UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Case No. 13-1725 St. Croix Renaissance Group, LLLP, Appellant, v. Eleanor Abraham, et al., Appellees. From the District Court of the Virgin Islands (D.C. No. 12-cv-0011) District Judge: Hon. Harvey J. Bartle III JOINT APPENDIX VOLUME 2 of 2 Exhibit D - Plaintiff's First Amended Complaint…………………………21 dated August 7, 2012. (DE 22) Exhibit E - Plaintiffs' Motion to Remand…………………………………61 dated October 24, 2012. (DE 36) Exhibit F - Defendant's Opposition to the Motion for…………...……….89 Remand, dated October 29, 2012. (DE 37) Joint Appendix - 18 Case: 13-1725 Document: 003111202012 Page: 1 Date Filed: 03/20/2013
Transcript
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Case No. 13-1725
St. Croix Renaissance Group, LLLP, Appellant,
v.
Eleanor Abraham, et al., Appellees.
From the District Court of the Virgin Islands (D.C. No. 12-cv-0011)
District Judge: Hon. Harvey J. Bartle III
JOINT APPENDIX VOLUME 2 of 2
Exhibit D - Plaintiff's First Amended Complaint…………………………21 dated August 7, 2012. (DE 22)
Exhibit E - Plaintiffs' Motion to Remand…………………………………61 dated October 24, 2012. (DE 36)
Exhibit F - Defendant's Opposition to the Motion for…………...……….89 Remand, dated October 29, 2012. (DE 37)
Joint Appendix - 18
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Exhibit G - Plaintiffs' Reply Regarding Motion to Remand……...…..….117 dated November 16, 2012. (DE 38) (with Exhibits)
Exhibit H - Defendant's Notice of Removal……………………….….…136 dated February 2, 2012. (DE 1) (Without exhibits) Exhibit I - Map of St. Croix showing alleged locations of dispersion.....147 Originally Exhibit A to Defendant's April 16, 2012, Reply to Plaintiffs' Opposition to SCRG's Motion for More Definite Statement and Severance (DE 12)
Exhibit J - Appellant's Motion to Strike, dated December 27, 2012..…..149
Exhibit K - Respondents' Opposition to the Motion to Strike…………....164 dated January 10, 2013
Exhibit L - Current docket sheet from the U.S.V.I District Court……....169
Joint Appendix - 19
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EXHIBIT D
Joint Appendix - 20
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IN THE DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
Abraham, Eleanor; Abraham, Phillip; Abraham, Ratcliffe; Abreu, Elizabeth; Acosta, Edelmiro; Acosta, Martha; Acosta, Tomas J.; Acosta, Tomas Jr.; Acosta, Yamaris; Albert, Charmaine N. individually and as parent to minors Andre, Austin B. Andre, Bevington R., Andre, Chris L. and Andre, Felisha C; Aldonza, Davidson, individually and as parent to minors Aldonza, Abigail, Aldonza, Brianner Aldonza, Bryson and Aldonza, Ruthlin,; Alexander, Christina; Alexander, Olive; Alphonse, Anastasia; Alphonse, Brian; Alphonse, Kelvin; Andrew, Julita; Anthony, Jerome; Anthony, Violet; Antoine, Priscilla; Arjune, Camille; Arjune, Ian; Arroyo, Hector M. Jr.; Arroyo, Hector M. Sr.; Arroyo, Maria C.; Arroyo, Marilyn; Arroyo, Paula; Arroyo, Petra; Athill, Christopher; Auguste, Merkey R.; Augustine, Denis J.; Ayala, Awilda; Ayala, Carmela; Ayala, Evangelista J. Jr.; Ayala, Evangelista J. Sr.; Ayala, Jahaira; Ayala, Jesus M.; Ayala, Manuel; Ayala, Rosanda individually and as parent to minors Ayala, Jason A. and Ayala, Jesus JB.; Barnard, Melvina A.; Barnard, Sandra individually and as parent to minor Concepcion, Trejuan,; Barnard, Shawn; Barnard-Liburd, Leonor individually and as parent to minor Parris, Millina,; Benjamin, Akima; Benjamin, Alie; Benjamin, Ashsba; Benjamin, Yvette individually and as parent to minors Harris, Ashema and Harris, Joseph N.,; Beras, Catherine; Beras, Lulila; Bonit, Andria; Bonit, Timothy; Boulogne, Carlo J.; Bright, Alexis; Brooks, Edred; Bright, Lestroy; Brown, Iva T.; Browne, Gweneth; Browne, Sylvia; Bryan, George O. Jr.;Burgos, Kayla K.; Caines, Imogen; Candelario, Aura E.; Carmona, Francisco J.; Carmona, Wilfredo Jr.; Carrasquillo, Lao Carmen; Carrasquillo, Amparo individually and as parent to minor Navarro, Jahvan J.,; Carrasquillo, Angel Mario; Carrasquillo, Julio A.; Carrasquillo, Leisha L. individually and as parent to minors Nolasco, Marcus A. Jr. and Villanueva, Edilberto III Anthony,; Cartier, Shermaine; Cedeno, Valentin; Cepeda, Johanna; Cepeda, Luz individually and as parent to minor Cepeda, Anthony,; Cepeda, Regalado III; Cepeda, Regalado IV; Cepeda, Regalado, Jr.; Chassana, Vitalienne A.; Christophe, Joseph; Christophe, Maryanna; Cirlio,
CIVIL NO. 12-CV-0011 ACTION FOR DAMAGES JURY TRIAL DEMANDED
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Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 3 Jairam, Kelman; James, Akeem; James, Kareem; James, Sybil; Jean-Baptiste, George; Jean-Baptiste, Lisa; Jean-Baptiste, Magdalena individually and as parent to minors Jean-Baptiste, Tamera and Jean-Baptiste, Tia; John, Alfred Jr.; John, Estrellita Marie; John, Ignatius; John, Yahmillia; Jordan, John; Khan, Ingema; Kiture, Emily J. individually and as parent to minors Carmona, Kish'Marie V.,Carmona, Wilmarice S. and Carmona, E'Marley; Kiture, Janice; Kiture, Lucina; Knight, Barbara; LaForce, Cassandra; LaForce, Joseph Jr.; Lebron, Fermin Jr.; Lebron, Mariluz; Leo, John B.; Leonce, Herbert; Liburd, Leonard; Llanos, Veronica individually and as parent to minor Llanos, Veronique; Lopez, Carmen M. individually and as parent to minors Lopez, Jashira M. and Allen, Alloy O. Jr.; Lopez, Maishaleen; Lopez, Miguel A.; Lopez, Miguel A. Jr.; Lopez. Myrna; Lubin, Apreel; Lubin, Joel Patrick; Lubin, Jonah Newell; Lubin-Duman, Beverly Ann; Lugo, Corali individually and as parent to minors Lugo, Giselle and Lugo, Marc A.; Lugo, Jerge L.; Lugo, Krystal; Malaykhan, Ejajie; Malaykhan, Sham; Malaykhan, Suraj; Maldonado, Ana; Mark, Cynthia; Martinez, Humberto; Martinez, Andrea; Martinez, Conception; Martinez, Lynnette individually and as parent to minor Vazquez, Jose E. Jr.; Martinez, Ramon; Matthew, Alford; Matthew, Asiah; Matthew, Estine; Matthew, Euphelie; Matthew, Maria; Matthew, Martin; Matthew, Michael L.; Matthew, Shirley (La Force); Maynard, Chamarie ; Maynard, Maria; Maynard, Nadeen V. individually and as parent to minor Walters, Nadean V.; Melendez, Jose Reyes; Miranda, Andrea; Miranda, Miguel; Mitchell, Claire-Mina; Mitchell, Clarie-Mina A.; Mitchell, Janice individually and as parent to minor Mitchell, Queana; Mitchell, Nancy; Mitchell, Sharon; Moe, Melwyn; Morales, Maria Luz; Morris, Ersilie; Morris, Sennet E.; Morton, Catherine; Morton, Julian E. Jr.; Morton, Monroe; Navarro, Carmen, individually and as parent to minor Ruiz, Cristina; Navarro, Luz D.; Navarro, Marco A.; Navarro, Maria individually and as parent to minors Navarro, Gilberto and Navarro, Gilmarie; Navarro, Maria Mercedes; Navarro, Nelson; Nicholas, Joan; Nicholas, Latoya Y.; Nicholas, Sandy; Noorhasan, Dorette F.; Noorhasan, Lennox E.; Noorhasan, Shane Antonio; Nyack, Marilyn; O’Reilly, Wilburn; Paige, Alvin;
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Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 4 Paige, Ara individually and as parent to minor Burke, Ian; Parrilla, Carmen Amaro individually and as parent to minors Parrilla, Christian Jr., Parrilla, Miguel J. and Parrilla, Natacha; Parrilla, Delores I., individually and as parent to minor Parrilla, Roberto Jr.; Parrilla, Joel; Parrilla, Juan; Parrilla, Orlando; Parrilla, Raquel; Parrilla, Pedro Juan; Parrilla, Roberto Sr.; Parrilla, Sonia M.; Parrilla, Tara; Parrilla, Wilfredo; Parrilla, Orlimagelys; Parrilla-Ferdinand, Delores; Pemberton, Candis M.; Pemberton, Majarie C.; Pena, Marco Garcia; Perez, Carlos A.; Perez, Carlos Alberto; Perez, Carmen L.; Perez, Jorge A.; Perez, Jose M.; Perez, Naishma K.; Perez, Nydia, individually and as parent to minor Perez, Paula Y.; Perez, Tuwanda; Perez, Victor M.; Perez, Xavier M.; Perez, Yamileisy; Perez, Yaritza; Perez, Ylonis J.; Perez, Yomar A.; Perez, Zalemie Y.; Perez-Ayala, America individually and as parent to minors Perez, Neishalee and Perez, Victor Manuel III; Phillip, Arthur; Phillip, Martial; Phillip, Marva; Phillip, Marvin; Phillip, Terry M.; Picart, Jose; Pilier, Demetrio A. individually and as parent to minors Pilier, Lizandro and Pilier, Lizangel; Plaskett, Cripson; Plaskett, Dilia individually and as parent to minor Ventura, Angela S.; Plaskett, William A.; Polidore, Cornelia; Polidore, Keriscia; Polydore, Lawrence; Prescott, Miscelda; President, Kimbel; President, Kimberly; Preville, Godfrey G.; Profil, Migdalia; Pryce, David; Pryce, Philbert Jr.; Quildan, Isabella N.; Quildan, Kareem; Quinones, Iris M.; Quinones, Jose William; Quinones, Ruth A.; Quinones, Sila; Ramirez, Andres Mercado; Ramos, Brunilda; Ramos, Daniel; Ramos, Gabriel; Ramos, Jorge; Ramos, Josefina; Ramos, Marcela; Reyes, Eridania; Reyes, Evaristo; Reyes, Francisca C., individually and as parent to minor Reyes, Nayoshe; Reyes, Juan A.; Reyes, Juanico; Reyes, Maximo Guerrero; Reyes, Wanda J.; Richardson, Laurencea; Richardson, Marilyn, individually and as parent to minor Gonzague, Jovon; Rios, Cecilia; Rivera, Ana Celia; Rivera, Beatrice; Rivera, Belkis; Rivera, Ebony; Rivera, Miriam; Rivera, Sandro; Robles Jessica C.; Robles, Benjamin Jr.; Robles, Benjamin Sr.; Robles, Elise; Robles, Ismael ; Robles, Ivette; Robles, Jose Luis; Rodney, Martina L.; Rodriguez, Julio; Rodriguez, Lillian R. individually and as parent to minor Rodriguez, Miguel A.; Rodriguez, Miguely; Rogers, Akeel;
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Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 5 Rojas, Pablo; Roldan, Frenando L.; Roldan, Jeremy L.; Rosario, Angela Pagan; Ross, Neelia; Ruiz, Joanne, individually and as parent to minors Carmona, Angelo J., Greenidge, Alaika E., Greenidge, Allen H., Jr., Greenidge, Talaiya A.and Ruiz, Takima T.; Ruiz, Rut individually and as parent to minor Leo, Jahliah T.; Saldana, Carmen; Saldana, Eddie Adner; Saldana, Edwin; Saldana, Raquel individually and as parent to minor Maragh, Krystal; Sanchez, Angel Alberto; Sanchez, Edith; Sanchez, Jose Alberto; Sanchez, Jose E.; Sanchez, Jose Roberto; Sanes, Angel L.; Sanes, Joshua; Sanes, Miguel Angel; Santana, Yadira; Santiago, Jose Lanso; Santiago, Artemia; Santiago, Carlos L.; Santiago, Chayanne; Santiago, Eliever; Santiago, Lydia; Santiago, Maynalys; Santos, Angelica; Santos, Ramona; Santos, Theresita; Serrano, Maria; Serrano, Martha; Serrano, Martin Jr.; Shalto, Greta; Shaw- Jacobs, Jeanette; Shirley, Helen; Slater, Ramisha individually and as parent to minor Wilson, Brandon T.B. II; Smith, Keisha P.; Smith, Kevin E.; Smith, Natasha; Soto, Jennifer; Soto, Jeremy; Soto, Jorge ; Soto, Luis Enrique individually and as parent to minor Soto, Luis E.; Soto, Maria L.; Soto, Rosa; St. Brice, Anthony; Stevens, Claudia; Stubbs, Jeremiah C. individually and as parent to minor Stubbs, Mariah C.; Taylor, Annette J.; Taylor, Beryl E.; Taylor, Debbie R.; Theophilus, Alita V.; Thomas, Marsha individually and as parent to minors Tanis, Tamirea N. and Tanis, Nahomey; Torres, Jose Manuel, Jr.; Torres, Linda; Valentine, Carmen; Valentine, Santiago O. Jr.; Vasquez, Noemi S.; Vega, Efrain; Vega, Luis Felix Jr.; Vega, Luz Delia individually and as parent to minors, Vega, Shanley T. and Vega, Fransheska; Vega, Luis Felix; Vegas Lebron, Fermin; Velez, Carmen R.; Velez, Corporina; Velez, Jose R.; Velez, Jose Ramon; Velez, Margarita; Velez, Miguel Angel; Velez, Norma; Velez, Yesenia; Ventura, Angel L.; Ventura, Anna Maria; Ventura, Carlos Jr.; Ventura, Carmen L.; Ventura, Edna; Ventura, Jose Miguel; Ventura, Karla Jeanette; Ventura, Noelia Soto; Ventura, Xiomara I. individually and as parent to minor Denis, Diane N.; Villanueva, Shelia L.; Williams, Clayton; Williams, Idelfonsa; Williams, Urma; Wilson, Alfred; Wilson, Brandon T.B.; Wilson, Cindy, individually and as parent to minor Rivera, Justin; Wilson, Diana N., individually and as
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Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 6 parent to minor Roldan, Shaedean N.; Wiltshire, Dunn; Wiltshire, Ethelbert; Wiltshire, Gregg; Wiltshire, Hermine, individually and as guardian to minor Wiltshire, Christina; and Wiltshire, Peter, Plaintiffs, v. St. Croix Renaissance Group LLLP, Defendant.
FIRST AMENDED COMPLAINT
COME NOW, the Plaintiffs by and through their undersigned counsel, and file
their First Amended Complaint and respectfully represent to the Court as follows:
1. This Court has jurisdiction pursuant to 4 V.I.C Section 76, et seq.
2. Abraham, Eleanor is a citizen of St. Croix, United States Virgin Islands.
3. Abraham, Phillip is a citizen of St. Croix, United States Virgin Islands.
4. Abraham, Ratcliffe is a citizen of St. Croix, United States Virgin Islands.
5. Abreu, Elizabeth is a citizen of St. Croix, United States Virgin Islands.
6. Acosta, Edelmiro is a citizen of St. Croix, United States Virgin Islands.
7. Acosta, Martha is a citizen of St. Croix, United States Virgin Islands.
8. Acosta, Tomas J. is a citizen of St. Croix, United States Virgin Islands.
9. Acosta, Tomas Jr. is a citizen of St. Croix, United States Virgin Islands.
10. Acosta, Yamaris is a citizen of St. Croix, United States Virgin Islands.
11. Albert, Charmaine N. individually and as parent to minors Andre, Austin B.
Andre, Bevington R., Andre, Chris L. and Andre, Felisha C., citizens of St. Croix
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Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 7 12. Aldonza, Davidson, individually and as parent to minors Aldonza, Abigail,
Aldonza, Brianner Aldonza, Bryson and Aldonza, Ruthlin, citizens of St. Croix
U.S. Virgin Islands;
13. Alexander, Christina is a citizen of St. Croix, United States Virgin Islands.
14. Alexander, Olive is a citizen of St. Croix, United States Virgin Islands.
15. Alphonse, Anastasia is a citizen of St. Croix, United States Virgin Islands.
16. Alphonse, Brian is a citizen of St. Croix, United States Virgin Islands.
17. Alphonse, Kelvin is a citizen of St. Croix, United States Virgin Islands.
18. Andrew, Julita is a citizen of St. Croix, United States Virgin Islands.
19. Anthony, Jerome is a citizen of St. Croix, United States Virgin Islands.
20. Anthony, Violet is a citizen of Miramar, Florida.
21. Antoine, Priscilla is a citizen of St. Croix, United States Virgin Islands.
22. Arjune, Camille is a citizen of Tampa, Florida.
23. Arjune, Ian is a citizen of St. Croix, United States Virgin Islands.
24. Arroyo, Hector M. Jr. is a citizen of St. Croix, United States Virgin Islands.
25. Arroyo, Hector M. Sr. is a citizen of St. Croix, United States Virgin Islands.
26. Arroyo, Maria C. is a citizen of St. Croix, United States Virgin Islands.
27. Arroyo, Marilyn is a citizen of St. Croix, United States Virgin Islands.
28. Arroyo, Paula is a citizen of St. Croix, United States Virgin Islands.
29. Arroyo, Petra is a citizen of St. Croix, United States Virgin Islands.
30. Athill, Christopher is a citizen of St. Croix, United States Virgin Islands.
31. Auguste, Merkey R. is a citizen of St. Croix, United States Virgin Islands.
32. Augustine, Denis J. is a citizen of St. Croix, United States Virgin Islands.
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Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 10 73. Cepeda, Johanna is a citizen of St. Croix, United States Virgin Islands.
74. Cepeda, Luz individually and as parent to minor Cepeda, Anthony, citizens of St.
Croix U.S. Virgin Islands;
75. Cepeda, Regalado III is a citizen of St. Croix, United States Virgin Islands.
76. Cepeda, Regalado IV is a citizen of St. Croix, United States Virgin Islands.
77. Cepeda, Regalado, Jr. is a citizen of St. Croix, United States Virgin Islands.
78. Chassana, Vitalienne A. is a citizen of St. Croix, United States Virgin Islands.
79. Christophe, Joseph is a citizen of St. Croix, United States Virgin Islands.
80. Christophe, Maryanna is a citizen of St. Croix, United States Virgin Islands.
81. Cirlio, Ana is a citizen of St. Croix, United States Virgin Islands.
82. Cirlio, Sonia N. is a citizen of St. Croix, United States Virgin Islands.
83. Clarke, Tuwanda is a citizen of St. Croix, United States Virgin Islands.
84. Clercin, Skitter is a citizen of St. Croix, United States Virgin Islands.
85. Clovis, Celestin is a citizen of St. Croix, United States Virgin Islands.
86. Clovis, Regina J. is a citizen of St. Croix, United States Virgin Islands.
87. Cobb, Theophilius is a citizen of St. Croix, United States Virgin Islands.
88. Cobb, Veronica is a citizen of St. Croix, United States Virgin Islands.
89. Codrington, Raymond is a citizen of St. Croix, United States Virgin Islands.
90. Colon, Ivette is a citizen of Kissimmee, Florida
91. Colon, Luis R. is a citizen of St. Croix, United States Virgin Islands.
92. Cordice, Lendale Jr. is a citizen of St. Croix, United States Virgin Islands.
93. Coron, Domingo is a citizen of St. Croix, United States Virgin Islands.
94. Correa, Maria P. is a citizen of St. Croix, United States Virgin Islands.
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Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 11 95. Cruz, Christina is a citizen of St. Croix, United States Virgin Islands.
96. Cruz, Maria is a citizen of St. Croix, United States Virgin Islands.
97. Cruz, Orlando is a citizen of St. Croix, United States Virgin Islands.
98. Cuencas, Alfredo Jr. is a citizen of St. Croix, United States Virgin Islands.
99. Daniel, Adrea Y. is a citizen of St. Croix, United States Virgin Islands.
100. Daniel, Cammie O. is a citizen of St. Croix, United States Virgin Islands.
101. Daniel, Cyril Jr. is a citizen of St. Croix, United States Virgin Islands.
102. Daniel, Stanley is a citizen of St. Croix, United States Virgin Islands.
103. Daniel, Suzette is a citizen of St. Croix, United States Virgin Islands.
104. David, Francis is a citizen of St. Croix, United States Virgin Islands.
105. David, Ruby C. is a citizen of St. Croix, United States Virgin Islands.
106. Davis, Enrique is a citizen of Kissimmee, Florida.
107. Davis, Mercedes is a citizen of St. Croix, United States Virgin Islands.
108. Davis, Samuel is a citizen of St. Cloud, Florida.
109. Davis-Feliz, Gladys individually and as parent to minor Davis, Eric O., citizen of
Kissimmee, Florida.
110. DeJesus, Elie is a citizen of Kissimmee, Florida.
111. DeJesus, Theodore M. is a citizen of St. Croix, United States Virgin Islands.
112. deLande, Kevin F. is a citizen of St. Croix, United States Virgin Islands.
113. Denis, Matthew is a citizen of St. Croix, United States Virgin Islands.
114. Dennie, Mary is a citizen of St. Croix, United States Virgin Islands.
115. Dennie, Nkosi B. is a citizen of St. Croix, United States Virgin Islands.
116. Diaz, Elizabeth is a citizen of St. Croix, United States Virgin Islands.
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Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 12 117. Diaz, Fiadalizo is a citizen of St. Croix, United States Virgin Islands.
118. Drew, Maud is a citizen of St. Croix, United States Virgin Islands.
119. Durand, Benjamin is a citizen of St. Croix, United States Virgin Islands.
120. Durand, David is a citizen of St. Croix, United States Virgin Islands.
121. Durand, Fennella individually and as parent to minors Coureure, Jasi R. and
Coureure, Shomalie C. citizens of St. Croix U.S. Virgin Islands;
122. Durand, Gweneth is a citizen of St. Croix, United States Virgin Islands.
123. Durand, Jamal R. is a citizen of St. Croix, United States Virgin Islands.
124. Durand, Kishma R. is a citizen of St. Croix, United States Virgin Islands.
125. Durand, Rudolph is a citizen of St. Croix, United States Virgin Islands.
126. Durand, Rudolph Jr. is a citizen of St. Croix, United States Virgin Islands.
127. Duvivier, Brandon C. is a citizen of St. Croix, United States Virgin Islands.
128. Edward, Leara individually and as parent to minor Cooper, Neges, citizens of St.
Croix U.S. Virgin Islands.
129. Edward, Patrick is a citizen of St. Croix, United States Virgin Islands.
130. Estephane, Virginia is a citizen of West Palm Beach, Florida.
131. Ettienne, Carlton is a citizen of St. Croix, United States Virgin Islands.
132. Ettienne, Madona individually and as parent to minors Ettienne, Kareem and
Sylvain, Jady, citzens of St. Croix U.S. Virgin Islands;
133. Evelyn, Sylvia is a citizen of Miami, Florida.
134. Felix, Alane K. is a citizen of St. Croix, United States Virgin Islands.
135. Felix, Alvin is a citizen of St. Croix, United States Virgin Islands.
136. Felix, Domingo is a citizen of St. Croix, United States Virgin Islands.
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Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 13 137. Felix, Edymarie is a citizen of St. Croix, United States Virgin Islands.
138. Felix, Hyacinth M. is a citizen of St. Croix, United States Virgin Islands.
139. Felix, Isabel is a citizen of St. Croix, United States Virgin Islands.
140. Felix, Isidoro is a citizen of St. Croix, United States Virgin Islands.
141. Felix, Jasmine is a citizen of St. Croix, United States Virgin Islands.
142. Felix, Maria B. is a citizen of St. Croix, United States Virgin Islands.
143. Felix, Marius F. is a citizen of St. Croix, United States Virgin Islands.
144. Felix, Mathilda is a citizen of St. Croix, United States Virgin Islands.
145. Felix, Sasha Marie individually and as parent to minors Felix, Taheyrah,
Hospedales, Dani Marie, Hospedales, Dennis K. and Hospedales, Destani L.,
citizens of St. Croix U.S. Virgin Islands;
146. Ferdinand, Neeshawn is a citizen of Orlando, Florida.
147. Ferdinand, Pearline is a citizen of St. Croix, United States Virgin Islands.
148. Ferdinand, Renee is a citizen of St. Croix, United States Virgin Islands.
149. Ferdinand, Rinel is a citizen of St. Croix, United States Virgin Islands.
150. Fulgencio, Jose Antonio is a citizen of St. Croix, United States Virgin Islands.
151. Flavien, Delia is a citizen of St. Croix, United States Virgin Islands.
152. Fontenelle, Kenyan is a citizen of St. Croix, United States Virgin Islands.
153. Fulgencio, Luis M. is a citizen of St. Croix, United States Virgin Islands.
154. Fulgencio, Nilsa Cruz is a citizen of St. Croix, United States Virgin Islands.
155. Garcia, Martha is a citizen of St. Croix, United States Virgin Islands.
156. George, Alcenta is a citizen of St. Croix, United States Virgin Islands.
157. George, Amos is a citizen of St. Croix, United States Virgin Islands.
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Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 14 158. George, Charles is a citizen of St. Croix, United States Virgin Islands.
159. George, Inez is a citizen of St. Croix, United States Virgin Islands.
160. George, Lucia M. is a citizen of St. Croix, United States Virgin Islands.
161. Gill, Sharon E. is a citizen of St. Croix, United States Virgin Islands.
162. Glasgow, George is a citizen of St. Croix, United States Virgin Islands.
163. Glasgow, Wilhemina is a citizen of St. Croix, United States Virgin Islands.
164. Gomez, Angel Luis is a citizen of St. Croix, United States Virgin Islands.
165. Green, Vernon is a citizen of St. Croix, United States Virgin Islands.
166. Greenaway, Charles is a citizen of St. Croix, United States Virgin Islands.
167. Greenaway, Veronica is a citizen of St. Croix, United States Virgin Islands.
168. Grouby, Wendell is a citizen of St. Croix, United States Virgin Islands.
169. Guadalupe, Margarita is a citizen of St. Croix, United States Virgin Islands.
170. Guerrero, Alcides is a citizen of St. Croix, United States Virgin Islands.
171. Guerrero, Casiano is a citizen of St. Croix, United States Virgin Islands.
172. Hanes, Veronica is a citizen of St. Croix, United States Virgin Islands.
173. Hendrickson, Kenisha C. individually and as parent to minors Almestica, Zaquan,
Jonas, Jahi and Jonas, Zaryah , citizens of St. Croix U.S. Virgin Islands;
174. Henry, Josephat is a citizen of St. Croix, United States Virgin Islands.
175. Henry, Lucille is a citizen of Mableton, Georgia.
176. Henry, Mary is a citizen of St. Croix, United States Virgin Islands.
177. Hepburn, Maria is a citizen of St. Croix, United States Virgin Islands.
178. Hodge, Edmond is a citizen of St. Croix, United States Virgin Islands.
179. Irwin, Vera is a citizen of St. Croix, United States Virgin Islands.
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Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 15 180. Isaac, Stella B. is a citizen of St. Croix, United States Virgin Islands.
181. Isaac, Verrall is a citizen of St. Croix, United States Virgin Islands.
182. Jacobs, Janet C. individually and as parent to minor Joseph, Justin J., citizens of
St. Croix U.S. Virgin Islands.
183. Jairam, Barbara is a citizen of St. Croix, United States Virgin Islands.
184. Jairam, Kelman is a citizen of St. Croix, United States Virgin Islands.
185. James, Akeem is a citizen of St. Croix, United States Virgin Islands.
186. James, Kareem is a citizen of St. Croix, United States Virgin Islands.
187. James, Sybil is a citizen of St. Croix, United States Virgin Islands.
188. Jean-Baptiste, George is a citizen of St. Croix, United States Virgin Islands.
189. Jean-Baptiste, Lisa is a citizen of St. Croix, United States Virgin Islands.
190. Jean-Baptiste, Magdalena individually and as parent to minors Jean-Baptiste,
Tamera and Jean-Baptiste, Tia, citizens of St. Croix U.S. Virgin Islands.
191. John, Alfred Jr. is a citizen of St. Croix, United States Virgin Islands.
192. John, Estrellita Marie is a citizen of St. Croix, United States Virgin Islands.
193. John, Ignatius is a citizen of St. Croix, United States Virgin Islands.
194. John, Yahmillia is a citizen of St. Croix, United States Virgin Islands.
195. Jordan, John is a citizen of St. Croix, United States Virgin Islands.
196. Khan, Ingema is a citizen of St. Croix, United States Virgin Islands.
197. Kiture, Emily J. individually and as parent to minors Carmona, Kish'Marie V.,
Carmona, Wilmarice S. and Carmona, E'Marley residents of St. Croix U.S. Virgin
Islands.
198. Kiture, Janice is a citizen of St. Croix, United States Virgin Islands.
Case: 13-1725 Document: 003111202012 Page: 18 Date Filed: 03/20/2013
Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 16 199. Kiture, Lucina is a citizen of St. Croix, United States Virgin Islands.
200. Knight, Barbara citizens of St. Croix U.S. Virgin Islands.
201. LaForce, Cassandra is a citizen of St. Croix, United States Virgin Islands.
202. LaForce, Joseph Jr. is a citizen of St. Croix, United States Virgin Islands.
203. Lebron, Fermin Jr. is a citizen of St. Croix, United States Virgin Islands.
204. Lebron, Mariluz is a citizen of St. Croix, United States Virgin Islands.
205. Leo, John B. is a citizen of St. Croix, United States Virgin Islands.
206. Leonce, Herbert is a citizen of St. Croix, United States Virgin Islands.
207. Liburd, Leonard is a citizen of St. Croix, United States Virgin Islands.
208. Llanos, Veronica individually and as parent to minor Llanos, Veronique, citizens
of St. Croix U.S. Virgin Islands.
209. Lopez, Carmen M. individually and as parent to minors Lopez, Jashira M. and
Allen, Alloy O. Jr., citizens of St. Croix U.S. Virgin Islands;
210. Lopez, Maishaleen is a citizen of St. Croix, United States Virgin Islands.
211. Lopez, Miguel A. is a citizen of St. Croix, United States Virgin Islands.
212. Lopez, Miguel A. Jr. is a citizen of St. Croix, United States Virgin Islands.
213. Lopez. Myrna is a citizen of St. Croix, United States Virgin Islands.
214. Lubin, Apreel is a citizen of St. Croix, United States Virgin Islands.
215. Lubin, Joel Patrick is a citizen of Charlotte, NC.
216. Lubin, Jonah Newell is a citizen of St. Croix, United States Virgin Islands.
217. Lubin-Duman, Beverly Ann is a citizen of St. Croix, United States Virgin Islands.
218. Lugo, Corali individually and as parent to minors Lugo, Giselle and Lugo, Marc A.
is a citizen of St. Croix, United States Virgin Islands.
Case: 13-1725 Document: 003111202012 Page: 19 Date Filed: 03/20/2013
Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 17 219. Lugo, Jerge L. Is a citizen of St. Croix, United States Virgin Islands.
220. Lugo, Krystal is a citizen of St. Croix, United States Virgin Islands.
221. Malaykhan, Ejajie is a citizen of St. Croix, United States Virgin Islands.
222. Malaykhan, Sham is a citizen of St. Croix, United States Virgin Islands.
223. Malaykhan, Suraj is a citizen of St. Croix, United States Virgin Islands.
224. Maldonado, Ana is a citizen of St. Croix, United States Virgin Islands.
225. Mark, Cynthia is a citizen of St. Croix, United States Virgin Islands.
226. Martinez, Humberto is a citizen of St. Croix, United States Virgin Islands.
227. Martinez, Andrea is a citizen of St. Croix, United States Virgin Islands.
228. Martinez, Conception is a citizen of St. Croix, United States Virgin Islands.
229. Martinez, Lynnette individually and as parent to minor Vazquez, Jose E. Jr.,
citizens of Longwood, Florida.
230. Martinez, Ramon is a citizen of St. Croix, United States Virgin Islands.
231. Matthew, Alford is a citizen of St. Croix, United States Virgin Islands.
232. Matthew, Asiah is a citizen of St. Croix, United States Virgin Islands.
233. Matthew, Estine is a citizen of Baytown, Texas.
234. Matthew, Euphelie is a citizen of St. Croix, United States Virgin Islands.
235. Matthew, Maria is a citizen of St. Croix, United States Virgin Islands.
236. Matthew, Martin is a citizen of St. Croix, United States Virgin Islands.
237. Matthew, Michael L. is a citizen of St. Croix, United States Virgin Islands.
238. Matthew, Shirley (La Force) is a citizen of St. Croix, United States Virgin Islands.
239. Maynard, Chamarie is a citizen of St. Croix, United States Virgin Islands.
240. Maynard, Maria is a citizen of St. Croix, United States Virgin Islands.
Case: 13-1725 Document: 003111202012 Page: 20 Date Filed: 03/20/2013
Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 18 241. Maynard, Nadeen V. individually and as parent to minor Walters, Nadean V.,
citizens of St. Croix U.S. Virgin Islands.
242. Melendez, Jose Reyes is a citizen of St. Croix, United States Virgin Islands.
243. Miranda, Andrea is a citizen of St. Croix, United States Virgin Islands.
244. Miranda, Miguel is a citizen of St. Croix, United States Virgin Islands.
245. Mitchell, Claire-Mina is a citizen of St. Croix, United States Virgin Islands.
246. Mitchell, Clarie-Mina A. is a citizen of St. Croix, United States Virgin Islands.
247. Mitchell, Janice individually and as parent to minor Mitchell, Queana, citizen of
St. Croix U.S. Virgin Islands.
248. Mitchell, Nancy is a citizen of St. Croix, United States Virgin Islands.
249. Mitchell, Sharon is a citizen of St. Croix, United States Virgin Islands.
250. Moe, Melwyn is a citizen of St. Croix, United States Virgin Islands.
251. Morales, Maria Luz is a citizen of St. Croix, United States Virgin Islands.
252. Morris, Ersilie is a citizen of St. Croix, United States Virgin Islands.
253. Morris, Sennet E. is a citizen of St. Croix, United States Virgin Islands.
254. Morton, Catherine is a citizen of St. Croix, United States Virgin Islands.
255. Morton, Julian E. Jr. is a citizen of St. Croix, United States Virgin Islands.
256. Morton, Monroe is a citizen of St. Croix, United States Virgin Islands.
257. Navarro, Carmen, individually and as parent to minor Ruiz, Cristina, residents of
St. Croix U.S. Virgin Islands.
258. Navarro, Luz D. is a citizen of St. Croix, United States Virgin Islands.
259. Navarro, Marco A. is a citizen of St. Croix, United States Virgin Islands.
Case: 13-1725 Document: 003111202012 Page: 21 Date Filed: 03/20/2013
Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 19 260. Navarro, Maria individually and as parent to minors Navarro, Gilberto and
Navarro, Gilmarie citizens of St. Croix, United States Virgin Islands.
261. Navarro, Maria Mercedes is a citizen of St. Croix, United States Virgin Islands.
262. Navarro, Nelson is a citizen of St. Croix, United States Virgin Islands.
263. Nicholas, Joan is a citizen of St. Croix, United States Virgin Islands.
264. Nicholas, Latoya Y. is a citizen of St. Croix, United States Virgin Islands.
265. Nicholas, Sandy is a citizen of St. Croix, United States Virgin Islands.
266. Noorhasan, Dorette F. is a citizen of St. Croix, United States Virgin Islands.
267. Noorhasan, Lennox E. is a citizen of St. Croix, United States Virgin Islands.
268. Noorhasan, Shane Antonio is a citizen of St. Croix, United States Virgin Islands.
269. Nyack, Marilyn is a citizen of St. Croix, United States Virgin Islands.
270. O’Reilly, Wilburn is a citizen of St. Croix, United States Virgin Islands.
271. Paige, Alvin is a citizen of St. Croix, United States Virgin Islands.
272. Paige, Ara individually and as parent to minor Burke, Ian, citizens of St.
Petersburg, Florida.
273. Parrilla, Carmen Amaro individually and as parent to minors Parrilla, Christian Jr.,
Parrilla, Miguel J. and Parrilla, Natacha, citizens of St. Croix U.S. Virgin Islands;
274. Parrilla, Delores I., individually and as parent to minor Parrilla, Roberto Jr.,
citizens of St. Croix U.S. Virgin Islands.
275. Parrilla, Joel is a citizen of St. Croix, United States Virgin Islands.
276. Parrilla, Juan is a citizen of St. Croix, United States Virgin Islands.
277. Parrilla, Orlando is a citizen of St. Croix, United States Virgin Islands.
278. Parrilla, Raquel is a citizen of St. Croix, United States Virgin Islands.
Case: 13-1725 Document: 003111202012 Page: 22 Date Filed: 03/20/2013
Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 20 279. Parrilla, Pedro Juan is a citizen of St. Croix, United States Virgin Islands.
280. Parrilla, Roberto Sr. is a citizen of St. Croix, United States Virgin Islands.
281. Parrilla, Sonia M. is a citizen of St. Croix, United States Virgin Islands.
282. Parrilla, Tara is a citizen of Orlando, Florida.
283. Parrilla, Wilfredo is a citizen of St. Croix, United States Virgin Islands.
284. Parrilla, Orlimagelys is a citizen of St. Croix, United States Virgin Islands.
285. Parrilla-Ferdinand, Delores is a citizen of St. Croix, United States Virgin Islands.
286. Pemberton, Candis M. is a citizen of St. Croix, United States Virgin Islands.
287. Pemberton, Majarie C. is a citizen of St. Croix, United States Virgin Islands.
288. Pena, Marco Garcia is a citizen of St. Croix, United States Virgin Islands.
289. Perez, Carlos A. is a citizen of St. Cloud, Florida.
290. Perez, Carlos Alberto is a citizen of St. Cloud, Florida.
291. Perez, Carmen L. is a citizen of St. Cloud, Florida.
292. Perez, Jorge A. is a citizen of Atlanta, Georgia.
293. Perez, Jose M. is a citizen of St. Croix, United States Virgin Islands.
294. Perez, Naishma K. is a citizen of St. Cloud, Florida.
295. Perez, Nydia, individually and as parent to minor Perez, Paula Y., citizens of San
Antonio, Texas.
296. Perez, Tuwanda is a citizen of St. Croix, United States Virgin Islands.
297. Perez, Victor M. is a citizen of St. Croix, United States Virgin Islands.
298. Perez, Xavier M. is a citizen of St. Croix, United States Virgin Islands.
299. Perez, Yamileisy is a citizen of St. Croix, United States Virgin Islands.
300. Perez, Yaritza is a citizen of St. Croix, United States Virgin Islands.
Case: 13-1725 Document: 003111202012 Page: 23 Date Filed: 03/20/2013
Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 21 301. Perez, Ylonis J. is a citizen of St. Croix, United States Virgin Islands.
302. Perez, Yomar A. is a citizen of St. Cloud, Florida.
303. Perez, Zalemie Y. is a citizen of San Antonio, Texas.
304. Perez-Ayala, America individually and as parent to minors Perez, Neishalee and
Perez, Victor Manuel III, residents of St. Croix U.S. Virgin Islands.
305. Phillip, Arthur is a citizen of St. Croix, United States Virgin Islands.
306. Phillip, Martial is a citizen of St. Croix, United States Virgin Islands.
307. Phillip, Marva is a citizen of St. Croix, United States Virgin Islands.
308. Phillip, Marvin is a citizen of St. Croix, United States Virgin Islands.
309. Phillip, Terry M. is a citizen of St. Croix, United States Virgin Islands.
310. Picart, Jose is a citizen of St. Croix, United States Virgin Islands.
311. Pilier, Demetrio A. individually and as parent to minors Pilier, Lizandro and Pilier,
Lizangel, citizens of St. Croix U.S. Virgin Islands.
312. Plaskett, Cripson is a citizen of St. Croix, United States Virgin Islands.
313. Plaskett, Dilia individually and as parent to minor Ventura, Angela S., citizens of
St. Croix U.S. Virgin Islands.
314. Plaskett, William A. is a citizen of St. Croix, United States Virgin Islands.
315. Polidore, Cornelia is a citizen of St. Croix, United States Virgin Islands.
316. Polidore, Keriscia is a citizen of St. Croix, United States Virgin Islands.
317. Polydore, Lawrence citizens of St. Croix U.S. Virgin Islands.
318. Prescott, Miscelda is a citizen of Mattapan, Massachusetts.
319. President, Kimbel is a citizen of St. Croix, United States Virgin Islands.
320. President, Kimberly is a citizen of St. Croix, United States Virgin Islands.
Case: 13-1725 Document: 003111202012 Page: 24 Date Filed: 03/20/2013
Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 22 321. Preville, Godfrey G. is a citizen of St. Croix, United States Virgin Islands.
322. Profil, Migdalia is a citizen of St. Croix, United States Virgin Islands.
323. Pryce, David is a citizen of St. Croix, United States Virgin Islands.
324. Pryce, Philbert Jr. is a citizen of St. Croix, United States Virgin Islands.
325. Quildan, Isabella N. is a citizen of St. Croix, United States Virgin Islands.
326. Quildan, Kareem is a citizen of St. Croix, United States Virgin Islands.
327. Quinones, Iris M. is a citizen of St. Croix, United States Virgin Islands.
328. Quinones, Jose William is a citizen of St. Croix, United States Virgin Islands.
329. Quinones, Ruth A. is a citizen of St. Croix, United States Virgin Islands.
330. Quinones, Sila is a citizen of St. Croix, United States Virgin Islands.
331. Ramirez, Andres Mercado is a citizen of St. Croix, United States Virgin Islands.
332. Ramos, Brunilda is a citizen of St. Croix, United States Virgin Islands.
333. Ramos, Daniel is a citizen of St. Croix, United States Virgin Islands.
334. Ramos, Gabriel is a citizen of St. Croix, United States Virgin Islands.
335. Ramos, Jorge is a citizen of St. Croix, United States Virgin Islands.
336. Ramos, Josefina is a citizen of St. Croix, United States Virgin Islands.
337. Ramos, Marcela is a citizen of St. Croix, United States Virgin Islands.
338. Reyes, Eridania is a citizen of St. Croix, United States Virgin Islands.
339. Reyes, Evaristo is a citizen of St. Croix, United States Virgin Islands.
340. Reyes, Francisca C., individually and as parent to minor Reyes, Nayoshe,
citizens of St. Croix U.S. Virgin Islands.
341. Reyes, Juan A. is a citizen of St. Croix, United States Virgin Islands.
342. Reyes, Juanico is a citizen of St. Croix, United States Virgin Islands.
Case: 13-1725 Document: 003111202012 Page: 25 Date Filed: 03/20/2013
Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 23 343. Reyes, Maximo Guerrero is a citizen of St. Croix, United States Virgin Islands.
344. Reyes, Wanda J. is a citizen of St. Croix, United States Virgin Islands.
345. Richardson, Laurencea is a citizen of St. Croix, United States Virgin Islands.
346. Richardson, Marilyn, individually and as parent to minor Gonzague, Jovon,
citizens of St. Croix U.S. Virgin Islands.
347. Rios, Cecilia is a citizen of St. Croix, United States Virgin Islands.
348. Rivera, Ana Celia is a citizen of St. Croix, United States Virgin Islands.
349. Rivera, Beatrice is a citizen of St. Croix, United States Virgin Islands.
350. Rivera, Belkis is a citizen of St. Croix, United States Virgin Islands.
351. Rivera, Ebony is a citizen of St. Croix, United States Virgin Islands.
352. Rivera, Miriam is a citizen of St. Croix, United States Virgin Islands.
353. Rivera, Sandro is a citizen of St. Croix, United States Virgin Islands.
354. Robles Jessica C. is a citizen of St. Croix, United States Virgin Islands.
355. Robles, Benjamin Jr. is a citizen of St. Croix, United States Virgin Islands.
356. Robles, Benjamin Sr. is a citizen of St. Croix, United States Virgin Islands.
357. Robles, Elise is a citizen of St. Croix, United States Virgin Islands.
358. Robles, Ismael is a citizen of St. Croix, United States Virgin Islands.
359. Robles, Ivette is a citizen of St. Croix, United States Virgin Islands.
360. Robles, Jose Luis is a citizen of St. Croix, United States Virgin Islands.
361. Rodney, Martina L. is a citizen of St. Croix, United States Virgin Islands.
362. Rodriguez, Julio is a citizen of St. Croix, United States Virgin Islands.
363. Rodriguez, Lillian R. individually and as parent to minor Rodriguez, Miguel A. ,
Case: 13-1725 Document: 003111202012 Page: 26 Date Filed: 03/20/2013
Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 24 364. Rodriguez, Miguely is a citizen of St. Croix, United States Virgin Islands.
365. Rogers, Akeel is a citizen of St. Croix, United States Virgin Islands.
366. Rojas, Pablo is a citizen of St. Croix, United States Virgin Islands.
367. Roldan, Frenando L. is a citizen of St. Croix, United States Virgin Islands.
368. Roldan, Jeremy L. is a citizen of St. Croix, United States Virgin Islands.
369. Rosario, Angela Pagan is a citizen of St. Croix, United States Virgin Islands.
370. Ross, Neelia is a citizen of St. Cloud, Florida.
371. Ruiz, Joanne, individually and as parent to minors Carmona, Angelo J.,
Greenidge, Alaika E., Greenidge, Allen H., Jr., Greenidge, Talaiya A.and Ruiz,
Takima T., citizens of St. Croix U.S. Virgin Islands.
372. Ruiz, Rut individually and as parent to minor Leo, Jahliah T., citizens of St. Croix
U.S. Virgin Islands.
373. Saldana, Carmen is a citizen of St. Croix, United States Virgin Islands.
374. Saldana, Eddie Adner is a citizen of St. Croix, United States Virgin Islands.
375. Saldana, Edwin is a citizen of Bronx, NY.
376. Saldana, Raquel individually and as parent to minor Maragh, Krystal, citizens of
St. Croix U.S. Virgin Islands.
377. Sanchez, Angel Alberto is a citizen of St. Croix, United States Virgin Islands.
378. Sanchez, Edith is a citizen of St. Croix, United States Virgin Islands.
379. Sanchez, Jose Alberto is a citizen of St. Croix, United States Virgin Islands.
380. Sanchez, Jose E. is a citizen of St. Croix, United States Virgin Islands.
381. Sanchez, Jose Roberto is a citizen of St. Croix, United States Virgin Islands.
382. Sanes, Angel L. is a citizen of St. Croix, United States Virgin Islands.
Case: 13-1725 Document: 003111202012 Page: 28 Date Filed: 03/20/2013
Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 26 405. Smith, Natasha is a citizen of St. Croix, United States Virgin Islands.
406. Soto, Jennifer is a citizen of Camden, New Jersey.
407. Soto, Jeremy is a citizen of St. Croix, United States Virgin Islands.
408. Soto, Jorge is a citizen of St. Croix, United States Virgin Islands.
409. Soto, Luis Enrique individually and as parent to minor Soto, Luis E., citizens of
St. Croix U.S. Virgin Islands.
410. Soto, Maria L. is a citizen of Miramar, Florida.
411. Soto, Rosa is a citizen of St. Croix, United States Virgin Islands.
412. St. Brice, Anthony is a citizen of St. Croix, United States Virgin Islands.
413. Stevens, Claudia is a citizen of St. Petersburg, Florida.
414. Stubbs, Jeremiah C. individually and as parent to minor Stubbs, Mariah C.,
citizens of St. Croix U.S. Virgin Islands.
415. Taylor, Annette J. is a citizen of St. Croix, United States Virgin Islands.
416. Taylor, Beryl E. is a citizen of Dundee, Florida.
417. Taylor, Debbie R. is a citizen of St. Croix, United States Virgin Islands.
418. Theophilus, Alita V. is a citizen of St. Croix, United States Virgin Islands.
419. Thomas, Marsha individually and as parent to minors Tanis, Tamirea N. and
Tanis, Nahomey citizens of St. Croix U.S. Virgin Islands.
420. Torres, Jose Manuel, Jr. is a citizen of St. Croix, United States Virgin Islands.
421. Torres, Linda is a citizen of St. Croix, United States Virgin Islands.
422. Valentine, Carmen is a citizen of St. Croix, United States Virgin Islands.
423. Valentine, Santiago O. Jr. is a citizen of St. Croix, United States Virgin Islands.
424. Vasquez, Noemi S. is a citizen of St. Croix, United States Virgin Islands.
Case: 13-1725 Document: 003111202012 Page: 30 Date Filed: 03/20/2013
Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 28 446. Ventura, Xiomara I. individually and as parent to minor Denis, Diane N., citizens
of St. Croix U.S. Virgin Islands.
447. Villanueva, Shelia L. is a citizen of Charlotte, North Carolina.
448. Williams, Clayton is a citizen of St. Croix, United States Virgin Islands.
449. Williams, Idelfonsa is a citizen of St. Cloud, Florida.
450. Williams, Urma is a citizen of St. Croix, United States Virgin Islands.
451. Wilson, Alfred is a citizen of St. Croix, United States Virgin Islands.
452. Wilson, Brandon T.B. is a citizen of St. Croix, United States Virgin Islands.
453. Wilson, Cindy, individually and as parent to minor Rivera, Justin citizens of St.
Croix U.S. Virgin Islands.
454. Wilson, Diana N., individually and as parent to minor Roldan, Shaedean N.,
residents of St. Croix U.S. Virgin Islands.
455. Wiltshire, Dunn is a citizen of St. Croix, United States Virgin Islands.
456. Wiltshire, Ethelbert is a citizen of St. Croix, United States Virgin Islands.
457. Wiltshire, Gregg is a citizen of St. Croix, United States Virgin Islands.
458. Wiltshire, Hermine individually and as guardian to minor Wiltshire, Christina,
citizens of St. Croix U.S. Virgin Islands.
459. Wiltshire, Peter is a citizen of St. Croix, United States Virgin Islands.
460. At all times relevant to this action, and within the time period of 2002 to the
present, all Plaintiffs were residents of or guests staying in close proximity to the
Defendant’s alumina refinery on the south shore of St. Croix.
FACTUAL BACKGROUND
461. For about thirty years, an alumina refinery located near thousands of homes on
Case: 13-1725 Document: 003111202012 Page: 35 Date Filed: 03/20/2013
Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 33 482. As a result of Defendant’s conduct, Plaintiffs suffered and continue to suffer
physical injuries, medical expenses, damage to their properties and possessions,
loss of income, loss of capacity to earn income, mental anguish, pain and
suffering and loss of enjoyment of life, a propensity for additional medical illness,
and a reasonable fear of contracting illness in the future, all of which are
expected to continue into the foreseeable future.
483. To this date, Defendant is continuing to expose Plaintiffs to red dust, bauxite,
asbestos and other particulates and hazardous substances. Defendants’
conduct is also continuing to prevent Plaintiffs from freely enjoying their
properties.
COUNT I: Abnormally Dangerous Condition
484. Plaintiffs repeat and re-allege each allegation of Paragraph 1-483 as if set forth
herein verbatim.
485. The actions of the Defendant constitute maintaining an abnormally dangerous
condition.
486. The St. Croix alumina refinery is located in a known hurricane zone at the head
of the Kraus Lagoon Channel at Port Alucroix, which leads to the Caribbean Sea.
The natural resources of the Virgin Islands are particularly sensitive and
precious.
487. Thousands of residential dwellings are located in close proximity to the refinery
and all of the Plaintiffs lived or stayed at or still live in close proximity to the
refinery and certainly within range of the dispersion of the toxic materials from the
Case: 13-1725 Document: 003111202012 Page: 36 Date Filed: 03/20/2013
Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 34 488. Defendant’s use, storage, disposal and failure to remediate the bauxite, red dust
and/or red mud, asbestos, coal dust, and other particulates and hazardous
materials at the refinery is solely for Defendant’s own business purposes.
489. Defendant knows and understands that there is a high risk that strong winds
could blow bauxite, red mud, asbestos and other particulates and hazardous
materials into Plaintiffs’ neighborhoods.
490. Defendant’s ongoing storage, disposal, and failure to remediate the bauxite, red
mud, asbestos, and other particulates and hazardous materials presented and
continues to present a high risk of great harm to Plaintiffs’ health, chattel, and
properties. Bauxite and red mud can irritate the skin, respiratory tract, and eyes
and can permanently stain, clog, and otherwise damage property and objects.
Friable asbestos is also a known carcinogen that can cause a variety of
respiratory illnesses.
491. Defendant’s ongoing use, storage, disposal and failure to remediate bauxite, red
mud, asbestos and other particulates and hazardous materials at the alumina
refinery caused and continue to cause serious harm to Plaintiffs’ persons, chattel,
and properties. As a result, the Plaintiffs suffered damages as alleged herein.
COUNT II: Public Nuisance
492. Plaintiffs repeat and re-allege each allegation of Paragraph 1-491 as if set forth
herein verbatim.
493. The actions of Defendant constitute a public nuisance.
494. Specifically, the ongoing release of harmful dusts, including bauxite, red mud,
coal dust, asbestos, and other particulates and hazardous materials, from the
Case: 13-1725 Document: 003111202012 Page: 41 Date Filed: 03/20/2013
Abraham et al. v. St. Croix Renaissance LLLP FIRST AMENED COMPLAINT Page 39
and harm Plaintiffs and their properties.
524. As a result Plaintiffs have been damaged as alleged, herein.
COUNT VII: Punitive Damages
525. Plaintiffs repeat and re-allege each allegation of Paragraph 1-524 as if set forth
herein verbatim.
526. The actions of Defendant were and are so callous and done with such extreme
indifference to the rights and interests of the Plaintiffs and the citizens of St. Croix
so as to entitle Plaintiffs to an award of punitive damages.
WHEREFORE, Plaintiffs pray for damages as they may appear, compensatory
and punitive, an injunction requiring that Defendant cease and desist all activities that
result in pollutants being discharged and, further requiring a cleanup of all pollutants
and removal of the piles of “Red Dust”, coal dust and particulates and hazardous
substances, costs and fees and such other relief as this Court deems fair and just.
RESPECTFULLY SUBMITTED, LAW OFFICES OF LEE J. ROHN AND ASSOCIATES, LLC Attorneys for Plaintiffs
DATED: August 7, 2012 BY: _s/ Lee J. Rohn Lee J. Rohn, Esq. VI Bar No. 52 1101 King Street Christiansted, St. Croix U.S. Virgin Islands 00820 Telephone: (340) 778-8855 Fax: (340) 773-2954
Case: 13-1725 Document: 003111202012 Page: 44 Date Filed: 03/20/2013
Eleanor Abraham et al. v. St. Renaissance Group, LLLP, CIVIL NO. 12-CV-0011 PLAINTIFFS’ THIRD MOTION TO REMAND FOR LACK OF FEDERAL SUBJECT MATTER JURISDICTION Page 2 §1332 (d)(11). Accordingly, Plaintiffs move for an Order of Remand to the Superior Court
of the Virgin Islands. See 28 USCS § 1447(c) (“If at any time before final judgment it
appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.”)
In the alternative, Plaintiffs move for permission to conduct jurisdictional discovery.
LEGAL ARGUMENT
I. DEFENDANT BEARS A HEAVY BURDEN ON REMAND “28 U.S.C. § 1447(c) requires that, in removed cases, if at any time before final
judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.” Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004).
“The language of this section is mandatory -- once the federal court determines that it lacks
jurisdiction, it must remand the case back to the appropriate state court.” Bromwell v.
Case: 13-1725 Document: 003111202012 Page: 45 Date Filed: 03/20/2013
Eleanor Abraham et al. v. St. Renaissance Group, LLLP, CIVIL NO. 12-CV-0011 PLAINTIFFS’ THIRD MOTION TO REMAND FOR LACK OF FEDERAL SUBJECT MATTER JURISDICTION Page 3 provided ...” by Congress. ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513, 518 (3d Cir.
1998) (citations omitted) (emphasis added).
Where jurisdiction is allegedly created by CAFA, the Third Circuit “require[s] the
party seeking to remove to federal court to demonstrate federal jurisdiction.” Kaufman v.
Allstate N.J. Ins. Co., 561 F.3d 144, 151 (3d Cir. 2009), citing Frederico v. Home Depot,
507 F.3d 188, 193 (3d Cir. 2007); Morgan v. Gay, 471 F.3d 469, 473 (3d Cir. 2006). “[A]t
all stages of the litigation ... the burden of showing that the case is properly before the
federal court” remains with the removing party. Brown v. JEVIC, 575 F.3d 322, 326 (3d Cir.
2009), citing Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993). “[I]n
order to carry out the Congressional intent to limit jurisdiction in diversity cases, doubts
must be resolved in favor of remand.” Samuel-Bassett, 357 F.3d at 403 (citations
omitted) (emphasis added).
II. DEFENDANT HAS NOT SATISFIED ITS HEAVY BURDEN TO OVERCOME THE PRESUMPTION AGAINST FEDERAL JURISDICTION
A. CAFA treats a “mass action” differently from a “class action.”
The distinction between a "class action" and a "mass action" under CAFA is an
important one when determining whether a court has subject matter jurisdiction. A “class
action” is defined under CAFA as “any civil action filed under rule 23 of the Federal Rules of
Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to
be brought by 1 or more representative persons as a class action.” 28 U.S.C. §
1332(d)(1)(B). It is undisputed that this case was not filed as a class action. See Doc No.
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Eleanor Abraham et al. v. St. Renaissance Group, LLLP, CIVIL NO. 12-CV-0011 PLAINTIFFS’ THIRD MOTION TO REMAND FOR LACK OF FEDERAL SUBJECT MATTER JURISDICTION Page 4 5-1 (proposed 1st Amend Compl).1 Original jurisdiction over class actions is created by
sections (2)-(10) of CAFA. 28 U.S.C. §1332 (d) (2)-(10).
In contrast, mass actions are governed by 28 U.S.C. §1332(d)(11). Removability
jurisdiction over “mass actions” is created by a separate subsection, 28 U.S.C. §1332
(d)(11)(A). See Abrego v. Dow Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006) (“On its face,
§ 1332(d)(2)-(10) vests the district courts with original jurisdiction over certain class
actions ..., but subsection (d)(11)(A) refers to actions ‘removable under paragraphs (2)
through (10)”’) (emphasis in original). “This ‘mass action’ provision, codified at 28 U.S.C. §
1332(d)(11), gives the federal courts jurisdiction over some actions that are substantially
similar to class actions, but the section limits this jurisdiction to actions that meet
specific criteria.” N.J. Dental Ass'n v. Metro. Life Ins. Co., No. 10-2121, 2010 U.S. Dist.
LEXIS 99586, at *8 (D.N.J. Sept. 21, 2010) (emphasis supplied). See also Lowery v. Ala.
Power Co., 483 F.3d 1184, 1199 (11th Cir. 2007) (recognizing that Ҥ 1332(d)(11)(A) comes
with a proviso: a mass action is only deemed a class action ‘if it otherwise meets the
provisions of [§ 1332 (d)(2) through (10)].”’); Abrego, 443 F.3d, at 680 n. 6 (“Section
1332(d) imposes a range of requirements for class action jurisdiction, see § 1332(d)(2)-
(10), ... [and a] "mass action" must satisfy each of these requirements and
processes.”) (emphasis supplied); Koshiro Kitazato v. Black Diamond Hospitality Invs., No.
09-00271, 2009 U.S. Dist. LEXIS 106924, at *15 (D. Hi. Nov. 13, 2009), citing 28 U.S.C. §
1 The 1st Amended Complaint was initially filed in the Superior Court of the Virgin Islands on December 9, 2009. Plaintiffs cite to the copy that was filed in this Court as an Exhibit to Plaintiffs’ initial Motion to Remand, as Doc. No. 12-3.
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Eleanor Abraham et al. v. St. Renaissance Group, LLLP, CIVIL NO. 12-CV-0011 PLAINTIFFS’ THIRD MOTION TO REMAND FOR LACK OF FEDERAL SUBJECT MATTER JURISDICTION Page 5 1332(d)(11)(A-B) (“Under CAFA, only actions qualifying as a mass action may be deemed
a class action ....”) (emphasis in original).
"In interpreting a statute, the Court looks first to the statute's plain meaning and, if
the statutory language is clear and unambiguous, the inquiry comes to an end." Conn. Nat'l
Bank v. Germain, 503 U.S. 249, 253-54, 112 S. Ct. 1146, 117 L. Ed. 2d 391 (1992);
Rosenberg v. XM Ventures, 274 F.3d 137, 141-42 (3d Cir. 2001). The language of 28
U.S.C. §1332(d) (11) (A) is unambiguous: “‘For purposes of this subsection and section
1453, a mass action shall be deemed to be a class action removable under
paragraphs (2) through (10) if it otherwise meets the provisions of those
paragraphs.”’ Id. (emphasis added). Pursuant to the unambiguous language of CAFA, a
mass action can only be deemed a removable class action in the event that, or on condition
that, the mass action meets certain specified provisions. Dodd v. U.S., 545 U.S. 353, 357;
125 S. Ct. 2478; 162 L. Ed. 2d 343 (2005), citing Webster's Third New International
Dictionary 1124 (1993) (“the definition of ‘if’ is ‘in the event that’ or ‘on condition that.”’)
Further, “[w]e ‘must presume that [the] legislature says in a statute what it means and
means in a statute what it says there.”’ Dodd, 545 U.S. at 357, citing Conn. Nat. Ban, 503
U.S. at 253-254.
Defendant in this case has ignored the crucial distinction under CAFA between class
actions and “mass actions.” SCRG has acknowledged that it must make a prima facie
showing of jurisdiction under CAFA in order for the burden to shift to Plaintiffs to
demonstrate that some exception applies, but has failed to demonstrate that this case
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Eleanor Abraham et al. v. St. Renaissance Group, LLLP, CIVIL NO. 12-CV-0011 PLAINTIFFS’ THIRD MOTION TO REMAND FOR LACK OF FEDERAL SUBJECT MATTER JURISDICTION Page 6 meets the statutory requirements for removal jurisdiction over a mass action. Establishing
CAFA jurisdiction over an alleged “mass action” is a two-part process. See 28 U.S.C. §
1332 (d)(11). First, the case must meet the CAFA definition of a “mass action” under
Section 1332 (d)(11)(B).
Second, a case satisfying the definition of “mass action” must then “meet the
provisions ...” of paragraphs 1332 (d)(2) through (10) in order for CAFA removal jurisdiction
to attach. 28 U.S.C. § 1332 (d)(11)(A); Lowery v. Ala. Power Co., 483 F.3d, at 1199
(Section 1332 (d)(11)(A) “conditions a mass action's treatment as a class action on the
mass action conforming with eight additional statutory provisions, § 1332(d)(2) through
(10) 1332 (d).”) (emphasis supplied). By including the requirement that certain provisions
must be met in the removal jurisdiction section of CAFA, Congress has clearly stated “a
threshold limitation on the statute’s scope ...” Arbaugh v. Y & H Corp., 546 U.S. 500, 514,
515; 126 S. Ct. 1235; 163 L. Ed. 2d 1097 (2006) (citations omitted); CNA v. U.S., 535 F.3d
132, 142 (3d Cir. 2008), citing Arbaugh, 546 U.S. at 515-16 & n.11 (“To evaluate whether
Congress clearly stated that a requirement should count as jurisdictional, we ask whether
the requirement appears in or receives mention in the jurisdictional provision of a given
statute”) (internal citation and quotes omitted).
Defendant SCRG, the party seeking to remove this action to federal court, is
required to demonstrate that the conditions set by CAFA for federal removal jurisdiction
have been met. Kaufman, 561 F.3d at 151 (citation omitted). Defendant has not made the
necessary prima facie showing of CAFA “mass action” jurisdiction over this case as will be
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Eleanor Abraham et al. v. St. Renaissance Group, LLLP, CIVIL NO. 12-CV-0011 PLAINTIFFS’ THIRD MOTION TO REMAND FOR LACK OF FEDERAL SUBJECT MATTER JURISDICTION Page 7 shown below.
In one of the few cases within the Third Circuit that decided the question of CAFA
jurisdiction over a purported mass action, the court found that CAFA jurisdiction over
“actions that are substantially similar to class actions ...” is limited to actions that meet the
specific criteria laid out in the statute. N.J. Dental Ass'n, 2010 U.S. Dist. LEXIS 99586, at
*8 (not for publication) (“[I]t appears from the language and structure of CAFA that
Congress did not intend that all cases bearing a resemblance to a class action should be
removable on the basis of minimal diversity and $5 million in controversy.”) The Dental
Ass'n case failed to “meet the special class action diversity requirements laid out in 28
U.S.C. § 1332(d),” and was remanded. Id. at *9. In Kaufman, a case filed as a class
action, the Third Circuit stated that if the exceptions to jurisdiction were contained in the
jurisdictional section of the statute, the burden of proving that the exceptions did not apply
would likely remain with the proponent of jurisdiction. 561 F.3d at 153, 154. As shown, the
exceptions to CAFA removal jurisdiction are included in the section of CAFA that defines
removal jurisdiction, § 1332 (d)(11)(A).
B. This case is expressly excepted from the definition of a “mass action” This action should not have been removed under CAFA because this action is
expressly excepted from the definition of a “mass action.” By definition, “the term ‘mass
action’ shall not include any civil action in which -- (I) all of the claims in the action arise
from an event or occurrence in the State in which the action was filed, and that allegedly
resulted in injuries in that State ...” Title 28 U.S.C. §1332(d)(11)(B)(ii) (emphasis supplied).
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Eleanor Abraham et al. v. St. Renaissance Group, LLLP, CIVIL NO. 12-CV-0011 PLAINTIFFS’ THIRD MOTION TO REMAND FOR LACK OF FEDERAL SUBJECT MATTER JURISDICTION Page 8 Examination of the proposed 1st Amended Complaint shows that the Plaintiffs expressly
allege that every operative incident occurred in St. Croix and caused injury and damages to
the Plaintiffs’ persons and property in St. Croix. See Doc. No. 5-1 (1st Am. Compl.) at ¶¶
466-474.
A recent case from the Southern District of Illinois is instructive. See Mobley v.
Cerro Flow Prods., No. 09-697, 2010 U.S. Dist. LEXIS 524, *9, *10 (S.D. Ill. Jan. 5, 2010).
The Mobley Court remanded a multi-plaintiff suit raising claims of exposure to toxic
chemicals on the grounds, inter alia, that the claims were excluded from CAFA’s definition
of a “mass action.” Mobley, 2010 U.S. Dist. LEXIS 524, at *11, citing Tanoh v. Dow Chem.
Co., 561 F.3d 945, 952-56 (9th Cir. 2009) (specifically relying on the fact that “Plaintiffs in
this case are suing in Illinois on claims that arose in Illinois” and the wording of
§1332(d)(11)(B)(ii)(I), to find that “CAFA jurisdiction in this case is expressly foreclosed by
the language of the statute.”) The operative complaint in Mobley alleged that “Plaintiffs are
persons who reside or have resided in St. Clair County, Illinois, and who seek damages for
personal injuries and/or property damage due to allegedly improper disposal of toxic
chemicals at three locations in and around Sauget, Illinois...” Mobley, at *3, *10.
Here, Plaintiffs who reside or have resided in St. Croix seek damages for personal
injuries and/or property damage due to improper maintenance, storage and containment of,
and/or failure to remove, toxic substances at a single location, the alumina refinery on St.
Croix. Doc. 5-1 (1st Am. Compl.) at ¶¶ 466-474, 476-484. In Mobley, “[t]he operative
complaint in the case asserts claims for personal injuries based on theories of negligence,
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Eleanor Abraham et al. v. St. Renaissance Group, LLLP, CIVIL NO. 12-CV-0011 PLAINTIFFS’ THIRD MOTION TO REMAND FOR LACK OF FEDERAL SUBJECT MATTER JURISDICTION Page 9 strict liability, nuisance, and battery together with claims for property damage based on
theories of negligence, nuisance, and trespass.” In this case, the operative Complaint sets
out causes of action based on, inter alia, negligence, strict liability, nuisance, and infliction
of emotional distress, together with claims of property damage based on negligence.
Mobley, 2010 U.S. Dist. LEXIS 524, at *4; Doc. No. 12-3 (1st Amend Compl.) at ¶¶ 2937-
2961; Doc. No. 111-2 (3rd Am. Compl.) at ¶¶, 2113-75. Moreover, unlike the claims in
Mobley, the claims at issue in this suit all arise from one location.
“CAFA expressly excludes from the statutory definition of a ‘mass action’ any civil
case in which ‘all of the claims in the action arise from an event or occurrence in the State
in which the action was filed, and that allegedly resulted in injuries in that State or in States
contiguous to that State[.]’” Mobley, 2010 U.S. Dist. LEXIS 524, at *9, *10 citing 28 U.S.C.
§ 1332(d)(11)(B)(ii)(I). Here, the claims of every Plaintiff arise from an event or occurrence
in St. Croix and every Plaintiff alleges injuries and damages in St. Croix. Just as it did in
Mobley, the plain language of 28 U.S.C. § 1332(d)(11)(B)(ii)(I) excludes this case from
“mass actions” under CAFA and Plaintiffs move to remand this action back to the Superior
Court of the Virgin Islands.
Plaintiffs are the masters of their complaint, and their factual allegations that their
“resulting injuries and damages happened in St. Croix” must be accepted as true. The
proposed 1st Amended Complaint alleges incidents all occurring in St. Croix: the dust
storms, winds, the existence of the red-mud piles at the St. Croix site, the dispersal of the
red-mud from the St. Croix site onto the persons and throughout the homes and property of
Case: 13-1725 Document: 003111202012 Page: 52 Date Filed: 03/20/2013
Eleanor Abraham et al. v. St. Renaissance Group, LLLP, CIVIL NO. 12-CV-0011 PLAINTIFFS’ THIRD MOTION TO REMAND FOR LACK OF FEDERAL SUBJECT MATTER JURISDICTION Page 10 the Plaintiffs who were living and working in the vicinity of the St. Croix site; and the
continuing exposure to toxic contaminants from the site of those Plaintiffs who remain in the
vicinity of the site on St. Croix. Doc. 5-1 at ¶¶ 466-474, 476-484.
Judge Bartle’s recent decision in Abednego v. Alcoa, Inc., 2011 U.S. Dist. LEXIS
27892, 8-9 (D.V.I. Mar. 17, 2011), involving the exact same type of removal scenario, and
similar allegations found that the case must be remanded as it falls squarely within the
CAFA mass action exception. Id. The Court held:
In our view, the plain meaning of CAFA's mass action exception encompasses this action. The Third Amended Complaint alleges the occurrence of a release of bauxite, red mud, and asbestos from an alumina refinery in St. Croix as a result of Hurricane Georges on September 21, 1998. Plaintiffs maintain that defendants' negligence from improperly containing these hazardous substances caused them personal injuries and property damage. The release penetrated into the neighborhoods surrounding the refinery on that same island. All injuries alleged in the Third Amended Complaint resulted from personal and property exposure to hazardous substances released on St. Croix as a result of that one hurricane. Despite the fact that a number of the plaintiffs subsequently moved away from the Virgin Islands, their property damages and personal injuries were incurred when on St.Croix In this case, the Plaintiffs allege that their interests were harmed as a result of acts
and omissions occurring in St. Croix. Thus, Plaintiffs’ Complaints demonstrate that all their
injuries occurred in St. Croix. That some 10 percent of the Plaintiffs have moved from St.
Croix does not alter that fact. See Abednego v. Alcoa, Inc., 2011 U.S. Dist. LEXIS 27892,
8-9. Assuming as this Court must that Plaintiffs allegations are true, this Court must
additionally find that this action is expressly and specifically excluded by the provision of 28
U.S.C. § 1332 (d)(11)(B)(ii), and accordingly remand on this additional ground. See
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Eleanor Abraham et al. v. St. Renaissance Group, LLLP, CIVIL NO. 12-CV-0011 PLAINTIFFS’ THIRD MOTION TO REMAND FOR LACK OF FEDERAL SUBJECT MATTER JURISDICTION Page 11
C. CAFA does not confer removal jurisdiction over this uniquely local controversy.
Section §1332 (d)(11)(A) of 28 U.S.C. squarely places on the removing party the
burden of establishing that mandatory exceptions do not apply. Defendants have not
shown that the provisions of 28 U.S.C.§1332 (d)(2)-(10) have been met or otherwise do not
apply, as required by 28 U.S.C. §1332 (d)(11)(A). Section 1332(d)(4)(A) “require[s] a
district court to decline jurisdiction when the controversy is uniquely local and does not
reach into multiple states.” Kaufman v. Allstate N.J. Ins. Co., 561 F.3d 144, 149 (3d Cir.
2009) (filed as a class action). All of the elements of § 1332(d)(4)(A) are present here.
1. More than 2/3’s of the Plaintiffs are citizens of the Virgin Islands and all seek significant relief from Defendant
Section 1332(d)(4)(A)(i)(I) requires that more than two-thirds of the plaintiffs be
citizens of the U.S. Virgin Islands. Of the 500 plus Plaintiffs in the case, more than 2/3 of
them are citizens of St. Croix, U.S. Virgin Islands.
2. All of Plaintiffs’ injuries were incurred in the U.S. Virgin Islands as the result of the Defendant’s conduct in the Virgin Islands
“The principal injuries provision requires that ‘principal injuries resulting from the
alleged conduct or any related conduct of each defendant were incurred in the State in
which the action was originally filed.’” Kaufman, 561 F.3d at 152, citing 28 U.S.C. §
1332(d)(4)(A)(i)(III). In this case, the gravamen of Plaintiffs’ Complaint is that they have
suffered, and/or continue to suffer, injuries and damages caused by the failure of
Defendant to properly store and contain toxic substances at the its facility in St. Croix, U.S.
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Eleanor Abraham et al. v. St. Renaissance Group, LLLP, CIVIL NO. 12-CV-0011 PLAINTIFFS’ THIRD MOTION TO REMAND FOR LACK OF FEDERAL SUBJECT MATTER JURISDICTION Page 12 Virgin Islands, including bauxite, bauxite residue or red mud, asbestos, coal dust, and other
particulates. Plaintiffs allege that they continue to be exposed to those substances from
the St. Croix site to date. See citations to the proposed 1st Amended Complaint, above.
Conclusion
Defendants have failed to meet their burden of showing that the elements of
§1332(d)(4)(A) do not apply. Removal was improper because this case does not meet the
provisions of paragraphs (2) through (10) of ¶ 1332 (d). 28 U.S.C. § 1332(d)(11)(A). This
matter must be remanded.
WHEREFORE Plaintiffs submit that the relevant provisions of CAFA, 28 U.S.C.
§1332(d)(11)(A) & (B), mandate that this cause be remanded to the Superior Court of the
Virgin Islands. Plaintiffs filed their Complaint in the Virgin Islands Court. The sole basis
asserted for federal jurisdiction is CAFA. An analysis of the requirements for CAFA
removal jurisdiction shows that it is not present here.
RESPECTFULLY SUBMITTED LEE J. ROHN AND ASSOCIATES, LLC Attorneys for Plaintiffs
DATED: October 24, 2012 BY: /s/ Lee J. Rohn
Lee J. Rohn, Esq. VI Bar No. 52 1101 King Street Christiansted, St. Croix U.S. Virgin Islands 00820 Telephone: (340) 778-8855 Fax: (340) 773-2954
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Eleanor Abraham et al. v. St. Renaissance Group, LLLP, CIVIL NO. 12-CV-0011 PLAINTIFFS’ THIRD MOTION TO REMAND FOR LACK OF FEDERAL SUBJECT MATTER JURISDICTION Page 13
CERTIFICATE OF SERVICE
THIS IS TO CERTIFY that on October 24, 2012, I electronically filed the foregoing
with the Clerk of the court using the CM/ECF system, which will send a notification of such filing (NEF) to the following:
Carl J. Hartmann III, Esquire Law Office of Carl J. Hartmann III 5000 Estate Coakley Bay, L-6 Christiansted, VI 00820 Attorney For: SCRG Joel Holt, Esquire Law Offices of Joel Holt Quinn House 2132 Company Street, Suite 2 Christiansted, VI 00820 Attorney For: SCRG
PlaintÍffs must meet several requirements for CAFA jurisdiction, such as a $5,000,000
aggregate amount in controversy and minimal diversity -- and must not fall within
certain, delineated exceptions.l
"Congress's goalfi in enacting CAFA [was] to place more [statutorily delineated]
actions in federal court by lifting bariers to their removal (which would result in most
published CAFA cases being heard in a removal posture).' &ppuccittÍ at 611 F.3d
1255.
r ln general jurisdictional statutes must be nanowly construed. However CAFA'sexpress, unique stated purpose is to 'restore the intent of the framers' by extendingfederal court jurisdiction over "interstate cases of national importance under diversityjurisdiction.o See CAFA, Pub. L. No. 109-2, S 2, llg Stat. 4,4-5 (2005), Congressintended the exceptions to CAFA to be narrowly construed, "with all doubtsresolved 'in favor of exercis.ing jurisdiction over the case."' Evans v. Walter lndus,,tnc.,449 F.3d 1159, 11æ (f 1h Cír. 2006) (emphasis added) (quoting S. Rep. i09-14, at42 (2OO5), as reprinted in 2005 U.S.C.C.A.N. 3, 40). Once a defendant makes a primafacre showing of jurisdictÍon under CAFA, the burden shifts to the plaintiff todemonstrate that some exception mlght apply. See Kaufman v. Allstate New Jersey/ns. Co., 561 F.U 144, 153 (3d Cir. 2009) (Kaufman f) (burden for establishingapplicability of exceptíons to CAFA falls on party seeking remand). This buden shiftingapplies both to the local controversy exception and to the exceptions to the mass actionprovision. See Lowery v. Honey,well lnfl, lnc., 460 F. Supp. 2d 1298,1901 (N,D. Ala.2006) (plaintiffs have burden of proof for local controversy and mass action exceptions).
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Notice of Removal by SCRGPaoe 3
ll. Applieable Law
The CAFA prov¡síons of section 1332 provide:
d(11) (A) For purposes of this subsection and section 1453, a massact¡on shall be deemed to be a class action removable under paragraphs(2) through (10) if it otherwise meets the provisions of those paragraphs.
(B) (i) As used ¡n subparagraph (A), the term "mass action'means any civil action (except a civil action within the scope of section1711(2n in which monetary relief claims of 100 or more persons areproposed to be tried jointly on the ground that the plaintiffs'claims involvecommon questions of |aw or fact, except that jurisdiction shall exist onlyover those plaintiffs whose claims in a mass action satisfy the jurisdictionalamount reguirements under subsection (a).
(ii) As used in subparagraph (A), the term "mass action"shall not include any civil action in which-
(l) all of the claims in the action arise from an event oroccurence in the State in which the action was filed, and that allegedlyresulted in injuries in that State or in States contiguous to that State;
(ll) the claims are joined upon motion of a defendant;
(lll) all of the claims in the action are asserted onbehalf of the general public (and not on behaff of individual claimants ormembers of a purported dass) pursuant to a State statute specificallyauthorilng such action; or
(lV) the claims have been consolidated or coordinatedsolely for pretrial proceedings.
(D) The limitations periods on any claims asseded in a mass actionthat is rernoved to Federal court pursuant to this subsection shall bedeemed tolled during the period that the action is pending in Federal court.
(e) The word "States', as used in this section, includes the Tenitories, theDistrict of Columbla, and the Commonwealth of Puerto Rico.
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Notice of Removal by SGRGPaoe 4
lll. Argument
A. The Elements of GAFA are Met
This act¡on meets the requirements set forth in the statute ln that, with regard to
the causes herein2:
A. "monetary relief claims" are being made by
B. "100 or more persons' and are
C. 'proposed to be tried jointly'
D. "on the ground that the plaintiffs' claims involve common questions oflaw orfact" and
E. the "plaintiffs. . .claims. . .satisfy the jurisdictional amount requirementsunder subsection (a) in that each claim has a value that exceeds$75,000."
F. rrot 'all of the claims in the action arise from an event or occurrence3 inthe State in which the action was filed, and that allegedly resulted in
2 SCRG notes that:
(ll) the claims are [not] joined upon motion of a defendant;
(lll) all of the claims in the action are [not] asserted on behalf of thegeneral public (and not on behalf of individual claimants or members of apurported class) pursuant to a State statute specÍfically authorizing suchaction;or
(lV) the claims have [not] beer¡ consolidated or coordinated solely forpretrial proceedings.
and that:
(l) to cases [have not been] certified pursuant to rule 23 of the FederalRules of Civil Procedure; or
(ll) if plaintiffs [do not] propose that the action proceed as a class actionpursuant to rule 23 oÍ the Federal Rules of Civil Procedure.
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Notice of Removal by SCRGPaoe 5
iniuries in that Sfafe or in States contiguous to that Sfafe" as (1) this is nota single event or occurence such as the Court noted was the case inAbednego v. Alæa lnc., 2011 Westlaw 941509 (D.V.l. March 17,2011)(emphasis added), and in any case, (2) many of the plaintiffs arenow in other jurisdictions where the injuries are allegedly occuning.
D. For the purposes of CAFA, 'an unincorporated association shall bedeemed to be a citizen of the State where it has its principal place ofbusiness and the State under whose laws it is organized." 28 U.S.C.(dX10). SCRG is a citizen of (f ) its state of incorporation (Delaware) and(2) its "principal place of business,n which is Massachusetts - pursuant tothe nnerve centef test setforth in HertzCorp. v. Fríend,130 S.Ct. 1181(2010). Plaintiffs are domiciled in the U.S. Virgin lslands, non-contiguousstates and other countries.
B. Related Disputes Shed Light on the lndividual Amounts in Controvery
Plaintiffls counsel and various of the plaintfffs have been irrvolved in other,
longstanding litigation of intimately related claims involving many of the same plaintiffs
going back as far as 1999. See e.g. Henry v. Sf. Croix Alumina, LLC, 2000 U.S. Dist.
LEXIS 13102, *8 (D.V.l. Aug. 7, 2000) (along with subsequent related actions "Henr{¡.
During that period various combinations of plaintiffs'counsel and hundreds oÎ persons
3 One series of the plaintiffs' claims stems from 'red mudn wtìlch was left on the propertyby alumina refining operators of the Site prior to SCRG's ownership. Another, series ofclaims relates to another, totally unrelated, source and circumstances - those claimsarise from (nort-red mud) asbestos wttich was only coincidentally preserrt in thestructure/construction of the plant facillty. Such asbestos was not a byproduct of the'Bayer Process" used in the refining of bauxite ore into alumina, and had nothing to dowith the industrial disposal of a waste byproduct.
could not dispute the $5,000,000 collective amounts, but d¡d contest the $75,000 per
plaintiff amount.6 See e.g. Defendants' Response in Opposition to Plaintiffs' Th¡rd
Motion to Remand, at D.E. 128, page 7. As noted in that Opposition at 7-10:
ln Frederico v. Home Depot,507 F.3d 188 (3d Cir. 2007), the Third Circuitunified several lines of cases to clarify the test for determining whether thejurisdictional amount is satisfied. The Third Circuit recognized that thereare two types of cases, to which different standards apply. ln the first,'where the plaintiffs complaint specifically (arrd not impliedly) andprecisely (and not inferentially) states that the amount sought in a classaction diversity complaint' will not exceed the Jurisdlctional minimum, "Theparty wishlng to establish subject matter jurisdiction has the burden toprove by a legal certainty that the amount in controversy exceeds thestatutory threshold.'' td. at 196 (quoting lvlorgan v. Gay,4T1 F.gd 469,471
a For example, in the Abednego case (1:10+v-00009 at D.E. 126), when it wasconvenient to do so, plaintiffs alleged the direct opposite of what is alleged here:
When they sold the site to SCRG, Alcoa and SCA left behind bauxite, redmud, asbestos, coal dust, and other particulates and concealed fromSCRG and PlaintÍffs the true nature of the toxic materials. Doc. No. 12-3, at tf 2924-2926; 1 1 1-2, at flll 2083-87, 2091-94.
5 ln any case, this would be less than $10,000 per plaintiff due to the more than 500plaintiffs here. ln Abednego the Court noted that This lawsuit meets many of thecriteria of a mass action. lt contains claims by more than 100 persons whose claimsinvolve common questlons of law and fact and whose claims in the aggregate exceed$5 million exclusive of interest and costs." See 23 U.S.C. $ 1332(2). [t:tO-cv-00009,D.E. 133 at 3J.
6 Although Plaintiffs'complaint is extremely confusing (persons listed in the caption arenot in the body and vice versa) it appears that approximately 80% oÍ the plaintiffs in theinstant case are plaintiffs in Abednego. ln tum, many of "the same individuals [plaintiffsin AbednegoJ sought essentially the same relfef for essentially the same alleged injuriesin Henry. (See Third Am. Compl., Tf 2108 ("Plaintiffs herein are former members of theoriginal class in Henry.. . .').) ld. a|11.
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Notice of Removal by SCRGPaoeT
(3d Cir. 2006)). This is commonly refened to as the Morgan standard. lnthe second type of case, where the plaintiff has nof disclaimedrecovery above the jurisdictional minimum, jurisdiction exists unless"it appears to a legal certainty that the plaintiff cannot recover thejurisdictional amount." Raspa v. Home Depot,533 F. Supp. 2d 514,522(D.N.J. 2OOT) (emphasis added) (citing Samuel- Bassetf v. Ka MotorsAmerica, \nc.,357 F.3d 392 (3d Cir. 2004)1. This is commonly refened toas the Samuel-Basseúf standard.
Thls case must be decided under the Samue/-Basseff standard, asPlaintiffs have not disclaimed recovery above the jurisdictional minimum orstipulated that they would not accept an award of damages in excess ofthat figure. See, e.9., Lohr v. United Fin. Cas. Co.,ZQOS U.S. Dist. LEXIS75388, *11 (W.D. Pa. Aug. 25,20091(citing Frederico,507 F.3d at 196-97) ("Because Plaintiffs have not explicitly limited the damages sought toan amount less than $5,000,000, we conclude this case does not fall intothe scope of Morgan but rather Samuel-Basseff."); Lomh v. SuntrustMortgage, lnc., 2009 U.S. Dist. LEXIS 12318, "14 (E.D. Pa. Feb. 17,2009). Instead, they have merely stated that "they reasonably believe theirindividual damages do not exceed $75,000.00."2 (Third Am. Gompl., 1[2.)Courts anal¡zing similar language have held that such unsupported,equivocal allegations regarding plaintiffs' subjective belief here,purportedly held universally by each of the thousands of Plaintiffs - areinsufficÍent to impose on defendants a burden of proving to a legalcertainty that a plaintiff could recover more than the jurisdictionalminÍmum. For instance, in Lorah, while the class representatives did
specifically and precisely expressly limit their individual damages tobelow $75,000, they do not state that the class damages are belowfive million dollars. Rather, they state, there is no CAFA jurisdiction. . . because it is not certain or likely that more than 100 personswill opt-in to the class or that the aggregate amount in dispute ínthis opt-in class will exceed the five million dollar requirement ofCAFA.' The Court finds that fhe wording of the Lorahs'classaction complaínt is suffíciently equivocal so as to make theinstant case subject to Samuel-Basseff standard rather than theMorgan standard.
2009 U.S. Dist. LEXIS 12318 at *13-14 (emphasis added, intemalcitationsomitted, ellipses in original) (citing Samuel-Basseff, 357 F.3d 392;Morgan, 471 F.3d 469). See a/so Sa/ce v. Fírst Student, /nc., 2009 U.S.Dist. LEXIS 94589, .5-6 (D.N.J. Oct. B, 2009) (statement that plaintiff"would likely accept a settlement offer at or below $75,000 irr support of
Case: 13-1725 Document: 003111202012 Page: 64 Date Filed: 03/20/2013
Notice of Removal by SGRGPaoe I
the argument that the amount in controversy will not exceed $75,000" d¡dnot permit application of Morgan).
* * * *
While Plaintiffs ask the Court to apply the higher standard of Morgan, theyseek to avoíd having the Court do so at the expense of their potentialrecovery. But Freder'co is intended to proscribe exactly that sort of doubledealing. Because Plaintiffs have not'specifically (and not impliedly) arrdprecisely (and not inferentially)" limited their recovery, but instead havemade vague, non-binding statements about their subjective beliefs of thevalue of their claims, lhe Morgan standard is inapplicable. lnstead, theSamuel-Basseff standard applies, and Defendants need only show by apreponderance of evidence that it is not a legal certainty that Plaíntiffs willrecover less than the jurisdictional minimums. See Frederico,507 F.3d at198 (to the extent that a dispute exists regarding the facts relevant tojurisdiction, a 'preponderance of the evidence standard [is] appropriate.Once the findings of fact have been made, the court may determinewhether [the] 'legal certainty' test for jurisdictíon has been met") (citingMcNutt v. General Motors Acceptance Corp. of lndíana, 298 U.S. 178(1e36)).
Here Plaintiffs have claimed exposure to both red dust and also to structural asbestos
completely unrelated to the Bayer Process. The complaint recites extensive damages
frcm two entirely independent sources - and punitive damages, alleging:
482. As a result of Defendant's conduct, plaintiffs suffered and continue tosuffer physical injuries, medical expenses, damage to their properties andpossessions, loss of income, loss of capacity to eam income, mentalanguish, pain and suffering and loss of enjoyment of life, a propensíty foradditional medical illness, and â reasonable fear of contracting illness inthe future, all of which are expected to continue Ínto the foreseeablefuture.
483. To this date, Defendant is continuing to expose plairrtiffs to red dust,bauxíte, asbestos and other particulates and hazardous substarrces,Defendants' conduct is also continuing to prevent plaintiffs from freelyenjoying their properties.
ln the Henry case(s) individuals sought relief for lesser alleged injuries over a far
smaller time period. However, as has been noted in the related cases:
Case: 13-1725 Document: 003111202012 Page: 65 Date Filed: 03/20/2013
Notice of Removal by SCRGPaqe 9
Plaintiffs'counsel represented to this Court during a telephonic conferenceon September 12,2008, that she expected to be able to recover $150,000not only for each class representative in Henry, but also for every Rule23(bX3) class member - that is to say, Plaintiffs. See Declaration ofBemârd C. Pattie, Esq., !f I ("Pattie Dec.")fl1, attached as Exhibit 1.Plaintiffs' counsel stated that this would be her demand even if all of herkey experts were struck (as they eventually were).
See e.g. Defendants' Response in Opposition to Plaintiffs'Third Motion to Remand at
D.E. 128, page lB. This was a discussion with the Court - definitely not a settlement
discussion between the parties.s Moreover, although the experts were later struck -plaintiff submitted averments as the statements of her clients containing amounts in
excess of $75,000 each - which are probative under the .Samue/-Easseff standard.
ln addition, in determining the amount in controversy, the Court must also
consider Ihe value of the right sought to be protected by the injunctive relief.' Byrd v.
Coresfafes Bank, N.4., 39 F.3d 61, 65 (3d Cir. 1994) as well as requests for punitive
damages. See Frederiæ,507 F.3d at 198-99 (citing Golden v. Golden,382 F.3d 348,
356 (3d Cir.2004)).
7 That Pattie Declarat'lon is incorporated by reference herein.
I ld. ar 12:
F-lhe statements were not made during 'settlement negotiations," butrather during a status conference with this Court. Second, courts haverepeatedly held that even statements made in the settlement context canbe used to establish the amount in controversy for jurisdiction purposes.See, e.9., McPhail v. Deere & Go., 528 F.3d 947, 956 (f Oth Cir. 2008) ("aplaintiffs proposed settlement amount is relevant evidence of the amountin controversy," and is admissible for that purpose under Fed. R. Evid.408); Nsing-Moore v. Red Roof lnns, \nc.,435 F.3d Bl3, 816 (7th Cir.2006) (same); Cohn v. Petsmart, \nc.,281 F.3d 837, 840 n.3 (9th Cir.20021("reject[ing] the argument that Fed. R. Evid. 408 prohibits the use ofsettlement offers in determining the amount in controversy").
Case: 13-1725 Document: 003111202012 Page: 67 Date Filed: 03/20/2013
Disricl Court Release - LIVE htþs://ecf.vid.uscotnb.gov/cgi-bir/Disparch.pl? I I 903 I 0 I 6409 l4
Notices1:12-cv-00011 Abraham, et al.. v. St. Croix Renaissance Group. L.L.L.P.
District Court of the Virgin Islands
District of the Virgin Islands
Notice of Electronic Filing
The following transaction was enterpd by Holt, Joel on 2HZ0l2 at 10:04 AM AST and frled onLl2l20l2Case Name: AbrahanL et al.. v. St. Croix R.enaissance Group, L.L.L.P.CaseNumber: 1:12-cv-00011
Filer: St. Croix Renaissance Group, L.L.L.P.Document Number: 1
Docket ïbxt:NOTICE OF REMOVAL by Defer¡dant St. Croix Renaissance Group, L.L.L.P. from SuperiorCourt of the Virgins lslands, case number ll - CV - 550. ( Filing fee $ 350) (Attachments: #(l) Exhibit A, # (2) Exhibit B, # (3) Exhibit C) (Holt, Joel)
1:12-cv-00011 Nofice has been electronically mailed to:
1:12-cv-00011 Notice will be delivered by other means to:
Eleanor Abraharn, et al..1101 King St.
Christiansted, VI 00820
The following document(s) are associated ì,\'ith this transaction:
Document description: Main DocumentOriginal filename:n/aElectronic document Stamp:
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htps:/iecf.vid.rscourts.gov/cgi-bin/Dispatch.pl? I 1903 I 0 16409 l,
Case: 13-1725 Document: 003111202012 Page: 70 Date Filed: 03/20/2013
EXHIBIT F
Joint Appendix - 88
Case: 13-1725 Document: 003111202012 Page: 71 Date Filed: 03/20/2013
UNITED DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX
Eleanor Abraham, et al., ) ) Plaintiffs, ) CIVIL NO. 12-cv-11 v. ) ) St. Croix Renaissance Group, LLLP, ) ACTION FOR DAMAGES ) Defendant. ) JURY TRIAL DEMANDED )
DEFENDANT ST. CROIX RENAISSANCE GROUP L.L.L.P.'S OPPOSITION TO PLAINTIFFS' MOTION FOR REMAND
I. Introduction
This case arises out of a complaint filed by over 500 Plaintiffs in the Superior
Court of the Virgin Islands, alleging both a multitude of exposures over 10 years to a
multitude of contaminants (allegedly emanating from SCRG’s site on St. Croix) and a
range of failures to warn and otherwise act. SCRG filed a removal notice under CAFA.1
The Plaintiffs have now moved to remand this case back to the Superior Court. In their
Motion for Remand [DE 36], Plaintiffs state on page 6:
Establishing CAFA jurisdiction over an alleged “mass action” is a two-part process. See 28 U.S.C. § 1332(d)(11). First, the case must meet the CAFA definition of a “mass action” under Section 1332(d)(11)(B). Second, a case satisfying the definition of “mass action” must then “meet the provisions ...” of paragraphs 1332(d)(2) through (10) in order for CAFA removal jurisdiction to attach.
The Plaintiffs argue that (1) the facts in this case do not satisfy the prima facie definition
of a “mass action” and (2) that even if they do, two of the provisions of §1332 (d)(2)
through (10) warrant remand in this case.
1 The Class Action Fairness Act of 2005, as those requirements were codified at 42 U.S.C. § 1332(d).
2 As discussed below, Plaintiffs incorrectly argue that they raise issues as to the CAFA "elements." This is not the case. They address CAFA "exceptions." Because of this, they also misstate the burden here, which is on the plaintiff where trying to assert that an exception exists, as will discussed herein. 3 On August 7, 2012, that complaint was withdrawn without leave [D.E. 21] and was re-filed with only minor revisions later that same day [D.E. 22]. Whichever complaint filed in this case that this Court reviews is irrelevant to the outcome of this motion.
Case: 13-1725 Document: 003111202012 Page: 73 Date Filed: 03/20/2013
Defendant notes that the USVI does not have a "mass tort" statute or rule4 -- and
in any case, regardless of what Plaintiffs call the action, SCRG believes that each
plaintiff must allege some actual damage. Thus, on August 6, 2012, defendant SCRG
filed a motion seeking a more definite statement. [DE 18 and 19].
At a conference call on Tuesday, October 23, 2012, the Court mentioned, and
everyone agreed that the first issue is that of the CAFA jurisdiction raised in the motion
to remand. Plaintiff then filed this motion for remand. Once jurisdiction is decided as a
result of this motion, Defendant asks that the Court grant the motion for more definite
statement -- requiring each plaintiff to allege at least some actual injury.5
III. ARGUMENT
The Plaintiffs raise three arguments to support their remand motion. As set forth
below, none of these three arguments support their remand request. One preliminary
comment is in order.
As will be discussed, all three of these arguments deal with CAFA “exceptions.”
While Plaintiffs are correct that generally jurisdictional and removal statutes must be
4 "Mass tort" is generally a term used in reference to specific statutes/rules or Rule 23 class actions -- its meaning in a non-mass action, non-class setting where there is no such statute or rule is unclear. Even when brought as a class action, other leading jurisdictions, absent particular statues or management rules, have refused to alter procedural or statute of limitations provisions simply because this label is employed. See e.g., Blanco v. AMVAC Chemical Corp., 2012 WL 3194412, 12 (Del.Super. 2012) (". . .the defendants have presented no compelling reasons for a ‘carve out’ of a special rule covering tolling in mass tort class actions.") (Emphasis added). 5 Finding this is a “mass action” may moot the motion to sever for all practical purposes. If, on the other hand, it is determined by this Court that it is not a CAFA "mass action" and the case is remanded, Defendant will seek to have its motion for severance [D.E. 16 and 17] decided after it can understand a bit more based on its motion for a more definite statement.
Case: 13-1725 Document: 003111202012 Page: 74 Date Filed: 03/20/2013
narrowly construed. However, CAFA's express, unique stated purpose is to "restore the
intent of the framers" by extending federal court jurisdiction over "interstate cases of
national importance under diversity jurisdiction." See CAFA, Pub. L. No. 109-2, S 2,
119 Stat. 4, 4-5 (2005).
Thus, once a defendant makes a prima facie showing of jurisdiction under CAFA,
the burden shifts to the plaintiff to demonstrate that some exception might apply. See
Kaufman v. Allstate New Jersey Ins. Co., 561 F.3d 144, 153 (3d Cir. 2009) (burden for
establishing applicability of exceptions to CAFA falls on party seeking remand.) This
burden shifting applies both to the local controversy exception and to the
exceptions to the mass action provision. See Lowery v. Honeywell lnt'l, Inc., 460
F.Supp.2d 1288, 1301 (N.D. Ala. 2006) (plaintiffs have burden of proof for local
controversy and mass action exceptions).
With this comment in mind, the Plaintiffs’ three arguments will now be addressed
in the order raised.
A. 28 U.S.C. §1332 (d)(11)(B) -- Plaintiffs argue a lack of jurisdiction under CAFA based on the fact that all of the "the claims at issue in this suit all arise from one location"
Oddly, Plaintiffs' first point deals with §1332(d)(11)(B) -- a section fully addressed
in Defendant's Notice of Removal. Plaintiffs erroneously contend CAFA jurisdiction
does not exist because:
Plaintiffs who reside or have resided in St. Croix seek damages for personal injuries and/or property damage due to improper maintenance, storage and containment of, and/or failure to remove, toxic substances at a single location, the alumina refinery on St. Croix. . . .[and]. . .Moreover, unlike the claims in Mobley, the claims at issue in this suit all arise from one location. (Emphasis added.)
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Plaintiffs' Remand Motion [DE 36] at 8-9. Plaintiffs then (correctly) states on page 9 that
under the applicable provisions, CAFA:
expressly excludes from the statutory definition of a ‘mass action’ any civil case in which ‘all of the claims in the action arise from an event or occurrence in the State in which the action was filed, and that allegedly resulted in injuries in that State or in States contiguous to that State[.]’Mobley, 2010 U.S. Dist. LEXIS 524, at *9, *10 citing 28 U.S.C. § 1332(d)(11)(B)(ii)(I). (Emphasis added.)
Notice the switch. Plaintiffs first state that the claims here "all arise from one
location." However, the language of 1332(d)(11)(B)(ii)(1) does not mention claims from
a "single location," but rather:
(ii) As used in subparagraph (A), the term “mass action” shall not include any civil action in which—
(I) all of the claims in the action arise from an event or occurrence in the State in which the action was filed, and that allegedly resulted in injuries in that State or in States contiguous to that State. (Emphasis added.)
Because CAFA refers to "one event," not "one location," this subsection is a CAFA
"exception" (not an element of CAFA) commonly referred to by courts as the "single
occurrence exception."6
Plaintiffs' error comes from their incorrect interpretation of the requirement in the
statutory language that the claims must "arise from an event or occurrence in the State"
by (incorrectly) assuming this is somehow, automatically, the case if multiple events
happen at the same location -- even if the occurrences are over a long period and arise
from multiple causes. As set forth in the Notice of Removal [DE 1] at 5, facts asserted
6 Because this is a CAFA exception, the burden here lies with Plaintiffs, as noted.
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by Plaintiffs in their Complaint make it clear on the face of the document that there were
multiple events and occurrences over many years:
this is not a single event or occurrence such as the Court noted was the case in Abednego v. Alcoa, lnc., 2011 Westlaw 941569 (D.V.l. March 17, 2011).
The law on this is well-settled and is reflected both in the cited Abednego decision and
in many other decisions.
This exception requires that to avoid removal there had to have been just "an
event or occurrence" -- a "single" event or occurrence. In Abednego, this Court
explicitly noted this, analyzing the identical point and finding that there was only a single
occurrence: the single event was Hurricane Georges. As the District Court for the
Southern District of Florida also stated in this regard:
The statute states the claims must arise from ‘an event or occurrence,’ and Defendants point to the use of the singular in both the article and nouns in that phrase. Because the facts alleged involve numerous sales to numerous parties over a period of approximately one and one-half years, the single occurrence exception is inapplicable. [Emphasis added.]
Galstadi v. Sunvest Communities USA LLC, 256 F.R.D. 673, 676 (S.D. Fla. 2009). Put
in plainer terms, “[t]he statute is fairly clear: the exception applies to ‘an event or
occurrence’ in the singular.” Id. at 677. See also Aburto v. Midland Credit Management,
Inc., 2009 WL 2252518, 4 (N.D.Tex. 2009) (". . .this case does not fall within the
exception to a mass action. The language of the statute references ‘an event or
occurrence,’ both terms being singular. Plaintiffs' Third Petition, as well as their briefing,
clearly recites factual allegations involving more than a singular event or occurrence.")
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Plaintiffs’ allegations in the Amended Complaint cover, at a minimum, a varied
series of events ranging over more than a decade. They also allege damages from
different types of events: from red mud waste going to the ground and then being
transported to a completely different, non-process substance (structural asbestos) that
was allegedly released directly through the air during a permitted, supervised building
demolition years after the industrial processes ceased -- a totally separate source and
incident (undertaken at a different time by different parties and done by different sub-
contractors.).
Moreover, in the complaint, Plaintiffs seek recovery not only for damages
allegedly directly caused by material blown and otherwise transported from the site, but
also, for instance, for SCRG’s totally separate, allegedly negligent failure to warn.
Indeed, plaintiffs make significantly different claims based on whether they were
property owners or renters, near the site or far away, on-island for post-2002 hurricanes
or not, warned or not -- as well as being 'exposed' at very different times over a
decade.7 In any event, all are separate occurrences.8 Moreover, it would be even more
of a stretch to argue that the claims based on Plaintiffs’ alleged ongoing exposures arise
7 Moreover, although the substance of the claims need not be addressed at this stage, a detailed radiological and materials U.S. EPA study done in mid-2012, following concerns raised at neighborhood meetings, has shown that the materials tested by the agency from the cisterns in the nearby area do not match the chemical 'fingerprints' of the red mud from the site. This adds another variable and many additional alleged occurrences from other sources. 8 All of this also leaves out the most glaring point -- one explicitly stated in Plaintiff's own motion: There are actually tens or hundreds of pre-2002 occurrences under prior owners that are also the subject of Plaintiffs' counsel's variety of litigation regarding this site. This Court pointed to Hurricane Georges, but in other cases before the Court some of these plaintiffs (and certainly their counsel) allege other acts from prior to that as well as from 1998 to 2002 by Alcoa.
Case: 13-1725 Document: 003111202012 Page: 78 Date Filed: 03/20/2013
from the same event or occurrence as the claims relating to various post-2002
hurricanes that happened years ago.
Thus, as shown above, courts that have analyzed the statute have concluded
that, on allegations analogous to those here, the exception does not apply.
B. §1332(d)(11)(A)
At page 11 of their Motion to Remand [DE 36], Plaintiffs state "Defendants have
not shown that the provisions of 28 U.S.C.§1332 (d)(2)-(10) have been met or otherwise
do not apply, as required by 28 U.S.C. §1332 (d)(11)(A)." However, as noted, the
burden is on the Plaintiffs to demonstrate any exceptions.9 The actual elements of the
prima facie showing under CAFA, such as the number of claimants and amounts in
controversy were delineated in detail in the Notice of Removal -- and each one was
addressed in detail. They have not been challenged in the motion for remand. Thus,
not being contested by the Plaintiffs, who carry the burden here, are conceded. 10
9 Again, Plaintiffs misstate this burden in their memorandum. As noted in Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 571 (5th Cir. 2011):
This court has held that the party objecting to CAFA jurisdiction must prove that the CAFA exceptions to federal jurisdiction divests the district court of subject matter jurisdiction. [T]he Insurance Companies bore the burden of proof as to each element of the ‘local controversy’ and ‘home state’ mandatory abstention provisions of CAFA. (Citations Omitted)
10 Regarding the other sections of 28 U.S.C.§1332 (d)(2)-(10) not contested by the Plaintiff, they clearly do not support remand. Section 2 has been addressed. Section 3 requires a local defendant, which has been pled and will be addressed further in this memorandum. Section 4 is not applicable on its face, as re-addressed here. Section 5 clearly does not apply. Section 6 was pled in detail. Section 7 applies to the citizenship of plaintiffs on specific dates which defendant cannot determine from the amended complaint -- and is not at issue here. Section 8 (involving class certification) applies only to true class action and is not applicable to CAFA. Sections 9 and 10 were also pled in detail in the removal notice.
Case: 13-1725 Document: 003111202012 Page: 79 Date Filed: 03/20/2013
Plaintiffs then go on address the two particular subsections that they believe
require the Court to deny jurisdiction and remand this case. The two subsections the
Plaintiffs raise are:
1. More than 2/3’s of the Plaintiffs are citizens of the Virgin Islands and all seek significant relief from Defendant.11 2. All of Plaintiffs’ injuries were incurred in the U.S. Virgin Islands as the result of the Defendant’s conduct in the Virgin Islands.12
Each of these two contested subsections will be addressed separately, as neither bars
SCRG’s assertion of jurisdiction under CAFA.
1. Under Section 1332(d)(4)(A) - "2/3rds" is Irrelevant if the Defendant is not a Citizen of the State in Which the Action was Filed
Plaintiffs failed to read all of subsection (d)(4)(A) -- stopping half of the way
through the language -- after which there is an "and," NOT an "or." That section
continues with an additional requirement they ignore. In both section A and section B,
there is an identical, additional requirement for the exception to apply -- that the
defendant be must a "citizen of the State" in which the action is filed. The full quote is:
11 Plaintiffs allege that Section 1332(d)(4)(A)(i)(I) requires the Court to decline jurisdiction because "more than two-thirds of the plaintiffs be citizens of the U.S. Virgin Islands. Of the 500 plus Plaintiffs in the case, more than 2/3 of them are citizens of St. Croix, U.S. Virgin Islands." 12 Plaintiffs allege Section1332(d)(4)(A)(i)(III) requires the Court to decline jurisdiction because the injuries to all have occurred in the same jurisdiction, which the pleadings satisfy in this case. In this case, as they allege that their damages were caused by the failure of SCRG to properly store and contain toxic substances at its facility in St. Croix, including bauxite, bauxite residue or red mud, asbestos, coal dust, and other particulates.
Case: 13-1725 Document: 003111202012 Page: 80 Date Filed: 03/20/2013
(4) A district court shall decline to exercise jurisdiction under paragraph (2) -- (A) (i) over a class action in which—
(I) greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed; (II) at least 1 defendant is a defendant—
(aa) from whom significant relief is sought by members of the plaintiff class; (bb) whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class; and (cc) who is a citizen of the State in which the action was originally filed; and
(III) principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed; and
(ii) during the 3-year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons; or
(B) two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed. (Emphasis added.)
As set forth in Defendant's removal papers [DE 1] at 5, SCRG properly pleaded this --
noting that it is not a citizen of the U.S. Virgin Islands where the action was originally
filed. Thus, this factor is not present here, as will be discussed herein, making the
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As discussed in SCRG's Notice of Removal [DE 1], for the purposes of CAFA,
"an unincorporated association shall be deemed to be a citizen of the State where it has
its principal place of business and the State under whose laws it is organized." 28
U.S.C. §1332(d)(10). SCRG is a citizen of (1) its state of organization (Delaware) and
(2) its "principal place of business" (Massachusetts) pursuant to the "nerve center" test
set forth in Hertz Corp. v. Friend, 130 S.Ct. 1181 (2010). The same averment was also
set forth by SCRG in its Answer to initial version of the Complaint. [DE 3].13
To understand this point more clearly, put another way, the correct
reading of 4(A) is:
(4)(A) A district court shall decline to exercise jurisdiction under paragraph (2) over a class action in which greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed; at least 1 defendant is a defendant. . .who is a citizen of the State in which the action was originally filed); and principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed. . . .(Emphasis added.)
13 It is black letter law that a defendant's citizenship for the purposes of jurisdiction is determined at the start of suit. Chadda v. Mullins, 430 Fed.Appx. 192, 194, 2011 WL 2259747, 1 (3d Cir. 2011) citing Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1 L.Ed.2d 1205 (1957); Grand Union Supermarkets of the V.I. v. H.E. Lockhart Mgmt., 316 F.3d 408, 410 (3d Cir. 2003). In this regard, in late April of 2010, SCRG began the shift of all of its nerve center functions (which had been in Boston originally) back to Boston in mid-May of 2010 -- when the local operating partner's employment was terminated and ended with the shift of its senior operating partner and decision-making, financial authority, accounting, etc. back to Boston in May of 2011, making it a citizen of Massachusetts at the time this complaint was initially filed in December of 2011. In fact, the main office building is closed, the main power is off -- all that is left at the site are a few people in a temporary area in the powerhouse. See Declaration of John Thomas, Exhibit B. Thus, these facts are similar to those found in Lewis v. Lycoming, 2012 WL 2422451, 5-6 (E.D.Pa. 2012).
Case: 13-1725 Document: 003111202012 Page: 82 Date Filed: 03/20/2013
Plaintiffs seek to insert the word "or" after the first clause and change the "and" at
the end to an "or" as well:
(4)(A) A district court shall decline to exercise jurisdiction under paragraph (2) over a class action in which greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed; OR at least 1 defendant is a defendant. . .who is a citizen of the State in which the action was originally filed. . . .[Wording added for effect.]
Thus, under the correct reading, the Court will decline jurisdiction only if all three
necessary facts are present: (1) 2/3rds of the plaintiffs are citizens of the state, (2)
the defendant is a citizen of the state, and (3) principal injuries resulting from the
alleged conduct or any related conduct of defendant were incurred in the State.
An excellent "overview" of this “Local Controversy Exception” (the section
raised by Plaintiffs) and the closely related “Home State Exception" to CAFA was
provided recently in Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 569-
570 (5th Cir. 2011). That court also discussed the fact that these are exceptions -
- not CAFA prima facie elements (and that the burden therefore lies with the
party asserting them -- here the plaintiffs) stating, in part, as follows:
“Local Controversy” and “Home State” Exceptions to CAFA
Indeed, the law is not complete without its exceptions. CAFA requires federal courts to decline jurisdiction over a proposed class action if either of the following narrow exceptions is proven by a preponderance of the evidence: (1) the local controversy exception, 28 U.S.C. § 1332(d)(4)(A); or (2) the home state exception, 28 U.S.C. § 1332(d)(4)(B). The CAFA mandatory abstention provisions are ‘designed to draw a delicate balance between making a federal forum available to genuinely national litigation and allowing the state courts to retain cases when the controversy is strongly linked to that state.’ Hart v. FedEx Ground Package Sys., Inc., 457 F.3d 675, 682 (7th Cir.2006).
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(1) “Local Controversy” Mandatory Abstention Pursuant to the ‘local controversy’ mandatory abstention provision of CAFA, the district court ‘shall decline to exercise jurisdiction’: [where each of the separate elements is met because] ‘Congress crafted CAFA to exclude only a narrow category of truly localized controversies, and the exceptions provide a statutory vehicle for the district courts to ferret out the controversy that uniquely affects a particular locality to the exclusion of all others.’ Preston II, 485 F.3d at 823 (citing Evans v. Walter Indus., Inc., 449 F.3d 1159 (11th Cir.2006)) (internal quotes omitted). (2) “Home State” Mandatory Abstention
(4) A district court shall decline to exercise jurisdiction under paragraph (2) [over a class action in which] —
(B) two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed. 28 U.S.C. § 1332(d)(4)(B).
In other words, the home state mandatory abstention provision prevents a federal district court from exercising subject matter jurisdiction when ‘two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed.’ 28 U.S.C. § 1332(d)(4)(B). (Emphasis added.)
Accord Williams v. Homeland Ins. Co. of N.Y., 657 F.3d 287, 291-292 (5th Cir. 2011)
("the local controversy exception requires a local defendant (a) from whom significant
relief is sought; and (b) whose alleged conduct forms a significant basis for the claims
asserted"); and Coleman v. Estes Exp. Lines, Inc., 631 F.3d 1010, 1015 (9th Cir. 2011)
("The first criterion is whether ‘significant relief is sought’ from a defendant who is a
citizen of the state in which the suit is filed.").
In short, the exception in Section 1332(d)(4)(A)(a)(I) is not met as the Defendant,
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2. The "principal injuries clause" 1332(d)(4)(A)(i)(III) is also just part of the extended section -- and also requires a Defendant that is a local citizen
In exactly the same manner, Plaintiffs attempt to read 1332(d)(4)(A)(i)(III) as
though it creates some sort of exception by itself, independent of the rest of the full
content of the statute. They suggest that jurisdiction should be declined if just "principal
injuries resulting from the alleged conduct or any related conduct of defendant were
incurred in the State." Again, as above, the correct reading is that this is just one of the
elements of (d)(4)(A).
(4)(A) A district court shall decline to exercise jurisdiction under paragraph (2) over a class action in which greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed; at least 1 defendant is a defendant. . .; AND who is a citizen of the State in which the action was originally filed); and principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed. . . .
Thus, again, the exception in Section 1332(d)(4)(A)(i)(III) is also not met since
SCRG is not a citizen of the Virgin Islands.
IV. Conclusion
The Plaintiffs (1) misunderstood §1332 (d)(11)(B) to include claims based on
multiple occurrences in "one location," and misread §1332(d)(4)(A) to require that
jurisdiction must be declined for mass actions whenever (2) 2/3rds of the plaintiffs are
citizens of a state, or (3) the principal injuries occurred in a state -- even if the defendant
is a citizen of another state. Plaintiffs were also mistaken as to the burden when CAFA
exceptions are raised -- which is theirs. As that burden has not been met, the remand
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Dated: October 29, 2012 /s/ Joel H. Holt, Esq. Counsel for Defendant SCRG Law Offices of Joel H. Holt 2132 Company Street, Suite 2 Christiansted, St. Croix U.S. Virgin Islands 00820 Telephone: (340) 773-8709 Email: [email protected] Dated: October 29, 2012 /s/ Carl J. Hartmann III, Esq. Counsel for Defendant SCRG 5000 Estate Coakley Bay, L-6 Christiansted, St. Croix U.S. Virgin Islands 00820 Telephone: (340) 719-8941 Email: [email protected]
CERTIFICATE OF SERVICE I hereby certify that on this 29th day of October, 2012, I filed the foregoing with the Clerk of the Court, and delivered by ECF to the following: Lee J. Rohn, Esq. Law Office of Rohn and Carpenter, LLC 1101 King St. Christiansted, VI 00820 Counsel for the Plaintiffs /s/ Joel H. Holt
Plaintiffs must meet several requirements for CAFA jurisdiction, such as a $5,000,000
aggregate amount in controversy and minimal diversity -- and must not fall within
certa¡n, delineated exceptions.l
"Congress's goalfl in enacting CAFA [was] to place more [statutor¡ly delineated]
actions in federal court by lifting barriers to their removal (which would result in most
published CAFA cases being heard in a removal posture)." Cappuccitti at 611 F.3d
1255.
' ln general jurisdictional statutes must be narrowly construed. However CAFA'sexpress, unique stated purpose is to "restore the intent of the framers" by extendingfederal court jurisdiction over "interstate cases of national importance under diversityjurisdiction." See CAFA, Pub. L. No. 109-2, S 2, 119 Stat.4,4-5 (2005). Gongressintended lhe exceptions to GAFA to be narrowly construed, "with all doubtsresolved 'in favor of exercising jurisdiction over the case."' Evans v. Walter Indus.,Inc., 449 F.3d 1 I 59, 1 I 63 (1 lth Cir. 2006) (emphasis added) (quoting S. Rep. 1Og-1 4, at.42 (2005), as reprinted in 2005 U.S.C.C.A.N. 3, 40). Once a defendant makes a primafacle showing of jurisdiction under CAFA, the burden shifts to the plaintiff todemonstrate that some exception might apply. See Kaufman v. Allstate New JerseyIns. Co., 561 F.3d 144, 153 (3d Cir. 2OO9) ("Kaufman f') (burden for establishingapplicability of exceptions to CAFA falls on party seeking remand). This burden shiftingapplies both to the local controversy exception and to the exceptions to the mass actionprovision. See Lowery v. Honeywell lnt'\, |nc.,460 F. Supp. 2d 1288, 1301 (N.D. Ala.2006) (plaintiffs have burden of proof for local controversy and mass action exceptions).
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ll. Applicable Law
The CAFA prov¡sions of section 1332 provide:
d(1 f ) (A) For purposes of this subsection and section 1 453, a massaction shall be deemed lo be a class action removable under paragraphs(2) through (10) if it otherwise meets the provisions of those paragraphs.
(B) (i) As used in subparagraph (A), the term "mass act¡on'means any civil action (except a civil action within the scope of section1711(2)) in which monetary relief claims of 100 or more persons areproposed to be tried jointly on the ground that the plaintiffs' cla¡ms ¡nvolvecommon questions of law or fact, except that jurisdiction shall exist onlyover those plaintiffs whose claims in a mass action satisfy the jurisdictionalamount requirements under subsection (a).
(ii) As used in subparagraph (A), the term "mass action"shall not include any civil action in which-
(l) all of the claims in the action ar¡se from an event oloccurrence in the State in which the action was filed, and that allegedlyresulted in injuries in that State or in States contiguous to that State;
(ll) the claims are jo¡ned upon motion of a defendant;
(lll) all of the claims in the action are asserted onbehalf of the general public (and not on behalf of individual claimants ormembers of a purported class) pursuant to a State statute specificallyauthorizing such action; or
(lV) the claims have been consolidated or coordinatedsolely for pretrial proceedings.
****
(D) The limitations per¡ods on any claims asserted in a mass actionthat is removed to Federal court pursuant to this subsection shall bedeemed tolled during the period that the action is pending in Federal court.
(e) The word "States", as used in this section, includes the Territories, theDistrict of Columbia, and the Commonwealth of Puerto Rico.
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ll l. Argument
A. The Elements of CAFA are Met
This action meets the requ¡rements set forth in the statute in that, with regard to
the causes herein2:
A. "monetary rel¡ef claims" are being made by
B. "100 or more persons" and are
C. "proposed to be tried jointly''
D. "on the ground that the plaintiffs' claims involve common questions oflaw or fact" and
E. the "plaintiffs. . .claims. . .satisfy the jurisdictional amount requ¡rementsunder subsection (a) in that each claim has a value that exceeds$75,000.'
F. not "all of the claims in the action ar¡se from an event or occunence3 irtthe State in which the action was filed, and that allegedly resulted in
' SCRG notes that:
(ll) the claims are [not] joined upon motion of a defendant;
(lll) all of the claims in the action are [not] asserted on behalf of thegeneral public (and not on behalf of individual claimants or members of apurported class) pursuant to a State statute specifically authorizing suchact¡on: or
(lV) the claims have [not] been consol¡dated or coordinated solely forpretrial proceedings.
and that:
(l) to cases [have not been] certified pursuant to rule 23 of the FederalRules of Civil Procedure: or
(ll) if plaintiffs [do not] propose that the action proceed as a class act¡onpursuant to rule 23 of the Federal Rules of Civil Procedure.
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injuries in that State orun Sfafes contiguous to that State" as (1) this is nota single event or occurrence such as the Court noted was the case inAbednego v. Alcoa lnc., 2011 Westlaw 941569 (D.V.l. March 17,201lxemphasis added), and in any case, (2) many of the plaintiffs arenow in other jurisdictions where the injuries are allegedly occurring.
D. For the purposes of CAFA, "an un¡ncorporated association shall bedeemed to be a citizen of the State where it has its principal place ofbusiness and the State under whose laws it is organized." 28 U.S.C.(dX10). SCRG is a citizen of (1) its state of incorporation (Delaware) and(2) its "principal place of business," which is Massachusetts - pursuant tothe "nerve center" test set forth in HerLz Corp. v. Friend, 130 S.Ct. 1181(2010). Plaintiffs are domiciled in the U.S. Virgin lslands, non-contiguousstates and other countries.
B. Related Disputes Shed Light on the lndividual Amounts in Gontroversy
Plaintiffs counsel and various of the plaintiffs have been involved in other,
longstanding litigation of intimately related claims involving many of the same plaintiffs
going back as far as 1999. See e.g. Henry v. St. CroÌx Alumina, LLC,2OO0 U.S. Dist.
LEXIS 13102, *B (D.V.l. Aug. 7, 2000) (along with subsequent related actions "Hen(').
During that per¡od var¡ous combinations of plaintiffs' counsel and hundreds of persons
3 One series of the plaintiffs' claims stems from "red mud" which was left on the propertyby alumina refining operators of the Site prior to SCRG's ownership. Another, series ofclaims relates to another, totally unrelated, source and circumstances -- those claimsarise from (non-red mud) asbestos which was only coincidentally present ¡n thestructure/construction of the plant facility. Such asbestos was not a byproduct of the"Bayer Process" used in the refining of bauxite ore into alumina, and had nothing to dowith the industrial disposal of a waste byproduct.
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(and experts) have made numerous representat¡ons and claims about the facts* -- and
amounts -- at issue.
ln Abednego v. St. Cro¡x Alumina LLC et al., Civ. No. 1:10-cv-00009, plaintiff
could not dispute the $5,000,000 collective amounts, but did contest the $75,000 per
plaintiff amount.6 See e.g. Defendants' Response in Opposition to Plaintiffs' Third
Motion to Remand, at D.E. 128, page7. As noted in that Opposition at 7-10:
ln Frederico v. Home Depot,507 F.3d 188 (3d Cir. 2007), the Third Circuitunified several lines of cases to clarify the test for determining whether thejurísdictional amount is satisfied. The Third Circuit recognized that thereare two types of cases, to which different standards apply. ln the first,"where the plaintiff s complaint specifically (and not impliedly) andprecisely (and not inferentially) states that the amount sought in a classaction diversity complaint" will not exceed the jurisdictional minimum, "'theparty wishing to establish subject matter jurisdiction has the burden toprove by a legal certainty that the amount in controversy exceeds thestatutory threshold."' /d. at 196 (quoting Morgan v. Gay, 471 F.3d 469,471
" For example, in the Abednego case (1:10-cv-00009 at D.E. 126), when it wasconvenient to do so, plaintiffs alleged the direct opposite of what is alleged here:
When they sold the site to SCRG, Alcoa and SCA left behind bauxite, redmud, asbestos, coal dust, and other part¡culates and concealed fromSGRG and Plaintiffs the true nature of the toxic materials. Doc. No. 12-3, atl[ 2924-2926:111-2, at Jffl 2083-87, 2091-94.
u ln any case, this would be less than $10,000 per plaintiff due to the more than 500plaintiffs here. ln Abednego the Court noted that "This lawsuit meets many of thecriteria of a mass action. lt contains claims by more than 100 persons whose claimsinvolve common questions of law and fact and whose claims in the aggregate exceed$5 million exclusive of interest and costs." See 28 U.S.C. S 1332(2). [1:10-cv-00009,D.E. 133 at 31.
6 Although Plaintiffs' complaint is extremely confus¡ng (persons listed in the caption arenot ¡n the body and vice versa) it appears that approximately B0% of the plaintiffs in theinstant case are plaintiffs in Abednego. ln tum, many of "the same individuals [plaintiffsin Abednegol sought essentially the same relief for essentially the same alleged injuriesin Henry. (See Third Am. Compl., fl 2108 ("Plaintiffs herein are former members of theoriginal class in Henry. . . ;"¡.) ld. a|11.
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(3d Cir. 2006)). This is commonly referred to as the Morgan standard. lnthe second type of case, where the plaintiff has nof disclaimedrecovery above the jurisdicfional m¡n¡mum, jurisdiction exists unless"it appears to a legal certainty that the plaintiff cannot recover thejurisdictional amounf ." Raspa v. Home Depot,533 F. Supp. 2d 514, 522(D.N.J. 2007) (emphasis added) (citing Samuel- Basseff v. Kia MotorsAmerica, Inc.,357 F.3d 392 (3d Cir. 2004)). This is commonly referred toas the Sarnuel-Bassefú standard.
This case must be decided under the SamueÊBasseff standard. asPlaintiffs have not disclaimed recovery above the jurisdictional minimum orstipulated that they would not accept an award of damages in excess ofthat figure. See, e.9., Lohr v. United Fin. Cas. Co.,2009 U.S. Dist. LEXIS75388, -11 (W.D. Pa. Aug.25,2009) (citing Frederico,507 F.3d at 196-97) ("Because Plaintiffs have not explicitly limited the damages sought toan amount less than $5,000,000, we conclude this case does not fall intothe scope of Morgan, but rather Samuel-8assett."); Lorah v. SuntrustMorlgage, Inc.,2OO9 U.S. Dist. LEXIS 12318, .14 (E.D. Pa. Feb. 17,2009). lnstead, they have merely stated that'they reasonably believe theirindividual damages do not exceed $75,000.00."2 (Third Am. Compl., fl 2.)Courts analyzing similar language have held that such unsupported,equivocal allegations regarding plaintiffs' subject¡ve belief - here,purportedly held universally by each of the thousands of Plaintiffs - areinsufficient to impose on defendants a burden of proving to a legalcertainty that a plaintiff could recover more than the jurisdictionalminimum. For instance, in Lorah, while the class representatives did
specif¡cally and precisely expressly limit their individual damages tobelow $75,000, they do not state that the class damages are belowfive million dollars. Rather, they state, "there is no CAFA jurisdiction. . . because it is not certain or likely that more than 100 personswill opt-in to the class or that the aggregate amount in dispute inthis opt-in class will exceed the five million dollar requirement ofCAFA." The Court finds that the wording of the Lorahs' c/assaction complaint is suîfrciently equivocal so as to make theinstant case subject to Samue/-Basseff standard rather than theMorgan standard.
2009 U.S. Dist. LEXIS 12318 al "13-14 (emphasis added, internal citat¡onsomitted, ellipses in original) (citing Samuel-Basseff, 357 F.3d 392;Morgan,471 F.3d 469). See a/so Sa/ce v. First Studenf, /nc.,2009 U.S.Dist. LEXIS 94589, -5-6 (D.N.J. Oct. 8, 2009) (statement that plaintiff"would likely accept a settlement offer at or below $75,000 in support of
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the argument that the amount in controversy will not exceed $75,000' didnot permit appl¡cat¡on of Morgun).
* * * *
While Plaintiffs ask the Court to apply the higher standard of Morgan,lheyseek to avoid having the Court do so at the expense of their potent¡alrecovery. But Frederico is intended to proscribe exactly that sort of doubledealing. Because Plaintiffs have not "specifically (and not impliedly) andprecisely (and not inferentially)" limited their recovery, but instead havemade vague, non-binding statements about the¡r subjective beliefs of thevalue of their claims, the Morgan standard is inapplicable. lnstead, theSamue/-Basseff standard applies, and Defendants need only show by apreponderance of evidence that it is not a legal certainty that Plaintiffs willrecover less than the jurisdictional minimums. See Frederico, 507 F.3d at198 (to the extent that a dispute exists regarding the facts relevant tojurisdiction, a "preponderance of the evidence standard [is] appropriate.Once the findings of fact have been made, the court may determinewhether [the] 'legal certainty' test for jurisdiction has been met") (citingMcNutt v. General Motors Acceptance Corp. of lndiana,29B U.S. 178(r e36)).
Here Plaintiffs have claimed exposure to both red dust and also to structural asbestos
completely unrelated to the Bayer Process. The complaint recites extensive damages
from two entirely independent sources - and pun¡t¡ve damages, alleging:
482. As a result of Defendant's conduct, plaintiffs suffered and continue tosuffer physical injuries, medical expenses, damage to their properties andpossessions, loss of income, loss of capac¡ty to earn income, mentalanguish, pain and suffering and loss of enjoyment of life, a propensity foradditional medical illness, and â reasonable fear of contracting illness inthe future, all of which are expected to continue into the foreseeablefuture.
483. To this date, Defendant is continuing to expose plaintiffs to red dust,bauxite, asbestos and other part¡culates and hazardous substances,Defendants' conduct is also continuing to prevent plaintiffs from freelyenjoying their properties.
ln the Henry case(s) individuals sought relief for lesser alleged injuries over a far
smaller time period. However, as has been noted in the related cases:
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Plaintiffs' counsel represented to this Court dur¡ng a telephonic conferenceon September 12, 2008, that she expected to be able to recover $150,000not only for each class representative in Henry, bul also for every Rule23(bX3) class member - that is to say, Plaintiffs. See Declaration ofBernard C. Pattie, Esq., tl B ("Pattie Dec.")[7], attached as Exhibit',.Plaintiffs' counsel stated that this would be her demand even if all of herkey experts were struck (as they eventually were).
See e.g. Defendants' Response in Opposition to Plaintiffs' Third Motion to Remand at
D.E. 128, page 18. This was a discussion with the Court - definitely not a settlement
discussion between the parties.s Moreover, although the experts were later struck --
plaintiff submitted averments as the statements of her clients containing amounts in
excess of $75,000 each - which are probat¡ve under the Samue/-Basseúf standard.
ln addition, in determining the amount in controversy, the Court must also
consider'the value of the right sought to be protected by the injunctive relief." Byrd v.
Coresfafes Bank, N.A.,39 F.3d 61, 65 (3d Cir. 1994) as well as requests for punitive
damages. See Frederico,507 F.3d at 198-99 (citing Golden v. Golden,382 F.3d 348,
356 (3d Cir. 2004)).
' That Pattie Declaration is incorporated by reference herein.
I td. at 12
[]he statements were not made during "settlement negot¡ations," butrather during a status conference with this Court. Second, courts haverepeatedly held that even statements made in the settlement context canbe used to establish the amount in controversy for jurisdiction purposes.See, e.9., McPhail v. Deere & Co., 528 F.3d 947, 956 (lOth Cir. 2008) ("aplaintiffls proposed settlement amount is relevant evidence of the amountin controversy," and is adm¡ss¡ble for that purpose under Fed. R. Evid.408): Rising-Moore v. Red Roof lnns, Inc., 435 F.3d 813, 816 (7th Cir.2006) (same); Cohn v. Petsmart, lnc., 281 F.3d 837, 840 n.3 (9th Cir.2002) ("reject[ing] the argument that Fed. R. Evid. 408 prohibits the use ofsettlement offers in determining the amount in controversy'').
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Finally, it should be noted that Plaintiffs' counsel and many of the plaintiffs
themselves are now well-educated regarding the concept that plaintiffs are "masters of
their own complaint." The $75,000 amount could have been summarily pled, but was
not. This was clearly intentional -- because plaintiffs seek, and do not wish to be limited
to a lesser amount than $75,000. While understandable, this cf¡olce results in the
applicat¡on of the Samuel-Bassett standard. Thus, Defendants have the right to rely the
plaintiffs calculated decision not to plead the $75,000 amount, the prior statements of
plaintiffs through counsel and the asserted calculations of plaintiffs'own experts.
A copy of this Notice wilf be filed with the Clerk of the Superior Court after filing
with this Court.
Dated: February2,2A12
Christiansted, VI 00820Telephone: (340) 7 7 3-87 OgEmail: [email protected]
CERTIFICATE OF SERVICE
I hereby cert¡fy that on tn¡s z/day of February, 2012, I ltledthe foregoing with theClerk of the Court, and hand-delivered said filing to the following:
Lee J. Rohn, Esq.Law Office of Rohn and Carpenter, LLC1101 King St.Christiansted, Vl 00820Counsel for the Plaintiffs
sel for Defendanf SCRGOffice of Joel H. Holt. P.C.
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DISTRICT COURT OF THE VIRGIN ISLANDSDIVISION OF ST. CROIX
Eleanor Abraham, et al., ))
Plaintiffs, ) CIVIL NO. 12-cv-11v. )
)St. Croix Renaissance Group, LLLP, ) ACTION FOR DAMAGES
)Defendant. ) JURY TRIAL DEMANDED
)
DECLARATION OF JOHN THOMAS
I, John Thomas, declare, pursuant to 28 U.S.C. Section 1746, as follows:
1. I am an adult resident of the State of Massachusetts and am personally knowledgeable about each fact set forth in this affidavit.
2. Defendant SCRG is a Delaware LLLP, and has been since its formation.
3. I am the President and managing partner of one of the partners of Defendant SCRG, Brownfields Recovery (BR), which is, like the majority partners in SCRG,located in Boston, Massachusetts. I am the SCRG partner who has managed the overall direction of the redevelopment of the SCRG asset, with the title of Vice-President. Between October 2005 and May of 2011, I was also a direct employee of SCRG.
4. Prior to the June, 2002 closing and the formation of SCRG for the purchase of the site of the former St. Croix Alumina refinery (SCA), overall strategy,negotiations, due diligence and decision-making for the eventual acquisition was conducted and managed out of the BR office in Boston.
5. After the site purchase, by 2003 there was an operating office and on-site management staff at the site on St. Croix. There were eventually some 45 employees on-site at SCRG in the USVI.
6. However, from 2004 on, SCRG became the target of various frivolous claims and then litigation, which significantly, negatively affected development efforts.
7. In April of 2010, BR and the other the controlling partners in SCRG were unable to effectuate a settlement in various USVI litigation involving ALCOA, the DPNR and others, that was so affecting SCRG.
8. Thus, in mid-May of 2010, SCRG began the shift of all of its nerve center functions (which had been in Boston originally) back to Boston.
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Abraham et al. v. St. Croix Renaissance Group, CIVIL NO. 550/11 Reply to Opposition to Motion to Remand Page 4 filed in different Texas state courts against [them] individually by different lawyers with
different law firms on behalf of [defendant collection agency] Midland." 2009 U.S. Dist.
LEXIS at *15. The Abednego Court found neither of those cases to be relevant.
What the Abednego Court did find persuasive was the case cited by Plaintiffs in that
matter and in this matter sub judice, Mobley v. Cerro Flow Products, in which the District
Court for the Southern District of Illinois found that plaintiffs' complaint for personal injuries
and property damages from improper disposal of toxic chemicals from three sites over
many decades was excepted from CAFA's definition of a "mass action" based on §
1332(d)(11)(B)(ii)(I). 2010 U.S. Dist. LEXIS 524, *8-*11 (S.D. Ill. Jan. 5, 2010); see also
Clayton v. Cerro Flow Prods, Inc., 2010 U.S. Dist. LEXIS 226 (S.D. Ill. Jan. 4, 2010). See
Plaintiffs’ Motion to Remand, p. 7. As explained in Plaintiffs’ moving motion, this matter is
strikingly similar to that of the Mobley matter and thus should be excepted from CAFA’s
definition of a “mass action”.
The similarities between the Abednego matter and this case dictates a similar
outcome as the Home State Exception clearly applies and remand is warranted.
III. THE LOCAL CONTROVERSY EXCEPTION
Plaintiffs’ contend that yet another exception applies, the Local Controversy
Exception. This jurisdictional requirement is separate from the "home state" exception
also established by CAFA. This exception allows a district court to decline jurisdiction if
greater than one-third and less than two-thirds of the plaintiffs are citizens of the state in
which the claim was filed and the primary defendants are citizens of that state. See 28
U.S.C. § 1332(d)(3). It also mandates that a district court must decline jurisdiction if more
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Abraham et al. v. St. Croix Renaissance Group, CIVIL NO. 550/11 Reply to Opposition to Motion to Remand Page 5 than two-thirds of plaintiffs are citizens of the state in which the claim was filed and the
primary defendants are citizens of that state. See 28 U.S.C. § 1332(d)(4). More than two-
thirds of Plaintiffs in this matter are citizens of the Virgin Islands. See Plaintiffs’ Motion to
Remand, p.11. Defendant SCRG concedes this point but rests its contention that the Local
Controversy Exception does not apply because of its allegation that at the time Plaintiffs’
filed their complaint, it was conveniently no longer a citizen of the Virgin Islands.
Defendant’s self serving affidavit of its principal John Thomas that conveniently
alleges that its “nerve center functions” were transferred to Boston, Massachusetts at the
time Plaintiffs’ filed their complaint cannot aid Defendant in its heavy burden of persuasion
that removal is proper in this case. There has been no discovery on this issue, no
documentary evidence (outside that of the self-serving affidavit) of this alleged transfer of
the “nerve center functions” and no depositions have been taken of the persons with
knowledge necessary to establish that the “nerve center functions” was no longer in the
Virgin Islands.
It is without dispute that the principle place Defendant conducts business is in the
Virgin Islands. In fact, Defendant was recently interviewed as to its plan to manufacture
and produce sufficient electricity to power St. Croix. Defendant SCRG’s own website has its
address and contact information as St. Croix and the phone numbers are local St. Croix
landlines. See Contact Us Webpage downloaded on November 15, 2012, Exhibit 2.
Further, SCRG was formed solely to acquire and develop the St. Croix Renaissance Park.
See About Us Webpage downloaded on November 15, 2012, Exhibit 3. Defendant SCRB
clearly has not proven that it was not a citizen of the Virgin Islands and therefore jurisdiction
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Abraham et al. v. St. Croix Renaissance Group, CIVIL NO. 550/11 Reply to Opposition to Motion to Remand Page 6 is doubtful and based on the courts mandate to strictly construe the requirements of
removal jurisdiction, remand is warranted. See Shamrock Oil & Gas Corp. v. Sheets, 313
U.S. 100,109 (1941).”
If the Court does not agree that this matter fits squarely in the Home State Exception
or the Local Controversy Exception based on Defendant’s self-serving affidavit, Plaintiffs
respectfully request the opportunity to conduct discovery on Defendant SCRG’s
convenient contention that its “nerve center functions” were not in the Virgin Islands at the
time Plaintiffs’ filed their complaint. Thereafter, the parties can more fully brief the issue of
whether Defendant was a citizen of the Virgin Islands at the time of the filing of the
complaint. Without this opportunity it is impossible for Plaintiffs’ to refute Defendant’s
contentions.
RESPECTFULLY SUBMITTED LEE J. ROHN AND ASSOCIATES, LLC Attorneys for Plaintiff(s)
DATED: November 16, 2012 BY: /s/ Lee J. Rohn
Lee J. Rohn, Esq. VI Bar No. 52 1101 King Street Christiansted, St. Croix U.S. Virgin Islands 00820 Telephone: (340) 778-8855 Fax: (340) 773-2954
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Abraham et al. v. St. Croix Renaissance Group, CIVIL NO. 550/11 Reply to Opposition to Motion to Remand Page 7
CERTIFICATE OF SERVICE
THIS IS TO CERTIFY that on November 16, 2012, I electronically filed the
foregoing with the Clerk of the court using the CM/ECF system, which will send a notification of such filing (NEF) to the following:
Carl J. Hartmann III, Esquire Law Office of Carl J. Hartmann III 5000 Estate Coakley Bay, L-6 Christiansted, VI 00820 Email Address: [email protected] Attorney For: SCRG Joel Holt, Esquire Law Offices of Joel Holt Quinn House 2132 Company Street, Suite 2 Christiansted, VI 00820 Email Address: [email protected] Attorney For: SCRG
THE DISTRICT COURT OF THE V]RGTN ISLANDSDIVISION OF ST. CROTX
LAURIE L.A ABEDNEGO, et al CIVTL ACT]ON
ALCOA, INC. / et al NO. 10-009
MEMORÀNDUM
Bartl_e , C. J. March 17, 2OIIsome 2t000 individuar praintiffs originarry filed t.heir
complaint in the superior court of the united states virginrsl-ands. Defendantsl subsequentry removed the action to thiscourt' on the ground that subject matt.er jurisdiction exists underthe "mass action" provisions of the Class Act,ion Fairness Act of2005 ("CAFA") See 2g u.s.c. s 1332 (d) ., pr_aintiffs have now
moved to remand.
IN
v.
The Third Amended Complaint
from the rel_ease of various hazard.ous
cont.ains claims arisingsubstances from an al_umina
Inc. , St. CroixLtd.), and Century
1. The defendants in this acti_on are Alcoa,Alumina, LLC, Glencore Ltd. (a/k/a ClarendonAlumina Company.
2- Pfaintiffs filed their initial_ motion to remand on March 30,20l-0 - The court had significant concerns reg-arding the accuracyof the rist of plaintiffs and whether counseÍ actuãttyrepresented all- of the plaintiffs. As a result, amenãedcomplaint.s rnrere subsequently filed. The initiar motion to remandwas denied without prejudice. on December 21, 2010, ptaintiffsfiled t.heir Third Amended complaint, which is t.he op"..li,r"pleading in this actj-on. on February B, 2oII, the court ord.eredthe parties to file briefs on the isãue of whether the court hassubject. matter jurisdiction. rn response, ptaintiffs renewed.their motion to remand.
refinery on st. croix as a resurt of Hurricane Georges in 1998.Plaintiffs al-lege that, as a resur-t of exposure to a variety ofparticulates and toxic substances, they have ,,suffered physicarinjuries, medicar expenses, d.amages to their properties andpossessions, loss of income, loss of capacity to earn income,mental- ang'uish, pain and sufferíng and ross of enjoyment of life,a propensity for additional medj-cal- ilrness, a reasonable fear ofcontracting- irtness in the future." They request bothcompensatory and punitive damages, as werr as an injunctionrequiring clean-up of these substances.
.AFA provi-des for subject matter jurisdiction overcertain c-rass actions where the amount. i_n controversy exceed.s $5mill-ion and where only minimar diversity of cit.izenship exists,that is where onry one prainLiff and one defend.ant are diverse.see 28 u's.c. s 1332(d') (2) - .AFA ar-so grants subject marterjurisdiction over a "mass action,, if minimar_ diversity exists andcertain other requirements are met. see 28 u.s.c.s 1332 (d) (11).
No federal questions are alleged in the Third Amendedcomplaint, and thus there is no subject mat.ter jurisdiction under28 u.s.c- s 1331. simitarry, this court racks jurisdiction under28 u.s-c. s 1332(a) because comprete diversity of citizenship isabsent. See , 546 U.S. gI, g9 (2005);see a.l_so , 519 U.S. 6I, 68 (1996) .
Defendants maintain, as noted above, t.hat this is amass action subject to removar-. A "mass action,, is defined as:
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any civil_ action (except a civil actionwithin the scope of section 17II(2) l2BU.S-C. S I7II(2)l) in which monetary reliefclaims of 100 or more persons are proposed tobe tried jointly on the ground that theplaintif f s' cl-aims involve conìmon questionsof l_aw or fact, except that jurisdictionshalI exist only over those plaintiffs whosecl_aims in a mass action satisfy t.hejurisdictional_ amount reguirements undersubsection (a).
28 u.s.c. s 1332 (d) (11) (B) (i) . This l-awsuir meets many of rhe
criteria of a mass action. rt contains claims by more than 100
persons whose c.l-aims involve common questions of law and fact and
whose craims in the aggreg,at.e exceed $5 mirtion exclusive ofinterest and costs. See 28 U.S.C. S 1332(2) . In addit.ion, theminimal diversity requj-rement j-s satisfied. While several of thepraintiffs as werl as the defendant Alcoa, rnc. are citizens ofNew York, most plaintiffs are citizens of the virgin rslands.
CAFAexcIudesfromt'hedefinitionofmassactionany
case in which "afl of t.he craims in t.he action arise from an
event or occurrence in t.he state in which the action \^ras filed,and that alJ-egedry resuJ-ted in injuries in that state or inStates cont j-guous to that. State. " 28 U. S. C.
S 1332 (d) (11) (B) (ii) (I) .3 A state for the purposes of this
3- This jurisdictional- requirement is separate from the "l_ocalcont.roversy" except.ion arso established by CAFA. This exceptional-lows a district court to decl-ine jurisdiction if greater thanone-third and l-ess than two-thirds of the plaintiffã are citizensof the state in which the claim was filed and the primarydefendants are citizens óf t¡rut state. See 28 U.S.C.s 1332 (d) (3) . rL also mandates that a district court mustdecline jurisdiction if more than two-t.hirds of plaintftfs arecitizens of the state in which the cl_aim \^ras filed and the
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statute includes a federar territory such as the virgin rs]ands.See 28 U.S.C. S 1332(e). Plaintiffs argue that the exclusionappÌies and that subject matter jurisdiction is therefore absent.
¡þ rf-t" parties asserting federal jurisdiction in a removal-
case, in this case the defendants, bear the burden of showingi
that the case is properly before the court. see Morgan v. Gay,
41I F.3d 469, 413 (3d Cir. 2006); Samuel-Bassett v. Kia Motors
courts should strictry construe the requirements of removal
jurisdiction and remand all- cases in which jurisdiction isdoubtful. See
rB10e (re|r) . î
Shamrock Oil ç Gas Corp. v. Sheets, 313 U. S. 100,
Defendants maintain that. the Third Amended compraint
does not farl within the excl-usion under s 1332 (d) (r1) (B) (ii) (r) .
rnstead, defendants assert that ptaintiffs' preading arreges a
series of ongoing hazardous rel-eases and neg]_igent actions,occurring over twenty years. Defendants point to the language ofthe exclusion which uses the words "event. or occurrencer,, in thesingular.
Defendants first rery on the decision of the unitedstates District court for the southern Distri_ct of Frorida inGarstal-di v. sunvest communities usA, LLC. 256 F.R.D. 6i3(2009) . rn Galstardi, the court found that. the fraudul_ent sale
3. (...continued)primary defendants are citizens of that stat.e. see 28 u.s.c.s 1332 (d) (4) .
rn cooper, 700,000 citizens of FJ_orida, who were formermembers of a decertified state class action, sued for variousill-nesses they arJ-eged resulted from their addiction tocigarettes. .The court found that "the injuries arleged byplaintiffs are not singil-e events or occurrences occurring solelyin Fforida or states contiguous to Frorida" without going intoany furt,her factual detait about the nature of the injuriessustained- 586 F. Supp. 2d at 1316.
rn Lafal-ier, 207 praintiffs arteged fraud by insurancecompanies in the buyout of their homes in the wake of damage froma tornado. Although the court decided that al_I of the eventsgiving rise to the case occurred i-n oklahoma, it herd thatvarious insurance companies made hundreds of individual_decisions, denials of coverage, and. red.uctions in payments over a
span of tíme constituting a "series of potentiarly relatedevents . " 2010 U. S. Dist. LEXIS at *Li .
Finalry, 154 plaintiffs in Aburto sought damages undervarious state statutes for unfair debt coll_ection practices.
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These plaintì-ffs had each been defendants in "separate l-awsuits
lwhich] were filed in different Texas state courts ag,ainst Ithem]individuarly by different lawyers with different raw fi-rms on
beharf of Idefendant cor]-ection agencyl Mid.l-and. ,' 2009 u. s.Dist. LEXIS at *15.
Plaintiffs, on the other hand, point t.o Mobrev v. cerroFrow Products, in which the District court for the southernDistrict of rll-inois found that praintiffsr compraint forpersonal injuries and property damages from improper disposal 0ftoxic chemica.rs from three sites over many decades was exceptedfrom CAFA's definition of a "mass action" based on
s 1332(d) (11) (B) (ii) (r). 2010 u.s. Disr. LEXrS 524, *B_*11 (S.¡.I11. Jan. 5,20L0); see afso Clayton v. Cerro Fl_ow prods, Inc.,2010 U.S. Dist. LEXIS 226 (S.D. IIt. Jan. 4, 2OI0).
rn our view, the plain meaning of CAFA's mass actionexception encompasses this action. The Third Amended complaintalleges the occurrence of a rel-ease of bauxite, red. mud, and
asbestos from an alumina refinery in st. croix as a result ofHurricane Georg'es on september 21, 199g. pl_aintiffs maintainthat defendants' negligence from improperly containing thesehazardous substances caused t.hem personar injuries and propertydamage- The rerease penetrated into the neighborhoods
surrounding the refinery on t.hat same isl_and. Ar1 injuriesalleged in the Third Amended Complaint resul-ted from personal andproperty exposure to hazardous substances released on St. croixas a resurt of that. one hurricane. Despite the fact that a
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number of the plaintiffs subseguently moved aü/ay from the Virginrsl-ands, their property damages and personal_ injurj-es r^rere
incurred when on St. Croix.
The Senate Judiciary Committ.ee Report on CAFA discusses
the provision which excl-udes from the definition of a mass actionthose cases in which "all of the claims in the action ari-se from
an event or occurrence in the state in which the action was
fired, and that allegedly resuJ-ted in injuries in that state orin states contiguous to that state". vüe find it persuasive. The
report states:
The purpose of this exception was to al_lowcases involving environmental_ torts such as achemical spill to remain in state court ifboth the event and the injuries were trulyl_ocal, even t.hough there are some out_of_state defendants. By contrast., thisexception would not apply to a prod.uctliability or insurance case. The sal_e of aproduct to different people does not qualifyas an event.
s. Rep. r09-r4, at 41 (2005), as reprinted in 2005 u.s.c.c.A.N.3, at 44. This exception from the contours of a mass action inGAFA was specifically designed to apply to circumstances such as
are pleaded in the plaintiffs' Third Amended complaint. Atlegedhere is a chemical release or spiJ_l precipitated by a hurricanethat struck st. croix. The injuries happened to persons and
property near the al-umina refinery from which the chemicals hrere
released. This is not a products }iability or an insurance case.Moreover, the cl-aims here are quite different from thecircumstances set forth in the cases cited bv thJ defendants.
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The plaintiffs' Third Amended compraint d.oes notqualify as a mass action under CAFA because all the cl-aims arisefrom a sinqJ-e event or occurrence, that is, a hurrÍcane, in thevirgin rslands, where the action \^ras originarry filed, and theallegedJ-y resuJ-ting injuries occurred in the virgin rsl_ands. see
28 U.S.C. S 1332 (d) (f 1) (B) (ii¡ 11¡ . Thus, we d.o nor need ro reachthe question whether the requisite amount in controversy has been
met for each plaintiff. See 28 U.S.C. S 1332(a) and
(d) (11) (B) (i) .
This action wirr be remanded to the superior court ofthe United States Virgin Islands.
St. Croix Renaissance Group LLLP ls a partnership of Brownfields Recovery Corporation, which is a division of Mugar
Enterpr¡ses, and Myron Allick, a successful businessman who is based in the U.S. Virg¡n lslands. The partners formed SCRG in
2001 to acquire and develop St. Croix Renaissance Park. Members of the SCRG management team have worked togethersuccessfully from more than 20 years on numerous real estate development projects and olher business ventures.
Copyrighto2oogSt CroixRena¡sanæGroupLLLPAllrightsreseryed. Home I TheProperty I Leasingopportunjfes I EconoricBenefìb j Tenants I Aboutus I ContadUs
Plaintiffs must meet several requirements for CAFA jurisdiction, such as a $5,000,000
aggregate amount in controversy and minimal diversity -- and must not fall within
certa¡n, delineated exceptions.l
"Congress's goalfl in enacting CAFA [was] to place more [statutor¡ly delineated]
actions in federal court by lifting barriers to their removal (which would result in most
published CAFA cases being heard in a removal posture)." Cappuccitti at 611 F.3d
1255.
' ln general jurisdictional statutes must be narrowly construed. However CAFA'sexpress, unique stated purpose is to "restore the intent of the framers" by extendingfederal court jurisdiction over "interstate cases of national importance under diversityjurisdiction." See CAFA, Pub. L. No. 109-2, S 2, 119 Stat.4,4-5 (2005). Gongressintended lhe exceptions to GAFA to be narrowly construed, "with all doubtsresolved 'in favor of exercising jurisdiction over the case."' Evans v. Walter Indus.,Inc., 449 F.3d 1 I 59, 1 I 63 (1 lth Cir. 2006) (emphasis added) (quoting S. Rep. 1Og-1 4, at.42 (2005), as reprinted in 2005 U.S.C.C.A.N. 3, 40). Once a defendant makes a primafacle showing of jurisdiction under CAFA, the burden shifts to the plaintiff todemonstrate that some exception might apply. See Kaufman v. Allstate New JerseyIns. Co., 561 F.3d 144, 153 (3d Cir. 2OO9) ("Kaufman f') (burden for establishingapplicability of exceptions to CAFA falls on party seeking remand). This burden shiftingapplies both to the local controversy exception and to the exceptions to the mass actionprovision. See Lowery v. Honeywell lnt'\, |nc.,460 F. Supp. 2d 1288, 1301 (N.D. Ala.2006) (plaintiffs have burden of proof for local controversy and mass action exceptions).
Joint Appendix - 137
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ll. Applicable Law
The CAFA prov¡sions of section 1332 provide:
d(1 f ) (A) For purposes of this subsection and section 1 453, a massaction shall be deemed lo be a class action removable under paragraphs(2) through (10) if it otherwise meets the provisions of those paragraphs.
(B) (i) As used in subparagraph (A), the term "mass act¡on'means any civil action (except a civil action within the scope of section1711(2)) in which monetary relief claims of 100 or more persons areproposed to be tried jointly on the ground that the plaintiffs' cla¡ms ¡nvolvecommon questions of law or fact, except that jurisdiction shall exist onlyover those plaintiffs whose claims in a mass action satisfy the jurisdictionalamount requirements under subsection (a).
(ii) As used in subparagraph (A), the term "mass action"shall not include any civil action in which-
(l) all of the claims in the action ar¡se from an event oloccurrence in the State in which the action was filed, and that allegedlyresulted in injuries in that State or in States contiguous to that State;
(ll) the claims are jo¡ned upon motion of a defendant;
(lll) all of the claims in the action are asserted onbehalf of the general public (and not on behalf of individual claimants ormembers of a purported class) pursuant to a State statute specificallyauthorizing such action; or
(lV) the claims have been consolidated or coordinatedsolely for pretrial proceedings.
****
(D) The limitations per¡ods on any claims asserted in a mass actionthat is removed to Federal court pursuant to this subsection shall bedeemed tolled during the period that the action is pending in Federal court.
(e) The word "States", as used in this section, includes the Territories, theDistrict of Columbia, and the Commonwealth of Puerto Rico.
Joint Appendix - 138
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ll l. Argument
A. The Elements of CAFA are Met
This action meets the requ¡rements set forth in the statute in that, with regard to
the causes herein2:
A. "monetary rel¡ef claims" are being made by
B. "100 or more persons" and are
C. "proposed to be tried jointly''
D. "on the ground that the plaintiffs' claims involve common questions oflaw or fact" and
E. the "plaintiffs. . .claims. . .satisfy the jurisdictional amount requ¡rementsunder subsection (a) in that each claim has a value that exceeds$75,000.'
F. not "all of the claims in the action ar¡se from an event or occunence3 irtthe State in which the action was filed, and that allegedly resulted in
' SCRG notes that:
(ll) the claims are [not] joined upon motion of a defendant;
(lll) all of the claims in the action are [not] asserted on behalf of thegeneral public (and not on behalf of individual claimants or members of apurported class) pursuant to a State statute specifically authorizing suchact¡on: or
(lV) the claims have [not] been consol¡dated or coordinated solely forpretrial proceedings.
and that:
(l) to cases [have not been] certified pursuant to rule 23 of the FederalRules of Civil Procedure: or
(ll) if plaintiffs [do not] propose that the action proceed as a class act¡onpursuant to rule 23 of the Federal Rules of Civil Procedure.
Joint Appendix - 139
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injuries in that State orun Sfafes contiguous to that State" as (1) this is nota single event or occurrence such as the Court noted was the case inAbednego v. Alcoa lnc., 2011 Westlaw 941569 (D.V.l. March 17,201lxemphasis added), and in any case, (2) many of the plaintiffs arenow in other jurisdictions where the injuries are allegedly occurring.
D. For the purposes of CAFA, "an un¡ncorporated association shall bedeemed to be a citizen of the State where it has its principal place ofbusiness and the State under whose laws it is organized." 28 U.S.C.(dX10). SCRG is a citizen of (1) its state of incorporation (Delaware) and(2) its "principal place of business," which is Massachusetts - pursuant tothe "nerve center" test set forth in HerLz Corp. v. Friend, 130 S.Ct. 1181(2010). Plaintiffs are domiciled in the U.S. Virgin lslands, non-contiguousstates and other countries.
B. Related Disputes Shed Light on the lndividual Amounts in Gontroversy
Plaintiffs counsel and various of the plaintiffs have been involved in other,
longstanding litigation of intimately related claims involving many of the same plaintiffs
going back as far as 1999. See e.g. Henry v. St. CroÌx Alumina, LLC,2OO0 U.S. Dist.
LEXIS 13102, *B (D.V.l. Aug. 7, 2000) (along with subsequent related actions "Hen(').
During that per¡od var¡ous combinations of plaintiffs' counsel and hundreds of persons
3 One series of the plaintiffs' claims stems from "red mud" which was left on the propertyby alumina refining operators of the Site prior to SCRG's ownership. Another, series ofclaims relates to another, totally unrelated, source and circumstances -- those claimsarise from (non-red mud) asbestos which was only coincidentally present ¡n thestructure/construction of the plant facility. Such asbestos was not a byproduct of the"Bayer Process" used in the refining of bauxite ore into alumina, and had nothing to dowith the industrial disposal of a waste byproduct.
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(and experts) have made numerous representat¡ons and claims about the facts* -- and
amounts -- at issue.
ln Abednego v. St. Cro¡x Alumina LLC et al., Civ. No. 1:10-cv-00009, plaintiff
could not dispute the $5,000,000 collective amounts, but did contest the $75,000 per
plaintiff amount.6 See e.g. Defendants' Response in Opposition to Plaintiffs' Third
Motion to Remand, at D.E. 128, page7. As noted in that Opposition at 7-10:
ln Frederico v. Home Depot,507 F.3d 188 (3d Cir. 2007), the Third Circuitunified several lines of cases to clarify the test for determining whether thejurísdictional amount is satisfied. The Third Circuit recognized that thereare two types of cases, to which different standards apply. ln the first,"where the plaintiff s complaint specifically (and not impliedly) andprecisely (and not inferentially) states that the amount sought in a classaction diversity complaint" will not exceed the jurisdictional minimum, "'theparty wishing to establish subject matter jurisdiction has the burden toprove by a legal certainty that the amount in controversy exceeds thestatutory threshold."' /d. at 196 (quoting Morgan v. Gay, 471 F.3d 469,471
" For example, in the Abednego case (1:10-cv-00009 at D.E. 126), when it wasconvenient to do so, plaintiffs alleged the direct opposite of what is alleged here:
When they sold the site to SCRG, Alcoa and SCA left behind bauxite, redmud, asbestos, coal dust, and other part¡culates and concealed fromSGRG and Plaintiffs the true nature of the toxic materials. Doc. No. 12-3, atl[ 2924-2926:111-2, at Jffl 2083-87, 2091-94.
u ln any case, this would be less than $10,000 per plaintiff due to the more than 500plaintiffs here. ln Abednego the Court noted that "This lawsuit meets many of thecriteria of a mass action. lt contains claims by more than 100 persons whose claimsinvolve common questions of law and fact and whose claims in the aggregate exceed$5 million exclusive of interest and costs." See 28 U.S.C. S 1332(2). [1:10-cv-00009,D.E. 133 at 31.
6 Although Plaintiffs' complaint is extremely confus¡ng (persons listed in the caption arenot ¡n the body and vice versa) it appears that approximately B0% of the plaintiffs in theinstant case are plaintiffs in Abednego. ln tum, many of "the same individuals [plaintiffsin Abednegol sought essentially the same relief for essentially the same alleged injuriesin Henry. (See Third Am. Compl., fl 2108 ("Plaintiffs herein are former members of theoriginal class in Henry. . . ;"¡.) ld. a|11.
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(3d Cir. 2006)). This is commonly referred to as the Morgan standard. lnthe second type of case, where the plaintiff has nof disclaimedrecovery above the jurisdicfional m¡n¡mum, jurisdiction exists unless"it appears to a legal certainty that the plaintiff cannot recover thejurisdictional amounf ." Raspa v. Home Depot,533 F. Supp. 2d 514, 522(D.N.J. 2007) (emphasis added) (citing Samuel- Basseff v. Kia MotorsAmerica, Inc.,357 F.3d 392 (3d Cir. 2004)). This is commonly referred toas the Sarnuel-Bassefú standard.
This case must be decided under the SamueÊBasseff standard. asPlaintiffs have not disclaimed recovery above the jurisdictional minimum orstipulated that they would not accept an award of damages in excess ofthat figure. See, e.9., Lohr v. United Fin. Cas. Co.,2009 U.S. Dist. LEXIS75388, -11 (W.D. Pa. Aug.25,2009) (citing Frederico,507 F.3d at 196-97) ("Because Plaintiffs have not explicitly limited the damages sought toan amount less than $5,000,000, we conclude this case does not fall intothe scope of Morgan, but rather Samuel-8assett."); Lorah v. SuntrustMorlgage, Inc.,2OO9 U.S. Dist. LEXIS 12318, .14 (E.D. Pa. Feb. 17,2009). lnstead, they have merely stated that'they reasonably believe theirindividual damages do not exceed $75,000.00."2 (Third Am. Compl., fl 2.)Courts analyzing similar language have held that such unsupported,equivocal allegations regarding plaintiffs' subject¡ve belief - here,purportedly held universally by each of the thousands of Plaintiffs - areinsufficient to impose on defendants a burden of proving to a legalcertainty that a plaintiff could recover more than the jurisdictionalminimum. For instance, in Lorah, while the class representatives did
specif¡cally and precisely expressly limit their individual damages tobelow $75,000, they do not state that the class damages are belowfive million dollars. Rather, they state, "there is no CAFA jurisdiction. . . because it is not certain or likely that more than 100 personswill opt-in to the class or that the aggregate amount in dispute inthis opt-in class will exceed the five million dollar requirement ofCAFA." The Court finds that the wording of the Lorahs' c/assaction complaint is suîfrciently equivocal so as to make theinstant case subject to Samue/-Basseff standard rather than theMorgan standard.
2009 U.S. Dist. LEXIS 12318 al "13-14 (emphasis added, internal citat¡onsomitted, ellipses in original) (citing Samuel-Basseff, 357 F.3d 392;Morgan,471 F.3d 469). See a/so Sa/ce v. First Studenf, /nc.,2009 U.S.Dist. LEXIS 94589, -5-6 (D.N.J. Oct. 8, 2009) (statement that plaintiff"would likely accept a settlement offer at or below $75,000 in support of
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the argument that the amount in controversy will not exceed $75,000' didnot permit appl¡cat¡on of Morgun).
* * * *
While Plaintiffs ask the Court to apply the higher standard of Morgan,lheyseek to avoid having the Court do so at the expense of their potent¡alrecovery. But Frederico is intended to proscribe exactly that sort of doubledealing. Because Plaintiffs have not "specifically (and not impliedly) andprecisely (and not inferentially)" limited their recovery, but instead havemade vague, non-binding statements about the¡r subjective beliefs of thevalue of their claims, the Morgan standard is inapplicable. lnstead, theSamue/-Basseff standard applies, and Defendants need only show by apreponderance of evidence that it is not a legal certainty that Plaintiffs willrecover less than the jurisdictional minimums. See Frederico, 507 F.3d at198 (to the extent that a dispute exists regarding the facts relevant tojurisdiction, a "preponderance of the evidence standard [is] appropriate.Once the findings of fact have been made, the court may determinewhether [the] 'legal certainty' test for jurisdiction has been met") (citingMcNutt v. General Motors Acceptance Corp. of lndiana,29B U.S. 178(r e36)).
Here Plaintiffs have claimed exposure to both red dust and also to structural asbestos
completely unrelated to the Bayer Process. The complaint recites extensive damages
from two entirely independent sources - and pun¡t¡ve damages, alleging:
482. As a result of Defendant's conduct, plaintiffs suffered and continue tosuffer physical injuries, medical expenses, damage to their properties andpossessions, loss of income, loss of capac¡ty to earn income, mentalanguish, pain and suffering and loss of enjoyment of life, a propensity foradditional medical illness, and â reasonable fear of contracting illness inthe future, all of which are expected to continue into the foreseeablefuture.
483. To this date, Defendant is continuing to expose plaintiffs to red dust,bauxite, asbestos and other part¡culates and hazardous substances,Defendants' conduct is also continuing to prevent plaintiffs from freelyenjoying their properties.
ln the Henry case(s) individuals sought relief for lesser alleged injuries over a far
smaller time period. However, as has been noted in the related cases:
Joint Appendix - 143
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Notice of Removal by SCRGÞa¡a Õ
Plaintiffs' counsel represented to this Court dur¡ng a telephonic conferenceon September 12, 2008, that she expected to be able to recover $150,000not only for each class representative in Henry, bul also for every Rule23(bX3) class member - that is to say, Plaintiffs. See Declaration ofBernard C. Pattie, Esq., tl B ("Pattie Dec.")[7], attached as Exhibit',.Plaintiffs' counsel stated that this would be her demand even if all of herkey experts were struck (as they eventually were).
See e.g. Defendants' Response in Opposition to Plaintiffs' Third Motion to Remand at
D.E. 128, page 18. This was a discussion with the Court - definitely not a settlement
discussion between the parties.s Moreover, although the experts were later struck --
plaintiff submitted averments as the statements of her clients containing amounts in
excess of $75,000 each - which are probat¡ve under the Samue/-Basseúf standard.
ln addition, in determining the amount in controversy, the Court must also
consider'the value of the right sought to be protected by the injunctive relief." Byrd v.
Coresfafes Bank, N.A.,39 F.3d 61, 65 (3d Cir. 1994) as well as requests for punitive
damages. See Frederico,507 F.3d at 198-99 (citing Golden v. Golden,382 F.3d 348,
356 (3d Cir. 2004)).
' That Pattie Declaration is incorporated by reference herein.
I td. at 12
[]he statements were not made during "settlement negot¡ations," butrather during a status conference with this Court. Second, courts haverepeatedly held that even statements made in the settlement context canbe used to establish the amount in controversy for jurisdiction purposes.See, e.9., McPhail v. Deere & Co., 528 F.3d 947, 956 (lOth Cir. 2008) ("aplaintiffls proposed settlement amount is relevant evidence of the amountin controversy," and is adm¡ss¡ble for that purpose under Fed. R. Evid.408): Rising-Moore v. Red Roof lnns, Inc., 435 F.3d 813, 816 (7th Cir.2006) (same); Cohn v. Petsmart, lnc., 281 F.3d 837, 840 n.3 (9th Cir.2002) ("reject[ing] the argument that Fed. R. Evid. 408 prohibits the use ofsettlement offers in determining the amount in controversy'').
Joint Appendix - 144
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Notice of Removal by SCRGPaoe I 0
Finally, it should be noted that Plaintiffs' counsel and many of the plaintiffs
themselves are now well-educated regarding the concept that plaintiffs are "masters of
their own complaint." The $75,000 amount could have been summarily pled, but was
not. This was clearly intentional -- because plaintiffs seek, and do not wish to be limited
to a lesser amount than $75,000. While understandable, this cf¡olce results in the
applicat¡on of the Samuel-Bassett standard. Thus, Defendants have the right to rely the
plaintiffs calculated decision not to plead the $75,000 amount, the prior statements of
plaintiffs through counsel and the asserted calculations of plaintiffs'own experts.
A copy of this Notice wilf be filed with the Clerk of the Superior Court after filing
with this Court.
Dated: February2,2A12
Christiansted, VI 00820Telephone: (340) 7 7 3-87 OgEmail: [email protected]
CERTIFICATE OF SERVICE
I hereby cert¡fy that on tn¡s z/day of February, 2012, I ltledthe foregoing with theClerk of the Court, and hand-delivered said filing to the following:
Lee J. Rohn, Esq.Law Office of Rohn and Carpenter, LLC1101 King St.Christiansted, Vl 00820Counsel for the Plaintiffs
sel for Defendanf SCRGOffice of Joel H. Holt. P.C.
Joint Appendix - 145
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EXHIBIT I
Joint Appendix - 146
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From the District Court of the Virgin Islands (D.C. No. 12-cv-0011)
District Judge: Hon. Harvey J. Bartle III
PETITIONER'S MOTION TO STRIKE OR IN THE ALTERNATIVE FOR LEAVE TO FILE A CROSS-ANSWER IN OPPOSITION
REGARDING RESPONDENTS DE FACTO CROSS-PETITION FOR REVIEW OF A CAFA REMAND ORDER
PURSUANT TO 28 U.S.C § 1453(c)(1)
Joel H. Holt, Esq. Counsel for Petitioner-Defendant SCRG Law Offices of Joel H. Holt 2132 Company Street, Suite 2 Christiansted, St. Croix U.S. Virgin Islands 00820
Carl J. Hartmann III, Esq. Counsel for Petitioner-Defendant SCRG Carl J. Hartmann III, Attorney-at-Law 5000 Estate Coakley Bay, L-6 Christiansted, St. Croix U.S. Virgin Islands 00820
December 27, 2012 __________________________________________________________________
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Joint Appendix - 149
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TABLE OF CONTENTS
TABLE OF CONTENTS..........................................................................................ii TABLE OF AUTHORITIES...................................................................................iii INTRODUCTION.....................................................................................................1
Instead of filing either an answer in opposition or a cross-petition, respondents filed an "Opposition" which contained not only answers in opposition, but also addressed matters beyond the petition -- in effect, a de facto cross-petition. Petitioner seeks to have the Court either:
(1) strike the matters not responsive to the petition, or
(2) grant leave to have this pleading docketed as petitioner's cross-answer in opposition to the de facto cross-petition.
1. Respondents' Cross-Petition Argument is Incorrect: This Court Does Not Lack Jurisdiction to Review the Remand Order...................................2 2. Respondents' Cross-Petition Argument is Incorrect: The Purposes of CAFA are Served By Granting Federal Jurisdiction -- as being a "Local Matter" was not the Sole Target of CAFA when it was Enacted.................................................................................................4
CONCLUSION ........................................................................................................9 CERTIFICATE OF COMPLIANCE WITH RULES 5 AND 32(c)(2)..……..........iv CERTIFICATE OF SERVICE………………………………………………..........v
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Joint Appendix - 150
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Case: 12-8114 Document: 003111118865 Page: 3 Date Filed: 12/27/2012
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INTRODUCTION
On December 13, 2012, St. Croix Renaissance Group, L.L.L.P. ("SCRG")
filed a petition seeking leave to appeal a CAFA remand order -- pursuant to 28
U.S.C. § 1453(c). Rule 5, Federal Rule of Appellate Procedure, allows
respondents to then submit "an answer in opposition or a cross-petition."
RULE 5. APPEAL BY PERMISSION * * * *
(b) CONTENTS OF THE PETITION; ANSWER OR CROSS-PETITION; ORAL ARGUMENT.
* * * * (2) A party may file an answer in opposition or a cross-petition within 10 days after the petition is served.
However, instead of filing either an answer in opposition or a cross-petition, on
December 21, 2012, respondents filed an "Opposition" which contained not only
answers in opposition, but also addressed matters beyond the petition.1 What they
filed was, in effect, a de facto cross-petition.
1 The portions of the opposition that were responsive to the petition were:
III. The District Court Correctly Determined that it Lacked Removal Jurisdiction Under the Plain Language of CAFA IV. The District Court Correctly Found That Petitioner's Continuous and Ongoing Release of Toxins Is an "Event or Occurrence" V. The District Court's Decision to Remand is Supported by the Record
The portions of the opposition that are in the nature of a cross-petition are:
I. This Court Lacks Jurisdiction to Review the Remand Order II. The Purposes of CAFA Are Not Served By Granting Federal Jurisdiction in this Local Matter VI. Alternatively, the "Local Controversy Exception" also applies and remand remains appropriate
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Thus, petitioner seeks to have the Court either (1) strike the matters not
responsive to the petition or (2) grant leave to have this pleading docketed as
petitioner's cross-answer in opposition to the de facto cross-petition.
ARGUMENT
Respondents incorrectly contend that (1) this Court lacks jurisdiction to
allow an appeal because "mass actions" are not "class actions" within the meaning
of 28 U.S.C. 1453(c), and (2) because respondents label this a "purely home state
controversy" such a classification should preclude this Court's discretionary
consideration as to the appeal of a CAFA "mass action" remand. They argue that
the "mass actions" provisions of CAFA have an additional, hidden requirement --
that even if there are multiple events, when cases are what respondents label
'purely home state controvers[ies]' they should not, through the invocation of this
Court's discretion, ever be removed or appealed.
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1. Respondents' Cross-Petition Argument is Incorrect: This Court Does Not Lack Jurisdiction to Review the Remand Order Respondents argue at length that this Court lacks jurisdiction. Respondents'
Opposition ("Opposition") at 1-2 and 4-5. Based on their reading of the language
of 28 U.S.C. § 1332(d)(1) respondents contend that pursuant to the wording of 28
U.S.C. § 1453(c) "mass actions" are not "class actions" and thus there is no right to
seek appeal:
The Petition for de novo review should be denied as this court lacks jurisdiction to review the remand order. Remand orders are not reviewable on appeal or otherwise. 28 U.S.C. § 1447(d). There is only one exception to this rule---remand orders concerning a “class action”. 28 U.S.C. § 1453(c). “Class Action” is statutorily defined. 28 U.S.C. § 1453(a); 28 U.S.C. § 1332(d)(1). The term “class action” is defined as “any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action.” 28 U.S.C. § 1332(d)(1). This case was not filed as a class action under rule 23 of Federal Rules of Civil Procedure or another similar state statute. (Emphasis in original.)
Id. at 1. However, despite the fact that "mass actions" are not listed as a type of
"class action" in 28 U.S.C. § 1332(d)(1), section 1453 specifically applies to mass
actions -- pursuant to 1332(d)(11)(A) which provides:
(A) For purposes of this subsection and section 1453, a mass action shall be deemed to be a class action removable under paragraphs (2) through (10) if it otherwise meets the provisions of those paragraphs. (Emphasis added.)
Therefore, the Court has the requisite jurisdiction to grant leave to file an appeal.
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2. Respondents' Cross-Petition Argument is Incorrect: The Purposes of CAFA are Served By Granting Federal Jurisdiction -- as being a "Local Matter" was not the Sole Target of CAFA when it was Enacted Because respondents label this a "purely home state controversy" based on
the subject matter of the dispute, they contend such a classification should preclude
this Court's discretionary consideration as to the appeal of a remand. They argue
that the "mass actions" provisions of CAFA are subject to an additional, hidden
requirement -- that even if there are multiple events, when cases are what
respondents label 'purely home state controvers[ies]' mass actions should not,
through the invocation of this Court's discretion, ever be removed or appealed.
To reach this conclusion, they quote the "findings and purposes"2 section of
28 U.S.C. § 1711 for the proposition that despite the inclusion of the phrase "an
event" in section (d)11(B)(ii)(I), the 'real purpose' of CAFA mass actions is to deal
solely with cases that are 'not purely home state controversies' based on their
subject matter -- however courts might interpret that phrasing.
[T]his case does not involve "interstate controversies of national importance" as the tortious conduct and resultant injuries all occurred in one place: St. Croix, thus, it is a local action and rightly belongs in the local court. See Kaufman v. Allstate N.J. Ins. Co., 561 F.3d 144, 154-55 (3d Cir. 2009). . . .Petitioner fails to establish why this purely home state controversy about toxic emissions from a local refinery injuring only Territorial or "local" property and persons should be decided by a federal court in order to serve the goal of CAFA to
2 What respondents cite to as the "note" to 28 U.S.C. § 1711 is the statutory "Findings and Purposes" section from the original enactment. Pub. L. No. 109-2, 119 Stat. 4, February 18, 2005.
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resolve "interstate controversies of national importance ...." Id. For this reason alone, Petitioner is not entitled to this Court's exercise of its discretion to hear its appeal, and the Petition for should be denied. (Emphasis added.)
Opposition at 6-7. However, this is another case of selectively reading only part of
the statute and its history.
Certainly one of the reasons that this mass action exception was created was
the desire to address subject matter of national interest in federal courts. But the
clear language of this exception makes it obvious that this is not the only type of
"controversy of national importance" about which Congress was concerned.
Congress did not create a bar against removal of ALL local subject matter actions,
only those extremely limited types of local actions specifically defined by the
exception's language limiting it to "an event."
Respondents concentrate on subject matter, and seek to give meaning ONLY
to that part of section (d)(11)(B)(ii)(I) discussing local acts within a state.
(d)(11)
(A) For purposes of this subsection and section 1453, a mass action shall be deemed to be a class action removable under paragraphs (2) through (10) if it otherwise meets the provisions of those paragraphs.
(B)
(i) As used in subparagraph (A), the term "mass action" means any civil action (except a civil action within the scope of section 1711(2)) in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs' claims involve common questions of law or fact, except that jurisdiction shall exist only over those plaintiffs
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whose claims in a mass action satisfy the jurisdictional amount requirements under subsection (a).
(ii) As used in subparagraph (A), the term "mass action" shall not include any civil action in which -
(I) all of the claims in the action arise from an event or occurrence in the State in which the action was filed, and that allegedly resulted in injuries in that State or in States contiguous to that State;. . . .(Emphasis added.)
But this ignores the first half of sub-paragraph (ii)(I), other of the "findings" from
when the statute was enacted and the other half of the legislative history.
The other half of those statutory findings makes it clear that in enacting this
provision, in addition to excepting some types of occurrences of local subject
matter (as argued by respondents) some in Congress included other statutory
language to demonstrate the intent to also reach a type of cases they felt were
endemic -- out-of-state defendants being hauled before local courts in what were
class actions in all but name. They made it clear that they thought these were
'controversies of national importance' as well. Thus, those other findings make it
clear why this 'local' exception was limited down to precluding just "an event"
from CAFA mass actions -- to protect such other important interests. Pub. L. No.
109-2, 119 Stat. 4 (February 18, 2005) provides:
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SEC. 2. FINDINGS AND PURPOSES.
(a) FINDINGS.—Congress finds the following:
* * * *
(4) Abuses in class actions undermine the national judicial system, the free flow of interstate commerce, and the concept of diversity jurisdiction as intended by the framers of the United States Constitution, in that State and local courts are—
(A) keeping cases of national importance out of Federal court;
(B) sometimes acting in ways that demonstrate bias against out-of-State defendants;. . . . (Emphasis added.)
Neither consideration (A) nor (B) is described as being more important than the
other. While keeping cases with subject matter of national interest in federal
courts was clearly one concern -- equally important were both "the concept of
diversity jurisdiction as intended by the framers of the United States Constitution"3
and avoiding bias against non-local defendants in these "mass actions" which, like
this case, are really just class actions avoiding removal to federal courts. To put
this another way, a case becomes a "case of national importance" not only because
3 This is why the diversity definition in 28 U.S.C. § 1332(d) altered normal diversity definitions.
(d)(10) For purposes of this subsection and section 1453, an unincorporated association shall be deemed to be a citizen of the State where it has its principal place of business and the State under whose laws it is organized.
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of the subject matter -- but also, sometimes, because of the citizenship of the
parties in relationship to the size of the case, the forums involved and the
considerations of fairness and diversity which attend it.
This additional purpose of CAFA mass actions provisions resulted in the
SEVERE restriction of this "exception" to instances where there was just "an
event." Again, petitioner directs the Court's attention to the explicit floor debate:
that the phrase "an event" should NOT be allowed to be expanded to encompass, as
Judge Bartle's decision would allow, continuous mass torts that do not actually
arise from an event.
The mass action section was specifically included to prevent plaintiffs' lawyers from making this end run. . . .Under the mass action provision, defendants will be able to remove these mass actions to Federal court under the same circumstances in which they will be able to remove class actions. However, a Federal court would only exercise jurisdiction over those claims meeting the $75,000 minimum threshold. To be clear, in order for a Federal court to take jurisdiction over a mass action, under this bill there must be more than 100 plaintiffs, minimal diversity must exist, and the total amount in controversy must exceed $5 million. In other words, the same safeguards that apply to removal of class actions would apply to mass actions. Mass actions cannot be removed to Federal court if they fall into one of four categories: One, if all the claims arise out of an event or occurrence that happened in the State where the action was filed and that resulted in injuries only in that State or contiguous States. . . .Some of my colleagues will oppose this mass actions provision and will want to gut it by making an effort to confuse mass actions with mass torts. I realize we are kind of getting into a legalese discussion, but words make a difference when you are considering a bill such as this. I am very concerned that the real motive is to render this provision meaningless. . . .
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Thus, this exception for local actions was intentionally and explicitly defined
down to exclude just case where there was 'an event' as a counter-balance --
because half of the proponents wanted to protect one thing and the other half
wanted to protect another. To give meaning to "local" but to avoid its limitation to
"an event" is to do exactly what Senator Lott warned would happen -- "gut" the
other side of the protection.
CONCLUSION
This Court has jurisdiction to consider the Petition. In addition, it should
not exercise its discretion to avoid interpreting the phrase "an event" based on
respondents' incorrect notion that the "mass actions" provision of CAFA have an
additional, hidden requirement -- that only cases that involve purely local subject
matter are of national importance, and can be removed or appealed.
ORAL ARGUMENT IS REQUESTED
Respectfully submitted,
Dated: December 27, 2012 /s/ Carl J. Hartmann III, Esq. Counsel for Petitioner-Defendant SCRG Carl J. Hartmann III, Attorney-at-Law 5000 Estate Coakley Bay, L-6 Christiansted, St. Croix, VI 00820
Joel H. Holt, Esq. Counsel for Petitioner-Defendant SCRG Law Offices of Joel H. Holt 2132 Company Street, Suite 2 Christiansted, St. Croix VI 00820
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CERTIFICATE OF COMPLIANCE
I, Carl J. Hartmann, Esquire, hereby certify that:
1. This Brief complies with type and volume limitation of Fed.R.App.P.
32(a)(7)(B), because:
This Brief is less than 20 pages exclusive of prefatory materials, signatures
and following materials as per Fed.R.App.P. 32(a)(7)(B)(III).
2. This Brief complies with the typeface requirements of Fed.R.App.P.
32(a)(5) and the type style requirements of Fed.R.App.P. 32 (a)(6) because: This
Petition has been prepared in a proportionately spaced typeface using MS Word,
and the font size is "14 point Times New Roman."
3. The Petition is being filed by ECF and has been scanned using Norton
Antivirus.
/s/ Carl J. Hartmann III, Esq. Attorney for Petitioner
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Joint Appendix - 161
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CERTIFICATE OF SERVICE A true and accurate copy of this Motion was filed by ECF and email to Plaintiffs' counsel on the 27th of December, 2012, at the email address below: Lee J. Rohn, Esquire Counsel for the Respondents-Plaintiffs LEE J. ROHN AND ASSOCIATES, LLC 1101 King Street Christiansted, St. Croix. U.S. Virgin Islands 00820 Email: [email protected] Telephone: (340) 778-8855 Fax: (340) 773-2954 /s/ Carl J. Hartmann III, Esq.
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EXHIBIT K
Joint Appendix - 163
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Petition from the District Court of the Virgin Islands
Division of St. Croix, Civil No. 12-CV-0011 District Judge: Hon. Harvey J. Bartle III
__________________________________________________________________ RESPONDENTS’ RESPONSE IN OPPOSITION TO MOTION TO STRIKE OR IN THE ALTERNATIVE FOR LEAVE TO FILE A CROSS-ANSWER
IN OPPOSITION REGARDING RESPONDENTS DE FACTO CROSS PETITION FOR REVIEW OF A CAFA REMAND ORDER PURSUANT TO
28 U.S.C § 1453(c)(1) __________________________________________________________________ LAW OFFICES OF LEE J. ROHN AND ASSOCIATES Lee J. Rohn 1101 King Street Christiansted, St. Croix U. S. Virgin Islands 00820-4933 (340) 778-8855 Telephone (340) 773-2954 Facsimile Attorneys for Respondents
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Petitioner has moved to strike Sections I, II and VI of Respondents’
Opposition to Petition for De Novo Review (Doc. No. 003111116226) or in the
alternative for permission to respond to those sections of Respondents’ Opposition
which Petitioner argues is a de facto cross-petition by Respondents. Petitioner
contends that Sections I, II and VI of Respondents’ Opposition are cross-petitions.
Respondents respectfully maintain that this Court lacks jurisdiction to
review the remand order by permission or otherwise. Respondents will concede
that if this Court determines that it has jurisdiction to entertain the Petition, Section
VI of Respondents’ Opposition is a cross-petition to which Petitioner is allowed to
respond. However, Petitioner’s contentions with regard to Sections I and II are
baseless. First, Section I of Respondents’ Opposition concerns solely the issue of
whether this court may review the remand order. This is a jurisdictional
question. It is fundamental, that jurisdiction to entertain an appeal is the first
question a Court must resolve. Petitioner specifically raised the issue of
jurisdiction in its Petition. (See Doc. No. 003111108126, pg. 1 “Statement of
Jurisdiction”.) Respondents disagree with Petitioner’s jurisdictional statement and
have dedicated Section I of their brief to that issue.
Second, Section II of Respondents’ Opposition directly addresses the first
issue of CAFA raised by Petitioner in its Petition. (See Doc. No. 003111108126,
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Joint Appendix - 165
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pg. 6 “The Questions Presented”.) Petitioner’s first issue deals with CAFA and
“mass actions”. Respondents Section II is directly responsive to that issue.
Respondents respectfully request, if this Court agrees with Respondents, that the
Court disregard Section II of Petitioner’s Motion to Strike as extra briefing not
permitted.
CONCLUSION
Respondents respectfully maintain that this Court lacks jurisdiction to
review the remand order by permission or otherwise as these orders are non
reviewable. There is only one exception---remand orders concerning “class
actions”. This matter does not meet the statutory definition of “class action”. It
was not filed as a class action pursuant to any rule of civil procedure or state
statute.
If this Court determines that it has jurisdiction, then it is Respondents
position that only Section VI of its Opposition to Petition for De Novo Review
contains arguments that are a cross-petition and to which Petitioner is allowed to
answer.
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RESPECTFULLY SUBMITTED, LEE J. ROHN AND ASSOCIATES LLC Attorneys for Plaintiff
DATED: January 10, 2013 BY: /s/ Lee J. Rohn Lee J. Rohn, Esq. VI Bar No. 52 1101 King Street Christiansted, St. Croix, U.S.V.I. 00820 Telephone: (340) 778-8855 Fax: (340) 773-2954
CERTIFICATE OF SERVICE
I, HEREBY CERTIFY that on this 10th day of January, 2013, , I electronically filed the foregoing with the Clerk of the court using the CM/ECF system, which will send a notification of such filing (NEF) to the following:
Carl J. Hartmann III, Esquire Law Office of Carl J. Hartmann III 5000 Estate Coakley Bay, L-6 Christiansted, VI 00820 Attorney For: SCRG
Joel Holt, Esquire Law Offices of Joel Holt Quinn House 2132 Company Street, Suite 2 Christiansted, VI 00820 Attorney For: SCRG BY: /s/ Lee J. Rohn
Lee J. Rohn, Esq. Attorney for Appellant VI Bar No. 52 1101 King Street Christiansted, St. Croix, U.S.V.I. 00820 Telephone: (340) 778-8855 Fax: (340) 773-2954
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EXHIBIT L
Joint Appendix - 168
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District Court of the Virgin IslandsDistrict of the Virgin Islands (St. Croix Division)CIVIL DOCKET FOR CASE #: 1:12−cv−00011−HB
Abraham, et al.. v. St. Croix Renaissance Group, L.L.L.P.Assigned to: US District Judge Harvey Bartle, IIIDemand: $75,000Case in other court: Eleanor Abraham, et al.. v. St. Croix
Renaissance, 11−cv−550Cause: 28:1391 Personal Injury
Date Filed: 02/02/2012Jury Demand: BothNature of Suit: 360 P.I.: OtherJurisdiction: Federal Question
Plaintiff
Eleanor Abraham, et al.. represented byLee J RohnLee J. Rohn and Associates1101 King Street, Suite 2St Croix, VI 00820−4933340−778−8855Fax: 340−773−2954Email: [email protected] TO BE NOTICED
V.
Defendant
St. Croix Renaissance Group, L.L.L.P. represented byJoel H. HoltLaw Offices of Joel Holt2132 Company Street Suite 2St Croix, VI 00820340−773−8709Fax: 340−773−8677Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED
Carl J Hartmann , III5000 Estate Coakley BayL−6Christiansted, VI 00820340−719−8941Fax: 212−202−3733Email: [email protected] TO BE NOTICED
Date Filed # Docket Text
12/14/2012 43 NOTICE Of Filing of Petition to Third Circuit pursuant to 28 U.S.C. 1453(c)(1) bySt. Croix Renaissance Group, L.L.L.P. (Attachments: # 1 Exhibit Petition, # 2Exhibit Docket Entry) (Hartmann, Carl) (Entered: 12/14/2012)
12/07/2012 Motions terminated: 26 MOTION for Extension of Time to File Response, 17Memorandum in Support to Motion, 18 MOTION for More Definite Statement, 16Motion to Sever, 19 Memorandum in Support to Motion filed by Eleanor Abraham,et al., 39 MOTION for Extension of Time to File Response 37 Opposition toMotion, 38 Reply to Opposition to Motion Nunc Pro Tunc filed by EleanorAbraham, et al., 24 MOTION for Extension of Time to File Response 16 MOTIONto Sever filed by Eleanor Abraham, et al., 23 MOTION for Extension of Time toFile Response, 18 MOTION for More Definite Statement filed by EleanorAbraham, et al., 25 MOTION and Memorandum to Deem Conceded Defendant'sMotions to Sever and for a More Definite Statement re 18 MOTION for MoreDefinite Statement, 16 MOTION to Sever filed by St. Croix Renaissance Group,L.L.L.P., 16 MOTION to Sever filed by St. Croix Renaissance Group, L.L.L.P., 18
Case: 1:12-cv-00011-HB As of: 03/08/2013 01:07 PM AST 1 of 4
Joint Appendix - 169
Case: 13-1725 Document: 003111202012 Page: 152 Date Filed: 03/20/2013
MOTION for More Definite Statement filed by St. Croix Renaissance Group,L.L.L.P., 33 MOTION to Continue Emergency Motion to Continue the October 23,2012 Telephone Conference to 4:30 p.m. filed by Eleanor Abraham, et al. (HB)dated 12/7/2012 (This is a TEXT ENTRY ONLY. There is no.pdf documentassociated with this entry.) (CB) (Entered: 12/07/2012)
12/07/2012 41 ORDER (HB) dated 12/7/2012 granting 36 Motion to Remand. (CB) (Entered:12/07/2012)
11/16/2012 40 REPLY to Motion for Extension of Time Nunc Pro Tunc filed by Defendant St.Croix Renaissance Group, L.L.L.P.. Responses due by 11/29/2012 (Holt, Joel)(Entered: 11/16/2012)
11/16/2012 39 MOTION for Extension of Time to File Response/Reply as to 37 Opposition toMotion, 38 Reply to Opposition to Motion Nunc Pro Tunc by Plaintiff EleanorAbraham, et al... (Attachments: # 1 Exhibit, # 2 Text of Proposed Order) (Rohn,Lee) (Entered: 11/16/2012)
11/16/2012 38 REPLY to Opposition to Motion re 37 Opposition to Motion filed by PlaintiffEleanor Abraham, et al... (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Rohn, Lee) (Entered: 11/16/2012)
10/29/2012 37 Opposition to Motion re 36 MOTION to Remand /Motion to Remand for Lack ofFederal Subject Matter Jurisdiction filed by Defendant St. Croix RenaissanceGroup, L.L.L.P.. (Attachments: # 1 Exhibit, # 2 Exhibit) (Holt, Joel) (Entered:10/29/2012)
10/24/2012 36 MOTION to Remand /Motion to Remand for Lack of Federal Subject MatterJurisdiction by Plaintiff Eleanor Abraham, et al... (Attachments: # 1 ExhibitExhibit 1, # 2 Text of Proposed Order Proposed Order) (Rohn, Lee) (Entered:10/24/2012)
10/24/2012 35 Minute Order. Proceedings held in chambers before US District Judge HarveyBartle, III: Telephone Conference held on 10/23/2012. (CB) (Entered: 10/24/2012)
10/24/2012 34 ORDER that Plantiffs shall file and serve their motion to remand by 10/30/2012;Defendant shall file an opposition by 11/5/2012; Plaintiff shall file any reply by11/15/2012. (HB) dated 10/24/2012 (CB) (Entered: 10/24/2012)
10/23/2012 33 MOTION to Continue /Emergency Motion to Continue the October 23, 2012Telephone Conference to 4:30 p.m. by Plaintiff Eleanor Abraham, et al...(Attachments: # 1 Proposed Order) (Rohn, Lee) (Entered: 10/23/2012)
10/12/2012 32 ORDER REASSIGNING CASE (CVG) this case is reassigned to Judge HarveyBartle, III, for all further proceedings. Judge Wilma A. Lewis is no longer assignedto this case. (This is a text entry only. There is no PDF document associated withthis entry.) (DHK) (Entered: 10/12/2012)
09/25/2012 31 REPLY to Opposition to Motion re 28 Opposition to Motion [TO SEVER] filed byDefendant St. Croix Renaissance Group, L.L.L.P.. (Holt, Joel) (Entered:09/25/2012)
09/25/2012 30 REPLY to Opposition to Motion re 29 Opposition to Motion [FOR A MOREDEFINITE STATEMENT] filed by Defendant St. Croix Renaissance Group,L.L.L.P.. (Holt, Joel) (Entered: 09/25/2012)
09/19/2012 29 Opposition to Motion re 18 MOTION for More Definite Statement filed byPlaintiff Eleanor Abraham, et al... (Attachments: # 1 Exhibit, # 2 Exhibit) (Rohn,Lee) (Entered: 09/19/2012)
09/19/2012 28 Opposition to Motion re 16 MOTION to Sever filed by Plaintiff Eleanor Abraham,et al... (Attachments: # 1 Exhibit) (Rohn, Lee) (Entered: 09/19/2012)
09/13/2012 27 Opposition to Motion re 26 MOTION for Extension of Time to FileResponse/Reply as to 17 Memorandum in Support to Motion, 18 MOTION forMore Definite Statement , 16 MOTION to Sever , 19 Memorandum in Support to
Case: 1:12-cv-00011-HB As of: 03/08/2013 01:07 PM AST 2 of 4
Joint Appendix - 170
Case: 13-1725 Document: 003111202012 Page: 153 Date Filed: 03/20/2013
Motion filed by Defendant St. Croix Renaissance Group, L.L.L.P.. (Hartmann,Carl) (Entered: 09/13/2012)
09/12/2012 26 MOTION for Extension of Time to File Response/Reply as to 17 Memorandum inSupport to Motion, 18 MOTION for More Definite Statement , 16 MOTION toSever , 19 Memorandum in Support to Motion by Plaintiff Eleanor Abraham, etal... Motions referred to Magistrate Judge George W Cannon. (Attachments: # 1Text of Proposed Order) (Rohn, Lee) (Entered: 09/12/2012)
09/12/2012 25 MOTION and Memorandum to Deem Conceded Defendant's Motions to Sever andfor a More Definite Statement re 18 MOTION for More Definite Statement , 16MOTION to Sever by Defendant St. Croix Renaissance Group, L.L.L.P.. Motionsreferred to Magistrate Judge George W Cannon. (Attachments: # 1 Text ofProposed Order) (Hartmann, Carl) (Entered: 09/12/2012)
08/21/2012 24 MOTION for Extension of Time to File Response/Reply as to 16 MOTION toSever by Plaintiff Eleanor Abraham, et al... Motions referred to Magistrate JudgeGeorge W Cannon. (Attachments: # 1 Text of Proposed Order) (Rohn, Lee)(Entered: 08/21/2012)
08/21/2012 23 MOTION for Extension of Time to File Response/Reply as to 18 MOTION forMore Definite Statement by Plaintiff Eleanor Abraham, et al... Motions referred toMagistrate Judge George W Cannon. (Attachments: # 1 Text of Proposed Order)(Rohn, Lee) (Entered: 08/21/2012)
08/07/2012 22 AMENDED COMPLAINT Plaintiffs' First Amended against All Plaintiffs filed byEleanor Abraham, et al... (Rohn, Lee) (Entered: 08/07/2012)
08/07/2012 21 NOTICE of Withdrawal of Plaintiffs' First Amended Complaint, Doc No 15 byEleanor Abraham, et al.. re 15 Amended Complaint (Rohn, Lee) (Entered:08/07/2012)
08/06/2012 NOTICE OF CORRECTED DOCKET ENTRYRe: 20 Reply to. Pleadingdocketed in wrong case. Should have been docketed in Civil No. 2011/0088. To becorrected by attorney's office. (NH) (Entered: 08/06/2012)
08/06/2012 20 REPLY to [REPLY MEMORANDUM IN SUPPORT OF AMENDED MOTIONFOR SUMMARY JUDGMENT] filed by Defendant St. Croix Renaissance Group,L.L.L.P.. Responses due by 8/20/2012 (Attachments: # 1 Exhibit A) (Holt, Joel)(Entered: 08/06/2012)
08/06/2012 19 MEMORANDUM in Support re 18 MOTION for More Definite Statement filed byDefendant St. Croix Renaissance Group, L.L.L.P.. (Attachments: # 1 Exhibit A, # 2Exhibit B, # 3 Exhibit C) (Holt, Joel) (Entered: 08/06/2012)
08/06/2012 18 MOTION for More Definite Statement by Defendant St. Croix Renaissance Group,L.L.L.P.. Motions referred to Magistrate Judge George W Cannon. (Holt, Joel)(Entered: 08/06/2012)
08/06/2012 17 MEMORANDUM in Support re 16 MOTION to Sever filed by Defendant St.Croix Renaissance Group, L.L.L.P.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, #3 Exhibit C) (Holt, Joel) (Entered: 08/06/2012)
08/06/2012 16 MOTION to Sever by Defendant St. Croix Renaissance Group, L.L.L.P.. (Holt,Joel) (Entered: 08/06/2012)
08/02/2012 15 AMENDED COMPLAINT against St. Croix Renaissance Group, L.L.L.P.filed byEleanor Abraham, et al... (Rohn, Lee) (Entered: 08/02/2012)
08/01/2012 14 ORDER (GWC) dated 8/1/2012 granting 5 Motion for Leave to File FirstAmended Complaint (KMD) (Entered: 08/01/2012)
05/01/2012 13 NOTICE of Response to Plaintiffs' 10 Motion for Extension of Time to File.(WAL) dated 5/1/2012. (GS) (Entered: 05/01/2012)
04/16/2012 12 REPLY to Opposition to Motion re 6 Notice (Other) [Motion for More DefiniteStatement and for Severence] filed by Defendant St. Croix Renaissance Group,L.L.L.P.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit B−1, # 4 ExhibitB−2, # 5 Exhibit B−3) (Holt, Joel) (Entered: 04/16/2012)
Case: 1:12-cv-00011-HB As of: 03/08/2013 01:07 PM AST 3 of 4
Joint Appendix - 171
Case: 13-1725 Document: 003111202012 Page: 154 Date Filed: 03/20/2013
04/16/2012 11 Opposition to Motion re 5 MOTION to Amend/Correct and leave to file FirstAmended Complaint filed by Defendant St. Croix Renaissance Group, L.L.L.P..(Holt, Joel) (Entered: 04/16/2012)
04/12/2012 10 MOTION for Extension of Time to File Plaintiffs' Third Motion to Remand forlack of Federal Subject Matter Jurisdiction by Plaintiff Eleanor Abraham, et al...Motions referred to Magistrate Judge George W Cannon. (Attachments: # 1Supplement, # 2 Exhibit, # 3 Text of Proposed Order) (Rohn, Lee) (Entered:04/12/2012)
03/26/2012 9 ORDER granting Stipulation 8 . Defendant shall have until April 16, 2012 to fileits responses to 5 and [6−1]. (GWC) dated 3/26/2012 (CB) (Entered: 03/26/2012)
03/19/2012 8 STIPULATION [FOR EXTENSION OF TIME] by St. Croix Renaissance Group,L.L.L.P.. (Attachments: # 1 Text of Proposed Order) (Holt, Joel) (Entered:03/19/2012)
03/15/2012 7 NOTICE of Appearance by Carl J Hartmann, III on behalf of Defendant St. CroixRenaissance Group, L.L.L.P. (Hartmann, Carl) (Entered: 03/15/2012)
03/15/2012 6 NOTICE of filing response to Def [doc 1, exh C] by Eleanor Abraham, et al.. re 1Notice of Removal (Attachments: # 1 Supplement Response to Def's [1, exh 3])(Rohn, Lee) (Entered: 03/15/2012)
03/15/2012 5 MOTION to Amend/Correct and leave to file First Amended Complaint byPlaintiff Eleanor Abraham, et al... Motions referred to Magistrate Judge George WCannon. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Rohn, Lee) (Entered:03/15/2012)
02/14/2012 4 NOTICE TO THE COURT by Eleanor Abraham, et al.. (Attachments: # 1 Exhibit1) (Rohn, Lee) (Entered: 02/14/2012)
02/03/2012 Filing fee: $ 350.00, receipt number 100002085 on 2/10/2012 (MB). (Entered:02/10/2012)
02/02/2012 3 ANSWER to Complaint by Defendant St. Croix Renaissance Group, L.L.L.P..(Holt, Joel) (Entered: 02/02/2012)
02/02/2012 2 NOTICE of Appearance by Joel H. Holt on behalf of Defendant St. CroixRenaissance Group, L.L.L.P. (Holt, Joel) (Entered: 02/02/2012)
02/02/2012 1 NOTICE OF REMOVAL by Defendant St. Croix Renaissance Group, L.L.L.P.from Superior Court of the Virgins Islands, case number 11 − CV − 550. ( Filingfee $ 350) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Holt, Joel)(Entered: 02/02/2012)
Case: 1:12-cv-00011-HB As of: 03/08/2013 01:07 PM AST 4 of 4
Joint Appendix - 172
Case: 13-1725 Document: 003111202012 Page: 155 Date Filed: 03/20/2013
