Cannon v. Dow Chemical Co., 08-1397 (E.D.La. June 2, 2008)
It makes INSTA STIK polyurethane roof adhesive, Dow Epoxy, and HYPOD™ Polyolefin Dispersions, but Dow Chemical cannot get removal to stick under CAFA.
The plaintiffs filed a putative class action asserting Dow Chemical released harmful chemicals from a facility in Taft, Louisiana. In their complaint, the plaintiffs did not identify the chemical substances allegedly released, nor did they specify the offending effects produced by these substances. Furthermore, no dollar value was attributed to these tort claims. The class was limited to “all persons and entities located on the west bank of St. Charles Parish on February 9, 10 or 11, 2008 and who sustained property damage, personal injuries, emotional, mental or economic damages and/or inconvenience or evacuation as a result of the incident.”
Both the plaintiff and Dow Chemical stipulated that the first two prongs for jurisdiction under CAFA were met ((1) a class of no fewer than 100 members; (2) minimal diversity between the parties).
Because the plaintiff’s complaint was hazier than any chemical Dow makes, Dow faced an uphill battle convincing the court, however, that jurisdiction under CAFA was proper.
The court relied on Patterson v. Dean Morris, L.L.P., 448 F.3d 736, 739 (5th Cir.2006) for the “well-established rule” that the proponent of removal bears the burden of persuasion under CAFA. Dow attempted to argue that the Court could “assume” what possible damages might be based upon “population estimates.” (Editors’ Note: See the CAFA Law Blog analysis of Patterson posted on June 6, 2006).
Also, the court cited Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir.2007), noting that under CAFA, a court should not engage in speculation without the benefit of any actual evidence. Because any proposed number of the class would be based upon speculation at this point in the case, and the plaintiffs had not plead any specific damages or how those damages may be calculated, it denied jurisdiction under CAFA. (Editors’ Note: See the CAFA Law Blog analysis of Lowery posted on May 15, 2007).
So in short – remember that it matters not what products you make – or how sticky they are – it matters what facts you can prove to get jurisdiction under CAFA.