Motion to remand environmental tort against Denka Performance, state agencies is denied

By Charmaine Little | Feb 4, 2019


U.S. District Judge Martin L.C. Feldman   Wikipedia

The U.S. District Court for the Eastern District of Louisiana denied a plaintiff’s request to remand her environmental tort complaint for lack of subject matter jurisdiction.

Judge Martin L.C. Feldman detailed on Jan. 3 why he denied Juanea L. Butler’s motion in a case filed on behalf of herself and others in her position against Denka Performance Elastomer LLC. 

Butler filed as the representative of a class of people who have lived, worked or gone to school within a certain distance of St. John the Baptist Parish who have had symptoms such as headaches, sinus problems, dizziness, skin rash, temporary hair loss, chronic thyroid disorder and more as an alleged result of being exposed to chloroprene and/or related substances emitted from the Pontchartrain Works Facility. The area was alleged to be so bad that it led to a risk of cancer over 800 times the average around the U.S. The spot has reportedly been labeled as “cancer alley” and has prompted several lawsuits.

Butler filed the lawsuit seeking to enjoin Denka from letting out chloroprene at more than 0.2 micrograms per cubic meter. She argued Denka and E.I. DuPont de Nemours and Co. (whom she sued along with the State of Louisiana through the Department of Environmental Quality, and the State of Louisiana through the Department of Health) have the power to stop excessive amounts from being emitted, but negligently didn’t prevent it or even inform the community of a high risk of exposure.


Despite her allegations, the district court ruled the case should not be remanded back to state court because the removing defendants have sufficiently proved that this court has Class Action Fairness Act jurisdiction as there’s very little diversity of citizenship when it comes to the plaintiff class and the defendants. It was also noted the proposed class has more than 100 people and the amount in question is more than $5 million.

Butler argued the Eleventh Amendment that prevents the case from being removed from the state court is irrelevant and incorrect as the state organizations named as defendants already forfeited their Eleventh Amendment immunity from the suit in federal court.

The plaintiff also didn’t try to prove that CAFA exceptions are relevant here. Considering this, plaintiff's motion to remand the case was denied.

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