see also Manguno v. Prudential
Prop. & Cas. Ins. Co., 276 F.3d 720, 722 (5th Cir. 2002).
III. DISCUSSION
A.
CAFA expanded federal district courts’ original jurisdiction to include
“‘class actions’ and ‘mass actions’” in which there is minimal diversity and the
aggregate amount in controversy exceeds $5 million. Mississippi ex rel. Hood
v. AU Optronics Corp., 134 S. Ct. 736, 739–40 (2014). A mass action—the
category that occupies us here—is “any civil action . . . in which monetary relief
claims of 100 or more persons are proposed to be tried jointly on the ground
that the plaintiffs’ claims involve common questions of law or fact, except that
jurisdiction shall exist only over those plaintiffs whose claims in a mass action
satisfy the jurisdictional amount requirements under subsection (a).” 28
U.S.C. § 1332(d)(11)(B)(i). That subsection (a), in turn, limits diversity
jurisdiction to “civil actions where the matter in controversy exceeds the sum
or value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a).
Because the party seeking removal bears the burden of establishing federal
jurisdiction, we have held that a putative mass action removed under CAFA
must be remanded if the defendants cannot establish that (1) the aggregate
1 Discretionary appeals under CAFA generally must be decided within sixty days of
the order granting leave to appeal. 28 U.S.C. § 1453(c)(2); Patterson v. Dean Morris, L.L.P.,
444 F.3d 365, 368–70 (5th Cir. 2006). The parties in this case agreed to extend this statutory
period, as permitted by 28 U.S.C. § 1453(c)(3)(A).
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amount in controversy exceeds $5 million and (2) at least one plaintiff’s claim
satisfies the $75,000 individual amount in controversy. Hood ex rel.
Mississippi v. JP Morgan Chase & Co., 737 F.3d 78, 85–86 (5th Cir. 2013). 2
The district court held that Defendants had not met their burden of showing
the individual amount in controversy as to any plaintiff, and did not address
the aggregate requirement.
Plaintiffs’ state-court complaint alleges no amount in controversy—
indeed, Louisiana law prohibits it. See Perritt v. Westlake Vinyls Co., 562 F.
App’x 228, 231 (5th Cir. 2014). Defendants alleged satisfaction of the
aggregate and individual jurisdictional amounts in their notice of removal, but
Plaintiffs contested those allegations by filing a motion to remand. In such a
case, the court must decide by a preponderance of the evidence whether the
relevant amount in controversy is met. Dart Cherokee Basin Operating Co. v.
Owens, 135 S. Ct. 547, 553–54 (2014) (citing 28 U.S.C. § 1446(c)(2)(B)). A
removing defendant can meet its burden of demonstrating the amount in
controversy by showing that the amount is “facially apparent” from the
plaintiffs’ pleadings alone, or by submitting summary-judgment-type evidence.
2 We have previously left open the question of whether—because federal jurisdiction
“exist[s] only over those plaintiffs whose claims in a mass action satisfy the [individual]
jurisdictional amount requirements,” 28 U.S.C. § 1332(d)(11)(B)(i)—the party asserting
federal jurisdiction must show at removal that at least 100 plaintiffs seek more than $75,000.
See JP Morgan Chase, 737 F.3d at 86 n.4 (“Our court has not yet addressed whether at least
100, or only one of the plaintiffs must satisfy the individual amount in controversy
requirement . . . . As none of the plaintiffs here satisfies this requirement, we need not resolve
the issue . . . today.”). The Eleventh Circuit has rejected the view, not yet embraced by any
circuit, that CAFA imposes a threshold removability requirement that at least 100 plaintiffs
satisfy the individual jurisdictional amount. Lowery v. Alabama Power Co., 483 F.3d 1184,
1203–07 (11th Cir. 2007). That court chiefly reasoned that such a construction would negate
the $5 million aggregate amount-in-controversy requirement by making the aggregate
requirement variable, but always greater than $7.5 million. Id. at 1204–05. We have no
reason to question the Eleventh Circuit’s sound reasoning here because the district court
decided only that Defendants had not shown that any plaintiff’s claim exceeds $75,000 and
Plaintiffs have not briefed any argument for a greater threshold requirement.
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Manguno, 276 F.3d at 723; see also Perritt, 562 F. App’x at 231. The required
“demonstration concerns what the plaintiff is claiming (and thus the amount
in controversy between the parties), not whether the plaintiff is likely to win
or be awarded everything he seeks.” Berniard v. Dow Chem. Co., 481 F. App’x
859, 862 (5th Cir. 2010) (quoting Spivey v. Vertrue, Inc., 528 F.3d 982, 986 (7th
Cir. 2008)).
Contrary to Plaintiffs’ argument, that the removing party bears the
burden of proving the amount in controversy does not mean that the removing
party cannot ask the court to make common-sense inferences about the amount
put at stake by the injuries the plaintiffs claim. In De Aguilar v. Boeing Co.,
for example, we found it facially apparent that claims for “wrongful death,
terror in anticipation of death, loss of companionship, and funeral expenses”
exceeded $50,000 per plaintiff (the individual amount in controversy for
diversity jurisdiction at that time), even though the complaint did not specify
an amount of damages and the plaintiffs’ attorney had submitted an affidavit
stating that no plaintiff’s damages exceeded $49,000. 11 F.3d 55, 57 (5th Cir.
1993). And in Allen v. R&H Oil & Gas Co., we held that a complaint supported
federal jurisdiction because “[a] court, in applying only common sense, would
find that” hundreds of plaintiffs who sought punitive damages for “a wide
variety of harm allegedly caused by wanton and reckless conduct” would collect
more than $50,000 if they were successful. 63 F.3d 1326, 1336 (5th Cir. 1995).
With this in mind, we turn to Defendants’ showing here.
Whether or not the amount in controversy is facially apparent from
Plaintiffs’ complaint, Defendants submitted evidence that satisfies their
burden of showing that at least one plaintiff’s claim exceeds $75,000.
Defendants filed in opposition to the motion to remand Plaintiffs’ interrogatory
responses—which constitute summary-judgment-type evidence. See Fed. R.
Civ. P. 56(c)(1)(A) (stating that summary judgment can be supported or
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opposed by citing to “materials in the record, including . . . interrogatory
answers”). In response to one interrogatory, Plaintiffs produced a chart
detailing each individual plaintiff’s claimed damages. Plaintiffs assert that
Defendants’ conduct has caused them to suffer a wide variety of specific harms,
some of which, common sense dictates, place more than $75,000 at stake: for
example, (1) Eddie Ashley claims that she has suffered, among other harms,
emphysema and the wrongful death of her husband from lung cancer; and (2)
Tommie Jones avers that he developed prostate cancer and a host of other
ailments. We hold that it is more likely than not that these plaintiffs seek to
recover more than $75,000. Indeed, Plaintiffs’ counsel acknowledged at oral
argument that for the plaintiffs who contracted cancer, he would be “asking
[the] jury, come trial, for a whole lot more than $75,000.” 3 For these reasons,
the district court erred when it ordered this case remanded on the ground that
no plaintiff satisfies the individual amount-in-controversy requirement. 4
3 We also note that Louisiana appellate courts have affirmed jury verdicts much larger
than $75,000 to pipeyard workers who claimed damages from exposure to the same type of
radioactive materials. See generally Oleskowicz v. Exxon Mobil Corp., 129 So. 3d 1272 (La.
Ct. App. 2013) (affirming award of $680,000 in comparative-fault-adjusted compensatory
damages to a single plaintiff who contracted prostate cancer), rev’d in part on other grounds,
156 So. 3d 645 (La. 2014); Lester v. Exxon Mobile Corp., 120 So. 3d 767 (La. Ct. App. 2013)
(affirming damages awards ranging from $100,000 to $1.1 million to plaintiffs who alleged
fear and increased risk of, but not actual diagnoses of, cancer). We may “look to similar cases
to assist in determining the amount in controversy.” Atkins v. Ferro Corp., 314 F. App’x 662,
663 (5th Cir. 2009) (citing Marcel v. Pool Co., 5 F.3d 81, 82–83 (5th Cir. 1993)).
4 The district court described Plaintiffs’ interrogatory responses as a “laundry list of
damages” too conclusory to prove that any claim exceeded the jurisdictional amount. It relied
on a district court case in which the defendant submitted no evidence, but instead rested on
the plaintiff’s allegations that, when beaten up at the defendant’s hotel, he suffered
“fractured cheek bones; a fractured jaw; broken teeth; severe head injuries; severe injuries to
both shoulders, both arms, and both hands; severe neck injuries; and severe facial abrasions,
lacerations and contusions.” Bonck v. Marriott Hotels, Inc., No. Civ.A. 02-2740, 2002 WL
31890932, at *2 (E.D. La. Dec. 30, 2002). Bonck is inapposite because the injuries were less
serious and the plaintiff submitted a stipulation that his damages did not exceed $75,000 and
evidence “show[ing] with legal certainty” that his claims did not exceed that amount. Id. at
*3–4. The other cases the district court cited in its discussion of Defendants’ evidentiary
showing are also distinguishable. See Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850–51
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B.
Before this court, as they did below, Plaintiffs raise several other
arguments in support of remand: that Defendants have not met their burden
of showing the $5 million aggregate amount in controversy, and that three
statutory exclusions or exceptions to CAFA jurisdiction apply. The district
court did not reach these arguments, and we decline to do so in the first
instance. See Allen v. Boeing Co., 784 F.3d 625, 636–37 (9th Cir. 2015)
(declining to address CAFA’s local-controversy exception in first instance even
though parties had briefed it on appeal). Rather, we leave these issues to be
decided by the district court on remand.
IV. CONCLUSION
We hold that the district court erred when it found that no plaintiff
satisfies CAFA’s individual amount-in-controversy requirement, and
REVERSE on that basis. We REMAND this case to the district court to
address Plaintiffs’ remaining jurisdictional arguments.
(5th Cir. 1999) (holding $75,000 amount in controversy not shown when the defendants
submitted no evidence and relied only on the plaintiff’s allegations that she was injured when
assaulted in a parking lot); Welp v. Hanover Ins. Co., Civil Action No. 07-8859, 2008 WL
235348, at *1–3 (E.D. La. Jan. 28, 2008) (holding $75,000 amount in controversy not apparent
from allegations that the plaintiff’s house suffered “extensive damage” in a hurricane).
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