United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 6, 2006
Charles R. Fulbruge III
Clerk
No. 06-30434
CLAUDE FRAZIER; PAULINE ADAMS; ROSETTA ANDREWS; CONNIE BATISTE;
ANGELA BRAUD; DEBBIE BROWN; CHERYL BUTLER on behalf of, JERON
BUTLER; LESTLY COLLINS; BOYD CRAFT; IDELL FRAZIER; TIFFANY
GUSTAVE on behalf of, Amelia Gustave, on behalf of, Jeremy
Gustave, on behalf of, Ryneisha Jackson, on behalf of, Audia
Jackson, VERNON KELLY; JADE OUBRE on behalf of, Kameryn Oubre, on
behalf of, K’endrick Oubre, on behalf of Kirstein Oubre; LARRY
PHILLIPS, JR; EDWARD PORTER; TIM SPILLMAN; AMELIA WALLS; STACY
WILSON,
Plaintiffs-Appellants,
versus
PIONEER AMERICAS LLC; STATE OF LOUISIANA, through the Department
of Environmental Quality,
Defendants-Appellees.
______________________
Appeal from the United States District Court
for the Middle District of Louisiana
______________________
Before HIGGINBOTHAM, BENAVIDES, and OWEN, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Named plaintiffs of a putative class appeal denial of remand
to Louisiana state court, arguing that the case was not removable
under the Class Action Fairness Act. We AFFIRM.
I
Defendant Pioneer Americas, a Canadian company and citizen,
operated hydrogen processing equipment in its St. Gabriel,
Louisiana facility. By Pioneer’s admission, an amount of mercury
almost double that allowed by its federal permits, but not
necessarily an amount exceeding federal or state health standards,
seeped from the equipment into the atmosphere. Citizens living
near the facility argue that the seeping mercury threatened their
health. Pioneer reported the emissions to defendant Louisiana
Department of Environmental Quality (DEQ), after which DEQ
investigated, determined that the increased levels of mercury were
only slightly problematic, and fined Pioneer about $400,000.
According to plaintiffs, DEQ neglected its statutory duties to
monitor, inspect, report emissions, and warn citizens of dangerous
emissions.
Plaintiffs sued defendants in state court, alleging negligence
and seeking damages for personal injury. Without DEQ’s consent,
Pioneer removed to the federal district court for the Middle
District of Louisiana, asserting diversity jurisdiction under §
1332(a), based on improper joinder of DEQ, and the Class Action
Fairness Act,1 § 1332(d). Plaintiffs moved to remand, arguing that
Pioneer failed to show improper joinder of DEQ and failed to
demonstrate that the amount in controversy exceeded $75,000. After
defendants argued CAFA in their responses,2 plaintiffs replied that
1
Pub. L. No. 109-2, 119 Stat. 4 (2005) (codified in scattered sections of
28 U.S.C).
2
We treat DEQ’s and Pioneer’s arguments as one because they are identical.
2
this case fell into two exceptions to jurisdiction under CAFA.3
They did not challenge defendants’ allegation of prima facie CAFA
jurisdiction — minimal diversity and at least $5 million in
controversy — aside from implicitly challenging the amount in
controversy under § 1332(a).
The magistrate judge, placing the burden to show the absence
of CAFA jurisdiction on plaintiffs, concluded that plaintiffs did
not contest prima facie jurisdiction under CAFA and that neither
CAFA exception applied. He declined to address diversity
jurisdiction afforded by § 1332(a). Plaintiffs objected to the
report but did not challenge the presence of prima facie
jurisdiction under CAFA. The district court agreed with the
magistrate judge, and we granted leave to appeal under 28 U.S.C. §
1453.
II
At the outset, the parties engage over who bears the burden of
proof. Plaintiffs, citing the Seventh and Ninth Circuits and
various district courts,4 argue that the language of CAFA, said to
3
Irrelevant here because not appealed, plaintiffs also argued that Pioneer
improperly failed to get DEQ’s consent to removal under CAFA. As the magistrate
judge noted, CAFA obviated that requirement. 28 U.S.C. § 1453(b).
4
Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir. 2005);
Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676 (9th Cir. 2006); Werner v.
KPMG LLP, 415 F. Supp. 2d 688 (S.D. Tex 2006); Plummer v. Farmers Group, Inc.,
388 F. Supp. 2d 1310 (E.D. Okla.2005); Ongstad v. Piper Jaffray & Co., 407
F.Supp.2d 1085 (D.N.D. 2006); Judy v. Pfizer, Inc., No. 4:05CV1208RWS, 2005 WL
2240088 (E.D. Mo. Sept.14, 2005); Schwartz v. Comcast, Corp., No. Civ. A. 05-
2340, 2005 WL 1799414 (E.D. Pa. July 28, 2005); In re Expedia Hotel Taxes and
Fees Litig., 377 F. Supp. 2d 904 (W.D. Wash. 2005); Sneddon v. Hotwire, Inc., No.
C 05-0951 SI, C 05-0952 SI, C 05-0953 SI, 2005 WL 1593593 (N.D. Cal. June 29,
3
be plain but silent as to who bears the burden of proof, must be
read to lay the burden on defendants. To do otherwise would be
inconsistent with longstanding § 1441(a) removal doctrine, and, the
argument goes, this parallel reading overrides any legislative
history of a purpose to place the burden on plaintiffs.5
Defendants, citing other district courts,6 urge that clear
legislative history controls in the face of statutory silence,
silence not broken by the doctrine developed under a different and
older removal provision. They also highlight a recent Eleventh
Circuit decision placing the burden to make a prima facie showing
of jurisdiction under CAFA on removing defendants, and the burden
to demonstrate a CAFA exception on plaintiffs.7 The Eleventh
Circuit distinguished the Seventh and Ninth Circuits, noting that
they dealt only with the former burden.8
We need not answer which party has the burden to prove prima
2005).
5
The relevant statements show an intent to burden plaintiffs both as to
prima facie jurisdiction, S. Rep. 109-14, at 42 (Feb. 28, 2005) (Senate Judiciary
Committee Report), and as to the exceptions, id. at 44.
6
Harvey v. Blockbuster, Inc., 384 F.Supp.2d 749 (D.N.J. 2005); Judy v.
Pfizer, Inc., No. 4:05CV1208RWS, 2005 WL 2240088 (E.D. Mo. Sep.14, 2005); In re
Textainer Partnership Sec. Litig, No. C 05-0969 MMC, 2005 WL 1791559 (N.D. Cal.
Jul. 27, 2005); Waitt v. Merck & Co., Inc., No. C05-0759L, 2005 WL 1799740 (W.D.
Wash. Jul.27, 2005); Yeroushalmi v. Blockbuster, Inc., No. CV 05-225-AHM(RCX),
2005 WL 2083008 (C.D. Cal. Jul. 11, 2005); Berry v. Am. Express Pub., Corp., 381
F. Supp. 2d 1118 (C.D. Cal. 2005); Natale v. Pfizer, Inc., 379 F. Supp. 2d 161
(D. Mass. 2005), aff'd on other grounds, 424 F.3d 43 (1st Cir.2005).
7
Evans v. Walter Indus., Inc., ___ F.3d ___, 2006 WL 1374688 (11th Cir.
May 22, 2006).
8
Id.
4
facie jurisdiction because that is not at issue here. Plaintiffs
never contested minimal diversity, and the only time they mentioned
amount in controversy was in their original motion to remand in
connection with § 1332(a). After Pioneer raised CAFA, plaintiffs
did not respond that CAFA’s amount in controversy had not been met.
And they never challenged the magistrate judge’s statement that
they “did not contest satisfaction of the general requirements of
CAFA pursuant to § 1332(d)(2).” Nor did they raise the argument in
their opening brief to this Court. It is true that the issue is
jurisdictional and we must raise it on our own, but there is
minimal diversity, and although the petition did not seek recovery
of a specific amount, we are satisfied the petition, seeking
damages for severe injuries suffered by at least 500 people and
attorneys’ fees, makes it “facially apparent” that at least $5
million is in controversy,9 in the aggregate.10
Our question is whether either of both of two CAFA exceptions
apply. In answering that question, the district court properly
9
See Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)
(discussing amount in controversy requirement for cases removed from Louisiana
state courts, where the procedural rules prohibit assertion of amount of
damages); see also 28 U.S.C. § 2108 (“Where the power of any court of appeals to
review a case depends upon the amount of value in controversy, such amount or
value, if not otherwise satisfactorily disclosed upon the record, may be shown
and ascertained by the oath of a party to the case or by other competent
evidence.”).
10
Unlike § 1332(a), CAFA explicitly allows aggregation of each class
member’s claim. 28 U.S.C. § 1332(d)(6).
5
placed the burden on plaintiffs,11 for the reasons explained by the
Eleventh Circuit.12 Here, longstanding § 1441(a) doctrine placing
the burden on plaintiffs to show exceptions to jurisdiction
buttresses the clear congressional intent to do the same with
CAFA.13 This result is supported by the reality that plaintiffs are
better positioned than defendants to carry this burden.14 Finally,
neither the Seventh nor Ninth Circuit opinion addresses this
issue.15 We hold that plaintiffs have the burden to show the
applicability of the §§ 1332(d)(3)–(5) exceptions when jurisdiction
turns on their application.
III
Section 1332(d)(5)(A) excepts from CAFA jurisdiction “any
class action in which...the primary defendants are States, State
officials, or other governmental entities [“states”] against whom
the district court may be foreclosed from ordering relief.”
Plaintiffs urge that remand is proper here because DEQ, a primary
defendant, is undisputedly a state entity. Defendants respond that
11
The magistrate judge did not distinguish between the two burdens,
apparently placing both (although one was uncontested) on plaintiffs. We agree
only that plaintiffs had the burden to prove the exceptions. We offer no comment
on the other.
12
See Evans, 2006 WL 1374688, at *4-5.
13
See Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S. 691, 697-98
(2003) (placing burden on plaintiff to prove express exceptions to § 1441(a)
removal jurisdiction).
14
See Evans, 2006 WL 1374688, at *8 n.3.
15
See Brill, 427 F.3d at 447-48; Abrego, 443 F.3d at 683-86.
6
this exception requires that all primary defendants be states, and
Pioneer is a primary defendant.16
Defendants’ reading is correct. The plain text of §
1332(d)(5)(A), using the definite article before the plural nouns,
requires that all primary defendants be states. Had Congress
desired the opposite, it would have used “a” and the singular, or
no article. There is no tension between this plain language and
the legislative history, which explains that the exception is not
meant to create a loophole whereby plaintiffs can avoid CAFA
jurisdiction by naming a state as a primary defendant in an action
largely targeting non-states.17
We must also reject plaintiffs’ suggestion that this result
violates the Eleventh Amendment and the principles of state
sovereign immunity. Because CAFA eliminated the requirement of
unanimity of consent to removal,18 a state may find itself in a case
removed to federal court without having joined in the removal.
Such a state, having taken no affirmative act, has not waived
16
Defendants also contend, and plaintiffs vigorously dispute, that DEQ is
not a “primary defendant.” We do not decide the issue.
17
S. Rep. 109-14, at 42. The Senate Report provides that the exception,
first outlined in the original 1999 version of CAFA, was meant to preclude states
from removing to federal court and then asserting immunity, where immunity is
unavailable in state court. However, the Supreme Court held in 2002 that a
state’s participation in removal waives immunity. Lapides v. Board of Regents,
535 U.S. 613, 616 (2002). Consequently, § 1332(d)(5)(A) may be an obviated
response to an eliminated problem.
18
28 U.S.C. § 1453(b).
7
immunity and can still assert it.19 Also contrary to plaintiffs’
suggestion, the simple act of assuming jurisdiction over a case
with a state defendant does not step on its sovereign immunity. A
federal court may ignore sovereign immunity until the state asserts
it.20 CAFA, like other statutes, provides jurisdiction over cases
in which states may, if they choose, be defendants, thus respecting
state dignity interests.21
It is true that, absent possible waiver of immunity by DEQ,22
the federal courts might be “foreclosed from ordering relief”
because Louisiana has waived its immunity in state, but not
federal, court.23 Yet that is the price of sovereign immunity, and
in any event § 1332(d)(5)(A) is clear — all primary defendants must
be states.
IV
Plaintiffs also argue that § 1332(d)(4), the “local
19
Cf. Lapides, 535 U.S. at 616 (explaining that state’s removal under §
1441(a) of state law claims is an affirmative act waiving consent).
20
See Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381, 389 (1998).
21
Moreover, plaintiffs’ argument proves too much: § 1332(d)(5)(A) clearly
does not apply if a state is properly joined as a non-primary defendant, yet
plaintiffs’ argument applies with equal force to that situation. Plaintiffs
would ask us to mutilate § 1332(d)(5)(A); fortunately we need not, because there
are no constitutional shoals to avoid.
22
Defendants contend, and plaintiffs dispute, that DEQ waived immunity
before and after the order denying remand, eliminating any concerns in this case
over sovereign immunity and the possibility of relief. We make no comment here,
holding instead that § 1332(d)(5)(A), requiring that all defendants be states,
is constitutionally unproblematic, regardless of waiver in this or any individual
case.
23
See LA. R.S. 13:5106 (waiving immunity only in state court); La. C.C.
Art. 2323 (requiring apportionment of fault regardless of immunity).
8
controversy exception,” precludes jurisdiction. We are not
persuaded. Under either subsection of § 1332(d)(4), at least one
defendant must be a “citizen of the State in which the action was
originally filed.” Plaintiffs argue that DEQ is a citizen of
Louisiana, but it is long-settled that a state has no citizenship
for § 1332(a) diversity purposes.24 Plaintiffs themselves so
contended in their motion to remand. We see no reason to give
different meaning to citizenship under § 1332(d); and we see
reasons not to, including avoiding confusion and inconsistency.
Finally, this reading squares with CAFA’s legislative history,
evincing as it does an intent to change nothing about the statutory
meaning of “citizen.”25
AFFIRMED.
24
See Cory v. White, 457 U.S. 85, 87 (1982), citing Postal Telegraph Cable
Co. v. Ala., 155 U.S. 482 (1894).
25
151 Cong. Rec. H723, at 729 (Mr. Sensenbrenner) (stating that CAFA “does
not alter current law” regarding the “citizenship element”).
9