Case: 21-30136 Document: 00516277689 Page: 1 Date Filed: 04/12/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
April 12, 2022
No. 21-30136 Lyle W. Cayce
Clerk
David W. Acosta; Misty C. Acosta; Fabian Brimmer;
Geroy Brimmer; Gary T. Brock; Gwendolyn Brock;
Jennifer Brock; Jessica Campbell; Monica Campbell;
Brenda B. Champange; Michael Connerly; Catina
Dennis; Kevin Esler; Kim M. Esler; Meisha A. Fisher;
James Harvey; Cabrina Jefferson; Evelina Jefferson;
Robert Lusco; Wendell Octave, Sr.; Emile L. Perilloux,
Jr.; Shelia M. Stewart; Darren Vitrano,
Plaintiffs—Appellants,
versus
Denka Performance Elastomer, L.L.C.; E. I. DuPont de
Nemours Company; Dupont Performance Elastomers,
L.L.C., formerly known as DuPont Dow Elastomers, L.L.C.,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-2323
Before Southwick, Haynes, and Higginson, Circuit Judges.
Case: 21-30136 Document: 00516277689 Page: 2 Date Filed: 04/12/2022
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Per Curiam:*
In this environmental tort case, Plaintiffs, twenty-three residents of
St. John the Baptist Parish, Louisiana, allege that neoprene production from
the Pontchartrain Works Facility (the “Facility”) exposed them to unsafe
levels of chloroprene, causing adverse health conditions and an elevated risk
of cancer. Following removal, the district court denied Plaintiffs’ motion to
remand to state court and dismissed Plaintiffs’ claims. Plaintiffs appeal each
ruling.
This case arises out of similar factual allegations and involves the same
defendants as a related case that we recently decided, Butler v. Denka
Performance Elastomer, L.L.C., 16 F.4th 427 (5th Cir. 2021). Due to the
substantial similarity of the cases, and for the reasons set forth below, we
VACATE in part and REMAND to the district court to determine, in the
first instance, the effect of Butler on the present case.
I. Background
Plaintiffs’ Petition
In 2020, Plaintiffs filed suit in Louisiana state court against: (1) Denka
Performance Elastomer LLC (“Denka”); (2) E.I. du Pont de Nemours and
Company and DuPont Performance Elastomers LLC (“DuPont”); (3) the
Louisiana Department of Health (“DOH”); and (4) the Louisiana
Department of Environmental Quality (“DEQ”). DuPont owned and
operated the Facility from 1969 until 2015, when it sold the plant to the
current owner, Denka. Plaintiffs allege that, under Denka and DuPont’s
ownership, the Facility emitted unsafe levels of carcinogenic and toxic
emissions of chloroprene into the air and soil where they live. They maintain
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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that Denka and DuPont knew or should have known about the harmful
exposure yet continued to allow the emission of chloroprene into the
community. As to DOH and DEQ, Plaintiffs contend that the agencies
permitted Denka and DuPont to engage in tortious conduct, and that DEQ
failed to warn local residents of the dangerousness of chloroprene exposure.
Plaintiffs’ petition pleads the following causes of action against all
defendants: (1) negligence in violation of Louisiana Civil Code Articles 2315
and 2316; (2) civil conspiracy; and (3) res ipsa loquitor. As to Denka and
DuPont, the petition also pleads causes of action for (1) custodial liability in
violation of Louisiana Civil Code Articles 2317 and 2317.1; (2) products
liability; (3) civil battery; (4) nuisance; and (5) trespass. As to DuPont, the
petition additionally pleads strict liability. Finally, Plaintiffs seek an
injunction “barring Denka from causing or allowing unreasonably dangerous
emissions” from the Facility and a declaratory judgment that “DEQ and
DOH have violated the constitutional rights of the Plaintiffs.”
Motion to Remand and Motions to Dismiss
Invoking subject matter jurisdiction under 28 U.S.C. § 1332, Denka
and DuPont timely removed the case to federal court where it was assigned
to the Honorable Martin L.C. Feldman. Denka and DuPont asserted that
jurisdiction was proper under § 1332 because: (1) the amount in controversy
exceeded $75,000; (2) Plaintiffs were diverse from Denka and DuPont; and
(3) the state agencies’ citizenship (or lack thereof) did not factor into the
diversity analysis because the agencies were improperly joined. Plaintiffs
moved to remand, arguing that DEQ and DOH were properly joined and
their presence destroyed complete diversity. The district court denied the
remand motion.
Denka and DuPont subsequently moved to dismiss. In February 2021,
the district court granted their motions, concluding that Plaintiffs’ claims
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against DuPont were barred by prescription and that the allegations failed to
state a claim against Denka. Though DuPont advanced alternative
arguments for dismissal, the district court did not reach them. Plaintiffs
timely appealed.
Butler v. Denka Performance Elastomer, L.L.C.
This is not the first case before our court involving tort claims arising
out of neoprene production at the Facility—rather, the same counsel
representing Plaintiffs in the present action also represents the plaintiff in
Butler, a case we recently heard on appeal. 16 F.4th at 427. In Butler, another
resident of St. John the Baptist Parish sued the same parties—Denka,
DuPont, DOH, and DEQ—for similar claims. See id. at 432–34, 441–46.
Judge Feldman, also presiding over that action, dismissed the plaintiff’s
petition, concluding that the claims against DOH and DuPont were
prescribed and that the petition failed to state a claim against Denka. Butler
v. Denka Performance Elastomer, LLC, No. 18-6685, 2020 WL 2747276, at *1
(E.D. La. May 27, 2020); Butler v. Denka Performance Elastomer, LLC, No.
18-6685, 2019 WL 1160814, at *1, 6, 7 (E.D. La. Mar. 13, 2019) (collectively
referred to as Butler D. Ct.). The plaintiff appealed, and in October 2021, our
court affirmed in part and reversed in part. Butler, 16 F.4th at 432, 446.
Our Butler opinion reached two important holdings relevant here.
First, we determined that the district court erred in “holding that [the
plaintiff’s] claims were prescribed” because fact issues existed as to whether
the plaintiff “had constructive knowledge sufficient to trigger the running of
prescription.” Id. at 441.
Second, we concluded that the plaintiff “fail[ed] to state a plausible
duty and corresponding breach”; therefore, the district court did not err in
dismissing the plaintiff’s claims for custodial liability, negligence, and strict
liability. Id. at 442–44. The plaintiff relied on “generalized pronouncements
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that [the defendants] ha[d] violated [their] duty to take ‘reasonable care,’”
but failed to direct us to any authority in which such “generalized references
to ‘excessive emissions,’ ‘acceptable risk threshold,’ and ‘unreasonably
dangerous emissions,’ constitute[d] a sufficient legal duty to support a
negligence or custodial liability claim.” Id. at 445.
Shortly after we issued the opinion in Butler, DuPont, recognizing its
potential effect on this case, returned to the district court and filed a motion
for reconsideration pursuant to Federal Rule of Civil Procedure 60(b). In
response to the motion for reconsideration, Judge Feldman issued an
indicative ruling pursuant to Federal Rule of Civil Procedure 62.1, stating
that the court would amend its dismissal order in light of Butler if granted
jurisdiction on remand. DuPont has asked us to remand to the district court
for entry of the judgment pursuant to the indicative ruling.
II. Jurisdiction & Standard of Review
We review the denial of Plaintiffs’ motion to remand to the state court
de novo. Scarlott v. Nissan N. Am., Inc., 771 F.3d 883, 887 (5th Cir. 2014).
The district court’s grant of a motion to dismiss for failure to state a claim is
similarly reviewed de novo, “applying the same standard applied by the
district court.” Masel v. Villarreal, 924 F.3d 734, 742–43 (5th Cir. 2019).
III. Discussion
Plaintiffs argue that the district court erred in (1) denying their motion
to remand and (2) dismissing their claims against Denka and DuPont. In
deciding each of these motions, the district court heavily relied on and
incorporated by reference its reasoning in Butler D. Ct.
First, the opinion denying remand relied on Butler D. Ct. Invoking 28
U.S.C. § 1332, Denka and DuPont removed this action to federal court based
on diversity jurisdiction. Under this section, a district court has “original
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jurisdiction of all civil actions where the matter in controversy exceeds the
sum or value of $75,000” and there is diversity of citizenship. 28 U.S.C.
§ 1332. Of course, complete diversity is required—all plaintiffs must be
diverse from all defendants. See Flagg v. Stryker Corp., 819 F.3d 132, 136 (5th
Cir. 2016) (en banc).
Plaintiffs contended that remand was warranted because the presence
of the two state agency defendants, DOH and DEQ, destroyed complete
diversity. The district court disagreed, instead concluding that DOH and
DEQ were improperly joined, and therefore the state agencies’ citizenship
could be disregarded in the diversity jurisdiction analysis. 1 We agree and
conclude that no further analysis of this issue is warranted.
Second, the district court similarly relied on its Butler D. Ct.
reasoning in deciding Denka and DuPont’s motions to dismiss. Denka
argued that dismissal was warranted because Plaintiffs’ petition failed to state
a claim for relief. DuPont argued the same, and that Plaintiffs’ claims were
prescribed. The district court concluded that Plaintiffs’ complaint was
nearly identical to the complaint dismissed in Butler D. Ct., and it therefore
dismissed Plaintiffs’ claims for largely the same reasons. In doing so, the
district court emphasized that the same timing and pleading deficiencies that
compelled dismissal in Butler D. Ct. necessitated the same outcome in this
case.
1
Under the doctrine of improper joinder, the citizenship of a non-diverse
defendant is ignored if the “moving party establishes that . . . the plaintiff has not stated a
claim against” that defendant. Int’l Energy Ventures Mgmt. L.L.C. v. United Energy Grp.,
Ltd., 818 F.3d 193, 199 (5th Cir. 2016). The court’s inquiry is virtually identical to the
12(b)(6) motion to dismiss standard: evaluating whether or not “the complaint states a
claim under state law against the in-state defendant.” See Flagg, 819 F.3d at 136.
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However, because we reversed in part the district court’s holding in
Butler, 16 F.4th at 446, the district court’s overt reliance and incorporation
of Butler D. Ct.’s analysis and holding is problematic.
In light of the district court’s reliance on Butler D. Ct. (rather than our
subsequent Butler decision), we must now decide how to proceed in this case.
We recognize that the plaintiff’s petition in Butler D. Ct. has similarities to
Plaintiffs’ petition here, but it is not identical. Because the petitions are
comparable (but not identical), Butler could affect the district court’s analysis
of Plaintiffs’ claims here. Indeed, Judge Feldman recognized as much in his
indicative ruling on DuPont’s motion to amend. 2
We note that Plaintiffs failed to appeal the dismissal of several of the
claims that the district court determined were inadequately pleaded—
including products liability, trespass, battery, res ipsa loquitor, conspiracy,
and nuisance. Plaintiffs did not address these claims in their opposition to
Denka and Dupont’s motions to dismiss, their appellate briefing, or at oral
argument. We accordingly deem these claims abandoned. See Fed. R.
App. P. 28(a)(8); Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646,
653 (5th Cir. 2004) (“Issues not raised or inadequately briefed on appeal are
waived.”). Thus, we conclude that the appropriate course of action is to
2
The late Judge Feldman seemed inclined to agree that Butler would have some
effect on the proceedings here. After Butler issued, DuPont returned to the district court
and filed a Rule 60(b) motion to amend the judgment in light of Butler. The district court
issued an indicative ruling stating that the court would amend its dismissal order post-
Butler if provided jurisdiction via remand. DuPont then filed a motion to remand to the
district court pursuant to Federal Rule of Appellate Procedure 12.1(b).
Tragically, in the interim, Judge Feldman passed away. The case has since been
transferred to another judge. The parties do not argue that the new judge would be bound
by the indicative ruling, although he is free to consider it. Accordingly, we deny DuPont’s
motion to remand to the district court as moot while recognizing that the district court is
free to consider Judge Feldman’s analysis.
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remand the remaining claims 3 to the district court to determine, in the first
instance, what effect Butler has on the present case on the issue of whether
Plaintiffs state a claim for relief in light of that decision.
IV. Conclusion
For the aforementioned reasons, we AFFIRM in part, VACATE in
part, and REMAND to the district court as set forth above.
3
I.e., Plaintiffs’ claims for: negligence in violation of Louisiana Civil Code Articles
2315 and 2316; custodial liability in violation of Louisiana Civil Code Articles 2317 and
2317.1; and injunctive relief.
8
Acosta v. Denka Performance
Combined Opinion