Priselac v. Chemours Co.

561 F.Supp.3d 562

Tammy PRISELAC, individually and on behalf of all others similarly situated, Plaintiff,

v.The CHEMOURS COMPANY, et al., Defendants.

No. 7:20-CV-190-D

United States District Court, E.D. North Carolina, Southern Division.

Signed September 20, 2021

Hal W. Broadfoot, Jr., Mark A. Sternlicht, Beaver Courie Sternlicht Hearp & Broadfoot, P.A., Fayetteville, NC, Kevin S. Hannon, The Hannon Law Firm, LLC, Denver, CO, for Plaintiff.

Britta N. Todd, Shook, Hardy & Bacon LLP, Kansas City, MO, R. Steven DeGeorge, Robinson, Bradshaw & Hinson, P.A., Charlotte, NC, Jonathan D. Sasser, Thomas Hamilton Segars, Ellis & Winters, LLP, Raleigh, NC, Joshua L. Becker, Shook, Hardy & Bacon LLP, Atlanta, GA, Kenneth J. Reilly, Shook Hardy & Bacon LLP, Miami, FL, for Defendants The Chemours Company, The Chemours Company FC, LLC.

Britta N. Todd, Shook, Hardy & Bacon LLP, Kansas City, MO, C. Bailey King, Jr., Bradley Arant Boult Cummings LLP, Charlotte, NC, Jonathan D. Sasser, Thomas Hamilton Segars, Ellis & Winters, LLP, Raleigh, NC, Joshua L. Becker, Shook, Hardy & Bacon LLP, Atlanta, GA, Kenneth J. Reilly, Shook Hardy & Bacon LLP, Miami, FL, for Defendant E.I. DuPont de Nemours and Company, Inc.

Britta N. Todd, Shook, Hardy & Bacon LLP, Kansas City, MO, Joshua L. Becker, Shook, Hardy & Bacon LLP, Atlanta, GA, for Defendants E.I. duPont Chemical Corporation, DuPont de Nemours, Inc.

Joshua L. Becker, Shook, Hardy & Bacon LLP, Atlanta, GA, for Defendant Corteva, Inc.

Britta N. Todd, Shook, Hardy & Bacon LLP, Kansas City, MO, Thomas Hamilton Segars, Jonathan D. Sasser, Ellis & Winters, LLP, Raleigh, NC, Joshua L. Becker, Shook, Hardy & Bacon LLP, Atlanta, GA, Kenneth J. Reilly, Shook Hardy & Bacon LLP, Miami, FL, for Defendants Ellis H. McGaughy, Brian D. Long, Michael E. Johnson.

ORDER

JAMES C. DEVER III, United States District Judge

On September 15, 2020, Tammy Priselac ("Priselac" or "plaintiff"), individually and on behalf of all others similarly situated, filed a putative class action in Bladen County Superior Court against The Chemours Company ("Chemours"), The Chemours Company FC, LLC ("Chemours FC"), E.I. DuPont de Nemours and Company, Inc. ("DuPont"), E.I. duPont Chemical Corporation ("DuPont Chemical"), Corteva, Inc., and DuPont de Nemours, Inc. (collectively, the "corporate defendants"), and Ellis H. McGaughy ("McGaughy"), Brian D. Long ("Long"), and Michael E. Johnson ("Johnson") (collectively, the "managing defendants") (altogether, "defendants"). See Compl. [D.E. 1-1] 12–83. On October 6, 2020, defendants jointly and timely removed the action to this court based on diversity jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2) ("CAFA") [D.E. 1]. On October 13, 2020, defendants moved to dismiss for failure to state a claim [D.E. 13] and filed a memorandum in support [D.E. 14]. On November 25, 2020, Priselac moved to remand the action to state court [D.E. 27] and filed a memorandum in support [D.E. 28]. On December 30, 2020, defendants responded in opposition [D.E. 29–30]. On February 8, 2021, Priselac replied [D.E. 37]. As explained below, the court denies Priselac's motion to remand.

I.

The action concerns the alleged release of toxic chemicals from the Fayetteville Works Site. The Fayetteville Works Site is located southeast of Fayetteville, North Carolina, and includes offices, manufacturing facilities, piping, storage, waste, and treatment facilities. See Compl. ¶ 22. Priselac alleges that Chemours, Chemours FC, DuPont, and DuPont Chemical have long made or used various perfluorinated chemicals ("PFCs") at the Fayetteville Works Site. See id. ¶ 25. From the 1970s through approximately June 2015, DuPont and DuPont Chemical owned and operated the Fayetteville Works Site. See id. ¶ 22. Chemours and Chemours FC currently own and operate the Fayetteville Works Site and manufacture at least three PFCs there. See id. ¶¶ 22–23. PFCs cause various cancers, thyroid disease, ulcerative colitis, pregnancy-induced hypertension, and other ailments in humans. See id. ¶¶ 32, 44, 50, 52, 103–24, 171–79.

Priselac is a North Carolina resident. See id. ¶ 2. Priselac consumed household water supplied by the Cape Fear Public Utility Authority ("CFPUA") through water from the Cape Fear River for approximately a decade. See id. Priselac brings this action on behalf of "[a]ll persons who have occupied and resided in residential properties in the geographic area served by CFPUA water from a Cape Fear River Source for a cumulative time period of one year or more and consumed household water for a cumulative time period of one year or more." Id. ¶ 181.

The corporate defendants are all corporations organized under Delaware law with principal places of business in Wilmington, Delaware. See id. ¶¶ 3–8. The managing defendants are all North Carolina citizens. See id. ¶¶ 9, 11, 13. McGaughy worked as the site manager for the Fayetteville Works Site from 2010 until he retired. See id. ¶¶ 9–10. Long became the site manager beginning in February 2018. See id. ¶ 13. Johnson worked as the environmental manager for the Fayetteville Works Site from June 1978 to July 2018. See id. ¶¶ 11–12.

Priselac asserts claims under North Carolina law for trespass to real property, private nuisance, negligence, negligent failure to warn, violation of the North Carolina Uniform Voidable Transfer Act ("NCUVTA"), unjust enrichment, civil conspiracy, and battery. See id. ¶¶ 196–266. Priselac seeks class certification, damages, and medical monitoring. See id. at 82–83.

II.

"[F]ederal courts, unlike most state courts, are courts of limited jurisdiction, created by Congress with specified jurisdictional requirements and limitations." Strawn v. AT & T Mobility LLC, 530 F.3d 293, 296 (4th Cir. 2008) ; see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Removal from state court is proper only if the federal district court has original jurisdiction over the removed action. See 28 U.S.C. § 1441(a) ; Lontz v. Tharp, 413 F.3d 435, 439 (4th Cir. 2005). If the federal court lacks subject-matter jurisdiction, it must remand the action to state court. See 28 U.S.C. § 1447(c).

A.

Congress "enacted CAFA to curb perceived abuses of the class action device which, in the view of CAFA's proponents, had often been used to litigate multi-state or even national class actions in state courts." Jackson v. Home Depot U.S.A., Inc., 880 F.3d 165, 168 (4th Cir. 2018) (quotation omitted), aff'd, ––– U.S. ––––, 139 S. Ct. 1743, 204 L.Ed.2d 34 (2019). CAFA grants the district court original jurisdiction over "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 ... any member of a class of plaintiffs is a citizen of a State different from any defendant." 28 U.S.C. § 1332(d)(2)(A) ; see Quicken Loans Inc. v. Alig, 737 F.3d 960, 964 (4th Cir. 2013). Section 1332(d)(2)(A) of CAFA requires: (1) minimal diversity; (2) an amount in controversy greater than $5,000,000; and (3) a class action with at least 100 members. See id.; 28 U.S.C. § 1332(d)(5)(B) ; Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 84–85, 135 S.Ct. 547, 190 L.Ed.2d 495 (2014) ; Mississippi ex rel. Hood v. AU Optronics Corp., 571 U.S. 161, 165–66, 134 S.Ct. 736, 187 L.Ed.2d 654 (2014) ; Quicken Loans, 737 F.3d at 964 ; West Virginia ex rel. McGraw v. CVS Pharmacy, Inc., 646 F.3d 169, 174 (4th Cir. 2011) ; Lanier v. Norfolk S. Corp., 256 F. App'x 629, 631–32 (4th Cir. 2007) (per curiam) (unpublished). "When the foregoing three criteria ... are satisfied, a defendant sued in a class action in a state court is presumptively entitled to remove the proceedings to federal court." Dominion Energy, Inc. v. City of Warren Police & Fire Ret. Sys., 928 F.3d 325, 330 (4th Cir. 2019) ; see 28 U.S.C. § 1453(b). "Under CAFA, the removing party bears the burden of establishing federal jurisdiction over a class action." Dominion Energy, 928 F.3d at 335-36 ; see Bartels ex rel. Bartels v. Saber Healthcare Grp., LLC, 880 F.3d 668, 681 (4th Cir. 2018) ; AU Optronics Corp. v. South Carolina, 699 F.3d 385, 390 (4th Cir. 2012) ; Strawn, 530 F.3d at 298.

Priselac contends that defendants fail to show that removal is proper under CAFA. See [D.E. 28] 2. The court rejects Priselac's argument. First, "minimal diversity" exists if "any member of a class of plaintiffs is a citizen of a State different from any defendant." 28 U.S.C. § 1332(d)(2)(A) (emphases added). Priselac is a citizen of North Carolina. See Compl. ¶ 2. The corporate defendants are incorporated in Delaware and have their principal places of business in Delaware. See id. ¶¶ 3–8. Thus, the corporate defendants are citizens of a different state than Priselac, and the parties are minimally diverse.

Second, the putative class must contain at least 100 members. See 28 U.S.C. §§ 1332(d)(2), (5)(B). Priselac brings the action on behalf of herself and a putative class of North Carolina residents "served by CFPUA water from a Cape Fear River Source for a cumulative time period of one year or more and consumed household water for a cumulative time period of one year or more." Compl. ¶ 181. Priselac alleges that the "number of owned properties exceeds five thousand" and that "[t]here are well over one thousand members of the Class who have been exposed" to PFCs from the Fayetteville Works Site. Id. ¶ 183. Thus, the action involves a putative class of at least 100 members.

Third, the amount in controversy must exceed $5 million in the aggregate, exclusive of interests and costs. See 28 U.S.C. §§ 1332(d)(2), (6). "[W]here the complaint does not specify the amount in controversy, ... the removing party must prove the jurisdictional amount by a preponderance of the evidence." Anthony v. Serv. Corp. Int'l, No. 3:10CV642-RJC-DSC, 2011 WL 1343195, at *3 (W.D.N.C. Mar. 18, 2011) (unpublished), report and recommendation adopted, 2011 WL...