Louisiana Record

Wednesday, October 16, 2019

Judge declines class status for case over Denka chloroprene plant

By Angela Underwood | Mar 23, 2018

NEW ORLEANS — U.S. District Judge Martin Feldman has ruled there will be no time extension for a plaintiff to turn his suit into a class action in a case over claims that a plant released high levels of chloroprene into the air.

Robert Taylor Jr., who lives adjacent to a Denka Performance Elastomer plant in St. John the Baptist Parish facility along with 11 other possible plaintiffs, argued exposure to chloroprene produced at the Pontchartrain Works facility (PWF), has exposed them to cancerous chemicals and lowered their property value, according to background information in the opinion. The plant sits on land owned by DuPont.

Though the plaintiffs cited an Environmental Protection Agency (EPA) report that said “more than 10,000 violations by Denka related to emissions of chloroprene from the PWF,” according to the opinion, their filing for class certification missed the November deadline.

“The defendants argued that the request for an extension was untimely and that the plaintiffs failed to show good cause to warrant an extension,” according to the opinion.

Analyzing the appeal under Rule 54(b) for class action time extension, Feldman noted in the opinion that “the Court ‘is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.’”

While the plaintiffs argue “the Court denied their motion without the benefit of full briefing,” according to the appeal, Feldman notes the defendants on the other hand counter for a  five reason.

“The plaintiffs identify no manifest error of law or manifest injustice and  the plaintiffs chose to ignore authority holding that an amended notice of removal does not restart the Local Rule clock,” according to the opinion, adding “the Local Rules do not give any party a right to file a reply brief.”

Furthermore, “a district court has broad discretion to accept or reject a proposed reply, and the plaintiffs’ proposed reply does not cite any binding legal authority directly adverse to the Court’s conclusion that an amended notice of removal does not revive the 91 day deadline for seeking class certification,” according to the background information in the opinion.

Feldman agreed.

“Even viewed through the ‘less stringent’ lens of Rule 54(b), the plaintiffs fail to persuade the Court to reconsider its determination that their request to extend the deadline within which to seek class certification was untimely and unsupported by good cause,” Feldman concludes in the appeal, adding “On the same date that the plaintiffs filed their motion to reconsider, the plaintiffs filed their motion for class certification and appointment of class counsel.”

Feldman ordered that while denying the plaintiffs motion to certify the lawsuit as a class action, “that DuPont’s motion to strike the plaintiffs’ motion for class certification and appointment of class counsel is construed as a motion to dismiss the plaintiffs’ class allegations, and the motion is GRANTED,” according to the appeal.

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U.S. Court of Appeals for the Fifth Circuit