In re Par.

Petition for a Writ of Mandamus to the United States District Court for the Eastern District of Louisiana USDC Nos. 2:18-CV-7889, 2:18-CV-8071, 2:18-CV-8218, 2:18-CV-9312, 2:19-CV-11133, 2:19-CV-14512

Before KING, SMITH, and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, CIRCUIT JUDGE:

Jefferson Parish Landfill emitted noxious gases and odors into surrounding areas, so nearby residents sued. One of those lawsuits is the Ictech-Bendeck putative class action, which has not yet had a hearing on class certification. Another is the Addison mass action, which is comprised of over 500 plaintiffs and is against the same defendants as Ictech-Bendeck. The matters are not consolidated. This mandamus proceeding arose because the defendants object to the district court's scheduling of a small group of Addison plaintiffs for trial before Ictech-Bendeck will finish its class certification process, which the defendants have repeatedly delayed.

Petitioners ask us to stop the Addison trial and to order the district court to rule on class certification in Ictech-Bendeck before allowing any further proceedings in Addison. Petitioners raise the novel theory that under Rule 23 of the Federal Rules of Civil Procedure, the filing of a putative class action bars any possible class members from reaching the merits of their own, separate suits until class-certification proceedings conclude in the putative class action. The district court rejected that argument, and Petitioners sought mandamus.

Mandamus is an extraordinary form of relief saved for the rare case in which there has been a "usurpation of judicial power" or a "clear abuse of discretion." In re JPMorgan Chase &Co., 916 F.3d 494, 500 (5th Cir. 2019) (alteration and citation omitted). It is not for testing novel legal theories. And Petitioners' theory is not merely new; it is also wrong. Rule 23 establishes a mechanism for plaintiffs to pursue their claims as a class. It does not cause the filing of a putative class action to universally estop all separate but related actions from proceeding to the merits until the class-certification process concludes in the putative class action, after years of motions practice. Because Petitioners have failed to establish their entitlement to a writ of mandamus, their petition is DENIED.

I. Factual and Procedural Background

From July 2017 to December 2019, the Jefferson Parish Landfill released noxious emissions on its premises and into nearby neighborhoods. In regular English: the landfill made the surrounding areas smell bad. The "odors and gases emitted by the Jefferson Parish Landfill during the relevant time period were capable of causing headaches, nausea, vomiting, loss of appetite, sleep disruption, dizziness, fatigue, anxiety and worry, a decrease in quality of life, and loss of enjoyment or use of property in the general population."

Several collections of residents near Jefferson Parish Landfill sued the landfill's owner (Jefferson Parish) and its operators (four companies). This mandamus action arises out of the Eastern District of Louisiana's case management of two of those lawsuits: the Ictech-Bendeck class action^[1] and the Addison mass action.^[2] The Ictech-Bendeck class action plaintiffs seek damages on a state-law nuisance theory under Louisiana Civil Code articles 667, 668, and 669. The Addison mass action plaintiffs seek damages from the same defendants, although they plead claims for both nuisance and negligence, as codified in Louisiana Civil Code articles, 2315, 2315.1, and 2316. "Ictech-Bendeck and Addison are not and have never been consolidated actions. They remain completely distinct actions, aside from the parties' agreement to try the issue of general causation in one bench trial." Ictech-Bendeck is a putative class action. Addison is not.

Ictech-Bendeck was filed in July 2018 and removed to federal court in August 2018. Addison was filed in December 2018 and removed in June 2019. In recounting the ensuing procedural history, the petition-which complains that five years have elapsed without a ruling on class certification in Ictech-Bendeck-skips straight from the 2018 filings to a hearing scheduled by the district court for February 2022. Omitted from that four-year span is the extensive motions practice engaged in and led by Petitioners in both Ictech-Bendeck and Addison.

In April 2019, Petitioner moved to dismiss the Ictech-Bendeck class action and requested a case management order that would delay the plaintiffs' moving for class certification until 91 days after the district judge ruled on the motion to dismiss. The court dismissed the motion in August 2019. Ictech-Bendeck v. Waste Connections Bayou, Inc., No. 18-CV-7889, 2020 WL 2037185, at *1 (E.D. La. Apr. 28, 2020). In September 2019, Petitioners then "proposed the Court enter a 'Lone Pine' case management order that permitted discovery on both general and specific causation." Id. at *2. This proposed order would not have had the court rule on a class certification order for at least 16 months. That would have been January 2021, at the earliest.

While conferring on this proposed case management plan, the parties consented to the district court's determining the issue of general causation for both cases before the parties proceeded with either the certification of the class or the Addison trial. The first case management plan was therefore entered in November 2019, and it set a trial on general causation for April 2021. This trial date got pushed back by COVID, Hurricane Ida, and seven joint motions by the parties for extensions.

Because of the requested extensions, the evidentiary hearing on general causation occurred in February 2022 (which now brings us back to Petitioners' version of the procedural history). At this hearing, which occurred over nine days, "the district court heard live testimony from thirteen witnesses, heard excerpts of the Rule 30(b)(6) depositions of corporate representatives for Waste Connections and Jefferson Parish, and admitted into evidence dozens of exhibits." The parties submitted post-trial briefs in April 2022, and in November 2022 "the district court entered its 46-page-long Findings of Fact and Conclusions of Law, in which it found general causation had been satisfied in both cases." That is, the court found that Jefferson Parish Landfill had emitted noxious gases, that the landfill had

done so during the relevant time period, and that these fumes were capable of causing the complained-of injuries.

On April 12, 2023, the district court granted in part and denied in part Petitioners' motion for summary judgment against some of the Addison plaintiffs. Then on April 17, and over some objection from Petitioners, the district court adopted a new case management order drafted by the parties that scheduled a September 2023 trial for several of the Addison plaintiffs. ^[3]This was to be a so-called "bellwether" trial, wherein counsel for both sides select a small group of test plaintiffs to proceed to trial as a way of gathering information about what the outcome of the mass action as a whole might be. In re Chevron U.S.A., Inc., 109 F.3d 1016, 1019 (5th Cir. 1997).^[4] Under the adopted case management order, the parties were to meet and confer after the close of discovery in the Addison trial (July 2023) to discuss class certification and any related discovery in Ictech-Bendeck.

Petitioners were dissatisfied with that case management order. They filed this mandamus action on April 17, the same day that the district court adopted the management order. Subsequently, on April 26, the district court adopted yet another case management order (the ninth one in total), requiring the parties to meet and confer about class certification earlier, in May 2023, "so the parties might simultaneously proceed with discovery

related to the first Addison trial while also conducting discovery related to class certification in Ictech-Bendeck."

On June 8, 2023, this court stayed all proceedings in the Addison case pending further order. We then expedited the case for oral argument, which we heard in July. Following oral argument, we clarified that the stay shall not affect the Ictech-Bendeck proceedings.

II. Mandamus Standard

The All Writs Act provides this court with the power to issue a writ of mandamus directed to a district court. 28 U.S.C. § 1651. However, this "is a 'drastic and extraordinary' remedy 'reserved for really extraordinary cases.'" Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 542 U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S. 258, 259-60 (1947)). To merit relief, Petitioners must demonstrate "that there has been a 'usurpation of judicial power' or a 'clear abuse of discretion.'" In re Volkswagen of Am., Inc., 545 F.3d 304, 311 (5th Cir. 2008) (en banc) (citation omitted).

We use a three-pronged test to analyze that standard. Petitioners must show: (1) that there is a "clear and indisputable" right to the writ; (2) that there are "no other adequate means to attain the relief" requested; and (3) that the appellate court's exercise of discretion to issue the writ would be "appropriate under the circumstances." In re Itron, Inc., 883 F.3d 553, 567 (5th Cir. 2018) (numbering reordered) (quoting Cheney, 542 U.S. at 380-81).

III. Merits of the Petition

Mandamus petitioners must satisfy all three conditions to obtain issuance of the writ (clear and indisputable right, no other remedies, and appropriate exercise of discretion). Petitioners in this case cannot satisfy even one of them. We address each requirement in the sections below.

A. Indisputable Right to the Writ

"The 'right to the...