     Case: 14-30145           Document: 00512595277              Page: 1      Date Filed: 04/14/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                                                                  Fifth Circuit

                                                                                                 FILED
                                          No. 14-30145                                        April 14, 2014
                                        Summary Calendar                                      Lyle W. Cayce
                                                                                                   Clerk

BLAKE PERRITT; BARRY MITCHELL; RUBIN CRAYTON, JR.; DEZMON
ELLZEY; RONNIE SELLERS; MAURICIO BENDECK; HERSEY JAMES;
STEVEN BURNS,

                                                          Plaintiffs – Appellees
v.

WESTLAKE VINYLS COMPANY, L.P.; WESTLAKE CHEMICAL
CORPORATION,

                                                          Defendants – Appellants

------------------------------------------------------------------------------------------------------------

FREDERICK HOLLINS; LAURA HOLLINS; SHANICE HILLS,

                                                          Plaintiffs – Appellees
v.

WESTLAKE CHEMICAL CORPORATION; WESTLAKE VINYLS
COMPANY, L.P.,

                                                          Defendants – Appellants


                      Appeal from the United States District Court
                          for the Middle District of Louisiana
                         USDC Nos. 3:12-CV-253, 3:12-CV-254


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
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PER CURIAM:*
       Defendants appeal the district court’s order remanding to state court
these class actions filed against them. Because jurisdiction does not lie under
the Class Action Fairness Act of 2005 (“CAFA”), we AFFIRM. See, e.g.,
Patterson v. Dean Morris, L.L.P., 448 F.3d 736 (5th Cir. 2006).
                            FACTUAL BACKGROUND
       On the morning of March 22, 2012, a Westlake Chemical facility
exploded in Geismar, Louisiana. As alleged, the explosion caused the release
of various chemicals, including Vinyl Chloride Monomer (“VCM”). A “shelter in
place” order also encapsulated a one-mile radius from the facility’s location.
These consolidated class actions followed, alleging that the Westlake
defendants caused the plaintiffs’ damages.
       Two of the class actions, Perritt and Hollins, were originally filed in
Louisiana State court, only to be removed to federal court by defendants.
Several other class actions and single-plaintiff suits were filed in Louisiana
courts and were again removed by defendants. Plaintiffs in Perritt and Hollins
moved to remand, arguing that diversity jurisdiction and CAFA jurisdiction
were lacking. The district court first denied both motions to remand finding
federal jurisdiction, but later vacated its order. In its revised ruling on the
motions, the district court granted plaintiffs’ motions to remand finding that
there was no diversity or CAFA jurisdiction. Westlake filed a petition for
permission to appeal the remand orders, which we granted.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

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                               STANDARD OF REVIEW
      We review a district court’s granting of a motion to remand for lack of
subject matter jurisdiction de novo. Hood ex rel. Miss. v. JP Morgan Chase &
Co., 737 F.3d 78, 84 (5th Cir. 2013).
                                       DISCUSSION
                                               I.
      Generally, an order granting a motion to remand “is an interlocutory
order not usually subject to immediate appeal.” Alvarez v. Midland Credit
Mgmt., Inc., 585 F.3d 890, 893 (5th Cir. 2009); 28 U.S.C. § 1447(d) (“An order
remanding a case to the State court from which it was removed is not
reviewable on appeal or otherwise.”). Notwithstanding § 1447(d), which
codifies the interlocutory nature of remand orders, CAFA provides appellate
courts with discretion to deviate from this rule. 28 U.S.C. § 1453(c)(1). 1 “This
altered rule was intended to facilitate the development of ‘a body of appellate
law interpreting [CAFA] without unduly delaying the litigation of class
actions.’” Alvarez, 585 F.3d at 893 (quoting Saab v. Home Depot U.S.A., Inc.,
469 F.3d 758, 759 (9th Cir. 2006)).
      Westlake contends that we have jurisdiction under § 1453(c)(1) to review
the district court’s determination that diversity jurisdiction was lacking in
addition to the district court’s finding that CAFA jurisdiction did not apply.
Though we have acknowledged that “§ 1453(c) does not limit our discretionary



      1   Section 1453(c)(1) provides:
                Section 1447 shall apply to any removal of a case under this section, except
                that notwithstanding section 1447(d), a court of appeals may accept an appeal
                from an order of a district court granting or denying a motion to remand a class
                action to the State court from which it was removed if application is made to
                the court of appeals not more than 10 days after entry of the order.
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appellate jurisdiction to matters unique or peculiar to CAFA,” Alvarez, 585
F.3d at 894, § 1453(c) tethers our discretionary review to CAFA
determinations. See, e.g., Berniard v. Dow Chem. Co., 481 F. App’x 859, 864
(5th Cir. 2010) (“Rather, our judgment is limited to the rulings over which we
have appellate jurisdiction, viz, remand of the subject cases to state court for
failure of the proponents of CAFA jurisdiction to demonstrate that statute’s
amount-in-controversy requirement is met.”); Patterson, 448 F.3d at 742
(“CAFA provides only for review of a remand order premised on the
prerequisites of § 1453 or on claims with an adequate nexus to CAFA.”);
Wallace v. La. Citizens Prop. Ins. Corp., 444 F.3d 697, 700 (5th Cir. 2006) (“The
application of § 1453(c)(1) is therefore limited to the context of CAFA.”).
      In sum, our court, faced with the identical circumstance, has noted that
“[w]e do not have jurisdiction to review the district court’s decision to remand
for lack of diversity jurisdiction, but we may review its decision to remand for
lack of CAFA jurisdiction.” Berniard, 481 F. App’x at 860. Because we find our
court’s discussion in Berniard to be persuasive, we turn to CAFA jurisdiction.
                                       II.
      “CAFA contains a basic jurisdictional test for removal, which requires
the removing defendant to prove minimal diversity and an aggregated amount
in controversy of $5,000,000 or more.” Preston v. Tenet Healthsystem Memorial
Med. Ctr., Inc., 485 F.3d 793, 797 (5th Cir. 2007). Moreover, if the “number of
members of all proposed plaintiff classes in the aggregate is less than 100” then
CAFA jurisdiction cannot exist. 28 U.S.C. § 1332(d)(5)(B). All parties agree
that the minimal diversity requirement is met. The district court, however,
found CAFA jurisdiction lacking because “Westlake has failed to prove by a
preponderance of the evidence that the jurisdictional minimum is met” and
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failed to establish that the number of members of the proposed plaintiff classes
is greater than 99. The amount in controversy is dispositive in this case.
      Louisiana law prohibits plaintiffs from alleging the amount of damages
they seek in their petition. Berniard, 481 F. App’x at 862. Accordingly, in such
cases we have required “[t]he removing defendant [to] prove by a
preponderance of the evidence that the amount in controversy equals or
exceeds the jurisdictional amount.” Id. (quoting De Aguilar v. Boeing Co., 11
F.3d 55, 58 (5th Cir. 1993)). “[A] defendant seeking to sustain removal may
follow either of two tracks: (1) Adduce summary judgment evidence of the
amount in controversy, or (2) demonstrate that, from the class plaintiffs’
pleadings alone, it is ‘facially apparent’ that CAFA’s amount in controversy is
met.” Id. at 863. Westlake contends that CAFA jurisdiction exists under either
track: first, arguing that the $5,000,000 threshold is facially apparent; and
second, arguing that its submitted affidavit establishes the amount in
controversy.
                                       1.
      In Berniard, several consolidated class actions were filed after a tank
exploded at a Dow Chemical Company facility in Taft, Louisiana, releasing
ethyl acrylate. Id. at 861. Our court held that the defendants had not satisfied
their burden to prove that the amount in controversy was facially apparent:
      In our de novo review, we have aggregated the allegations of all seven
      consolidated cases, taking care, however, to avoid double counting and
      repetition in our effort to discern the alleged geographic and temporal
      reach of the EA release, the likely population of the affected class, and
      the effect of the release on the limited number of potentially affected
      plaintiffs. As a result, we cannot say that Defendants–Appellants have
      satisfied their burden under their chosen path of facial apparency.


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Id. at 864. The same is true here, as the Perritt petition alleges that the “class
consists of those persons in or near the community of Geismar, Louisiana who
sustained compensable damages,” and the Hollins petition alleges that the
class consists of persons “near the communities of Geismar and St. Gabriel,
Louisiana who sustained compensable damages.” As in Berniard, defendants
“overstate the reach of the plaintiffs’ petitions by improperly equating the
geographic areas in which potential plaintiffs might reside with the population
of the plaintiff class itself. Further, the comparisons that the Defendants–
Appellants make to damage recovery in similar cases is too attenuated to
satisfy their burden.” Berniard, 481 F. App’x at 864.
                                             2.
       While the district court rejected Westlake’s submitted affidavit in
opposition to remand, the affidavit does not sustain jurisdiction under CAFA. 2
Westlake argues that the affidavit “suggest[s] that a putative class of at least
1,500 persons would be appropriate in this circumstance.” But the affidavit
does little more than recapitulate census numbers of the allegedly affected
areas and identify the scope of the “shelter-in-place” order. This affidavit does
not add to the petitions’ allegations and “improperly equat[es] the geographic
areas in which potential plaintiffs might reside with the population of the
plaintiff class itself.” Berniard, 481 F. App’x 859.




       2  We have noted that “[w]hile post-removal affidavits may be considered in
determining the amount in controversy at the time of removal, such affidavits may be
considered only if the basis for jurisdiction is ambiguous at the time of removal.” Gebbia v.
Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000); St. Paul Reinsurance Co., Ltd. v.
Greenberg, 134 F.3d 1250, 1254 n.18 (5th Cir. 1998) (“We have considered a post-removal
affidavit when the jurisdictional amount was ambiguous on the face of the state petition.”).
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       Moreover, Appellants’ affiant does not provide any estimate of the claims
Westlake expects to pay as a result of this incident. 3 Westlake avers that VCM
is dangerous when inhaled in “extremely high concentrations,” but does not
explain what an “extremely high concentration” is, nor does it explain how
much VCM was released as a result of this incident beyond “reportable
quantities.” Indeed, Westlake’s affidavit confirms the limited nature of this
event; it avers that the fire in the VCM column “was extinguished within
approximately 20 minutes after the release began,” and that the Mississippi
River was closed for a “limited period.” Berniard again persuades. In Berniard,
the plaintiffs’
       pleadings also contain minimizing allegations, such as the fact that the
       road closure and evacuation of residents implemented by the DEP
       covered only a two mile stretch to the east of the Taft facility, as well as
       implications and deductions that in reality the release was quickly
       contained atmospherically diluted, and relatively minor and temporary
       in its deleterious effects, and that the incident was short lived, with
       normalcy being restored in short order.
Berniard, 481 F. App’x at 862; see also id. at 863 (“[B]ald exposure
extrapolations are insufficient to establish the likely number of persons
affected by the release or, for those affected, the severity of their harm.”).
Equally here, the petitions allege that the chemical release “caused the shelter
in place of an area of at least one mile radius from the release site and caused
the closing off of several major roads and closing of the Mississippi River to
traffic for a period of several hours.” As such, the district court was correct that



       3 See e,g., Gaudet v. Am. Home Shield Corp., No. 11-1857, 2012 WL 601884, at *3 (E.D.
La. Feb. 23, 2012) (relying on defendant’s affidavit, which “estimates that Defendant denied
air conditioning claims totaling more than $5,000,000 based on improper maintenance or lack
of maintenance and that the total for all claims would be higher”)
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defendants have not “provide[d] [a] reliable metric for determining the nature
and extent of” plaintiffs’ damages. 4 Accordingly, defendants have not met their
burden, and CAFA jurisdiction does not exist.
                                    CONCLUSION
       For the above stated reasons, the district court is AFFIRMED.




       4See, e.g., Cannon v. Dow Chem. Co., No. 08-1397, 2008 WL 2308897, at *3 (E.D. La.
June 2, 2008) (“Indeed, Defendant’s estimate is based on the entire population of St. Charles
Parish in their memorandum, not the putative class as defined by the Plaintiffs. To reach the
conclusion that the jurisdictional minimum was satisfied, the court would need to engage in
impermissible speculation-evaluating without the benefit of any evidence [of] the value of
individual claims.” (internal quotations omitted)).
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