             Case: 19-14427    Date Filed: 03/17/2020   Page: 1 of 19



                                                                        [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 19-14427
                          ________________________

                     D.C. Docket No. 2:18-cv-01023-MHH


KELVIN SPENCER, et al.,

                                                            Plaintiffs - Appellees,

                                     versus

SPECIALTY FOUNDRY PRODUCTS INC., et al.,

                                                         Defendants - Appellants.

                          ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                         ________________________
                                (March 17, 2020)

Before MARTIN, ROSENBAUM, and NEWSOM, Circuit Judges.

MARTIN, Circuit Judge:

      Kelvin Spencer and 229 other former workers at the Grede Foundry in

Bessemer, Alabama (collectively, the “Plaintiffs”) say they were harmed by
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exposure to hazardous and harmful chemical substances released and formed at the

foundry. The foundry is now out of business, so the Plaintiffs filed suit in

Alabama state court against ten entities that manufactured, sold, supplied, and

distributed the products they believe harmed them (the “Defendants”).1 One

Defendant removed the case to federal court, citing the Class Action Fairness Act

of 2005 (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of

28 U.S.C.), as the basis for removal. The Plaintiffs moved to remand the case back

to state court. The District Court granted their motion, finding that the Plaintiffs’

action falls within the local event exception to CAFA’s grant of federal

jurisdiction, 28 U.S.C. § 1332(d)(11)(B)(ii)(I). The Defendants sought leave to

appeal, which we granted pursuant to 28 U.S.C. § 1453(c).

       After careful consideration, and with the benefit of oral argument, we vacate

the District Court’s grant of the motion to remand.

                                                I.

A. FACTUAL BACKGROUND

       From an unknown date until its closing in 2016 or 2017, the Grede Foundry

“engaged in the making of foundry casted metal parts and related moulding,


       1
         The Plaintiffs’ complaint also asserts claims against up to 450 fictitious party
defendants. We use the term “Defendants” to refer to the named defendants. Although one
Defendant—Fairmount-Santrol, Inc.—was dismissed from the case by joint stipulation on
January 25, 2019, our use of “Defendants” refers to all parties named on the other side of the
“v.” from the Plaintiffs at any point in this litigation.


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coring, and finishing processes.” All 230 Plaintiffs worked at the foundry for some

period of time and claim to have been harmed by the use of the Defendants’

products. Not all Plaintiffs worked at the foundry at the same time, nor were their

jobs the same. For example, one Plaintiff who started at the foundry in 1997

worked in the “core room” and drove a forklift to unload delivery trucks. Another

Plaintiff started at the foundry in 1981 and left in 2015. This Plaintiff was a

supervisor and, from approximately 1995 until 2015, assisted in the ordering of

chemicals to be used at the foundry.

      The Defendants marketed, manufactured, distributed, and sold products used

at the foundry in the process of foundry casting and finishing metal parts. Three

Defendants manufactured specialized shell core sand or foundry sand that was used

in the core room or the foundry area. Two different Defendants manufactured

chemical resins, binders, setting catalysts, and chemically treated foundry sand pre-

mix products. Two additional Defendants manufactured specialized foundry

chemical products, including triethylamine liquid or gas (“T-gas”) and a release

agent (“Zip Slip”), that were used for moulding, coring, casting, finishing or other

foundry processes. Finally, two Defendants both manufactured their own products

and distributed products made by the other Defendants.

      The Plaintiffs allege that the normal and foreseeable use of the Defendants’

products at the foundry resulted in the formation and release of hazardous and



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carcinogenic chemical substances that are toxic to workers. They also say the

Defendants gave unsafe directions for use of their products; failed to report

pertinent adverse scientific data regarding the safety of their products; and failed to

warn about or disclose known dangers from the products. These actions caused the

Plaintiffs physical injuries and harm, adverse medical symptoms, mental anguish,

and emotional distress, all of which supposedly manifested within two years of the

filing of the complaint. The Plaintiffs also allege the Defendants’ wrongful actions

occurred “separately and repetitively, on a continuing basis,” until the foundry was

closed in 2016 or 2017.

B. PROCEDURAL HISTORY
      The Plaintiffs filed their complaint in the Circuit Court of Jefferson County,

Alabama. The complaint asserts six counts arising under Alabama law:

(1) wantonness; (2) products liability under the Alabama Extended Manufacturers

Liability Doctrine; (3) failure to warn; (4) fraudulent misrepresentation,

suppression, and deceit: (5) negligence; and (6) conspiracy. All the claims stem

from the Plaintiffs’ allegation that the “normal and foreseeable” use of the

Defendants’ products caused the “release and formation of hazardous and

carcinogenic chemical substances,” harming the Plaintiffs.

      About a month after the complaint was filed, one Defendant, Imerys

Minerals USA, Inc., removed the case to federal court. According to Imerys,



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federal jurisdiction is proper pursuant to CAFA’s “mass action” provision, which

authorizes federal jurisdiction over actions seeking over $5,000,000 in monetary

relief with more than 100 minimally diverse plaintiffs whose claims involve

common questions of law or fact. See 28 U.S.C. § 1332(d)(2), (11)(B)(i).

      The Plaintiffs moved to remand the case to state court. The Plaintiffs stated

two bases for remand. First, they contended this case does not qualify as a “mass

action” under CAFA because “all of the claims . . . arise from an event or

occurrence in the State in which the action was filed” and this event or occurrence

“allegedly resulted in injuries in that State or in States contiguous to that State.”

Id. § 1332(d)(11)(B)(ii)(I). This carve-out to federal jurisdiction is called the

“local event exception.” The Plaintiffs also argued remand was proper pursuant to

the “local controversy exception,” which mandates remand of mass (or class)

actions in which over two thirds of the plaintiffs are citizens of the state in which

the case was filed, at least one “significant” defendant is a citizen of that state, and

the principal injuries or related conduct occurred in that state. See id.

§ 1332(d)(4)(A)(i), (11)(A).

      The District Court granted the motion to remand. R. Doc. 69 (“Remand

Order”). The court did not address the local controversy exception, choosing

instead to rest its decision entirely on the local event exception. The court first

found that the meaning of “an event or occurrence” was unclear from the statutory



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text. Id. at 4. It then turned to the legislative history of CAFA. After quoting

extensively from a report on CAFA by the Senate Judiciary Committee (the

“Senate Report”), 2 the District Court concluded that Congress intended only

“case[s] with substantial interstate effects” to wind up in federal court. Remand

Order at 9 (quoting Carr v. Arvin Indus., No. 05-CV-1283, 2005 WL 8157853, at

*9 (N.D. Ala. July 20, 2005)). The court held that because the foundry was located

in Alabama, the Plaintiffs worked in Alabama, the alleged injuries occurred in

Alabama, and the sole purchaser of the Defendants’ products was the foundry, 3 this

case is “truly local” such that CAFA jurisdiction would be improper under the

local event exception. Id. at 10. The District Court also analogized this case to

toxic torts cases involving “continuous exposure[s],” which some courts have

counted as “an event or occurrence” within the meaning of the local event

exception. Id. at 10–13.

        The Defendants sought permission for an interlocutory appeal, which this

Court granted on November 12, 2019. Briefing was completed on an amended

schedule jointly agreed to by the parties and oral argument was held on March 3,

2020.



        2
            S. Rep. No. 109-14 (2005), reprinted in 2005 U.S.C.C.A.N. 3.
        3
        The Defendants dispute this: they ship their products to many customers, including the
Grede Foundry when it operated.


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                                               II.

       We review de novo the decision to remand a case to state court for lack of

subject-matter jurisdiction. Lowery v. Ala. Power Co., 483 F.3d 1184, 1193 (11th

Cir. 2007). “[F]actual determinations necessary to establish jurisdiction” are

reviewed for clear error. Dudley v. Eli Lilly & Co., 778 F.3d 909, 911 (11th Cir.

2014). 4

                                              III.

       This appeal turns on the meaning of the local event exception, in particular

the phrase “an event or occurrence,” 28 U.S.C. § 1332(d)(11)(B)(ii)(I). If the

allegations in the complaint constitute “an event or occurrence,” the District Court

was correct in remanding the case back to state court. If, however, the allegations

are not “an event or occurrence,” then the District Court was wrong in holding that

this case is not a mass action within the meaning of CAFA. If the case does not fit

within the local event exception, and presuming no other exceptions to federal

jurisdiction apply, then this case was properly removed to federal court. See id.

§ 1441(a) (providing for removal over any civil action with original federal


       4
          A brief word about burdens. In CAFA cases, the removing defendant bears the burden
of establishing federal jurisdiction. See Lowery, 483 F.3d at 1208. Yet a plaintiff seeking
remand bears the burden of showing he fits within an exception to CAFA’s removal jurisdiction.
Id. at 1208 n.55. The Defendants urge us to reconcile these competing principles and clarify that
the Plaintiffs bear the burden of proving the local event exception applies. This question is
ultimately academic here because the local event exception clearly does not apply in this case, no
matter who bears the burden.


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jurisdiction); see also Lowery, 483 F.3d at 1196 (citing 28 U.S.C.

§§ 1332(d)(11)(A), 1453(b)) (discussing removal of mass actions).

      The parties disagree as to the scope of “an event or occurrence.” The

Plaintiffs argue this phrase does not require “a one-time event” or “a discre[te]

moment in time.” Plaintiffs instead say these words encompass a continuing set of

“truly local” circumstances. Br. of Appellees at 13–14, 34. They say this

requirement is satisfied here because the harm caused by the Defendants was a

continuing tort located solely within the foundry. Meanwhile, the Defendants’

definition of this term has shifted during this litigation. At the outset of their

appeal, they contended “an event or occurrence” refers only to “a single injury-

causing event or occurrence.” Br. of Appellants at 20. In their reply brief,

however, they seem to argue that “an event or occurrence” means “a single focused

event that is causally correlated to and then culminated in all of [the Plaintiffs’]

alleged injuries.” Reply Br. at 5 (quotation marks omitted). Under either

definition, however, they say the local event exception is not satisfied here because

the Plaintiffs’ allegations are too disparate and disconnected.

      We have come to our own view on the meaning of the local event exception.

We reject the Defendants’ view that the local event exception applies to only

events or occurrences that take place at a singular moment in time. But neither do

we accept the Plaintiffs’ view that the local event exception applies to any



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continuing set of circumstances in a single location, regardless of when and how

the harm came about. We conclude that “an event or occurrence” refers to a series

of connected, harm-causing incidents that culminate in one event or occurrence

giving rise to plaintiffs’ claims. Because the allegations in the Plaintiffs’

complaint do not meet that standard, we vacate the District Court’s grant of the

motion to remand.5

                                                A.

           1. Statutory Text

       In ascertaining the meaning of the local event exception, we begin with the

text of the statute. See Ross v. Blake, 578 U.S. ___, 136 S. Ct. 1850, 1856 (2016).

Because CAFA does not define the phrase “an event or occurrence,” we interpret

those words in accordance with their plain and ordinary meaning. See Barton v.

U.S. Att’y Gen., 904 F.3d 1294, 1298 (11th Cir. 2018) (“[U]nless otherwise

defined, statutory terms are generally interpreted in accordance with their ordinary




       5
          The Defendants also urge us to reverse the District Court on the ground that the
Plaintiffs also have not satisfied § 1332(d)(4)(A)’s local controversy exception. Because the
District Court did not address this ground for remand, and because the Defendants’ petition for
interlocutory appeal did not present this issue, we decline to address whether the local
controversy exception applies here. See Allen v. Boeing Co., 784 F.3d 625, 637 (9th Cir. 2015)
(declining “to attempt to determine in the first instance whether Plaintiffs’ case fits within” the
local controversy exception). The Plaintiffs may wish to have the District Court consider this
issue on remand, but we take no position on it at this time.


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meaning.” (quoting Sebelius v. Cloer, 569 U.S. 369, 376, 133 S. Ct. 1886, 1893

(2013))).

      To determine the ordinary meaning of an undefined statutory term, “we

often look to dictionary definitions for guidance.” In re Walter Energy, Inc., 911

F.3d 1121, 1143 (11th Cir. 2018). In this case, “both popular and legal”

dictionaries support our interpretation of “event or occurrence.” See Rainbow Gun

Club, Inc. v. Denbury Onshore, L.L.C., 760 F.3d 405, 409 (5th Cir. 2014). For

instance, Black’s Law Dictionary defines “occurrence” as “[s]omething that

happens or takes place,” including a “continuing condition that results in personal

injury or property damage.” Occurrence, Black’s Law Dictionary (11th ed. 2019).

Similarly, an “event” is “[s]omething that happens or is thought of as happening,”

a definition that clearly contemplates an ongoing condition. Event, Shorter Oxford

English Dictionary 873 (5th ed. 2002); see Event, American Heritage Dictionary

616 (4th ed. 2006) (“Something that takes place . . . .”). All these definitions also

agree that “event” and “occurrence” are more or less interchangeable. See, e.g.,

Event, American Heritage Dictionary 616 (4th ed. 2006) (“A significant

occurrence or happening.”). Based on these definitions, we think that the phrase

“event or occurrence” is broad enough to include a solitary happening that occurs

in a single moment in time and (in some cases at least) a continuing set of related




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circumstances. See Rainbow Gun Club, 760 F.3d at 409; Abraham v. St. Croix

Renaissance Grp., L.L.L.P., 719 F.3d 270, 276–77 & n.6 (3d Cir. 2013).

      What, though, to do with “an”? For some courts, “an” is everything. In

Allen, the Ninth Circuit said that “an,” combined with the use of the singular

“event” and “occurrence,” means the local event exception refers only “to a

singular happening.” 784 F.3d at 631; see also Dunn v. Endoscopy Ctr. of S. Nev.,

No. 2:11-CV-560, 2011 WL 5509004, at *2 (D. Nev. Nov. 7, 2011) (“The use of

the singular in the statutory language is important and sufficient.”). We agree, to a

point. It is true that the use of “an” implies one series of connected circumstances.

But it would be a misreading of the statute to restrict the local event exception to

events or occurrences that are concentrated in a single point in time. A baseball

game is a single “event,” even though it involves dozens of occurrences (a

strikeout, a home run, the seventh inning stretch) that happen over the course of a

few hours. Even several baseball games may be an “event”—for example, the

World Series, which takes place over an ascertainable period of time with the same

teams playing. But it would stretch this phrase beyond its ordinary meaning to say

that a game between the Braves and the Mets in one season and another game

between the Braves and the Marlins, years later, are part of the same event or

occurrence simply because both games involve the same team playing the same




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sport. These games share some commonality but, without more facts connecting

them, they cannot be considered a single “event or occurrence.”

      The District Court found the text of the local event exception to be

ambiguous, so it turned to legislative history to guide its interpretation. See

Remand Order at 4–7. While the District Court is not the only court to rely on

CAFA’s Senate Report when interpreting the local event exception, we do not

believe this is necessary because the text of the local event exception is clear. See

Abraham, 719 F.3d at 278–79; cf. Rainbow Gun Club, 760 F.3d at 410–11. Thus,

“we should not, cannot, and do not use legislative history” to navigate around what

CAFA’s plain text tells us to do. See Nesbitt v. Candler County, 945 F.3d 1355,

1361 (11th Cir. 2020); cf. Lowery, 483 F.3d at 1205–06 (consulting the Senate

Report after finding potential ambiguity in CAFA’s amount-in-controversy

provision).

          2. Other Judicial Interpretations

      Our interpretation of the local event exception aligns with two of our sister

circuits. The Third Circuit’s 2013 opinion in Abraham was the first appellate

decision to arrive at a view similar to ours. In Abraham, the St. Croix Renaissance

Group (“SCRG”) purchased a former alumina refinery, which had for the previous

30 years emitted hazardous substances into the red mud outside the refinery. 719

F.3d at 272–73. These substances were dispersed by wind and disseminated as a



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result of erosion. Id. at 273. The plaintiffs sued, arguing that SCRG was liable for

the continuing torts resulting from the plant. Id. at 273–74. SCRG removed the

case to federal court. Id. at 273. The Third Circuit acknowledged the presence of

“an,” but looked to the ordinary meaning of “event or occurrence” to confirm

whether the phrase necessarily refers to a singular moment in time. Id. at 277. The

court stated that “neither the term ‘event’ nor ‘occurrence’ is used solely to refer to

a specific incident that can be definitively limited to an ascertainable period of

minutes, hours, or days.” Id. Instead, an “event or occurrence” can refer to “a

continuing set of circumstances” that “share some commonality and persist over a

period of time.” Id. This rule allowed the plaintiffs’ claims to stay in state court,

as their complaint alleged a continuous, ongoing emission of toxic substances

without any “separate and discrete incidents causing the emission.” Id. at 280.

      The Fifth Circuit followed a similar approach the next year in Rainbow Gun

Club. The plaintiffs in that case entered into oil, gas, and mineral leases with

Denbury Onshore. 760 F.3d at 407. They later sued, arguing Denbury breached

its duty to act as a reasonable and prudent operator of the well that was drilled

under these leases. Id. The Fifth Circuit agreed with the Third Circuit that the

plain meanings of “event” and “occurrence” support the view that the local event

exception is “not generally understood to apply only to incidents that occur at a

discrete moment in time.” Id. at 409. The court took account of the singularity



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implicit in the local event exception by holding that it encompasses both “a

discrete moment in time” as well as “a pattern of conduct in which the pattern is

consistent in leading to a single focused event.” Id. at 411–12. The Fifth Circuit

concluded that the plaintiffs’ claims belonged in state court because their

complaint alleged “multiple acts of negligence” giving rise to one harm-causing

event: “the failure of the Well.” Id. at 412.

      The Ninth Circuit has issued two decisions exemplifying a contrasting view.

First, in Nevada v. Bank of America Corp., 672 F.3d 661 (9th Cir. 2012), the State

of Nevada brought a parens patriae action in state court alleging that “Bank of

America misled Nevada consumers about the terms and operation of its home

mortgage modification and foreclosure processes, in violation of [Nevada law].”

Id. at 664. Bank of America removed the case to federal court and the district

court denied the motion to remand. Id. at 666. Although the Ninth Circuit did

order the case remanded to state court, id. at 676, it declined to apply the local

event exception, id. at 667–68. The local event exception, said the court, “applies

only where all claims arise from a single event or occurrence . . . that gives rise to

the claims of all plaintiffs.” Id. at 668 (quotation marks omitted). The local event

exception did not apply to Nevada’s claims because the complaint “allege[d]

widespread fraud in thousands of borrower interactions.” Id. (emphasis added).




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      Three years later came Allen. In Allen, the plaintiffs alleged that Boeing

released toxins into the groundwater around one of its facilities, and that another

firm, Landau Associates, was negligent in its investigation and remediation of the

pollution. 784 F.3d at 627. In the Ninth Circuit’s estimation, the plaintiffs’ case

belonged in federal court because “a continuing course of pollution, contamination,

or conduct that occurs over a period of years” does not fit within the local event

exception. Id. at 632. The Ninth Circuit, like we do, examined dictionary

definitions of “event” and “occurrence.” Id. at 630–31. While the Ninth Circuit

recognized these words can be given a broader interpretation, the court concluded

without citation that they “most commonly and reasonably refer to a singular

happening,” and that “[t]here is no reason to think that Congress intended anything

else.” Id. at 631.

      We view the Ninth Circuit’s reading of the statute as too cramped. “An

event or occurrence” can be a single moment in time, but it can also be a series of

connected events occurring over a longer period. At the same time, the Third

Circuit’s analysis would benefit from guardrails for applying the local event

exception. The constraints of the Fifth Circuit’s decision in Rainbow Gun Club—

requiring the defendants’ actions to be contextually connected and to culminate in

one, distinct harm-causing event or occurrence—ensure that courts are best




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equipped to decide which cases are truly local and which should remain in federal

court.

                                      *      *     *

         In sum, we hold that the local event exception applies to a singular harm-

causing moment in time, as well as a contextually connected series of incidents

that culminates in that harm-causing event or occurrence.

                                            B.

         The allegations in the Plaintiffs’ complaint do not fall within the local event

exception. The complaint falls short on three fronts: a connection among the

Defendants; a culminating event; and allegations that would reasonably constitute

one “event or occurrence.” The District Court also mistakenly focused too

narrowly on the location and character of the harm to the exclusion of these other

factors.

         First, the fact that a large number of defendants acted separately to generate

the alleged harm is not dispositive of the local event exception. See Adams v. Int’l

Paper Co., No. 1:17-CV-105, 2017 WL 1828908, at *7 (S.D. Ala. May 5, 2017)

(“That defendants are alleged to have participated in that single event or

occurrence in different ways does not necessitate a conclusion that there were

actually multiple events or occurrences.”). But the acts that led to the harm-

causing event or occurrence must be “collective” and “related.” Rainbow Gun



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Club, 760 F.3d at 413; see Adams, 2017 WL 1828908, at *7. So, in Adams, the

district court found a single “event or occurrence” where one defendant caused the

release of toxic pollutants and another defendant exacerbated the release of those

same pollutants. 2017 WL 1828908, at *7. In this case, however, the Plaintiffs

allege the Defendants’ products were used in different ways and caused different

harms. Some of the products were used in the core room and some were used in

the foundry area. And the products ranged in type from shell core sand to foundry

sand, and from chemical resins to T-gas and Zip Slip. Without allegations that the

Defendants’ acts were related in triggering one harm-causing event or occurrence,

this complaint cannot satisfy the local event exception.

      Second, the Plaintiffs’ complaint does not allege a single culminating event

that caused their harm. Instead, as counsel admitted at oral argument, their

complaint alleges a string of events over time and later-resulting harm. 6 The

Plaintiffs maintain their case is no different from Abraham, Rainbow Gun Club, or

Adams, all of which ordered remand to state court under the local event exception.



      6
        JUDGE NEWSOM: Do you have a single culminating event here, or is it just,
      over the course of 20 years, there were chemicals that passed through the foundry
      that either on their own or in combination formed hazardous substances that harmed
      different people?

      COUNSEL: That’s exactly right. . . . It’s difficult to say when the toxins caused
      irritation, when did you get sick, when did it manifest.

Oral Argument at 28:34–29:18.


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However, in these three cases, there was a culminating harm-causing event. In

Abraham, the toxic substances produced by the refinery were dispersed by wind

over a discrete, though lengthy, period of time. 719 F.3d at 279–80. In Rainbow

Gun Club, a single well failed. 760 F.3d at 407, 413. And in Adams, there was a

continuous release of particular pollutants. 2017 WL 1828908, at *7. The

Plaintiffs, by contrast, have not identified a single harm-causing event or

occurrence. Instead, their complaint alleges a series of discrete incidents that, both

separately and in combination, caused the Plaintiffs harm. That is not enough for

the local event exception.

      Finally, the complaint does not sufficiently allege how the Defendants’

conduct came together to create one event or occurrence. The foundry was open

for decades, but the Plaintiffs do not say when the Defendants committed the

alleged torts or how and when the Plaintiffs were harmed. Cf. Abraham, 719 F.3d

at 279 (“The complaint alleges circumstances that persisted over a fixed period of

time . . . .”). Beyond that, the complaint says the Plaintiffs’ symptoms manifested

within two years of the filing of the complaint. Yet it is not clear to us that this is

the only period of time in which the Plaintiffs alleged they were injured. See Oral

Argument at 30:02–30:16 (“Our pleadings don’t go back 17 years . . . . Our

complaint is limited to the two years prior to our filing it.”). None of these faults

is, by itself, enough to mandate federal jurisdiction over this case. But when



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combined with the lack of allegations connecting the Defendants’ conduct or

pointing to a culminating event, these factors reinforce the propriety of our

decision to vacate the District Court’s ruling.

      We note the District Court was correct that this case does not, on its face,

seem to have “substantial interstate effects.” Remand Order at 10. But that is not

the end of the inquiry. District courts must examine the locus of the harm as well

as whether the alleged harm-causing behavior is “an event or occurrence.” In

addition, while the nature of the harm matters, see id. at 11, it is not everything.

Whether the Plaintiffs’ allegations are more akin to a toxic spill or a products

liability suit is less important than whether the course of conduct leading to the

harm was sufficiently related and whether it culminated in a single event.

                                          IV.

      Because the Plaintiffs’ complaint does not allege a continuous, related

course of conduct culminating in one harm-causing event or occurrence, it does not

fall within the local event exception. As a result, we VACATE the District

Court’s grant of the Plaintiffs’ motion to remand and REMAND the case back to

the District Court for further proceedings consistent with our opinion.




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